European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness McIntosh of Pickering]

My Lords, I support the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, in this regard. My question goes to the comment of the noble Lord, Lord Lisvane, about scrutiny. Of course, he is the living expert on the level of scrutiny that an Act of Parliament enjoys in each House at every stage of parliamentary procedure. If the Government are seeking by regulation to achieve the equivalent of what has previously been achieved by an Act of Parliament, do the Minister and the Government have in mind what the level of scrutiny will be? Will it be the usual statutory instrument procedure, and will it be by affirmative or negative resolution?

[Lord Goldsmith (Lab)]

My Lords, we strongly support these amendments, Amendment 153 having been co-signed by my noble friend Lady Hayter. It would remove Clause 9(2) from the Bill entirely, and the more limited Amendment 154 would remove what are probably the most damaging words from it but not the whole of it.

This is the widest of the Henry VIII powers that the Government want to take in this Bill. It would permit regulations to do anything that an Act of Parliament could do, including even amending this Bill, when an Act. Those are the words that Amendment 154, in particular, focuses on. Therefore, as has been said, we could find that, after lengthy debate and a vote in this House and in the other place, the resulting provisions so painfully and lengthily resolved could simply be removed by the decision of a Minister.

The noble Lord, Lord Lisvane, gave some examples and the noble Lord, Lord Beith, gave more dramatic examples, but the critical question is: why is this needed? First, as the noble Lord, Lord Lisvane, rightly said, nobody should be misled by the words that are used. The word “modifying” might suggest at first blush that the provision is doing something less substantial, but in fact the definition of “modify” in Clause 14(1) makes it clear that it,

“includes amend, repeal or revoke”,

so the modification in question could take whole provisions away altogether.

The second point to underline—again, the noble Lords, Lord Lisvane and Lord Bilimoria, made this clear—is that what matters is not good intentions expressed at the moment by the Ministers in charge but what the Act actually provides. As parliamentarians, we would be failing in our job of scrutinising and controlling the Executive if we left Ministers with untrammelled powers simply on the basis that we would expect or hope that they would use them in a particular way or on the basis of them saying that they would not intend to use them in a particular way. That is not what we should do at all.

Therefore, it is no wonder that your Lordships’ Delegated Powers and Regulatory Reform Committee, in paragraph 23 of its report, described this power as “wholly unacceptable”, and that the Constitution Committee, in paragraph 197 of its report, described it as one for which it “cannot see any justification”. I know that the Government’s argument will be that they do not know what will be in the withdrawal agreement and therefore they do not yet know what changes will need to be made, including to primary legislation—for example, to the Immigration Act. However, there is neither a need to take these powers, nor is it right to do so, for two reasons.

First, it is clear that our withdrawal must be subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal—that is what Clause 9 will provide. So if the withdrawal agreement requires changes which cannot be effected by other powers—such as the power to deal with deficiencies under Clause 7—such changes can be incorporated into the statute approving the terms of withdrawal. Not only can such changes be included in that statute; they ought to be, because then they could be subject to a degree of parliamentary scrutiny. I agree with what the noble Lord, Lord Lisvane, and the noble Baroness, Lady McIntosh, said about the significance of scrutiny in this context. They could be subject to the degree of parliamentary scrutiny and approval which important changes to primary legislation should require.

The Delegated Powers Committee noted:

“The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable—


we all have experience of this—

“of passing urgent Bills with extraordinary expedition”.

Paragraph 197 of the Constitution Committee’s report, to similar effect, said

“As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill”—


which is what the Minister told us in a previous debate—

“we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known”.

The committee recommended removal of that clause.

That is the answer I give to the noble and learned Lord, Lord Mackay of Clashfern. I hope he knows the high regard in which I and the House hold him, but in circumstances where there is to be an Act, where there are other powers to remove and make changes, this particular wide, untrammelled power is not necessary.

In addition to the strong constitutional reasons why this extraordinary power should not be left to be used by one of the many Ministers who have the power to issue regulations is the reason that it is remarkably widely drawn. We have debated in previous amendments that the formula used here—such provision as the Minister considers appropriate—suffers from the defect that it is both subjective and open ended. As I ventured to advise your Lordships in a previous debate, speaking from my own experience as a former Minister, adviser to Ministers and a practising lawyer, the exercise of a power so broadly expressed would be difficult, if not impossible, to challenge. The noble Lord, Lord Wilson of Dinton, put it memorably in the debate last week as another example of Ministers being given plump pillows of legal protection. That is an additional reason to object to this provision.

However, the primary constitutional reason that I have tried to identify still remains. I hope therefore that, in addition to answering the questions that have been put—including the question put by the noble Lord, Lord Beith, and others as to why the power is needed, and the question raised by the noble and learned Lord, Lord Hope of Craighead, as to the application of the Sewel convention—the Minister, when he replies, will indicate why the Government, in these circumstances, consider the power necessary; and whether they can now see, in the light of the changes made to Clause 9 and the other powers that exist, that they do not need it.

[Lord Skelmersdale (Con)]

My Lords, this has turned into a clause stand part debate by any other name and I have been listening to it very carefully. The second amendment in this group would remove the words in Clause 9(2), “(including modifying this Act)”. This is rather curious because I know that many of your Lordships voted against Brexit in the referendum and in their heart of hearts still believe and hope that Brexit will never happen. That applies not only to noble Lords but also to Members of another place. But those words, of course, would include exactly what they want; namely, the repeal of the European Communities Act 1972.

--- Later in debate ---

[Baroness Goldie]

If I can continue, I might be able to reassure my noble friend by giving some illustrations of where the Government anticipate these powers may need to be used.

[Lord Goldsmith]

Before the Minister resumes—without wishing to interrupt her further—can I just take her back to the point she made about the Enterprise Act and the Third Parties (Rights against Insurers) Act? I do not have them in front of me, but does she agree that they are Acts of a very different nature to the constitutional Act that this Bill—and the surrounding legislation—gives rise to and were not subject to the same degree of scrutiny as the current legislation is being subjected to?

[Baroness Goldie]

I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.

There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.

It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.

[Baroness Goldie]

I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.

[Lord Goldsmith]

To take that slightly further, following the question from the noble Lord, Lord Beith, if the withdrawal agreement provides that, after exit, there will be some continuing cases that can be decided by the CJEU, that is what the withdrawal agreement will say, and that, therefore, can easily be provided for in the implementation of the withdrawal agreement legislation, can it not?

[Baroness Goldie]

No one is saying that it could not be; it is just that there may be advantage in anticipating that and trying to introduce an earlier and swifter procedure to deal with it. I suppose that that, in essence, is the justification or argument that the Government are advancing: we want both flexibility and, if necessary, rapidity in responding to whatever situations are there.

[Lord Goldsmith]

If, as the noble Baroness’s answer suggests, it does not need to be done in this way but can be done in the other way we are suggesting, that really answers the question that has been posed to the Government: why do you need this wide-ranging, constitutionally unacceptable power? The answer appears to be that the Government do not need it, because it can be done in the way that others have indicated.

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.