Occupational and Personal Pension Schemes (Amendment etc.) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Tyler

Tuesday 15th January 2019 Lords Chamber

[Lord Tyler (LD)]

I intended to intervene on the noble Lord, but I realised that it would be incredibly embarrassing if my name were to be attached to his speech, so I spared him the embarrassment. However, I shall quote him in a moment.

I was struck by a point made by my noble friend Lord Kirkwood of Kirkhope about the sheer quantity of secondary legislation coming through, and the great work that he and other members of those committees are doing. I am involved in a small way because I am on the Delegated Powers and Regulatory Reform Committee, which is involved at an early stage. My noble friend rightly made the point that the sheer quantity of SIs coming before your Lordships’ House is causing us real problems. I very much concur with what was said by the noble Lords, Lord Deben and Lord Warner, because we were together in the Grand Committee both last week and yesterday. A pattern seems to be developing. If I may illustrate it in this way, each time we come to one of these SIs—it is happening again today—the Minister says that this is contingency planning. It is fairly set out in the Explanatory Memorandum and very well explained that it will become applicable, relevant and of interest to Members of your Lordships’ House only if there is a no-deal outcome.

So all this is speculative; it is hypothetical. When I used to ask questions of the noble Lord, Lord Deben, in the other place, he would say to the House, “The question from Mr Tyler is hypothetical and I refuse to answer it”. That was perfectly reasonable. Now the Government are making a hypothetical statement: if there is no deal, this will be necessary. Most of the SIs coming before the committees of your Lordships’ House, let alone here in the Chamber, are hypothetical in that sense. This is a real problem—and, as the noble Lord, Lord Deben, said a few moments ago, it is becoming more of a problem every day.

In our vote yesterday, there was a huge majority against a no-deal outcome. The Prime Minister is increasingly saying that she is against a no-deal outcome—she even thinks it is more likely that there will be no Brexit. In those circumstances, the pressure on us all—and on the Government—to get consultation right, to get the impact statement right, to get the costs allocations right are becoming, in the words of the noble Lord, Lord Deben, more and more difficult and taking up more and more of the time of Ministers, their civil servants and your Lordships’ House. That means that we may be neglecting the “normal” SIs, if I may call them that, which are not related to a no-deal situation.

As we all know from the European Court of Justice judgment before Christmas, the only circumstances now in which a no-deal outcome, on which this SI is based, could happen would be as a result of a deliberate decision by the Government. It is not going to happen by accident. We were told in previous debates that there was a risk of an accidental no deal, but that is now impossible as a result of that judgment.

I will quote very speedily from the noble Lord, Lord Deben, who I hope will not be even more embarrassed than he was by being given my name. He said in Grand Committee last Wednesday that,

“I do not think this House is doing itself any good by conniving in what is manifestly a total nonsense … There is no no-deal scenario which does not mean chaos, so there is no point in having legislation which pretends that it will stop a no-deal scenario being chaos. That is inevitable, ineluctable and inextricable from the whole process”.—[Official Report, 9/1/19; col. GC203.]

We are back at that point. Here we are, inevitably finding that in a number of ways that have been well illustrated by other Members of your Lordships’ House, this SI may have serious problems. The Government are entitled to say, “We have no intention of going there. We do not want a no deal. We want the Government’s deal”. In that respect we are, unfortunately, jamming up and putting so much new work into your Lordships’ House at every level, which may be a complete waste of time. That will distract us from doing a good job on other SIs, and that is a very regrettable situation.

[Lord Adonis]

Does the noble Lord not agree that another theme that came out of the Grand Committee’s consideration of these statutory instruments was a more fundamental issue? The House of Commons debated and voted on no deal last Tuesday in one of the largest Divisions on Brexit since this whole process started two and a half years ago. It voted by a majority of seven against no deal and in favour of an amendment to the Finance (No.3) Bill, under which the disbursement of public funds in respect of no deal was conditional on the House of Commons having a specific vote on no deal, with it being clearly understood—because that amendment had been passed—that the House of Commons would not be favourable to it. So there is real concern among Members of your Lordships’ House about the legitimacy and validity of all this planning, given that in the one opportunity the House of Commons had to express its view, it expressed a firm view against there being no-deal planning.

[Lord Tyler]

In the interests of brevity, all I need to say is that I agree with the noble Lord—but this evening we may of course find that there is an additional expression of opinion by the other place. In that case, all this work may well turn out to be even more absurdly out of place.

Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Tyler

Monday 14th January 2019 Grand Committee

[Lord Adonis]

But it would make me very happy.

[Lord Tyler]

I am grateful to the Minister, who has been generous in his advice to the Grand Committee, but I have a specific question on the point he has just made. The implication of what he has just said is that his department is already preparing, in parallel, the secondary legislation that will be required if the Prime Minister’s deal does go through. Or is he saying that, if the Prime Minister’s preferred outcome does get the support of Parliament, there will be no necessity for any secondary legislation? This is a very important distinction. If it is necessary to introduce secondary legislation to implement the specific responsibilities of government under the deal that the Prime Minister now prefers, then your Lordships’ House—which is going to have to consider it in due course—should know. On the one hand, we have this set of proposals, which is speculative, but there is something that might conceivably be more advantageous, both for the Government’s business and for the proper consideration of secondary legislation by this House. Is a parallel exercise going on for what the Prime Minister herself says is her preferred and more likely outcome?

--- Later in debate ---

[Lord Tyler]

I wonder whether the noble Lord has been paying particular attention to Part 2 of the Explanatory Memorandum, which refers to a number of statements made by the then Minister of State for Universities, Science, Research and Innovation, Sam Gyimah. These statements are intended to reassure the Grand Committee and your Lordships’ House in precisely the sort of terms that the Minister is now referring to. I wonder whether the present Minister takes the same view as the previous Minister, or indeed whether the previous Minister has changed his view. To make the statement at paragraph 2.1:

“In my view there are good reasons for the provisions in this instrument, and I have concluded they are a reasonable course of action”,


may well now be out of date, since we all know that that former Minister takes the view that the proposal that a no-deal solution could in any way be appropriate for our country is absolutely absurd. Should there not have been an updating of this note so that the Grand Committee could at least be informed about the current view of the current Minister? I suspect that the previous Minister now takes a different view.

[Lord Adonis]

The noble Lord makes an extremely important point, and not just in respect of paragraph 2.1. I have before me the whole of Part 2, which has a whole series of statements made by the Minister of State for Universities, Science, Research and Innovation, Sam Gyimah, to the effect that in his view,

“the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2018 does no more than is appropriate”.

But, as the noble Lord says, that Minister is no longer in office, so it would be appropriate for the noble Lord, Lord Henley, to tell us whether the new Minister for Universities, Science, Research and Innovation also subscribes to those statements. I should also point out to the Grand Committee that Sam Gyimah is no longer the Minister of State for Universities, Science, Research and Innovation precisely because he resigned in protest at both the Prime Minister’s existing deal and the possibility of the Government contemplating no deal.

Not only has there been no consultation on these regulations; the Minister is not even able to tell us whom the Intellectual Property Office spoke to. At the moment, the only person we know the office has spoken to so far is my noble friend Lord Warner—because he phoned it. The Minister was not able to tell us of anyone else who had been spoken to. He told us that, in an inversion of all the established practices, the consultation on these regulations will take place after they have been approved by the House, not before. The Minister who said that these regulations are proportionate and appropriate has resigned. He resigned specifically because he is not prepared to proceed with Brexit or contemplate no deal. There has been no formal consultation with any other partners. The Government cannot tell the Committee who has been informally approached.

We have no statement from the existing Minister of State for Universities, Science, Research and Innovation that these regulations continue to meet the requirements of the EU withdrawal Act. I would be perfectly happy for the Committee to adjourn while we ask Sam Gyimah whether it is still his opinion that these regulations are proportionate and appropriate. I suspect that it is not, given the statements he has made in the media over the last 24 hours about the huge risks, dangers and costs to the country of Brexit, and a no-deal Brexit in particular. It is a no-deal Brexit that the Government are asking the Committee to approve this afternoon.

The other vital point is that, not only do we have good reason to believe that the business community is worried about these regulations and concerned about the costs, but the relevant Ministers no longer even subscribe to the views they gave when the regulations were being drafted. However, we do now have the benefit of the view of the House of Commons on no deal. Last Tuesday, before we considered these regulations, the House of Commons, for the first time, specifically debated and voted on the issue of no deal. In its amendment to the Finance (No. 3) Bill, it rejected the contemplation of no deal by 303 votes to 296. That is not only a majority of seven against no deal; it was one of the largest votes the House of Commons has conducted on Brexit in any respect. The Grand Committee has good reason to believe that these regulations are being brought forward in defiance of the will of the House of Commons, because that House has said that it is not prepared to contemplate no deal.

In the briefing for her speech today, the Prime Minister said that she now thinks that no Brexit is a bigger risk than no deal. I am perfectly prepared to take that risk; some of us think it is well worth taking. Indeed, we are trying to encourage the Government to enter the supremely risky and dangerous territory of no Brexit. We know how risky it is; we do not need to conduct impact assessments because we are in it at the moment and it is a perfectly tolerable state of affairs. The Government describe it as a risk but, in the last 24 hours, the Prime Minister told us that the risk of no deal is declining. That is the Prime Minister’s judgment, and the House of Commons voted only six days ago, by 302 votes to 296, not to have no deal. We have had no consultation whatsoever on these regulations. In the debate on the no-deal proposition last week, the Exchequer Secretary to the Treasury, Robert Jenrick, said:

“As I made clear, the Government do not want or expect a no-deal scenario”.—[Official Report, Commons, 8/1/19; col. 269.]


If the Government do not want or expect a no-deal scenario, it is wholly within their power to rule one out. The Minister, who is an extremely distinguished and effective member of the Government, could make a contribution to that cause today by withdrawing these regulations in response to what appears to be the overwhelming opinion of the Grand Committee.

Human Tissue (Quality and Safety for Human Application) (Amendment) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Tyler

Wednesday 9th January 2019 Grand Committee

[Lord Adonis]

The noble Lord makes an important point, and we look forward to the Minister’s response in more detail on what these contingency arrangements will be. If she is not in a position to tell us, the advice that was given to the Committee by my noble friend Lord Winston is apposite. If the Government cannot give adequate assurances that these arrangements can in fact be put in place or meet the objectives set by the Government to see that there is no disruption in the vital flow of embryos, tissue and so on, the right thing for them to do is to withdraw this regulation and come back to the House after they have done two things. They need to engage in further consultation—as the noble Baroness, Lady Barker, said, the consultation on these regulations has been exiguous—and the noble Lord, Lord Tyler, said that no impact assessment had taken place at all, because the Government judged that the impact was not serious. It does not appear to be the opinion of the Grand Committee this afternoon that the impact is slight; we think that it could be significant in the sectors we are discussing.

So, our advice to the Minister would be that the best thing for her and the Government to do would be to withdraw these instruments and to do two things. First, to engage in further consultation, and secondly, to engage in more intensive contingency planning, particularly on the issue of how disruption will be coped with. That will give the Grand Committee and the House more confidence that we could agree regulations of this kind because they would be capable of meeting their objectives, which is not the case at the moment.

I will raise one final issue for the Minister to address in her reply. Martyn Day, Member of Parliament for Linlithgow and East Falkirk, in the debate in the House of Commons on these regulations, said:

“We do not know what the exact process will be for licensed establishments to apply for a new import-export relationship”,—[Official Report, Commons, Third Delegated Legislation Committee, 19/12/18; col. 5.]


in the case of a no-deal Brexit. That seems to be a significant issue. Since Jackie Doyle-Price was unable to respond to the point in the House of Commons, could the Minister tell us what the process for licensed establishments to apply for a new import-export relationship will be. On the point the noble Baroness, Lady Barker, raised, in the event that new arrangements are not put in place within six months—the period the Minister set out in her opening remarks—what will happen? This is a vital contingency issue, and these are difficult, complex issues. Will the six months be extended? What arrangements will the Government put in place for that? What will happen to the additional costs? I hope the Minister can respond to all these issues in her reply, which will be important for the further consideration by the House of these matters. The House will look to the debate we have had in Grand Committee to inform its own debate in due course.

[Lord Tyler (LD)]

My Lords, I am provoked by the noble Lord, Lord Adonis, to pose a question to the Minister, which I hope will be helpful to him. I endorse what the noble Lord, Lord Deben, said about the invidious position in which she has been placed. I have been mulling over what the noble Lord said about the whole scene in which we are now placed. He described it as Enid Blyton; it is more like the unicorn option that some of the Brexiteers thought they were going to have—some wonderful new era of freedom. It is speculative. So often in both Houses, I have been attacked by Ministers for asking them a hypothetical question. The Grand Committee is being asked a hypothetical question this afternoon, which the Government themselves do not believe in. It is speculative: if this thing, which we do not want to happen, happens, we need this particular order.

I put a specific question to the Minister: if, by some curious chance, we are faced with the deal the Prime Minister is seeking to obtain the support of Parliament for, presumably this is a complete waste of time? We have been told so often this afternoon that this is a contingency plan for a situation the Government do not want to happen, and therefore, by definition, if it does not happen, this is a waste of time. Do we then have to have quite separate adjustments to the relationship we have under the Prime Minister’s deal? If so, that is a complete new set of secondary legislation which is going to come before your Lordships’ House. I do not know if that is a more likely prospect than the unicorn prospect—the ridiculous situation that the noble Lord, Lord Deben, described in his powerful speech. However, it has huge implications for the role of this House in looking at the detail of legislation. If we are going to be told that 600 of these SIs are now irrelevant, because the no-deal option, the unicorn option, has fallen off the table, but we now have something else in front of us, that has implications for the role and responsibility of this House. If, as the Minister says, the contingency plan is not required, what is the contingency plan for the Prime Minister’s deal? Is there going to be a completely different set of secondary legislation? It is a simple question, and I hope there will be a simple answer.

Human Fertilisation and Embryology (Amendment) (EU Exit) Regulations 2019

Debate between Lord Adonis and Lord Tyler

Wednesday 9th January 2019 Grand Committee

[Lord Adonis]

My Lords, the noble Lord is making a very effective speech. Does he not think that having 10 of these very important statutory instruments scheduled for one meeting of the Grand Committee is, frankly, insulting to the House in the expectation that the Government are holding as to the amount of scrutiny that we will give to each of these extremely important orders?

[Lord Tyler]

Looking around the Room, I can see some very experienced Members of your Lordships’ House. I am sure that we will deal with these instruments in a very effective way, as it is our responsibility collectively to give them the attention that they deserve. Despite the fact that, as the Minister has made clear, this may well be a wasted exercise, we still have to do it properly.

I turn to another recommendation from the Constitution Committee in paragraph 110:

“If the Government uses delegated powers to propose secondary legislation which makes technical provision within the boundaries of the policy and has previously been agreed in primary legislation, Parliament is unlikely to wish to block statutory instruments. However, we are concerned, and this report has shown, that these boundaries are not always respected and that ministers may seek to use statutory instruments to give effect to significant policy decisions. Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable”.


We in your Lordships’ House all have a responsibility to ensure that the work that we do here is done with meticulous care. Here is an example: this instrument is the beginning of a whole sequence, a flood, of SIs coming before your Lordships’ House—we are told there are going to be hundreds—and each time we have one before us we have to make a careful assessment of whether it is necessary, quite apart from whether it is effective. As the Minister has already said, the instrument before us is simply in case there is a no-deal outcome. The Government have made it so clear over recent weeks that that is not their favoured outcome—they keep telling us what dire consequences there would be for the country if it happened—that it may well be asked whether we are spending our time profitably in this circumstance, so that is particularly appropriate to this section of our discussion today.

[Lord Adonis]

I hope the noble Lord will forgive me; he is much more experienced than I am about the consideration of statutory instruments. The House of Commons Procedure Committee produced its sixth report of the Session on 4 July last year on the scrutiny of delegated legislation under the European Union (Withdrawal) Act, which is of course precisely what we are engaged in here. It said in paragraph 56:

“We estimate that the latest day on which an instrument subject to negative resolution can be laid so that praying time expires on 29 March 2019 is Monday 18 February 2019. The latest day on which a proposed negative can be laid before Parliament so that the period for consideration expires before 18 February 2019”—


which was what the Government had then said was their aspiration—

“is Friday 25 January 2019”.

That is respectively three weeks and six weeks from the present date. Does the noble Lord, with his great experience of these matters, think it credible that these hundreds of instruments which apparently are going to be needed to implement the no deal could conceivably be laid in time for these procedures to be conducted by either Friday 25 January or Monday 18 February?

[Lord Tyler]

Friday 25 January is even sooner than the noble Lord said, I think. Not for the first time, the noble Lord has jumped ahead of my speech for me. I shall come back to this point later because I share his concern. I served in the other place on the Procedure Committee and I have the greatest respect for the very professional way it looks at matters of procedure. I have to say, though—and this comes out very fully in the report of our Constitution Committee—that I do not have the same respect for the extent to which it scrutinises secondary legislation, which lays an additional responsibility on your Lordships’ House to do this with extreme care. So I shall come back to the point about the timetabling that the noble Lord has referred to.

Yesterday in the Chamber, in Committee on the Financial Services (Implementation of Legislation) Bill, there was a succession of exchanges between my noble friend Lady Bowles of Berkhamsted and the noble Lord, Lord Bates—who is here; he is always here at exactly the right moment, as we all know from previous experience—on this very relevant issue. Indeed, the advice of the Delegated Powers and Regulatory Reform Committee was referred to on a number of occasions so I pay tribute to the noble Lord, Lord Bates, because he undertook, at col. 2144, to come back to the concerns of the Committee on Report. I hope he might be prepared to extend the discussions he is undertaking to set in motion beyond the Members who took part in the debate yesterday to include those of us who serve on the Delegated Powers Committee, and to consider more generally the issues that were raised by it.

The Constitution Committee recommends in paragraph 111:

“The Government already has a mechanism to remedy faults in statutory instruments which are identified by parliamentary scrutiny. SIs subject to the affirmative procedure are made only when signed by a minister after parliamentary debates have taken place; until they are signed, they can be withdrawn, revised and re-laid. SIs subject to the negative procedure come into force on the date specified on the instrument, but the Government already has the power to lay a second SI to revoke and replace the first”.


That is particularly relevant to the SI before us because it is highly likely that in its present form, it will not be as effective or possibly even as necessary as the Minister is now saying, because, as she admits, this is all contingency planning for an outcome that the House of Commons has already said it does not wish to see and the Government keep telling us is such a dire consequence that we should be blackmailed into accepting some other outcome. On all sides, the circumstances are likely to change and in those circumstances this SI may be totally obsolete and an anachronism, or it may need to be revised. But in such circumstances it is the responsibility of the Government to come back to your Lordships’ House with a new proposition.

--- Later in debate ---

[Lord Adonis]

My Lords, I am grateful to the noble Lord for giving way again. Of course, a big issue is what happens if the Grand Committee is not persuaded that we should agree these regulations this afternoon. It is certainly my opinion, and I think it may be the opinion of some of my noble friends, that we should not do so at the end of this debate. I am unfamiliar with the procedures of the House—this will be important; I think it will also impact on many other statutory instruments—as to what will happen in that event. My understanding is that the Grand Committee has to agree proposals by unanimity because it cannot vote, so if we do not agree on approving this statutory instrument, does it automatically go to the House itself? I assume that that would be the acceptable procedure. Is there a guarantee that we would then get to debate it properly and fully and get the fuller explanation and the revisions which may be necessary, as the noble Lord has just set out, in a full debate in the Chamber itself?

[Lord Tyler]

My Lords, I am getting worried the noble Lord seems to be able to read my mind. I am no expert on that particular issue, because it is unusual, but I think he is technically correct. We cannot vote within the Grand Committee, so it has to go back to the Floor of the House. Time has to be found for that, but we have very little time before the projected, but totally unrealistic, date of 29 March.

I revert back to the Constitution Committee’s recommendation, which is a timely reminder for all of us—especially Ministers and their departments—that it is totally unacceptable for Parliament to be forced to approve a defective SI. The mechanisms are there to make sure that does not happen, with no excuses of time pressure, complexity or expediency. How often we hear that argument in present circumstances: “Oh, but it is expedient”. Is it really expedient? Is this particular instrument before the Grand Committee expedient? We are told it is only to be used in extreme circumstances which everybody says they want to avoid.

We have a responsibility, and have to ensure that the eventual legislative product avoids defects. Incidentally, there are several potential incidents of Henry VIII powers in the 10 orders with us this afternoon. It is always difficult to see precisely whether Henry VIII is raising his head, if I may use that expression. There are some such powers there, and that should give us cause for concern.

At the end of this SI, and of some of the others we are coming to later, there is a statement to the effect that:

“A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen”.


I have read speedily the Explanatory Memorandum for this particular order. I cannot see any persuasive argument for why it is not possible that there could be a significant impact. Who makes that decision? What are the criteria for deciding whether something does or does not have a potential significant impact? We are right to question the extent to which this particular SI is in order.

I turn to recommendation 112 from the Constitution Committee’s recent report. It states:

“However, for these processes to work, the Government must take account of the scrutiny of statutory instruments and respond promptly to remedy any deficiencies. Where it does not do so, in exceptional circumstances Parliament may use its existing powers to block such instruments. The Government should recognise that parliamentary defeat on a statutory instrument need not be considered momentous nor fatal. It does not prevent the Government subsequently tabling a revised SI having listened to and acted on parliamentarians’ concerns”.


This is an important recommendation. It is, of course, the constitutional position, so they could not avoid it. I served on the Joint Committee on Conventions, which reported in 2006. Its recommendations were approved unanimously by both Houses. In particular, at paragraph 228, it states:

“The Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree. It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way (b) the Government can bring the SI forward again immediately, with or without substantive amendment, as described by the Clerk of the Parliaments, and (c) the power to reject SIs gives purpose and leverage to scrutiny by the Joint Committee on SIs, and by the new Lords Committee on the Merits of SIs. The Government’s argument that ‘it is for the Commons, as the source of Ministers’ authority, to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it”.


That was a Labour Government, and I hope the present Ministers would not have made such an absurd proposition.

--- Later in debate ---

[Lord Tyler]

I hear what the noble Baroness says, but she is technically not correct. At the moment, we are considering only one. Setting that on the table for a moment, I wanted to—

[Lord Adonis]

I hope that the noble Lord, who is making a powerful case, will in no way be dissuaded from applying his full powers of scrutiny to these regulations. It would be totally unacceptable if the Grand Committee were in any way influenced by a Minister into thinking that it should not fulfil its constitutional responsibility to give full consideration to each of these instruments individually, not least because, if this issue is to go to the House for a proper debate, as it appears it will, Members of the House will need to be informed by the debate in the Grand Committee and we should not suppress full consideration of the issues at stake.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Tyler

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

[Lord Tyler]

My Lords, I am an eternal optimist, which somehow goes with the territory of being a Liberal.

What a wonderful thing it would be if out of this dismal, divisive, deceptive process we could achieve a modest but beneficial change to the way in which Parliament works. This group of amendments, all of which I enthusiastically support, offers a very timely, perhaps even unique, opportunity to improve the co-ordination between the two Houses in our joint scrutiny of secondary legislation proposed by the Government of the day.

Long after Brexit has been forgotten and we cannot remember what it was all about, we could still benefit from a rebalancing of the power between the legislature and the Executive as promoted by this group of amendments. Your Lordships will have noted the formidable supporters and signatories.

I have been involved at both ends of this building in attempts to improve the quality of secondary legislation. It has been a very difficult task and a cross-party task, and it has taken place under different Governments, but at every stage I have been reminded that, if Parliament did not have an unchallenged monopoly in the manufacture of regulation, our customers would cheerfully take their business elsewhere because, frankly, the quality of our product is pretty variable. A succession of investigations and reports carried out internally, and by very professional external observers such as the Hansard Society, have come up with two perpetual areas for criticism and need for reform.

First, the interface between the scrutiny work of the two Houses has been rightly identified as at best disjointed and at worst counterproductive, and Ministers in successive Administrations have been able to divide and rule. Amendments 237 and 237A address this very important issue. They draw on the analysis of the Delegated Powers and Regulatory Reform Committee, and the principal architecture for the improved, co-ordinated sifting system, which is set out in Amendment 237, is signed by the noble Lord, Lord Blencathra, who was here earlier this afternoon and is chairman of that committee.

The second weakness in the present system is even more profound. In essence, Parliament—both Houses individually and together—is faced at present with a dangerous false choice: either to accept an obviously inadequate addition to the law of the land, perhaps with a devastating impact on individuals or interests, or, as my noble friend Lord Sharkey said, to take the nuclear option and reject an SI outright. I remind those who claim that the latter option is “unconstitutional” that the Joint Committee on the conventions of the British Parliament, on which I served, reported as follows in 2006. Recommendation 15 read:

“Neither House of Parliament regularly rejects secondary legislation, but in exceptional circumstances it may be appropriate for either House to do so”.


That recommendation was endorsed unanimously by both Houses.

At the time of that committee and its assessment of the conventions that apply to the two Houses of our Parliament, I was very struck by the evidence given by the Conservative Party—indeed, by the noble Lord, Lord Strathclyde, to whom reference has already been made. He said:

“The fundamental view of the Conservative Party is that the executive in the UK has become too strong and Parliament is too weak. We wish to see both Houses strengthened. We do not believe strengthening of scrutiny in either House would be to the detriment of the other House”.


Of course, it was the Leader of the Opposition in your Lordships’ House speaking at that time rather than a government representative.

Ingenious attempts to get round this false dichotomy have led us to all sorts of mealy-mouthed Motions. However powerfully advocated or well supported in the Division Lobbies, regret Motions, for example, can be conveniently ignored by Ministers, even in a minority Government. As my noble friend Lord Sharkey said, the most persuasive case for a “middle way” was argued, perhaps rather unexpectedly, in the report of the noble Lord, Lord Strathclyde, produced for the Government in 2015. As my noble friend has referred to it and it is just past midnight, I do not think that I need make further reference to it, but I recommend to Members, particularly on the other side of the Committee, the logic that the noble Lord, Lord Strathclyde, used in arguing for the middle way that we are now promoting.

It is absurd that, unable to express an intelligent, practical and positive view as to how an SI could be improved, both Houses continue to face this destructive dilemma. Amendment 239A, devised by my noble friend Lord Sharkey and supported by the noble Lords, Lord Lisvane and Lord Norton of Louth, and the noble Baroness, Lady Jay, rides to the rescue, as has already been explained. The reconsideration procedure is carefully crafted to achieve all that the Strathclyde report seemed to be searching for.

I believe that the adoption of this amendment, for this Bill, for all other EU Bills and as a precedent for all future secondary legislation, would be a hugely beneficial step forward. Popular with MPs and Peers alike, in time I suspect that it would soon be seen as a major improvement in our working mechanisms by Ministers and civil servants themselves. While not abolishing our established right in the Lords to reject an SI outright, I doubt that that would happen any more often than it has in recent years. However, the major advance would be that the regret, the delay and the complicated conditional Motions would surely become almost completely redundant. Instead, the reconsideration option set out in this amendment would be far more effective and would improve the eventual legislative product. Perhaps we should refer to it in future as the Strathclyde solution.

Meanwhile, whether or not Brexit actually happens, here is a golden opportunity in a previously unbalanced area of lawmaking for this House to enable the British Parliament to take back control.

[Lord Adonis]

My Lords, we can already see this evening what will be the Government’s formula to get these statutory instruments through: they will produce them at 12 minutes past midnight, put forward the noble Baroness, Lady Goldie, to propose them, and then they will go through on the nod with nobody daring to protest and us all thinking that it was the best possible thing that could happen.

The real danger facing us is not the procedure; I think we can get too hung up on that. In particular, I do not agree with the noble Lord, Lord Sharkey, when he said that there was great constitutional tension caused by the rejection of the tax credits orders. The crucial thing to remember about that rejection is that the Government accepted it immediately—they did not seek to reverse the rejection in the Commons because they knew that they did not have the majority for it in the Commons. It was a legitimate use of your Lordships’ role, which is to require the House of Commons to think again. What in fact happened, under the smokescreen of the Strathclyde report, was that the Government were forced to think again, they did not have a majority and they backed down.

The real issue with these regulations, which no one has an answer to because we are in such unprecedented circumstances, is not the precise procedure—although it is better to have an affirmative procedure than a negative one for issues of consequence—but the volume of orders that will hit us. It is going to be colossal, given the scale of law that has to be transposed and the amount of consequential legislation that is going to follow in the process of transposing it. Nothing that I have heard in our consideration so far gives me any reassurance at all that we are going to be able to cope with the sheer volume of it—unless the noble Lord, Lord Taylor, with his great skill in these matters, manages to ensure that all these orders come before the House between midnight and 4 am, when they will be proposed by the noble Baroness, Lady Goldie, and will all go through without us really realising what has happened, under a kind of parliamentary anaesthetic, which she does such a good job of imposing on us all.