European Union (Withdrawal) Bill

Lord Judge Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness McIntosh of Pickering]

We have established in this debate and in the earlier debates on Amendments 18 and 81 that precisely what the Government may wish to do, and what this amendment and Amendment 18 try to do, to which my noble and learned friend Lord Mackay has given a very elegant solution, are not permitted by the Bill. There is no legal basis. Will my noble friend come forward with a form of words to cover the 23 eventualities in the form of directives identified by the Library and other situations in the directive that apply to regulations, such as this, to give a legal basis to permit the Government to have the discretion where they choose to do so to implement the content of those directives and regulations at that time?

[Lord Judge (CB)]

If Clause 3(3) will not do the trick, will the Minister please take advice about whether we need to add EU regulation 536/2014 to the group of matters raised in Clause 2(2)?

[Noble Lords]

Oh!

[Lord Judge]

I ask the Minister merely to consider it; that way, we might have a solution.

[Baroness Goldie]

I must apologise to the noble and learned Lord; the Chief Whip sat down and bumped into me, so I was distracted from hearing what he had to say. I certainly offer to come back to that point.

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[Lord Cormack]

Our leaving the European Union is an exceptionally unfortunate measure that will do great damage to this country, in my opinion. But the answer to my noble friend’s specific question is that it was enacted by Parliament—a Parliament of which he was not a Member but of which my noble friend Lord Deben and I were—and that, knowing the consequences, we voted for it because we believed that it was in the general interest of our country. We were behaving as Members of the House of Commons should behave. It was properly debated, thoroughly approved and it came on to the statute books as other things have done.

I go back to what I was saying when my noble friend interrupted me. We have a duty to protect and to urge the other place not to abdicate the central power of an elected House—to deal with taxation. I hope that when my noble friend replies we will have a slightly more satisfactory and understanding reply than we had last Wednesday. I hope, too, that he will ensure, if not today, that we have a glossary of all these terms, including charges, fees, taxes, contributions and levies. At the end of the day they all mean something very similar: imposing an obligation to pay. People should never fall under that obligation unless it is imposed by their representatives in Parliament. We have a duty, as the second Chamber—the unelected Chamber—to say to our colleagues at the other end of the Corridor, “Please do not abdicate; please flex your muscles; please do not give to Ministers—the 109 whom we talked about the other night—or to other bodies or authority a power that is only rightly yours”.

[Lord Judge]

My Lords, my name is to Amendment 126. I do not want to say very much. I can think of another word to add to that great list and I could give my view of the history of how taxation became the weapon for democracy, ultimately. Taxation is the ultimate control that the Commons has over the Executive. Just reflect on the set-to in the United States of America a few weeks ago: Senate and President at odds over money. These issues must be resolved at parliamentary level and House of Commons level—not by regulation.

[Lord Mackay of Clashfern]

The general principle referred to by the noble Lord, Lord Turnbull, which has been very clearly enunciated by the courts, is that no public authority, including local authorities, has the power or statutory authority to exact money that exceeds the amount that the local authority—or other person making the imposition—sets. The charge the person is required to pay must be just equal to the amount that will be needed to carry out the service, or other thing. If it does exceed it, it is taxation and that covers all forms; it does not matter whether it is a payment, charge, fee or anything else. That is a general principle. Therefore, the provision in Clause 7(7), preventing the regulations imposing or increasing taxation, prevents any local authority or other power having the power to make any such imposition.

On the amendment proposed by the noble Lord, Lord Lisvane, I wonder whether the first part of the clause —Clause 8(1), I think—is the subject of Amendment 126. My noble friend Lord Deben wondered why we were talking about this in a withdrawal Bill, but the clause says that we may have an international obligation that is breached by withdrawal; it therefore seems reasonable to deal with that in the withdrawal Bill because it is a consequence of withdrawal. That amendment implies that this power cannot be used to make any financial settlement that would cause a cost to the United Kingdom because, if it did, it would inevitably require taxation—presumably, whoever makes the settlement does not intend to defray the cost out of his or her own pocket. It is a fundamental restriction on the way in which these matters of international obligation may be resolved. I think I am right in that, but no doubt the noble Lord will tell us its effect on the amendment in due course.

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Moved by

[Lord Judge]

87: Clause 7, page 6, line 17, leave out “relevant”

[Lord Judge]

My Lords, the amendments in this group go to a simple but crucial issue. The Bill proposes to give the Minister the power to create criminal offences by regulations. The proposal is slightly obfuscated by language, with the Bill saying that the regulations may not,

“create a relevant criminal offence”,

but the intention is that they will and the words are good enough to do so.

I know that your Lordships have kindly listened to me on this subject on a number of occasions and I will not go on about it more than I have to, but there is a simple principle: it is wrong for a criminal offence to be created without proper—not notional and not theoretical—parliamentary scrutiny. The fact that it has happened before, which it has, merely signifies—I am sorry to say this—that Parliament, including this House, was not sufficiently alert to the deviation from constitutional principles.

My objection is to the lack of scrutiny. Very recently during debate on the Sanctions and Anti-Money Laundering Bill, your Lordships gave a very strong indication to the Government that this was a concern that occupied the attention of all sides of the House. The result is now a significant government amendment to the original proposal. In the subsequent debate in the Public Bill Committee in the other place last week, on 6 March, the Minister, Sir Alan Duncan, acknowledged that the Government accepted,

“that the powers of the Executive to create criminal offences and regulations should be subject to appropriate parliamentary scrutiny”.—[Official Report, Commons, Sanctions and Anti-Money Laundering Bill Committee, 6/3/18; col. 119.]

Although he did not say so, the Government must have implicitly accepted that the theoretical arrangements for parliamentary scrutiny were inadequate, because the Minister then went on to reflect on possible options for improving the processes. It was this that culminated in the government proposal that, if offences were to be created by regulations, there must be “good reasons” for their creation and, once the Government had concluded that there were indeed good reasons, they then had to be justified by a detailed explanatory and open report to Parliament.

I leave open the argument that “good reasons” should give way to “necessary” but that is for another occasion. However, I acknowledge that, in the context of that Bill, this was a significant advance that would greatly increase the opportunity for genuine scrutiny by Parliament and therefore diminished Executive control. Today, I shall not set out the details of the proposed amendments to the Sanctions and Anti-Money Laundering Bill because they are government amendments, but it would make a great start for the Minister if he would indicate that, at the very least, the government proposals in the sanctions Bill will be carried into this one. I beg to move.

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[Lord Callanan]

No, that is not what I meant.

It is therefore vital that the Bill can provide for “creating” criminal offences to ensure that no offences that are needed fall away as we leave the EU, and that businesses and individuals continue to comply with the law.

Any statutory instruments made under Clauses 7(1), 8 and 9 which create or widen the scope of a criminal offence will automatically be subject to the affirmative procedure so that they will be subject to a debate and vote in this House and in the other place. The Government accept that this level of scrutiny is important here and, as I said at the beginning of my remarks, I hope we can consider further safeguards. Therefore, I hope that with those assurances I have demonstrated why we think this element of the power must remain part of the Bill and that noble Lords will feel able not to press their amendments.

[Lord Judge]

My Lords, I am troubled by just one observation made by the Minister. I think someone has been advising him incorrectly. Speaking for myself, I have never come to a mutually agreeable arrangement relating to the Sanctions and Anti-Money Laundering Bill. I have certainly welcomed an advance by the Government relating to these issues, but, as I said at the beginning, I leave open the argument that “good reasons”, which are proposed, should give way to “necessary” and I have added that there is an advance.

Beyond that, I am very grateful to all noble Lords who have taken part in this debate. We really must not return—can we make up our minds now not to?—to the constitutional aberration of unexplained, and effectively unscrutinised, regulations creating criminal offences. That is the constitutional principle. In view of the observations made by the Minister, however, I beg leave to withdraw the amendment.

Amendment 87 withdrawn.