European Union (Withdrawal) Bill

Debate between Lord Beith and Baroness Smith of Newnham

Wednesday 14th March 2018 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.

We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.

There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.

I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:

“No regulations may be made under this section after exit day”.


However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?

At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.

[Lord Beith]

My Lords, I follow my noble friend on her specific point and reiterate the question. On the specific point, we are in even more of an Alice in Wonderland world than she and the noble Lord, Lord Lisvane, indicated because under subsection (2) it might be possible to make regulations that delete the provisions of Amendment 7—that is, to remove the words,

“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal”.

That might be something that was thought appropriate by Ministers because they felt they had to get on with something before Parliament had got to the stage of considering withdrawal. It is possible under this provision. It seems clear from all those who have looked carefully at it that the way Clause 9 is worded really needs drastic surgery, if I may use the words of the noble Lord, Lord Lisvane.

This brings me back to the question that I have tried, by brief intervention on two occasions so far, to get an answer to: why do the Government want to persist in including in the Bill the first half of Clause 9(1) and the remaining subsections? Following the inclusion of the Amendment 7 provisions, the proper place for whatever powers are needed for statutory instruments arising from the withdrawal agreement is the withdrawal agreement Bill. We would have plenty of time between now and then to make sure that they are expressed in terms not open to the abuses that several of us have pointed out. Why do the Government still want these words in the Bill?