Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Beith Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Adonis]

I am happy to take an intervention from the noble and learned Lord, even though he was not prepared to take one from me. I will speak later in the debate but I just want to put on record that I find his actions extremely disrespectful to the Committee. That alone would lead me to wish to negative the instrument, because the Minister is not subjecting himself to the proper process of interrogation and answering questions on the regulations. It is immensely disrespectful and the first time that a Minister has come to a Grand Committee and not been prepared to answer questions in the normal way.

[Lord Beith (LD)]

My Lords, when I looked at the instrument, I began to wonder whether the Minister was open to the charge from some of his colleagues here and in the other place that he was part of Project Fear, because the instrument sets out some consequences of Brexit, both in general and in a no-deal scenario, pretty starkly.

The loss of reciprocity is central to this instrument. I did not notice the Minister express any concern or grief at this but it represents the removal of something that we have developed in recent years, to the great advantage of litigants, and which we are about to lose, to our detriment. The consequence is that separate enforcement will be required in many cases, including judgments of foreign courts; by foreign, I mean courts in the EU or the Lugano states. Incidentally, that includes Norway, a state with which we have particularly close and friendly relations.

The Explanatory Notes to the regulations show that the Government go only this far by stating:

“The impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”.


However, in the same paragraph the notes go on to explain that,

“an increased risk of parallel proceedings … could increase the number and complexity of disputes before the courts and the cost of litigation for parties … Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

There is a serious loss in that and a further loss in relation to the European Judicial Network, another development that has been beneficial to this country and to justice across Europe generally. Again, a bald statement is made in paragraph 7.14:

“The inability of the UK to continue to take part in this network is as a result of EU Exit, this SI simply reflects that new status”.


Another valuable judicial development is to be simply cast aside.

--- Later in debate ---

[Lord Hope of Craighead]

Thank you. The Justice Sub-Committee prepared a detailed report drawing attention to exactly what the noble Lord has referred to. There was an impassioned debate—I do not know whether the noble Lord was present—at which these points were made. The criticism is not against us, as it were, because in this House we have been taking our responsibilities seriously. However, I understand the point the noble Lord makes about the effect of leaving the EU and the distress he feels.

[Lord Beith]

There is one thing the Government have not made clear. The impact statement, brief as it is, is structured around there being two options—the other option being not to change retained EU law. As I understood it, that option implied that in a no-deal situation, if we did not have this instrument, the courts would be left behaving as they had previously and hoping that courts in other countries would do the same. One of the things that was not explained very well in the impact statement—perhaps the Minister can clarify this later—is what the other option the Government rejected was.

[Lord Beecham (Lab)]

My Lords, I have practised law for a long time—fortunately none of it in relation to the EU and the complications we are debating today. I defer to the more qualified Members of the Committee today, some of whom have already addressed us.

These regulations might best be described as a hors d’oeuvre to the four-course Brexit banquet we are being served today—although, curiously, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has raised any concerns.

In addition to reverting to the pre-EU membership system, the statutory instrument repeals a decision that currently allows the UK to co-operate on civil and commercial matters in the EU judicial network. What estimate have the Government made of the impact on the UK of that change, and what consultation took place with industry or other potentially interested parties given that the so-called Brussels regime operated on a reciprocal basis?

The Law Society, which is generally supportive of the statutory instrument, is concerned about the loss of the existing framework for determining which national court has jurisdiction and for recognising whether or not there is a choice of court between the parties to disputes.

The impact assessment contains a disturbing paragraph which states:

“Businesses and individuals litigating in the courts of EU countries will have an advantage over those litigating in the UK as UK litigants cannot guarantee the judgment they get from the UK courts is enforceable in the EU but litigants who get a judgment from the EU courts, will almost always be able to obtain enforcement of it in the UK”.


It is a one-sided deal, as it were. The English legal system has prospered remarkably through its participation in the EU but that looks to be one of the costs and losses that it will incur.

The Law Society notes that hitherto the existing system has fostered cross-border trade and encourages litigants to use the UK courts in the knowledge that their judgments would be enforceable across the EU and calls on the Government to accede to the Lugano convention—which, as the noble and learned Lord has indicated, is not an EU organisation although the EU is a party to it. Can the Minister indicate the Government’s response to that suggestion?

--- Later in debate ---

[Lord Keen of Elie]

I take the noble Lord’s point when he says “negotiate”; that is the whole point. If he looks at the political declaration, there is a reference to the desire of all parties to negotiate on this among other issues so that we may be part of a regime perhaps similar to Lugano. Let us be clear: we have not only applied to become an individual signatory to Hague 2005, which involves reciprocity between the convention members and ourselves—although I say, quite candidly, that it is not as perfect as Brussels Ia, being more akin to Brussels I. That is why it is in many ways a second best to that extent, but that is as far as we can go. We have also applied to the council of the Lugano convention to become a party to the Lugano convention—a point raised by the noble Lord, Lord Beith. That will of course require the consent of the EFTA parties and of the EU, and it will be subject to negotiation, but we hope also to be a member of the Lugano convention.

If noble Lords have regard to the impact assessment, they will see that under option two we looked at simply leaving the UK law as it is—in other words, embracing all those relevant terms of Brussels Ia without any right to reciprocity from the EU 27. The difficulty there is that in the absence of reciprocity, people would not know what they were going to get from those provisions. Furthermore, it would raise two obvious difficulties. First, corporations, companies and associations within Europe could secure a decree there and automatically seek to secure enforcement in the UK, but companies, corporations and associations in the UK that secured a judgment from a UK court could not expect to enforce it in the EU 27 countries. That is why I stressed the concept of reciprocity. Yes, we want to negotiate and to secure reciprocity, but until we do, we have to make sure that the statute book is in some sort of order for a no-deal exit—which, as far as I am aware, no one truly wishes for.

Secondly, if we embrace the Brussels Ia regime without being a member of the EU, we would be discriminating between the EU 27 jurisdiction and all the other third-party countries. We would be giving some benefits to the EU 27 under Brussels Ia, albeit without reciprocity, but we would not be giving the same benefit to third-party countries such as the United States, India and China, and Commonwealth countries such as Australia and New Zealand. That raises real issues about discrimination in the context of wider issues on services and so on.

[Lord Beith]

I thank the Minister for explaining the Government’s objections to option two. It might have been a good thing if he had written the impact assessment and developed those points. I shall still disagree with him on some other matters, including the fundamental issue here, but he has clarified that very helpfully.

[Lord Keen of Elie]

I am obliged to the noble Lord. I know the noble Lord, Lord Adonis, made much of this, but that is why the impact assessment is between the statute book as it is upon exit and the statute book as it would be under the instrument upon exit, because Parliament has made the law and Parliament is determined to exit on 29 March. If that is reversed, so be it, but that is where we are and that is the impact that we have to properly address in this context.

On the wider point made by the noble Lord, Lord Marks, about the benefits of being in the EU and within Brussels Ia, I am not going to seek to disagree with him. Brussels Ia was a marked improvement on Hague 2005, for example; we all know that. Therefore, in many senses, exit from the EU without a deal is unattractive in the context of the provision of legal services in the UK, as indeed are the implications of that for those who have to engage those services and have recourse to the courts. No one is denying that either, but these are the consequences of the law that Parliament has made in these circumstances.

The noble Baroness, Lady McIntosh, asked what steps are being taken with regard to reciprocity. As I say, we are applying to become signatories to the Hague convention 2005, which will give us certain reciprocal rights. We are applying to the council of the Lugano convention to become a party to that, which will give us reciprocal rights with the EFTA countries. In addition, we are intent upon negotiating around the whole issue of judicial co-operation in future, which is why it features in the political declaration. At this stage we cannot demand reciprocity from the EU 27 and they are certainly not prepared to offer it at this stage. At a very early point there were discussions about, for example, the recognition of legal qualifications and mutual issues of that kind, and the EU made it very clear at that stage that that was a discussion for another day. That is where we are.

Coming on to a further point made by the noble Lord, Lord Beith, about what happens to the SI, if we have an agreement on the terms of the present withdrawal agreement then we go into a two-year implementation period where we will remain a part of the Brussels Ia regime, so the instrument itself will essentially be suspended by the withdrawal agreement Bill. However, it will not be completely done away with because at the end of the implementation period—two, three or four years, whatever it might be—we will then have to decide whether or not we have achieved agreement with the EU 27 on future judicial co-operation. That might be on essentially identical terms to what we have now, in which case we will not need the instrument at all, or it may be that we cannot achieve agreement at that stage, in which event we will need to revive the instrument in order to bring the statute book into proper order. That is why I have referred to it as being “deferred” in that context; it is deferred for the implementation period, whatever that period might ultimately turn out to be. That is where we are on that.

On the issue of forum non conveniens, which the noble and learned Lord, Lord Hope, alluded to, that has always been a part of our common law because we apply it in the context of third party countries outwith the Brussels Ia convention. The noble and learned Lord may recollect the litigations that took place around the Pan Am/Lockerbie case and the attempts to take it further than just applying the doctrine of forum non conveniens but rather to apply the issue of interdict against the raising of proceedings in a third party country, which is attendant to the doctrine of forum non conveniens—although I recall being in a Texas court where the judge asked it to be pointed out to me that in Texas they do not have forum non conveniens, and we have to accept that there are some jurisdictions of that ilk. Nevertheless, the courts will fall back upon these common-law concepts which have not been done away with but have not applied in the context of the Brussels Ia regime for the reasons that the noble and learned Lord very carefully pointed out.

The European Judicial Network is a very fine body but it was set up in order that there could be engagement across the EU 28 about the operation of the regime that at the moment we are referring to as Brussels Ia, but it also looks at Brussels IIa and other issues. It concerns the operation of that regime and how it may be improved. For example, it contributes to how you move from Brussels I to Brussels Ia. If we are not part of the regime, we are not part of the European Judicial Network and we really have no part to play in that. But again if, going forward, we are able to achieve a negotiated position with the EU 27 where we are, if you like, semi-detached from Brussels Ia and the other Brussels regime, no doubt they will consider allowing us a seat perhaps not at the table but at least in the room of the judicial network in order that we can contribute to it. However, that too is a negotiation for another day. It is not what this instrument is addressing and not what it is intended to do. So, with all due respect to the noble Lord, Lord Adonis, there is no elephant in the room. Parliament removed the elephant when it decided that, as a matter of law, we would leave on 29 March 2019. The Executive have to address that point in order to put the statute book in proper order.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Lord Beith Excerpts

Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

In relation to this particular instrument, I am not in a position to say where the Scottish Government are in processing such a proposal. That is a matter for them and it is not a matter that they would, as a matter of course, disclose to me. But, as I say, I have confidence that they are aware of the issue and they have decided that they will take it forward. If they had wanted to utilise the provisions of the Scotland Act to have the UK Parliament legislate for them in regard to this matter, they would of course have said so. The very fact that they have not is indicative that they are making progress to legislate for this on their own behalf. That is where we stand.

[Lord Beith (LD)]

Perhaps I might ask the Minister to tidy up the point that was raised earlier. What ensures that if there is some kind of deal, the provisions of this instrument fall away? Does it require some further statutory provision to do so—in effect, revoking the instrument—or does it fall away if there has not been an exit day? But surely if there is a deal, there is still an exit day.

[Lord Keen of Elie]

My Lords, in the event that we have a deal, we will repeal this instrument. It will have no further purpose in those circumstances. This is to address the issue of there being no deal—I emphasise that again.

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Another problem is that most EU states do not allow so-called fly-in, fly-out services by third-country members, so that it would be impossible for UK lawyers to advise EU clients, represent them in cases involving more than one EU state, or play a leading role in global investigations. Some EU states require membership of their professional bodies, while others, such as Spain and Sweden, go as far as banning their lawyers from partnership with non-EU lawyers, and most EU states do not allow non-EU nationals even to seek admission to their national legal professions. The Explanatory Notes, in paragraph 12.1, make light of these issues, but what steps have the Government taken to clarify the EU’s intentions, either collectively or at a national level, in these matters, which have a significant potential effect on the profession and indeed, therefore, on the financial return to this country?

[Lord Beith]

My Lords, before the Minister rises to respond to the debate, I wanted to seek a little further clarification on the fact that this instrument will have to be repealed if there is any kind of deal. We ought to know what we are doing, and in this case we are perhaps being asked to pass a statutory instrument which does not within it contain the suicide pill which it would require to cope with the situation in which there was a deal. That has implications for the timetable and for all the things we have to do before 29 March, one of which might be to repeal not only this but a whole series of other statutory instruments, presumably either by a stack of single positive or perhaps negative instruments to achieve the repeal or by one omnibus statutory instrument. We have not been told enough about what this procedure would be, and it casts further doubt on the wisdom of proceeding at this stage with a statutory instrument which, of course, has all the problems that my noble friend and the noble Lord, Lord Beecham, referred to. My objective was to clarify what the mechanism would be; I think it would be the bringing forth of a further statutory instrument to repeal this one.

[Lord Adonis]

Before the Minister rises, I noted in his opening remarks that he did not refer to the consultation that had taken place. This is a big theme in the way that the House is seeking to scrutinise these statutory instruments, since there has been very rushed consultation or almost no consultation. Can he tell the House in his response what the consultation has been and what the response has been?

I observe, from a brief search of responses to these regulations, that they have not been particularly positive. I notice that the President of the Law Society, Christina Blacklaws, is quoted as saying that these regulations,

“will cause firms a significant amount of expense to find work arounds and, with tight margins, small and medium sized firms that employ EEA lawyers will struggle most to adapt”.

I think the House will be particularly concerned about the small and medium-sized firms. The larger firms can take care of themselves and can pay a lot of the costs and associated expenses, but small and medium-sized firms under pressure should be of concern to us. Can the Minister tell us more about the engagement there has been with such firms, how the costs might be mitigated, and tell us more about the response to the consultation at large?

I also make a general point, which is that I know that in a sense, everything we are doing in response to no deal is utterly deplorable; I do not want to repeat all the remarks I made earlier, although they apply here too, about how it is almost unthinkable that we should be making these arrangements for a cliff edge and all that goes with it. What is becoming clear again, in case after case, is not just that no deal will be deplorable but that the effects for this country over the medium term of withdrawing from the European Union will also be deplorable.

The noble Lord, Lord Beecham, quite rightly referred to the very large European market in legal services. We have fantastic lawyers, some of the best law firms in the world, and as the Minister said, we are a major centre for international legal firms. I do not remember whether it was the Minister or my noble friend who referred to the proportion of the largest firms that do work across the European Union, but it was a high proportion. Essentially, we are engaging in an act of self-mutilation. We are deliberately choosing to restrict the markets in which our legal firms can work and deliberately choosing to restrict the opportunities for the next generation of lawyers to be able to practise. That is, on any reading, deplorable.

Maybe the Minister, who is such a distinguished member of his profession, might rise to the occasion and say that he regrets that and wishes that we were not limiting the opportunities for our lawyers and our country in the way that we are. When the next generation of lawyers looks back and sees that their opportunities have been stunted and that the opportunities they have to practise in European markets have been withdrawn and that if they wish to do so they will need to move to the EU, maybe some of them will look back and say that the leaders of the profession who had responsibility at this period should have had a much closer regard for the interests of the next generation than they have had.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Beith Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, at Second Reading, it was widely acknowledged around the House that there were practical arguments for expanding the flexible deployment of judges, including some temporary judges appointed outside the usual Judicial Appointments Commission selection process, to a wider pool of courts and tribunals. However, the appointment of temporary judges as a principle should be approached with caution. Further, it is important to view flexible deployment in general through the prism of the Government’s wider programme of reforms and cuts. Given the planned savings on judicial salaries, we have to ask whether the provisions are at least in part a short cut to make up for a shortfall—even a crisis—in the recruitment of permanent judges that will become a de facto cost-saving measure. Any trend towards an increasing reliance on temporary judges would be worrying. Temporary judges, most likely seeking permanent appointment, are by their nature less independent than their permanent counterparts.

The Government should surely provide greater evidence of the need for these provisions, such as the detail of the changes in business demand referred to in the impact assessment and the reasoning for the proportionality of these measures. If introduced, it is surely a reasonable requirement on the Government to ensure that proper training is made available for these temporary appointments whose deployment will involve oversight of areas of law new to the personnel concerned. This is already a routine practice in the deployment of judges in the Crown Court: the paucity of Crown Court judges with a criminal law background is well acknowledged and, arguably, none the less regrettable. There is no argument against proper provision of support and training to those less practised, temporary judges or, indeed, permanent judges deployed in new areas. Given the backdrop of major cuts to the MoJ, the need for effective and proper training is all the more acute to ensure the quality of judicial practice. That is why I am probing with this amendment and I beg to move.

[Lord Beith (LD)]

This gives us an opportunity to look at whether the training is intended to embrace the increasing use of online and virtual court facilities. We cannot advance that cause in the context of the Bill, because it has been drafted to exclude some of the things that we all assumed were part of the modernisation programme. It would indeed be difficult to ensure that the training and deployment of judges meant that they were well equipped for these changes, because we do not know what the parliamentary underpinning would be, but this would be a useful moment for the Minister to indicate how far the well-declared and strongly supported plans that emerged from the Briggs and Leveson reports form part of the Government’s thinking on how judicial deployment and training should operate.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to raise a question, in the confines of this amendment, about training. I know that my noble and learned friend has explained on a previous occasion that the role of justice clerks is changing and that that is the purpose of this. What stage are we at with consulting the justice clerks? I understand, looking at paragraph 10 of the impact assessment, on page 5, that currently the most senior lawyers in Her Majesty’s Courts & Tribunals Service are indeed justice clerks. To what extent are they agreeable to these changes? I want to be assured that we will not find ourselves in a situation in the autumn where perhaps they do not entirely agree to what we are asking of them. At the same time, I wonder if there is an expectation that those undertaking this new role will travel further to courts, particularly magistrates’ courts, given that in rural areas there are so few of them. We have seen an increase in cancellations of trials and cases not being heard, where witnesses have found it difficult to travel to and reach the court on time.

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[Lord Judge]

My Lords, there should be an upgrade here, in accordance with the proposed amendment.

[Lord Beith]

My Lords, one of the things that might be reviewed is how the arrangements for delegating decisions work in the context—mentioned by my noble friend—of a large number of litigants in person. This number has increased since the withdrawal and limiting of legal aid. Court officials find themselves giving forms of advice to unrepresented litigants, if only to ensure that the court can proceed with the minimum of chaos and disruption. A clerk in a county court, for example, may simply remind the litigant of what the court needs to know in order to resolve a case and what would not be advantageous to spend lots of time on. That is a valuable function. Of course, legal advice can go far beyond that into areas on which it would be wholly inappropriate for a court official to give, or purport to give, advice. Wise officials make quite clear the limit of what they can say.

By whatever mechanism we review these provisions, whether it is that suggested in the amendment or the reasonably adequate existing ones offered by the Justice Select Committee and Constitution Committee, we should look at them in a context in which officials are being asked for advice or guidance by people who are not represented.

[Lord Pannick]

My Lords, I echo the words of the noble and learned Lord, Lord Judge. We are dealing here—at least potentially—with matters of significant constitutional concern. The power which the Secretary of State or Lord Chancellor is being given includes a power to make “consequential provision”. That is a very broad phrase: it is not merely transitional, or transitory or saving, it is consequential—something that is a consequence of that which is in the legislation. It is, therefore, entirely appropriate that this amendment should be approved by this House.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Beith Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, when the Bill was published, I described it as,

“a little mouse of a Bill”.—[Official Report, 6/6/18; col. 1306.]

I did so because it has been shorn of most of the provisions the Government had intended to include in legislation and is drafted in such a way as to try to discourage the addition of any of those provisions by way of amendments. That has to be set against the context of the Government’s very ambitious claims about what they were going to do to assist the justice system. In 2017, the government website stated that the then Prisons and Courts Bill would,

“transform the lives of offenders and put victims at the heart of the justice system, helping to create a safer and better society”.

But even if we look just at the briefing for the Queen’s Speech for this Parliament about the Government’s legislative intentions, it was a Bill that would,

“end the cross-examination of domestic violence victims”,

by those accused of perpetrating the violence. It was a Bill which would allow for fixed penalties for minor guilty pleas; it would allow fixed terms for some judicial leadership positions on the basis that some might be attracted to those posts if they could serve a shorter term in them; and it was in the context of the Government talking about wide reforms of procedure and practice, many of which required legislation, including avoiding the waste of time and money in unnecessary and entirely formal hearings.

When the Lord Chief Justice—the noble and learned Lord, Lord Burnett of Maldon—appeared before the Constitution Committee of your Lordships’ House on 25 April 2018, he said:

“At the heart of what is in contemplation is a change in procedures and practices, some of which will require enabling legislation, followed by rules and practice directions. Of course, the latter will be under judicial control. The question whether all but the most basic procedural hearings will be by telephone or videolink will, in the end, be for the judge to decide, having received representations if necessary.


We hope the legislation that fell at the last election will be back before Parliament fairly soon. Without it, some of the courts and tribunals, or at least some of what we do, will remain trapped in the mid-20th century. At a more prosaic level, modernisation will simply align the courts and tribunals with ways of operating which the outside world, and even Government, have long ago adopted”.


That phraseology was echoed in the opening remarks of the noble and learned Lord, Lord Keen, but does not seem to be greatly furthered by this Bill. What we have here, apart from a few changes of title for one or two judges and justices’ clerks, are some necessary and helpful provisions about the deployment of both judges and staff. Obviously they will have to be looked at in detail. Similarly, some of the issues raised by the noble Baroness will need to be looked at carefully. However, I think that there is generally a fair wind behind the belief that judges’ time and that of staff in the court system can be better used. It is these useful provisions which justify spending a little time on the Bill.

However, there are many other major issues around our courts. Not all of them can be dealt with through legislation, but many require legislative backing. If you talk to members of the judiciary, they will pretty soon mention the condition of the court estate, the working conditions of court staff and the impact all that has on recruitment. The recruitment problem in the senior judiciary is something that the Government will have to consider, and along with that go the issues around the retirement age. More widely, the growing pay gap between criminal practice and commercial practice makes it almost impossible to recruit young people to the criminal Bar for the future. The Times recently reported that 15 City law firms, all American-owned, offer newly qualified solicitors more than £100,000 a year. Against that background, it will be extraordinarily difficult to recruit the young people needed for the future of our courts both in advocacy and on the Bench. The development of problem-solving courts may need some more legislative encouragement.

I turn to a fundamental point which the Prisons and Courts Bill could have been used to improve: the fact that the courts can sentence only according to what is available. Prison is deemed always to be available, but non-custodial sentences are dependent on local services—whether they are in place at all, what their quality is, and what combination of services is required for a really serious non-custodial sentence. All those issues are uncertain. Moreover, commissioning is hopelessly divided. Prisons are commissioned nationally while these other services are commissioned largely on a local basis, so there is a mismatch that gives the courts fewer options for dealing with the offenders before them.

Some of these issues can be dealt with without legislation but some cannot. I hear Ministers such as the noble and learned Lord talk about bringing forward more legislation when parliamentary time allows. I look forward to the period that we are entering in Parliament, with 1,000 statutory instruments and four major Bills to do with exiting the European Union—I wonder how that phrase can be uttered seriously—supposedly coming our way. I believe that a further draft Bill is sitting somewhere in the Ministry of Justice, ready to be brought forward, but I do not see when the parliamentary time will come. It makes me wonder what has happened to the significance of the Ministry of Justice in the pecking order of the Government’s legislative programme. We have a two-year parliamentary Session, half of which we have used up. In that Session, the Ministry of Justice could not have a relatively uncontroversial Bill, which could have done considerable good; it had to be content with a totally shorn and reduced Bill and the vague hope of further measures when parliamentary time allows.

I will make one last point on the problem of parliamentary time. We know that it is a problem, although it does not seem so when you look at the agenda for these current weeks, dealing with the EU Bill; the pressures have not been so great but they will be pretty great in the year ahead. One thing that does not take up much parliamentary time is legislation by consolidation Bills. Law Commission Bills do not take up as much time as legislation that effects change in the law. The courts could be greatly assisted if the Government made more of the now rather neglected procedures of consolidation Bills; they would be greatly assisted if the current work being done on the consolidation of sentencing were achieved and brought forward by the Government in the more limited procedures that can be used when the law is simply being consolidated, not changed. The Government should look at that further and discuss giving it higher priority with the Law Commission. That can be done, at least, to assist the courts, even when parliamentary time is tightly rationed.

Courts: Modernisation

Lord Beith Excerpts

Wednesday 6th June 2018 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government when legislation to modernise the courts system will be introduced, as set out in the Queen’s Speech.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government introduced the Courts and Tribunals (Judiciary and Functions of Staff) Bill into the House of Lords on Wednesday 23 May of this year. This legislation is the first step in implementing the wider reform package and the Government remain committed to implementing further court reform legislation as soon as parliamentary time allows.

[Lord Beith (LD)]

My Lords, it was nice to have such a quick response after tabling my Question but it really is a little mouse of a Bill. It has some useful provisions but why has it been stripped of almost all the court modernisation measures which were promised in the Queen’s Speech? How is it that halfway through a two-year parliamentary Session the Government have not found time for urgently needed and relatively uncontroversial provisions to enable the courts to modernise and speed up processes which cause delay and distress to court users, and which cost money that could be better spent improving access to justice?

[Lord Keen of Elie]

My Lords, this is a mouse that roared. It may be a small Bill but it has extensive implications for the operation of our court system. Splitting the legislation originally set out in the Prison and Courts Bill will allow the Government to progress these vital reforms utilising the time available in both Houses.

Probation: Voluntary Sector

Lord Beith Excerpts

Tuesday 24th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I do not consider that a material consideration, given that they are subject to the very report that we are discussing presently, Dame Stacey’s report of 17 April.

[Lord Beith (LD)]

My Lords, the Minister should not speak about unexpected difficulties, given that the likelihood that the amount of work going to the CRCs would be lower than the Government predicted was something of which the Justice Committee warned, along with many other things.

Worboys Case and the Parole Board

Lord Beith Excerpts

Wednesday 28th March 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, I welcome the High Court decision and the fact that it showed up the really serious errors made by both the Parole Board and the Ministry of Justice. But I take it that the Minister agrees that these errors should not blind us to the proper role and importance of the parole system within our criminal justice system and, indeed, as the noble and learned Lord, Lord Woolf, rightly pointed out, to the contribution, which the Minister has already acknowledged, that Nick Hardwick has made in several positions—bearing in mind also that Nick Hardwick argued that the transparency we are all now calling for was not allowed by law and should have been.

[Lord Keen of Elie]

Well, indeed. I am obliged to the noble Lord for his observations in that regard. As I indicated earlier, it had occurred to my right honourable friend’s predecessor, almost as soon as this matter came to his attention, that Rule 25 really did need to be looked at and given further consideration because of the impact it had on the perception of proceedings. Regarding the proceedings of the Parole Board itself, clearly, there are hundreds of individuals involved and engaged in that process. It is critically important as part of our criminal justice system and it is equally important that it should remain independent of the Executive.

European Union (Withdrawal) Bill

Lord Beith Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

The Government’s objective is to conclude a withdrawal agreement by October of this year. That has been stated on a number of occasions and it is in that context that we intend that the present Bill should deal with the situation, whether or not there is a withdrawal agreement or an implementation period. As and when a withdrawal agreement is concluded, it will be dealt with in the withdrawal agreement and implementation Bill. Clearly, if we enter into an international treaty with the EU 27 in respect of these matters, we will respect that international treaty and our obligations inherent in it and, in accordance with the duality principle, draw down those obligations into our domestic law, using the withdrawal agreement and implementation Bill. I suggest that it is inconceivable that we would not seek to do that.

[Lord Beith]

The noble and learned Lord has been quite clear that it will be the withdrawal Bill that is the mechanism. Is he saying that it will be that Bill and not the use of the statutory instrument powers to be found elsewhere in this Bill which will enable him to modify or repeal its sections when it is an Act?

[Lord Keen of Elie]

We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

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[Lord Pannick]

My Lords, this amendment is in my name and those of three other members of your Lordships’ Constitution Committee: the noble Lords, Lord Norton of Louth and Lord Beith, and the noble Baroness, Lady Taylor of Bolton.

Amendment 358C and Amendment 360A, with which it is grouped, address the powers tucked away in Schedule 8 to modify retained direct EU legislation by the use of delegated powers that relate to subordinate legislation. A power to modify is an important matter because “modify” includes a power to repeal—see Clause 14 (1).

This Committee has debated on previous days the surprising omission from the Bill of any provision that identifies the legal status of retained EU law. Is it primary legislation, secondary legislation or something else? The powers in Schedule 8, in paragraphs 3(1) and 5(1), which we are now addressing, have attracted the attention of your Lordships’ Constitution Committee because those provisions treat retained EU law as analogous to secondary legislation for the purposes of powers to modify. That is a surprising position for the Bill to adopt, certainly in relation to that part of retained EU law which confers important rights: for example, in the fields of employment, the environment and consumer protection. It means that, in addition to the other powers to modify retained EU law, which the Bill will confer and which we have debated in detail—Clauses 7, 8, 9 and 17—there is yet another set of powers recognised by Schedule 8 that will give Ministers the power to modify the retained EU law, on important subjects, which is brought into domestic law.

My concern is not reduced by paragraph 3(1) of Schedule 8 saying that these powers can be used only,

“so far as the context permits or requires”,

and paragraph 5(1) says that the powers may be used,

“unless the contrary intention appears”.

These statements are opaque in the extreme and certainly do not provide any degree of legal certainty.

I therefore look forward to hearing from the Minister why these powers are needed at all in addition to the other extensive powers which the Bill confers, and I look forward to hearing from him what these powers say, if anything, about the legal status of retained EU law. I beg to move.

[Lord Beith (LD)]

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.


A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

[Lord Goldsmith]

My Lords, I support the amendment. There is not much to add to what the noble Lord, Lord Pannick, said about what the amendment does and why it is necessary, nor to add to the questions he asked or to those then added by the noble Lord, Lord Beith, which in particular picked up issues with regard to the devolved Administrations.

We know that a major theme in your Lordships’ House, rightly, has been how powers are to be exercised, recognising that there may be circumstances in which they have to be exercised. Notwithstanding that, on the whole this Committee has rightly taken the view—or we hope that we will see it take the view, certainly from the interventions and contributions that have been made throughout the Committee—that this is a matter where proper parliamentary scrutiny is required. There may well be a role for certain delegated legislation, but please let us not add to it with still yet another way in which things can be done which avoid that full parliamentary scrutiny.

I hope that the Minister, when he responds, will be able to say something reassuring, both answering the questions posed by the noble Lords, Lord Pannick and Lord Beith, and saying why we need not be concerned and that the Government will content themselves with relying on those delegated powers that will be specific to the Bill, once this Committee and the other place have determined just what those delegated powers should be.

[Lord Keen of Elie]

I am obliged to noble Lords. I begin by making two observations. These amendments are linked closely to the issue we have already debated in Committee of the status of retained EU law and how we deal with it in the context of its status. As has been indicated previously in Committee, the Government have been listening and considering that, and we intend to come back to the House on the matter before Report. I mention that because it is a relevant backdrop to what we are considering at this stage.

On the points raised by the noble Lord, Lord Beith, essentially, the powers in paragraph 3 of Schedule 8 are, first of all, designed to remove what I might term the shadow of European law from what will be domestic legislation. However, more particularly, the noble Lord raised a point about the devolution issues and quoted from the Explanatory Notes. I understand that the section of the Explanatory Notes that he refers to addresses Clause 11 prior to its recent amendment. I appreciate that we then withdrew that amendment, but the Explanatory Notes should be read in that context. Essentially, therefore, we have moved on because of the decision to flip Clause 11—I think that was the term used—so I ask the noble Lord to look at the proposed amendment to Clause 11 to understand the context in which we now want to deal with this point.

[Lord Beith]

The noble and learned Lord is being reasonable, but he is inviting us to presume that we have moved on when we have not yet done so. The Government have indicated a willingness to look further at the Clause 11 issues and come back with something new. However, when we compare that discussion to the one we just had, it is a bit odd now to be invited to behave as if something has happened which has not happened yet.

[Lord Keen of Elie]

I understand the noble Lord’s point. He appreciates the statements of intent that we have made with regard to Clause 11. Although we withdrew the amendment to Clause 11, it was tendered and withdrawn for a particular purpose, in order to ensure that it could be finalised before Report. I hope that that addresses the noble Lord’s concern about the terms of the Explanatory Note that he quoted.

We have discussed on previous occasions in Committee the risk of ossifying the statute book and how that has to be balanced against checking the ability of the Government to propose changes to retained EU law. Clearly, as I indicated, the Government have heard the debates on the question of how we should treat the status of retained EU law, and we intend to come back on that. However, we must make provision for how delegated powers outside the Bill will interact with retained direct EU legislation. To do nothing would create uncertainty and potentially—by putting it beyond the reach even of Henry VIII powers that can modify Acts of Parliament—risk placing retained EU law on a pedestal of protection beyond even the elevated position of primary legislation. That is why I say that the two issues are linked: how we deal with the status of retained EU law but also carry on with our domestic powers to deal with the entire scope of our domestic legislation, including that which is going to be defined as retained EU law.

European Union (Withdrawal) Bill

Lord Beith Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Noble Lords]

Oh!

[Lord Beith (LD)]

Might noble Lords be referring to the mixed metaphor they have just heard?

[Lord Keen of Elie]

May I proceed to split an infinitive?

The new arrangements must be achieved in partnership with the devolved Administrations. Crucially, that takes time to work through.

We must proceed with caution in considering any form of sunset which would change the purpose of our discussions from designing and implementing frameworks that are fit for purpose to ones that can be achieved in the time allowed. Our priority must be to continue to provide legal certainty on how these laws will work in that interim, but this could risk uncertainty where the provisions may lift before their replacement is known.

This is a substantial and significant amendment to Clause 11. It reflects the progress that we and the devolved Administrations have made on frameworks and in our discussions on Clause 11. It strikes the right balance, delivering for the devolved Administrations and for businesses and people across the United Kingdom. I am grateful for the consideration that this House will provide on this offer as we continue to refine and consider the policy in coming weeks.

The amendments in the names of the noble Lords, Lord Stevenson, Lord Griffiths and Lord Thomas, would amend elements of the amendments that we have put forward. We have heard much on the question of the consent of the devolved institutions for the use of the proposed new Clause 11 powers that would “freeze” existing UK frameworks. As I indicated earlier, I wish to be clear on two fundamental points. The first is that this will be a collaborative process. There is no suggestion or intention that we want to cut our devolved institutions out of these decisions. We have put in place a set of shared principles that the Scottish and Welsh Governments have agreed and which guide our work on frameworks—I referred earlier to the statement following the Joint Ministerial Committee in October last year that sets out those principles in detail. Departments across Administrations are now working together to consider frameworks. Devolved and UK Ministers continue to discuss these matters regularly at Joint Ministerial Committee meetings. The limits on the powers make it clear that the views of the devolved Ministers must be heard and the United Kingdom Government in exercising the power must set out what those views are for Parliament’s consideration. That is not a power grab. As we have heard today, this Parliament will rightly hold us to account on how the Government act on devolution policy. The second point is that we must be clear about the implications and outcomes of this work. These decisions affect every part of the United Kingdom. It is the United Kingdom Government and the United Kingdom Parliament that are responsible for matters that affect the whole of the United Kingdom.

We must therefore be very careful about the impact of a hard-edged legal requirement, not because we do not want the Scottish Government and the Welsh Government and, once restored, the Northern Ireland Executive to be part of these decisions but because it cannot be for an Administration in one devolved nation to exercise what amounts to a veto over something that would be in the interest of the other nations of the United Kingdom as a whole. That is not and never was the purpose of the devolution settlement.

I thank my noble and learned friend Lord Mackay and the noble Lords, Lord Foulkes and Lord Wigley, for their proposals to bring the United Kingdom Government and devolved Administrations together. These are constructive suggestions for a middle way that deserve serious thought. I am encouraged by the effort being made to reach agreement.

At present, we believe that the JMC will be the right forum for engagement, working under the principles agreed for the work on frameworks in October last year, but I would like to take away the ideas that have been brought to the table here today by way of the further proposed amendments and consider how these matters might be incorporated into our policy thinking, while continuing to meet our two stated objectives on legal certainty and respect for the devolved settlements.

I thank my noble and learned friend Lord Mackay of Clashfern for his amendment, which seeks to find a way forward in the context of Clause 11 and the frameworks. Again, it is an attempt to ensure engagement between all the interested Administrations to achieve consensus at the end of the day. My noble and learned friend’s amendment highlights the importance of clarity as we develop frameworks. As we have discussed during earlier debates, the work on frameworks will have to be a collaborative effort designed to ensure maintenance of a single internal market for the United Kingdom after we leave the EU. Our intention remains to reach agreement with the devolved Administrations. However we approach it, we have that as a goal.

The approach that we have put forward for Clause 11 in these amendments is, I venture, an entirely reasonable proposition. By default, and unless further action is taken, the returning EU powers in the 153 areas identified will become devolved matters. We should perhaps take pause to remind ourselves that these are entirely new powers for the Scottish Parliament and National Assembly for Wales, expanding devolved competence into areas previously held and exercised by the EU and, prior to that, by the United Kingdom Parliament.

We believe that what we propose addresses the points raised by the Scottish and Welsh Governments in their legislative consent memorandums. I hope that noble Lords will recognise that we have moved a considerable way on this, but that we continue to see the importance of providing as much certainty as early as possible for businesses across the UK in order that we can avoid, or indeed manage, divergence between the individual nations of the United Kingdom. While we have not yet reached agreement with the devolved Administrations, discussions will continue and we are extremely keen to maintain our engagement with them. But we consider that it is right that noble Lords have the chance to consider these amendments—the Government committed to that on Report and we brought them forward for consideration by this Committee. I hope noble Lords whose amendments are in this group will feel able to withdraw them at this stage; we, as I indicated earlier, will do similarly with the government amendments at the end of this debate. I beg to move.

Amendment 302B (to Amendment 302A)

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[Lord Lang of Monkton]

My Lords, I too regret having to refer to the behaviour of the Scottish National Party and its constant attempts to find issues on which it can exercise grievance, but that is what is happening. It is because of that attitude that we are where we are now and that the consultations that were allegedly going extremely well throughout the earlier months have run up against a time limit. We are blinding ourselves to reality if we do not take account of the fact that the Scottish Administration have a completely different agenda from this one—notwithstanding the bonhomie of Mr Russell, which my noble and learned friend Lord Mackay of Clashfern was fortunate enough to encounter. I regret having to say it, but it has to be said, otherwise we are blinding ourselves to reality.

I do not dismiss the Government’s past willingness to consult patiently and, again, I respect their willingness to withdraw this amendment so that it can be further debated and discussed. That is entirely in line with the path that they have pursued, which is creditable and desirable. How I wish the other participants in these discussions could unanimously take the same approach. It is a tribute to the constitutional proprieties that we all like to see, seeking as the Government did to negotiate in good faith, to find a route that would not require them to assert the sovereignty of this Parliament. But it did not work in this context and I do not think it was ever going to work. In the end, the supremacy of the union must come first, as another Constitution Committee report, The Union and Devolution, recently suggested.

[Lord Beith]

My Lords, the noble Lord is a former chairman of the Constitution Committee, but he is perhaps doing a disservice to its present members by not reflecting that the committee felt that progress had to be made in this area, not least because the parliaments in both Edinburgh and Cardiff, across the parties, were unhappy with the Government’s original proposals.

[Lord Lang of Monkton]

I agree that progress has to be made, but progress is not made by constantly agreeing to give legislative consent on so many different issues, as so many amendments that we have debated in the last few days suggest. That is not progress; that goes towards unsettling the existence of the devolution within the United Kingdom parliamentary structure. We have to be realistic about these matters.

The Government’s approach of endless patience and consultation did not work. In the end, the supremacy of the union must come first. So I support the government amendment. By protecting the sovereignty of this Parliament we are best able to deliver the overall outcome, both for the devolved Administrations and for the United Kingdom to which they belong.

European Union (Withdrawal) Bill

Lord Beith Excerpts

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

[Lord Beith (LD)]

The situation that the noble Baroness described, in which the sifting committee has made a recommendation that the Government have rejected, is surely not one in which the confidence in the committee will be undermined. It is for the Government then to see whether they can persuade the House as a whole that the committee’s recommendation is unnecessary or undesirable. That is the scenario, not the one that she presented.

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If I were expressing the strategic purpose of these amendments in military terms, I would describe them as another step in a graduated response; that is, a step between the built-in inflexibility of the existing scrutiny procedures of your Lordships’ House on the one hand, and their complete rejection and destruction on the other. I beg to move.

[Lord Beith]

My Lords, the amendments in this group all seek to address a long-standing problem with statutory instruments: that for the most part, they are incapable of amendment. That is not absolutely always so because, many years ago in the other place, I moved an amendment to a statutory instrument arising from the Census Act but few bits of primary legislation allow one to do that. This is not an occasion on which those of us who have long been concerned about that are trying to use this legislation to improve a long-standing defect. It is peculiarly relevant to what we are considering because major matters will be dealt with by way of statutory instrument—a theme throughout the debates in recent days—and they may well include things which ought to be susceptible to amendment, such as details about the creation of public bodies, their powers and remit. To take one example, and there will be others, there are the ways in which new bodies can be held to account when they are created to replace European bodies.

We would be left in a situation where it would be said in the House of Commons, “Take it or leave it—this is the only statutory instrument you’re going to get and we clearly need to address this issue, therefore you must accept it in this form”. I am afraid that in this House, it would be, “Take it or face unspecified constitutional consequences”. Either we agreed to the statutory instrument in its present form or did something we should really not be doing at all, according to members of the Executive. That is an absurd position to put this House in, when what would be at issue would be some fundamental defect in the way the statutory instrument sought to transpose existing European processes into the British domestic statute book. The Government have to address the plea that all these amendments raise: to have some way to do something which falls short of wanting to reject a statutory instrument but insists that if it is to go through, it must be amended in some way.

[Baroness McIntosh of Pickering]

My Lords, I shall speak to Amendment 247, which seeks to do precisely that. I am delighted to have secured the support of the noble Lords, Lord Wigley and Lord Dykes. I took great comfort from the words of my noble friend Lady Goldie earlier this evening when she said that the Government welcome scrutiny. I hope that she will not regret those remarks.

My starting point this evening was paragraph 215 of the report by the Select Committee on the Constitution, which states:

“We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance”.


In Amendment 247, what I seek to do is precisely that: to enable a statutory instrument to be amendable.

While this may seem radical or even revolutionary, it is not as there is a precedent. To appeal to the noble Lord, Lord Lisvane, who I know likes some precedents but not others, the precedent here is the Civil Contingencies Act, which legislated precisely for statutory instruments to be amended. Under that Act, specific examples would be required. In my view, there should not be a blanket provision to amend but in the specific circumstances where a statutory instrument in relation to the Bill before the Committee legislates on what amounts to a substantive policy change, it should be open to both Houses to be able to amend the statutory instrument. That is the procedure that I have set out here, once again with the expert advice of the Public Bill Office. At Clauses 19 and 20 of the Civil Contingencies Act, there is a power to make emergency regulations if certain conditions are met. These orders stand unless negated or amended by Parliament, so the power to amend the statutory instrument does exist, although I accept it is not used very often.

Further, in Clause 29, the emergency regulations should be made by statutory instrument. Statutory instruments can be made by either negative or affirmative resolution of the Houses of Parliament. Whether negative or affirmative is set out in the regulations, which will already have been agreed by Parliament, and committed and put into operation by the Government, unless later rejected or amended by Parliament within the seven-day period set down in that clause.

I am sure that my noble friend, in summing up the debate on this small group of amendments, will say that it is not appropriate to amend statutory instruments in these circumstances. I put it to your Lordships in Committee this evening that in those very specific circumstances where the Government seek to make and propose a substantive policy change by way of statutory instrument rather than by an Act of Parliament, that is simply not appropriate and outwith the actual remit of the Bill before us this evening. I therefore hope that Amendment 247 will find favour with the Committee this evening.

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[Baroness Goldie]

My Lords, I have to say that I have been called many things in my life, but the appellation by the noble Lord, Lord Adonis, of a “parliamentary anaesthetic” is a first. As we approach the last contribution from the Government on today’s business, though, maybe a metaphorical sleeping draught is appropriate as noble Lords contemplate their slumbers.

As I have stressed, the Government are committed to full and proper scrutiny of the statutory instruments that will come under the Bill. The sifting process seeks to provide transparency where there has been ministerial discretion in choosing the procedure that will apply to an instrument, and it is therefore extended to the main powers under the Bill. All instruments under the Bill will be subject to an appropriate level of parliamentary scrutiny. We have also provided for additional explanatory material to ensure that there is a proper level of transparency for all the instruments and that Parliament is fully informed and can properly sift and scrutinise all the secondary legislation that is to come. If noble Lords do not approve of their contents—and sometimes that happens—the proper way to express that is to oppose the instruments and ask the Government to come back with an alternative proposal.

Nothing in the Bill is intended to be an alteration to the long-established and, in this House, well-functioning procedures for the scrutiny of secondary legislation. The Government understand the concerns around the powers in Clause 17, and I have listened closely to what your Lordships have been saying. We will consider how we might be able to provide reassurance and address concerns when we reach that clause, as we shall imminently do.

The amendments in this group raise similar issues to those in earlier groups, but I shall address—in, I hope, sufficient detail—my noble friend Lord Hodgson’s Amendments 238 and 239 concerning the creation of a new super-affirmative procedure for the scrutiny of statutory instruments under the Bill.

I cannot shy away from the fact that a significant number of statutory instruments will come before us under the Bill. I reassure your Lordships once more that a very significant element of what needs to be done will be strictly technical, making de minimis changes such as the adjustment of reference to EU law or to retained EU law. Procedures such as that suggested by my noble friend, which were described as “turbocharged” procedures, are simply disproportionate to these changes, and a procedure of the kind mooted by my noble friend is simply unnecessary. The powers in the Bill can be used only for limited purposes and are themselves subject to a number of restrictions.

For the types of major policy change that a number of your Lordships appear to be concerned that the Government might seek to make under the Bill, we do not shy away from parliamentary scrutiny. The proper means for scrutiny of such changes is primary legislation—rather than seeking to design, at pace, a new, bespoke super-affirmative process.

I know that some of your Lordships are wary of relying on assurances from the Dispatch Box but, in this case, we have acted on those assurances already, as can be seen through the passage of the Nuclear Safeguards Bill and the sanctions Bill. I understand noble Lords’ wish to ensure that Parliament can give the SIs to come consideration which is akin or similar to the consideration given to primary legislation, but I suggest that there must be some delineation—there always has been—between things that merit such full consideration and those that do not. Frankly, the alternative is legislative logjam: a complete constipation of the process.

For each of those categories, the Government wish to use the well-established procedures that Parliament has already set down. I have to say that all precedent suggests that procedures such as those suggested by my noble friend can take six months to a year or even longer. Quite simply, in the context of what we are engaged in, we do not have that time. Adopting a super-affirmative procedure would therefore prevent us from being able to deliver on a key objective of the Bill: making timeous and necessary change to maximise certainty for businesses and individuals by ensuring continuity through a functioning statute book in time for exit. In my opinion, that would be a grave failing.

My noble friend Lord Hailsham’s amendment, Amendment 248, crosses similar ground to Amendment 247 in the name of my noble friend Lady McIntosh. They bring us to a discussion of some of the fundamental assumptions of the debates we are having today, have had on previous days and shall have in regard to other Bills, about secondary legislation. I understand the concern of my noble friends, echoed no doubt by others in the Committee, that this is a framework Bill and that the detail, wherein the devil always lies, will be available only in secondary legislation, with which we can only declare ourselves content or not content. However, I must make it clear that the Government cannot support these amendments as a solution to this problem.

It is by the processes involved in passing primary legislation that the House can amend law as it passes before Parliament. That process involves long and detailed scrutiny and debate, with the Government given an opportunity to explain their case in great detail and others given an opportunity to challenge and test that over multiple stages and in both Houses in sequence.

[Lord Beith]

I should like the Minister to envisage that she is responding on behalf of the Government to a debate on a statutory instrument which the House in general is saying that we need to have but which has a fundamental flaw that has been identified by many noble Lords. At that point, is she really going to say to the House, “The proper course for you to take is to reject this instrument, and then I will be forced to take it away and come back with a corrected instrument”? Or will she say, “We’ve no time for that now, you will just have to accept it as it is”?

[Baroness Goldie]

That would of course entirely depend on the circumstances of the instrument, the extent of the change being effected by the instrument and what was an appropriate response to the concerns being raised. I am certain that the Government would respond in a sensible manner if that situation were to arise.

I repeat that it is for primary legislation to set a policy direction and establish the framework in which government may operate. Secondary legislation has a different place in our legal framework. The Hansard Society, which many in the House will accept as an expert source in this area, has said that the power to amend SIs would be,

“essentially undermining the principle of delegation”.

If wider review of the legislative process is proposed—as a number of noble Lords would like—this Bill is not the place to do it. I note the recommendation of the Constitution Committee, in its report The Process of Constitutional Change, that substantial constitutional change should be clear when a Bill is introduced. This Bill is substantial in its repeal of the ECA, but that was clear even before the Bill was introduced and I do not think a change of this type would be appropriate for a Bill which has already completed its passage through the other place.

In the other place, my right honourable friend Dominic Grieve proposed a triage mechanism and both he and the Government accepted the sifting mechanism proposed by its Procedure Committee. This will increase the transparency surrounding secondary legislation, but will not change its nature. Secondary legislation can be scrutinised and debated and, indeed, can be of great importance. However, its purpose is to fill in the spaces where Parliament has set a course under primary legislation and empowered the Government to provide for the details in subordinate instruments. As has already been said, if Parliament is not content with an SI, it can be rejected and the Government can consider and return with another. To open statutory instruments to amendment would essentially be to create a new kind of legislation, without the scrutiny afforded to primary legislation but, at the same time, conferring on the new kind one of the essential qualities of primary legislation.