European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Lisvane

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Callanan]

I do apologise; he is behind the Bar, so he is not quite in his place. I hope he will not mind if I quote him. When comparable amendments were added by the Government to the Sanctions and Anti-Money Laundering Bill, and when speaking in support of government Amendment 9, to which he signed his name, he stated:

“I am satisfied that this will impose a real discipline on the Minister, backed up of course by the prospect of judicial review”.—[Official Report, 15/1/18; col. 439.]


That amendment passed without a Division—and I am sure the noble Lord will be supporting us in the Division tonight.

I know that I have offered new information in my speech today. In doing so, I hope that I have demonstrated that this is not simply a case of risk-averse Ministers erring on the side of caution. I can say with complete sincerity that the amendments on the Marshalled List today would necessitate a significant review of our secondary legislation programme and would surely lead to worse outcomes. In this, I agree with the noble Baroness, Lady Falkner. To avoid such a situation, I hope that the noble Lord will agree to withdraw his amendment. If, however, as I suspect, he wishes to test the will of the House, I suggest that he do so now, as this is not an issue the Government intend to return to at Third Reading.

[Lord Lisvane]

My Lords, I thank all noble Lords who have taken part in this debate—especially for their concision and brevity. I am in a position to help the noble Lord, Lord Skelmersdale, as I apprehended that his concern was that if the amendment were agreed, Clause 7(1) would be without a subject. But that subsection begins with the words:

“A Minister of the Crown”—


so it is quite clear who will be exercising the powers.

I listened very carefully to the noble Lord, Lord Bridges, and I hope that the difference of opinion which still remains between us is a demonstration that two reasonable people can disagree without either one being unreasonable.

I also listened very carefully to the noble Baroness, Lady Falkner of Margravine, who had the great courtesy to mention her concerns to me earlier. It seemed to me that her particular concern was the matter of discretion and the amount of time that would be required to make orders. I respectfully suggest that neither “appropriate” nor “necessary” will have an impact on time. There will be a great deal of pressure to produce the delegated legislation in the time required, but I do not believe that whether the word is “appropriate” or “necessary” will impact on that. In terms of ministerial discretion, there is still of course a substantial amount of discretion to be given to Ministers. The debate we are having is about the degree of constraint that there should be on that discretion.

The suggestion I made in moving the amendment, which the Minister was kind enough to recall, was reflected in the Delegated Powers Committee’s 20th report: namely, that some form of sensible definition, or at least the parameters of what could be done without going beyond the bounds of “necessary”, would be of great help to Ministers. If we are talking about avoiding legal uncertainty—and here I was most grateful for the intervention of the noble Viscount, Lord Hailsham, from his extensive professional experience—I do not think that adopting “necessary” would be necessarily an obstacle.

The Minister played the bowling in a very determined way, but the wicket has worsened substantially since Committee. He actually used the phrase about a course of action being “most sensible”—which seems to me to be at the heart of this. If one has some sort of expanded indication of what “necessary” can encompass, that seems to me to be exactly what is required. Nobody wants to stop Ministers doing things that are sensible—certainly I do not—but let us at least have them doing them on a canvas whose bounds are reasonably clear.

When he got on to “torturing” the English language, I felt that that really was a little hyperbolic. You do not torture a concept simply by telling people how you would like it interpreted. That seems again to me to be at the heart of the amendment.

The Minister’s Ofcom example was new material and very helpful, but it started to get into the area of whether there could be more than one solution to “necessary”—and, of course, there can, because, if there is a deficiency, there is not a single solution that is going to assuage that deficiency. There may be several of equal merit, and when they assuage that deficiency they demonstrate their necessity. So I did not really think that that was a particularly compelling example.

Of course, if we are to expect that significant policy changes will be made, the right route for making those changes is primary legislation, and there will be—as with a certain sense of foreboding we are well aware—a number of vehicles for such provision.

So I think that the Minister will not be surprised to hear me say that, despite a dogged defence of his wicket, I shall ask noble Lords to indicate their views, and I wish to test the opinion of the House.

European Union (Withdrawal) Bill

Debate between Lord Callanan and Lord Lisvane

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Callanan]

We said that we would return to this matter on Report, but we are now talking about the sub-delegation of those fees and charges.

Moving on to Amendment 352 in the name of my noble friend Lord Hailsham, I am in total agreement with the principle that the Government should not raise fees or charges from the public, whether businesses or individuals, without considering the impact on those who will pay or the impact on both the payers and the wider economy. I may be wrong but I doubt that many in this Committee, other than the noble Lord, Lord Macpherson, who is sadly not in his place and is of course intimately familiar with it, will have read Managing Public Money. This weighty tome is easily available online and serves as the sacred text of Her Majesty’s Treasury regarding many things, including the setting of new fees and charges. It sets out that charges on the public must be subject to the general practices on consultation and economic and financial analysis. Without this, the consent of Her Majesty’s Treasury to establishing a new fee or charge, required by paragraph 3 of Schedule 4 for all new fees or charges under the Bill, cannot be obtained.

I hope that this long explanation, for which I apologise at this late hour, and my other points have gone some way to reassuring noble Lords. I am happy to continue discussing these important issues, but in the meantime I hope noble Lords will not press their amendments today.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister for the detail he went into in his reply, particularly at this late hour. I also pay tribute to him for his customary generosity in being prepared to discuss these matters outside the Chamber. He recommended one weighty tome with which, as a former accounting officer, I am moderately familiar. Perhaps I may recommend to him another weighty tome, Craies On Legislation, edited in masterly fashion by Daniel Greenberg, former parliamentary counsel. I think it is at chapter 3.5.1 that he will find a very good treatment of the dos and don’ts of sub-delegation. That might be something we discuss before we come back to these matters on Report.

Of course, he is absolutely right to say that the consigning of these powers to a body or a person will require the affirmative procedure, and that is fine up to a point, but the exercise of the powers, once sub-delegated, will be free of the trammels of the accepted processes, so it becomes even more important that, in the consigning of the powers, the constraints on how they can be used by the consignee, if I can use that rather unlegislative term, are made absolutely clear. That is something, perhaps, on which we can have further conversations between now and Report. On that basis, I beg leave to withdraw Amendment 110.