European Union (Withdrawal) (No. 5) Bill

Debate between Lord Goldsmith and Lord Lisvane

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Lisvane]

I should be happy to do so. The Convenor of the Cross Benches, the noble and learned Lord, Lord Hope of Craighead, has helpfully drawn attention to the possible uncertainty that might arise were the negative procedure to be kept in place and were there to be a successful Motion for annulment of the instrument that was made under that provision. I suggest that that is an additional argument for returning to the affirmative procedure.

[Lord Goldsmith]

My Lords, this has been a difficult matter to determine, but the priority as I see it remains ensuring that this can be done in time. That is the concern. I do not want to be disagreeable at this point in the debate, but we all know that the Prime Minister knew last December that the deal that she had done would not pass, but we find ourselves at the very last stages having to deal with the possibilities of what happens if she cannot reach an agreement.

The affirmative procedure gives rise to the concern that the matter will have to return, perhaps on Friday: it depends what time the European Council meeting finishes. We have already destroyed the recess for many people, and that would destroy the weekend as well. Although we on these Benches are normally strongly in favour of affirmative resolutions, on this occasion we see the force of what is in the Bill.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Lisvane

Monday 18th June 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.

The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.

So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.

[Lord Goldsmith]

My Lords, in following what was said by the noble Lord, Lord Lisvane, I will make one observation. In this House, noble Lords have supported the noble Lord’s amendment, and rightly so, because the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the other place, that it is for Parliament to make such important decisions.

As the noble and learned Lord, Lord Keen of Elie, said, having got to the stage where the House of Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and does not think it necessary to go any further, we are not recommending that noble Lords should disagree the amendment. But the important point has been made, and two comments follow from that. First, we hope that Ministers will carefully realise the significance of the debate that has taken place; we imagine that they will. Secondly, we hope that people outside this House will realise that, in pushing and speaking to these amendments, this House has been doing its job of making sure that the Executive is held to account.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Lisvane

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

[Lord Lisvane (CB)]

My Lords, I can hear the strains of the “Farewell” Symphony as we prepare to tackle the penultimate amendment to be debated in Committee, and how appropriate it is that the very final amendment should be in the name of the noble Lord, Lord Adonis.

Amendment 365 is in my name and the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Baroness, Lady Hayter of Kentish Town, and it is very sharply focused. The Committee has already considered the issue of tertiary legislation, with Amendments 110 and 135 as vehicles. Those amendments combined the issue of the principle of tertiary legislation with that of sunsetting. Amendment 365 is about only sunsetting, so I need not trouble the Minister to revisit the general defence of tertiary legislation, which he made at cols. 1473 and 1474 at an unearthly hour on Monday 12 March, although it was then what the rest of the world knew as Tuesday 13 March.

On that occasion, the Minister also made a defence of the exemption of tertiary legislation from sunsetting. He said:

“Where sub-delegated or transferred legislative powers are crucial to the functioning of a regime, it would not be appropriate”—


how often that word “appropriate” recurs—

“for those powers to be subject to a sunset”.—[Official Report, 12/3/18; col. 1475.]

If one accepts the principle of bodies such as the Prudential Regulation Authority and the Financial Conduct Authority exercising tertiary powers in their role as continuing guardians of a regime—and the Minister made a very good case for that in his speech on that occasion—it also makes sense for them to continue to do so after two years have elapsed from exit day. Indeed, I feel that I am now starting to make the Minister’s speech for him. However, there remains a serious point, because if bodies responsible for the functioning of a regime are to continue to exercise their powers without a sunset, it is crucial that those powers are tightly drawn in the first instance, as there will be no opportunity for parliamentary scrutiny of the subsequent exercise of the powers that have been delegated to those bodies.

Therefore, perhaps the most helpful thing the Minister could do in replying to this debate would be to give your Lordships a clear assurance that the tertiary powers will be carefully circumscribed, and that when affirmative instruments delegating those powers come before Parliament—because the actual delegation will be subject to the affirmative process—they do not simply prescribe some general subject area in which the body is to operate and which is to be its responsibility, but are rather more specific and indeed constraining. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.