Retained EU Law (Revocation and Reform) Bill

Debate between Lord Cormack and Lord Wilson of Dinton

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Cormack (Con)]

My noble friend interjects that I was right. Well, I may have been right, but I lost. We all lost. The fact is that we have devolved Administrations. Two of them are active and I devoutly hope and pray that the third will be active again very soon. It is very important that we make this system work. All we are asking for is for my noble friend Lord Callanan to adopt as his motto “festina lente”—make haste slowly—and make real progress as one does so.

The noble and learned Lord, Lord Thomas of Cwmgiedd, made a very wise speech. He laid out just the sort of complexities that we face. I just hope that this Bill, which I believe to be unnecessary in its present form, and premature, can be paused. I hope it can go into the same compartment that the Northern Ireland Protocol Bill has now gone into. That is what I hope for. I believe passionately—the amendment moved by the noble Baroness, Lady Humphreys, underlines this—that this is going to do harm to our United Kingdom and to our relations with our European friends and former partners. Neither of those things is in the interest of our country or is going to contribute to a stable future for it.

[Lord Wilson of Dinton (CB)]

My Lords, I am not sure I am wise to rise and speak, but I feel as a matter of honesty I must, in response to my noble and learned friend Lord Thomas, who spoke brilliantly.

Let me confess that I was Cabinet Secretary during devolution legislation and its implementation. I oversaw the implementation of devolution. I can confirm everything that my noble and learned friend said. It was messy behind the scenes. Noble Lords may not remember that the legislation went through Parliament amazingly easily and very fast. A lot of points that are being raised now should have been raised in different ways on that legislation. I was under instructions from the then Prime Minister Mr Blair that my misgivings about whether it would weaken the union—I shared them—should be set aside and we should use devolution as a way of strengthening the union, and implement it with harmony.

I had in place a structure with my colleagues in Wales and Scotland to oversee the effective implementation. There were endless points of the kind that my noble and learned friend raised from before 1999 and on the legislation, which we had to sort out. I had monthly meetings—these went on for years—with my Permanent Secretary colleagues from Wales and Scotland in particular to discuss and go through detailed issues which arose on the legislation on assets, personalities, quangos and everything, some of which were legal and some of which were not. I am pleased to tell noble Lords that I cannot remember them now. It is a blessing. I have tried to shed them, because they were difficult. But what I can say is that we dealt with them in the end with good will, good lawyers and great ingenuity. And we dealt with them—if I can confess it in the privacy of this Chamber—with a certain amount of fudge, because some of them were impossible to deal with without good will and pragmatism.

But I am certain that this Bill has overlooked a great deal. I am afraid that there will be more horrible loose ends for my successors to try to sort out. The amendments that the noble Baroness, Lady Humphreys, my noble and learned friend Lord Hope and others have put down are wise. The Government should allow themselves every scope for sorting things out for years to come, whatever the sunsetting clause says, because there will be awful problems to sort out.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Lord Wilson of Dinton

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

[Lord Wilson of Dinton]

The noble Viscount reinforces the point which I am trying to make. The Explanatory Notes explain that the power also extends to,

“altering Acts of Parliament where appropriate”.

We are talking about the power to make law and to amend existing law. This is the dream of tyrants through the ages. It is something which is repugnant to the history of this country and the development of our legal system. My argument to the Committee is that the House should lean as hard against it as it can, provided that does not get in the way of achieving the desired result of a functioning legal system. We should not leave leeway which allows Ministers to do things which would be policy changes. I am uneasy about the danger that policy changes could come through the use of the power.

When you try to marry 40 years of legislation with British law, there will be endless choices to be made: you could go this way; you could go that way. Policy is tied up in the interstices of quite small decisions about how the laws should be married together. We should lean against anything which encourages policy change and we should focus the Minister’s power exclusively on achieving a functioning legal system, without going wider. If the law as it emerges needs to be improved, it should be improved by separate legislation that goes through proper processes. We should give only the power that is strictly necessary from the point of view of the objects of this legislation.

Another point I draw to the Committee’s attention is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but I am not now—but if I read the Bill correctly, it gives the power to a Minister of the Crown, as defined in the Ministers of the Crown Act 1975. Section 8 of the Act says that a Minister of the Crown is anyone who holds,

“office in Her Majesty’s Government”.

I have not checked this, but my memory is—it used to be imprinted on me when I was working in the Civil Service—that you can have up to 109 Ministers in the Government, so 109 people are being authorised to make or to amend law. In addition, the Commissioners of Customs and Excise will be given the power to make law and amend law, subject to the restrictions. That is another seven people—a Permanent Secretary and a number of directors-general—being given this power which tyrants dream of.

In addition, I draw the Committee’s attention to where the Explanatory Notes say that the power could include,

“sub-delegating the power to a public authority where they are best placed to deal with the deficiencies”.

So we are talking about giving public authorities the power to make law without going through parliamentary processes and to amend law. What is a public authority? According to Section 14, “public authority” is defined by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that,

“‘public authority’ includes … a court or tribunal”.

I ask the Minister: are we seriously proposing to give the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in that subsection says that “public authority” includes,

“any person certain of whose functions are functions of a public nature”.

The proposal before this Committee is that the power to make and amend law within the conditions set out in the clause could be capable of being given to any person certain of whose functions are of a public nature, which in essence is any public servant. I put it to the Committee: is this necessary or reasonable?

[Lord Cormack (Con)]

Without reference to Parliament.

[Lord Wilson of Dinton]

Is this reasonable without reference to Parliament, or to the lightest sifting procedure where any recommendations can be made?

I ask the Minister whether he has an estimate of how many people may be given the power to amend law and make law. I would be interested just to know the number. If you have so many people, possibly hundreds, given the power, you should restrict it as much as you possibly can, so far as is consistent with the objects of the Bill.

Why do I think that the phrase “the Minister considers appropriate” is inadequate? First of all, “appropriate” is a word which should be avoided as much as it possibly can. In my last jobs in the Civil Service, I was sometimes faced with proposals that the Minister should be able to do something “when appropriate”. I always reached for my red pen and struck it out.