Retained EU Law (Revocation and Reform) Bill

Debate between Lord Judge and Lord Lisvane

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Lord Judge (CB)]

My Lords, I feel like Henry V before the siege of Harfleur. Looking around, I see:

“greyhounds in the slips,


Straining upon the start”.

Just like those poor chaps outside Harfleur, I suspect your Lordships all want it to be over quickly, and that is my intention.

This amendment is very simple. It is my answer to the letter I received from the Government about the Bill which I read out to the Chamber at Second Reading. It does not seek to preserve a single law, in any of the 4,000 pieces of material we are looking at, which Parliament wishes to revoke. Equally, it does not seek to revoke a single law which Parliament wishes to retain. It has nothing to do with that. Its objective is to ask that Parliament has a chance to look at what is proposed and to examine those proposals, not for a very long time, so that Parliament and not the Executive can decide.

If this amendment, or any of the amendments in this group, had reflected the statute in draft—the Bill, in other words—most of the arguments we have had over however long it has been would have been quite unnecessary. Maybe an amendment of this kind would have achieved that; I am not particularly supporting my own but all the amendments in this group.

Let us just go back. Probably the most persuasive argument against joining the Common Market in 1972 was that it gifted power over our legislative processes to an institution which was not wholly elected here and was not answerable exclusively to the electorate in the United Kingdom. That argument was rejected and lost, and the result is that, through the processes which we supported, we have been subject to laws directly enforceable here in the United Kingdom, created by a system of directions from the Common Market—now the European Union—which were converted into unchallengeable statutory instruments. As we now know, there are something like 4,000 still extant.

Given the time available, I will not explain what a pernicious effect all that had on the way in which statutory instruments have taken over primary legislation. But, importantly—I am stating the obvious, yet it is overlooked from time to time—what we call EU retained law is British law. It is our law; it came from an outside source and was introduced here to be enforced here, through our statutory and parliamentary system, but it is our law.

I cannot begin to imagine how the country as a whole would react if, instead of being able to dismiss it as EU retained law, we were able to look at this problem: we are going to give the Government the power to revoke all the laws relating to the environment and to employment—all the issues argued about in this House. Having done that, we will give them the power to bring in new ones, changing the way in which they operate. If we did not have this disguise of “EU retained”, I venture to suggest that no Government would be doing what this Government are doing about this particular group of laws. Until we appreciate that we are dealing with our law, which is subject to this Bill, we are not facing the reality of it.

Let us go to the most powerful argument in favour of Brexit: legislative processes should be returned to Parliament. Of course, that is the answer to “What happened when we entered the Common Market?” We will change it and go back to where we were. I do not think that “Taking back control” was just a happy slogan; it reflected a true constitutional principle. However—this is the heart of the amendment—it did not follow that this power should be given to a Minister of the Crown. It is as simple as that. The objective was not for the Executive to take back control; it was for Parliament to take back control. If we are going to honour the whole basis on which taking back control was designed to work, and was seen and appreciated to be going to work, we have to do what is required and return this power to Parliament.

The idea that we will suddenly cease to have secondary legislation is nonsense; we need secondary legislation. However, for these issues, we need proper examination and proper scrutiny. The proposal in this amendment is that we should have it. It does not propose—and could not, as I emphasised earlier—the survival of a single EU law. It could not, unless Parliament agreed. That is the objective of the amendment.

I understood the argument at Second Reading that this Bill does no more than was done to us by the EU, so why should this power that was given to the Common Market not be exercised by a Minister of the Crown? In effect, the argument was that we should just obey what we are told. However, those who advanced that argument had believed it to be wrong—a mistake and a constitutional aberration. If you believe that, surely the mistake that was made in 1972 should not be repeated here in 2023. I beg to move.

[Lord Lisvane (CB)]

My Lords, I will speak to Amendment 141A in my name, which has cross-party support, for which I am most grateful. Noble Lords in all parts of the Committee have been fiercely critical of the cut-off date. However, even if the present draconian date is replaced with something a little saner, the task of assessing and taking decisions on so many instruments will be huge.

My amendment, like several others in this group, as the noble and learned Lord, Lord Judge, has remarked, is designed to give Parliament a say in that process. As many noble Lords on both sides of the issue acknowledge, some of these instruments will be of no great significance. But there will be many of much greater weight, whose survival, whether in their original or an amended form, will be of huge importance to our fellow citizens. There will of course be instruments, as the noble Lord, Lord Deben, pointed out in his lapidary intervention on the first day of Committee, whose survival unamended will be almost a matter of course because we would not want to get rid of them—nobody would.

In this group, Amendments 43, 50, 62A and of course the amendment we are now specifically debating seek to give an active role to Parliament in an otherwise Executive-dominated process. My amendment goes a little further in providing for a substantial parliamentary assessment—including whether there has been adequate consultation—and for a process of suggested amendment, as part of what one might call this triaging activity. It does not deal with the unannounced repeal, which is a real problem. It could easily be adapted to do precisely that on Report, if that were acceptable. Of course, the amendment of the noble and learned Lord, Lord Judge, does that.

European Union (Withdrawal) Bill

Debate between Lord Judge and Lord Lisvane

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, there are few better warm-up men than the noble Lord, Lord Adonis, but I fear that I will disappoint your Lordships. As the Question formally before the Committee is whether Clause 12 shall stand part of the Bill, I will speak to Amendments 348 and 349 rather than moving Amendment 348. The amendments are in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. I can be very brief, even at this refreshingly early hour of the evening, as the issues in both amendments have already been considered by the Committee in one way or another. It may indeed be that we have had a sneak preview of the Minister’s response on both issues.

Amendment 348 would prevent fees or charges to be levied by tertiary legislation. At an earlier stage, I expressed concern that this Bill, already proposing to confer sweeping powers upon Ministers, should go even further and permit the making of the law of the land by persons and bodies authorised by a Minister. The authorisation would, as the Minister said in an earlier debate, be subject to the affirmative procedure, but once that authorisation had been made, the law made under it would be under no sort of parliamentary control and, unless in the form of a statutory instrument—which it would not be—would not even be required to be published.

The arguments against tertiary legislation become even stronger when the powers being given to persons and bodies would allow them to levy fees and charges which might well be used to gold-plate their functions. Clause 14(1) defines “public authority” by reference to Section 6 of the Human Rights Act 1998, and Section 6(3) of that Act, in turn, defines “a public authority” as including a court or tribunal—which is fine—but also,

“any person certain of whose functions are functions of a public nature”.

That spreads the net very wide indeed.

Amendment 349 returns to the issue of ancient principle that taxation should be by primary legislation, not by statutory instrument. When this was considered by the Committee earlier in its proceedings, your Lordships were supportive of the proposition that it should be for the House of Commons to impose taxation by primary legislation, not for Ministers to do it by regulations. In a sense, we are possibly getting a little punch drunk as we see power after power after power being arrogated to Ministers. This is one which should not be.

[Lord Judge (CB)]

My Lords, I was not able, for unavoidable reasons, to be here when the issue of tertiary legislation was addressed in the course of the debate on this Bill, so I want to add something. I do not think that even those who do not see eye to eye with me would accuse me of being an ardent advocate of secondary legislation: I am not. I spoke about this at Second Reading and have been extremely reticent on the issue in Committee, but I shall return to it in much greater detail on Report.

I support my noble friend Lord Lisvane. The provision we are considering—I will take it quite slowly, because this is how I see it—would vest powers in a Minister to use secondary legislation, with negligible proper scrutiny, if any, to bestow lawmaking powers on a public authority, with even less scrutiny. It amounts, in effect, to scrutiny being diminished to extinction. In that process, we as lawmakers are not doing right. We are simply handing power over to people who should not have it. This tertiary form of legislation is, therefore, even more questionable than secondary legislation, for the same reasons and—I add, at this time of night—with knobs on.

European Union (Withdrawal) Bill

Debate between Lord Judge and Lord Lisvane

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

[Lord Lisvane]

My Lords, in moving Amendment 110 I shall speak also to Amendment 135, both of which are also tabled in the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler, who like me is a member of the Delegated Powers Committee. The amendments seek to place controls upon the use of sub-delegation and the creation of tertiary legislation. We have had something of a preview to this in the debate on Amendment 71 held last Wednesday, and earlier today the horror story about the Bar Standards Board told by the noble Lord, Lord Thomas of Gresford, which I think would have greatly alarmed my nervous maiden aunts.

I was extremely grateful to my noble friend Lord Wilson of Dinton for moving Amendment 71 last Wednesday and to the Committee for its understanding of why I could not do so myself. My noble friend made a magisterial and compelling speech in which he pointed out that the powers in Clauses 7, 8 and 9 could be used to sub-delegate. Indeed, so compelling was his speech that the only person who disagreed with him in the debate was the Minister. That reminded me of the story of Benjamin Jowett: when he was the Master of Balliol and was outvoted 20 to one at a college meeting, he said, “Gentlemen, we appear to have reached deadlock”.

This Bill is riddled with provisions which have serious constitutional implications, and the unrestricted power of sub-delegation is one of them. It allows Ministers to authorise bodies and even individual persons to make law without the approval of Parliament. As the Delegated Powers Committee pointed out, there is no requirement for this legislation to be made by statutory instrument. If it is not made by SI, the Statutory Instruments Act 1946 does not apply to it and the legislation does not have to be laid before Parliament or even published. The possibility that law which the citizen must obey might not be published offends against the first of the late Lord Bingham’s eight principles of the rule of the law: that the law must be accessible as well as clear and predictable.

The Government memorandum submitted to the Delegated Powers Committee suggested that the power to make tertiary legislation is intended to be used sparingly. Once again we come back to the fact that what matters is what is on the face of the Act. If the power of sub-delegation is there, you can bet that it will be used whenever convenient to the Government of the day. Moreover, it will go on being used. In addition to these amendments, I have tabled Amendment 365 to paragraph 28 of Schedule 8 which would complete the removal of the exemption for tertiary legislation from the two-year sunset provision for secondary legislation-making powers. Slightly oddly, it has not been grouped with these amendments, but when we reach it, it will provide us with a further opportunity to consider the Government’s response to the amendments in this group.

As the Delegated Powers Committee points out, the power to make tertiary legislation could be given to new bodies to control and regulate, by legislation and without any parliamentary control, areas that are currently governed by EU law. These include aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They would all become in effect judges in their own cause. Amendments 110 and 135 would subject sub-delegation to the same parliamentary control and time limits as regulations in the first tier of delegation. I beg to move.

[Lord Judge (CB)]

My Lords, if we reflect on the words used by my noble friend Lord Lisvane, it is really rather chilling. There will be power in a Minister to create laws by giving him or her a blank sheet of paper so that he or she can write out whatever he or she thinks is appropriate. It will be uncontrolled and unscrutinised.