European Union (Withdrawal) Bill

Debate between Lord Cormack and Lord Beith

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

[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.

[Lord Cormack]

My Lords, I have added my name to a number of amendments that delete “appropriate” and insert “necessary”. They are all in this group. I do not claim any particular merit for that amendment: the noble and learned Lord, Lord Goldsmith, is, I believe, the lead name on this amendment. The fact is, we have one thing in common. Whether is it “essential”, as my noble friend Lord Hailsham will doubtless seek to persuade us in a few minutes, whether it is “necessary”, used in the context described by the noble Lord, Lord Wilson, when he moved his amendment so admirably, or whether it is a bare “necessary”, I do not mind. I frankly have a slight preference for the wording of the noble Lord, Lord Wilson.

We are in a very sad place when, having been told that we were taking back control, what we are doing is bestowing control. Parliament is bestowing control—if this goes through—on the Executive. I have quoted before in your Lordships’ House the famous Motion moved in 1781, I believe, in another place by Colonel Dunning: “The power of the Crown has increased, is increasing and ought to be diminished”. Substitute “Executive” for “Crown” and that is what this is all about. I also think of the immortal words of my friend the late father of my noble friend Lord Hailsham, who talked about an “elected dictatorship”.

Are we really seeking to leave the European Union—which I believe is a foolish step—to bestow on the Government the power which Parliament should take? That is the fundamental question. We should not bestow the power on or allow any Minister—whether he or she be ever so high or ever so low, whether he or she be at the top of the 109 or at the bottom, it matters not—to change the law of the land, and then indeed extend it, as the noble Lord, Lord Wilson, pointed out in his admirable speech, to public bodies and to the courts. We live in a parliamentary democracy. Your Lordships’ House rightly has much less power than the elected House, but we can act as a check and a balance and as an encourager to those in another place. These are probing amendments tonight, of course, but I am confident that this will come to a vote on Report, and we should say to our colleagues in another place, “Do not give up the power which you exercise as representatives, not delegates, of your constituents, because if you do that, it will be a real nail in the coffin of democracy”.

I personally believe that a referendum is inimical to representative democracy. But, as we have said before, we are where we are. We are moving away from the European Union, but we must move away as a parliamentary democracy, where power ultimately resides not in No. 10 Downing Street, the Treasury, or in any ministerial office but in the Chamber at the other end of the Corridor. Your Lordships’ House has a particularly important role in stiffening the sinews of those at the other end of the Corridor. There is an enormous wealth of experience in your Lordships’ House, which was demonstrated by the noble Lord, Lord Wilson, this evening, and which would have been demonstrated, I am sure, with equal eloquence by the noble Lord, Lord Lisvane, had he been able to be with us. We in a sense must see ourselves as the servants of democracy, but with a duty to put some real strength in the directly elected House.

I hope that we will have a response from the Minister this evening that will indicate that he understands what this is about. He, of course, is one of the 109. He may be low down on the list, but he is there. Whether he is 109, 108 or 73, I know not and I care not—but he is there. I hope that at the very least he will repudiate any notion of exercising power that it is not for him to exercise. We have to address this issue, whether we think in terms of Henry VIII or Thomas Cromwell or Oliver Cromwell, all three of whom would have looked upon this as a marvellous mandate. We have a duty. Tonight we are probing, but there will come a night when we must vote if the response is not as it should be this evening.