European Union (Withdrawal) Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I share the views expressed by many other noble Lords that this is at root an enabling Bill—albeit one with serious and complex constitutional and societal implications, as the noble Lord, Lord Lisvane, reminded us in his excellent speech a few minutes ago. However, its overarching purpose is to give effect to the wish of the British people to leave the European Union as expressed in the referendum, and it therefore has my support. I come to this debate as what can best be described as a “mild Brexiteer”. I am afraid that I cannot support the more extravagant claims of triumph or disaster espoused by many who have more convinced and settled views. Indeed, I wonder about what lies ahead with artificial intelligence and robotics and their impact on this country and our whole way of life. That impact may be so great that the effect of Brexit may pale by comparison.

My approach to the “European project”, as I understand people like to call it, has changed over the years, from an initial great enthusiasm at the time of this country’s entry into what was then called the European Economic Community. These views were based on personal experiences, and mine were based on the fact that I was born during the war. By the time I was born my father was already in khaki, on a troop-ship bound for the Far East. He returned unharmed, and I first met him when I was about four and a half years old. I am sure that my mother was concerned and worried—although she kept this from me—and I had friends whose fathers had been killed or wounded. So I need no lectures from noble Lords about the death and destruction that Europe has wrought upon itself twice in the last century. However, I have a growing sense that the project has lost touch with the views, hopes, fears and aspirations of a great many of those it sought to represent.

The Explanatory Notes, on page 6, summarise the four main functions of the Bill. I will focus my remarks on the third of these: the power to make secondary legislation—delegated powers. That is not because the other functions are not extremely important and do not require intensive scrutiny—they certainly do, as many speakers referred to earlier—but because to me, the sharp end is where mission creep may occur, and where the temptation of a power grab may prove irresistible. I do so against the background of the experience I gained as a member for some years of your Lordships’ Secondary Legislation Scrutiny Committee, under the able chairmanship of my noble friend Lord Trefgarne.

Focusing on Clause 7 and its associated sections, one has to recognise on the one hand the complexity and magnitude of the task that will be undertaken, and on the other the extraordinarily wide powers that are sought. So there is a balance to be struck, which was very well illuminated in the speech of my noble friend Lord Bridges of Headley. In her excellent opening speech earlier today, my noble friend the Leader of the House explained some of the steps in the development of the Government’s thinking as to how we will tackle the challenge of this balance. We are to have a scrutiny committee—although its membership has yet to be determined. I am also not yet clear whether it will address issues surrounding tertiary as well as secondary legislation—and if it does not, what body will? Further, is its purpose solely to decide which legislative route a particular regulation will follow—negative, affirmative or whatever—or will it undertake the scrutiny as well?

As to the make-up of the committee, I have no doubt from my time as a member of my noble friend Lord Trefgarne’s committee that the quality of examination we were able to give a particular regulation was greatly enhanced by the presence on the committee of people with direct experience of that particular policy area. For example, knowing something about trade and industry I could contribute on that, but when dealing with social security I needed other members of the committee to bring their particular expertise to bear. So I hope that, as the Government’s thinking develops, consideration will be given to establishing a series of scrutiny or standing committees. One alone will surely not be able to do a serious job on the volume of legislation that lies ahead of us. Each of these would focus on defined policy areas and would contain some members with relevant experience of those subjects.

One of the major weaknesses of the whole procedure for scrutinising secondary legislation is that such legislation is unamendable. Your Lordships’ House is therefore always faced with what can best be described as a nuclear option—and, given that fact, has unsurprisingly proved reluctant to press the button. We face exceptional circumstances in this Bill. Is there not a case for establishing a special one-off procedure to deal with them? I note that in paragraph 57 of its report last September, and indeed in the report it published yesterday, the Constitution Committee of your Lordships’ House hints at the desirability of such a development.

Finally, in order to clarify what has been proposed and focus our discussions appropriately in Committee, would it be possible to produce some sort of flow chart showing how, when and by whom decisions are made, as well as the checks and balances built into the procedure, and fit that in to a parliamentary timetable? Maybe such a chart exists—but I have not seen it and it would be most helpful to have one before Committee.

To conclude, this important Bill has my support, but we have to work to do to examine it in detail. I hope that filibusterers on either side of the argument will stay at home—this House’s reputation is at stake and this Bill is too important for the playing of games.