European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think that we need this Bill. It is in everyone’s interest that the gap in our law book when we leave the EU should be filled. As the noble Baroness the Leader of the House says, we need a seamless transfer from one system to another when that event occurs, so I think that the Bill deserves to have a Second Reading and must be allowed to pass. Nothing that I am about to say should be taken as being in conflict with those basic points.

However, the Bill comes to this House in a sorry state. It was drafted many months ago when we knew much less about how the exit was likely to be managed than we do now. It all seemed so simple then; you only have to look at Clause 9 to appreciate that point. It is designed to give power to Ministers to implement the withdrawal agreement. It also provides that no regulations may be made under that section after exit day. The idea that everything that needs to be done could be achieved on or before exit day informs the entire Bill, but we now know that there will have to be an implementation or transitional period—call it what you will—after that date. So that is an absurd provision in the light of what we now know. Moreover, the Government have failed to bring forward the amendments that are so obviously needed to meet this changed situation and deal with other criticisms that received cross-party support in the other place.

Time is short so I will concentrate on just one of the important issues: devolution. This is of concern to all the devolved Administrations, but I hope that the others will forgive me if I speak only about the devolution settlement that is set out in the Scotland Act 1998. I spent many hours late into the night debating that Bill here—we often sat well after midnight in those happy days. I worked with the Act as a judge on many occasions from its enactment until my retirement and learned to respect the way in which it had been drafted. That is why I am astonished by this Bill’s failure to respect that settlement in its formulation of the regulation-making powers given to Ministers.

There is of course a political angle to this issue, too. The Scottish Ministers have declared that they will not put a legislative consent Motion before the Scottish Parliament unless their objections to this are met. The bonds that hold the UK together would be stretched almost to breaking point if the Bill were to proceed to enactment without their consent. As a mere lawyer, I am in full sympathy with their objection.

Ministers may think that this is merely an enabling Bill, but it is not. It is about our constitution, too. The situation that it provides for as we leave the EU is entirely new. It is one that we have not had to face since the Scotland Act was enacted. The constitutional arrangements that were settled by the Scotland Act 1998 have to be changed but, as the Bill stands, they are being rewritten in a way that is naive and very damaging. Others will criticise some of the clauses containing regulation-making powers as amounting to Henry VIII clauses. As far as I know, Henry VIII never got to Scotland, but Oliver Cromwell did and he and the forces under his command did quite a lot of damage while he was there. I think that these clauses have a touch of Oliver Cromwell about them.

This issue goes far beyond the much-criticised Clause 11, which is about retaining EU restrictions in devolved legislation when we leave the EU. You can find these regulation-making powers in Clauses 7, 8 and 9 and throughout the entirety of Schedule 2. They are far-reaching and we must assume that they are there because it is intended that they should be used. As the wording stands, they could all be exercised to their fullest extent in all areas that are devolved to Scotland without any consultation whatever with the Scottish Ministers.

The legislative competence of the Scottish Parliament after exit day has been called into question, too. That would not be so bad if we could be certain that these provisions would have a very short life because everything that needed to be done could be achieved on or before exit day. As matters stand, though, we can expect these powers to be exercised for many months after that date. Those in Clause 9 are time-limited, absurd though that limit may now seem to be, but the remainder are not.

Ministers may say that that is not their intention; I listened with great care to the words from the noble Baroness about devolution. If so, I urge them to make their position clear in the Bill. Only if they are willing to do that are they likely to win the confidence of the Scottish Ministers in the area where a real opportunity lies for a mature and intense discussion, as we seek to define how the system of devolution can best operate in a new and vigorous UK single market after exit day. That is what the discussions about a redesigned Clause 11 should really be about. It is an area where there ought to be a real opportunity for an agreed way forward.

However, there is much more to the issue than Clause 11, as I have tried to emphasise. It is hard to see those discussions getting anywhere so long as the basic architecture of the Bill is so misguided and ill-informed. I will be bringing forward amendments that seek to resolve that problem and I hope that they will be supported across the House. If others seek to do the same thing, I will support them, too.