European Union (Withdrawal) Bill

Debate between Lord Beith and Lord Bilimoria

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Bilimoria]

I thank the noble Viscount for that intervention. At the moment, the courts very rarely intervene. They had to intervene with Article 50 being put through Parliament; that was fundamental. This House defeated the Government twice by almost 100 votes each time in two of the biggest votes in the history of our Parliament—614 of us voted in one and 634 in the other. Do we want a situation where this Parliament or the Government are continually challenged by the courts? We do not want to go there, and this is why these amendments are important.

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

[Lord Beith (LD)]

My Lords, from this side of the Committee I shall speak to Amendment 244A, in my name, which comes from the Constitution Committee and was mentioned by the noble Lord, Lord Wilson, in his opening remarks. The amendment’s purpose is to provide a more objective test and a requirement for Ministers to state that they have applied an objective test. Should they have failed to do so, they become accountable for not having done so. That is the value of it. It is in no way exclusive of the series of amendments in the remainder of the group, almost all of which replace “appropriate” with “necessary”. I will come to that in a moment. I want to appreciate the words a few moments ago from the noble Lord who is the former—and much respected—chairman of the Constitution Committee. His contribution is one that Ministers really ought to note.

We are dealing with wording in this legislation that worries us enough in this context. However, noble Lords should be in no doubt that, if this wording remains in this legislation, subsequent debates will take place around the idea that, “It was included in the withdrawal Bill and there were some very serious issues raised in that, so it must be acceptable” and that it must be reasonable to use such a shallow test of appropriateness for very far-reaching statutory instrument powers. Numerous other Bills will come before us in the course of this Parliament which have statutory instrument powers in them, and this and future Governments will draw on the precedent of how this legislation is worded.

As to the distinction between “appropriate” and “necessary”, the suggestion I have heard that Ministers do not realise they are open to legal challenge is, I think, quite wrong. Ministers are well aware that they might be open to legal challenge, and that is why they prefer “appropriate” to “necessary”. It gives them a “plump legal cushion”—that wonderful expression of the noble Lord, Lord Wilson—behind which they can hide. It is just not good enough; we have to find better wording. If Ministers are unhappy with necessity, they must come up with something more effective. We find the word “appropriate” used in many contexts. It conjures to mind the sort of instructions for a day out that say “Appropriate footwear should be worn”. That clearly indicates to the person who has to make the decision that they have a fair degree of discretion—it could mean hiking boots or other firm-soled shoes, as long as it is not stilettos or ballet pumps. They have a choice. Ministers are desperately trying to preserve choice for when they bring forward statutory instruments under this legislation.

The problems of the statutory instruments are not confined to Henry VIII provisions, as the noble Viscount, Lord Hailsham, pointed out. There is the inability to amend any of these statutory instruments, whether they are Henry VIII in their impact or whether they impact merely on previous statutory instruments. The inability to amend them grossly weakens Parliament’s ability to deal with matters that would normally be in primary legislation.

I am not only sympathetic to the amendment that the committee itself has put forward, which has my name on it, or something like it, but I am also very supportive of the attempt to find a better word than “appropriate”. So far, at any rate, necessity seems the right provision.