European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Bowles of Berkhamsted

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, my Amendment 39 is buried among the government amendments in this group. I will speak to it and in doing so elaborate some questions I have concerning the government amendments. I thank the Minister—the amendments sounded better when he explained them than when I read them. I liked that he kept repeating that it will require primary legislation to change what I shall describe in a shorthand way as policy-making legislation, which is what my amendment is about.

My amendment is short and concerns life after Clause 7—life after implementation of the Bill—which is this Parliament’s legislative future. I hope this group of amendments paves the way to ensure that Parliament has a principal role, which is not how I took it when I read them. As the Minister said, my amendment provides that retained EU law enacted in the EU by co-decision—the ordinary legislative procedure—may be modified only by an Act of Parliament. I know that the Minister knows that “the ordinary legislative procedure” is just the new name for co-decision under the Lisbon treaty.

I selected that legislation, which is a subset that I spoke about in Committee, quite simply because the European Parliament had a full scrutiny and amending role in making the legislation and in any amendments to it, and I do not see why in future this Parliament should be in a lesser place than the European Parliament. The Minister has perhaps gone some way towards pointing out that that might be the case, but I will read what he said carefully to make sure. I have covered the full range of matters covered by co-decision. They are things such as company law, financial services and other issues that were not in the sensitive areas that were covered in Amendment 11 which we voted through last Wednesday. My amendment covers directives as well as direct EU regulations. It is important that policy-making legislation is not changed too easily. Again, the Minister may have sown seeds to put my mind at rest on that, but I want to examine what he said more carefully.

Another reason why it is very important for this legislation to come to Parliament to be changed is that, despite the good efforts of the EU committees, there are quite large swathes of legislation about which this Parliament is relatively ignorant. I do not say that disparagingly; it is just the way the law was made. As we go forward, it is very important that this Parliament clearly understands laws that affect major industries, even if subsequently it chooses that some of them are to be delegated to regulators. We have a system of delegation. Sometimes there is regrettably rather too much delegation, but it is very clear that if any of that is going on, it needs to have full scrutiny.

My final point relates to where we are going to use existing legislation to amend retained EU legislation after it has been converted. The legislation that we might use was not made to cover legislation that used to be done in the EU because it was well known that those policy areas were reserved to the EU. Extending the scope of that legislation so that policy-making legislation can be amended by secondary legislation is extending it further than was contemplated, and it may go beyond the reasonable expectations of that legislation. Constitutionally, that gives me a problem. Perhaps some members of the Constitution Committee can mention this. I have circled paragraph 3 of Schedule 8, which refers to powers on subordinate legislation before exit day,

“as being capable of being exercised to modify … any retained direct EU legislation”.

I submit that none of that existing legislation could have been made in contemplation of amending that type of legislation. Unless it was clearly elaborated that that was the case, I am unhappy with that provision as it originally stood and as it now stands. I am a little more unhappy with the amendment to Schedule 8 because it has been stretched to cover the rights that are going to be retained by virtue of Clause 4, which was not in the original paragraph 3 of Schedule 8. I am a little worried about having rights taken away by legislation that was not made in contemplation of taking those rights away. Those are the reservations I still have and I would welcome the opportunity to discuss with the Minister whether we can sort them out and return to this at Third Reading.

[Lord Cormack]

My Lords, I thought the Minister was a little harsh on the noble Baroness, Lady Hayter, and on the amendment which the House passed by a very large majority last week, but let that pass for the moment. I am grateful to my noble friend for making a genuine attempt to understand some of the concerns which can be summarised very briefly. This House is very concerned that taking back control means Parliament taking back control, not the Executive amassing more power to themselves, so he must understand that we will all want to read what he said. Some of it seemed very helpful but we will want to look very carefully at what the Government are actually proposing. It seems a gentle move in the right direction but, just as we have to consider carefully what the Minister has said, I say to him with great respect that he has to reconsider what the House decided last week, because it decided by a very large majority.

A final word of thanks to my noble friend: he has been dismissive of a number of pleas that some matters should be returned to on Third Reading. One understands why, but at least he has been emphatic tonight in realising that we will have to come back to some matters on Third Reading, and for that I thank him.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Baroness Bowles of Berkhamsted

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

[Lord Cormack (Con)]

My Lords, this is very important and the noble Baroness is entirely justified in getting a little worked up about it. I spent 40 years, almost to the day, in the other place. I never had a ministerial office and I was always deeply suspicious of Ministers exercising arbitrary power and of any measure that extended the opportunity for Ministers to exercise such powers. My noble friend Lord Hailsham intervened in the debate earlier this week to remind me—not that I needed reminding—of the importance of the Back-Bencher. The Government must always be answerable to Parliament. Giving a Minister an extra arbitrary power, be it in ever such a small degree, enables them to evade answerability to the elected House.

We are fortunate to have committees—the Constitution Committee and the committee of which the noble Lords, Lord Lisvane and Lord Tyler, are members—that act as watchdogs on behalf of this House and Parliament. As this Bill leaves our House, which it will do in a month or two, and goes back to the Commons, it must have been tightened up in as many particulars as possible so as to guarantee as much power as possible to the elected House.

[Baroness Bowles of Berkhamsted]

My Lords, I will speak to the amendment in my name, in case other noble Lords want to come in on it. It relates to Part 2 of Schedule 5, on the rules of evidence. It is about regulations again, but in a different part of the schedule. I am sensitive to powers that potentially change what may or may not be available as evidence. This is a constitutional point, especially if it means disappearing cases or defences. I therefore find the provision in paragraph 4(3) of Schedule 5 too wide. It permits regulations under paragraph 4 to modify any provision made by or under any enactment made up to the end of the Session in which this withdrawal Bill is passed. That is basically all legislation until then.

I have tried to work out why this provision is needed and what it could do if abused, for that is the standard that we must measure against. In many discussions on wide powers, Ministers have protested good faith. Many of your Lordships have not doubted them but have still wanted safeguards, while others of your Lordships, including distinguished privy counsellors on the government side, have warned—or maybe confessed—that Ministers will abuse powers and have likewise suggested safeguards. This is all part of the “appropriate” versus “necessary” argument.

I was struck last Wednesday that, when the boot was on the other foot, the Government were less keen on having to rely on trust. About devolution, the noble and learned Lord, Lord Keen, said:

“If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety”.—[Official Report, 21/3/18; col. 403.]


I accept that the context is different, but the point that many of us have been trying to make about many powers in the Bill is just that: it is a matter of constitutional propriety between the Executive and Parliament and, indeed, the freedoms of the people.

Here we have another such power, even if it is small. It does not seem right that rules of evidence for admissibility could be changed, maybe quite widely, by amending any Act of Parliament, not necessarily limited to the consequences of Brexit. I have suggested adding a limitation, which would not allow use of the power for reducing the scope of what is admissible except for the purpose of replacing EU references with domestic ones. I thought that limitation was additionally relevant because the power to amend all pre-Brexit legislation seems to be perpetual. I was first inclined just to delete it, but I hope that my amendment will give the Minister an opportunity to clarify the kind of circumstances that are envisaged for the power, why it should be perpetual and whether some limitation could be envisaged to address my concerns.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Cormack and Baroness Bowles of Berkhamsted

Wednesday 17th January 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I had not intended to speak and—I apologise—I have not taken a close interest in this Bill, but I was moved and impressed by what the noble and learned Lord, Lord Judge, and my noble friend Lord Hailsham said. The mantra of taking back control means only one thing to me: it is Parliament taking back control. It is not Parliament conferring a blank cheque upon the Executive, from whichever party they are drawn. I am disturbed that this principle appears very much at risk.

In the previous Divisions on this Bill I voted for the Government. I did so because I have not taken a close and continuing interest in the Bill, as I indicated at the beginning, and because I have a real regard for my noble friend Lord Ahmad of Wimbledon, who I have come to know well. I respect him greatly and regard him as a Minister who has proper regard for Parliament and the constraints under which Ministers should operate. I feel for him on this issue but add my appeal to the brief but eloquent appeal of my noble and learned friend Lord Mackay of Clashfern.

Taking up the point made by the noble Lord, Lord Pannick, I very much hope that my noble friend the Minister will indicate that he truly appreciates the concerns of those who are apprehensive about an accretion of power to the Executive, and that he will, after discussing the matter further with the noble and learned Lord, Lord Judge, come back at Third Reading with something that is acceptable throughout your Lordships’ House.

We are in difficult waters. This is a precursor to a long and I am sure complicated, but I hope not acrimonious, debate on the withdrawal Bill, on which the other place is coming towards the end of its deliberations. However, it is no part of the functions of your Lordships’ House to connive at the accretion of power to the Executive. Certain things should depend upon primary legislation, not the fiat of a Minister. I hope that my greatly respected noble friend Lord Ahmad will give me a response that will not oblige me to refrain from supporting the Government.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I recognise the great importance of Amendment 71A but wish to speak to some of the other amendments with which it is grouped. As has already been said by my noble friend Lady Kramer, we have had productive discussions and have identified common ground in relation to the concerns about paragraphs (a), (b) and (d) in Amendment 72. I understand that the Minister will make a statement about the House returning to these issues at Third Reading, with assurances and language that enable me to not press Amendment 72. I also understand that the Minister will clarify the effect of the term “without prejudice” at the beginning of Schedule 2, which relates to my Amendment 76A.

Amendment 74, standing in my name and those of my noble friend Lady Kramer and the noble Lord, Lord Collins of Highbury, would introduce a failure to prevent a money laundering facilitation offence. This was elaborated in Committee, so I need only remind noble Lords that the Law Commission has long recognised a need for a change in the law to enable large corporations to be brought to justice where the need to find a directing mind gets in the way of achieving justice. This type of offence has worked not only since it was introduced in the Bribery Act but has recently been legislated for with regard to tax evasion. Money laundering is in a similar category and this offence would enable offending British companies to be successfully prosecuted here instead of us witnessing the United States getting a better grip than us: that is not being a leader on anti-money laundering. It is also proper that such a new offence is brought in by primary legislation. I give notice that at the appropriate moment I will move Amendment 74 and, if need be, divide the House.