European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Bilimoria

Wednesday 14th March 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I mentioned on Monday that an aspect of Clause 9(2) is of concern to the devolved Administrations. How does the Sewel convention fit into the scheme which Clause 9(2) sets out? If one were making the amendments which are being contemplated by an Act of Parliament it would be plain that the Sewel convention, with its effects, would apply to that statute—and the Government have always shown their willingness to follow the convention according to its terms. But if a Minister makes a provision by delegated legislation then, as I understand it, the Sewel convention does not apply, because Sewel was talking about primary legislation. Is the Minister prepared to undertake that the principle of the Sewel convention will apply to an order made with reference to Clause 9(2), which makes a provision that would otherwise be made by an Act of Parliament?

The importance of this question has been highlighted, if I may say so, by the point made by the noble and learned Lord, Lord Mackay of Clashfern, because by necessity this would have to deal with legislation which affects the devolved Administrations in areas devolved to them. The ordinary rule is that that would not be done without their consent. Clarification is needed. The Minister may feel that she cannot give me a clear answer today. If she cannot give the undertaking that I am looking for, I would be very grateful if she would write, because this affects the way I would view any vote on this issue. It may also affect what we talk about on Report.

This is a very important matter. The issue has really been thrown up by the way in which the clause has been drafted—and it has no doubt been drafted in this way for good reasons, as the noble and learned Lord, Lord Mackay of Clashfern, has explained. If one is to have this clause, clarification is required.

[Lord Bilimoria]

My Lords, I support both these amendments. I appreciate what the noble and learned Lord, Lord Mackay, with all his experience, has said to us to try to explain why these particular clauses exist and the intention behind them. But from my experience in business, whenever I have had any problems with a contract it is because there have been grey areas or clauses have not been clearly drafted, leaving scope for different interpretations. Here we are beyond grey areas or a badly drafted clause in a contract—this Bill gives unfettered powers to the Government. We have to realise that the Prime Minister using these powers may not be Theresa May—it could be Boris Johnson or Jacob Rees-Mogg.

How many thousands of statutory instruments are the Government expecting to implement as a result of this Bill? It is important to note that it is very difficult for the House of Lords to challenge statutory instruments. With primary legislation, we have the role of challenging what the Commons has done—as we are doing now. Quite often what the Commons does is nowhere near good enough. That is why this House has hundreds of amendments to this Bill and had over 500 amendments to the higher education Bill. That is our job. But when it comes to statutory instruments, we were warned very clearly in 2015, “Don’t go too far. It’s not your job to challenge them too much”. The noble Lord, Lord Lisvane, in his excellent introduction to his amendment, spoke of the three “S”s, one of which is scrutiny, but we will be deprived of that scrutiny by these unlimited powers.

Going one step further, this issue goes back to the constitution and the delicate balance between not only the Executive and the legislature but the Executive and the judiciary. Will the Minister acknowledge that statutory instruments can be challenged by the judiciary? Do we want to have non-stop challenge by the judiciary, overriding Parliament, when we should have the power and take back control? Do we want that to happen? It is much better that things are absolutely clear. Therefore, these amendments are crucial, because it is too dangerous and, quite frankly, irresponsible to give any Government such unfettered powers.