European Union (Withdrawal) (No. 5) Bill

Lord Lisvane Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Viscount Trenchard]

No, I would like to finish so I will not give way to the noble Lord again. It is therefore strange—

[Lord Lisvane (CB)]

My Lords, I rise purely in a spirit of helpfulness. Perhaps the noble Viscount could keep in mind the difference between a money Bill and a Bill that requires a money resolution. It is quite a profound difference.

[Viscount Trenchard]

I thank the noble Lord for his helpful advice. Nevertheless, I find it strange that the Speaker made the ruling he did, as the—

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Debate on whether Clause 2 should stand part of the Bill.

[Lord Lisvane]

My Lords, I speak as a member of the Delegated Powers and Regulatory Reform Committee. The chairman of the committee, the noble Lord, Lord Blencathra, is unable to be here today because he is absent on parliamentary business. No doubt noble Lords have a copy of the 51st report of the Delegated Powers Committee. The argument set out by the committee is brief, concise and telling. I will not attempt to summarise it or indeed to read out the report, because paragraph 5 could hardly be summarised more briefly than it has been set out by the committee.

The committee acknowledges in paragraph 4:

“The principal justification for clause 2 of this Bill is that it might be necessary to legislate at speed next week”—


in other words, this week—

“to change exit day. The affirmative procedure might cause delays, with the risk that exit day in domestic law might not be aligned with exit day agreed under EU law”.

The committee goes on to say that on the other hand, there are powerful and telling arguments in favour of the affirmative procedure. It notes that were Clause 2 to be removed from the Bill, we would simply return to, as it were, the default setting.

Because this will be a matter of business management, the most helpful thing for your Lordships might be to have some indication from the Minister as to whether there is a balance of advantage of using the negative or the affirmative procedure. On that basis, it may be for your Lordships to decide whether Clause 2 remains in the Bill.

[Lord Forsyth of Drumlean]

My Lords, again, I am disadvantaged as being neither a member of the committee or a lawyer. I am surprised that the noble Lord has not drawn the attention of the House to the fact that, as I understand it, the committee report makes it clear that this House would no longer be able to be consulted on those matters. Is that not correct?

[Lord Lisvane]

It is indeed; the noble Lord is correctly quoting from the final bullet point of paragraph 5. I did not want to delay your Lordships further, but that is a helpful, additional piece of information set out in the report.

[Lord Hope of Craighead (CB)]

Perhaps the noble Lord would also say a word about the effect of a petition against. The fact that the instrument is passed is not the end of the day, or at least not necessarily so. Could he elaborate a bit on the consequences if someone objects after the event?

[Lord Lisvane]

I should be happy to do so. The Convenor of the Cross Benches, the noble and learned Lord, Lord Hope of Craighead, has helpfully drawn attention to the possible uncertainty that might arise were the negative procedure to be kept in place and were there to be a successful Motion for annulment of the instrument that was made under that provision. I suggest that that is an additional argument for returning to the affirmative procedure.

[Lord Goldsmith]

My Lords, this has been a difficult matter to determine, but the priority as I see it remains ensuring that this can be done in time. That is the concern. I do not want to be disagreeable at this point in the debate, but we all know that the Prime Minister knew last December that the deal that she had done would not pass, but we find ourselves at the very last stages having to deal with the possibilities of what happens if she cannot reach an agreement.

The affirmative procedure gives rise to the concern that the matter will have to return, perhaps on Friday: it depends what time the European Council meeting finishes. We have already destroyed the recess for many people, and that would destroy the weekend as well. Although we on these Benches are normally strongly in favour of affirmative resolutions, on this occasion we see the force of what is in the Bill.

Brexit: Further Referendum

Lord Lisvane Excerpts

Thursday 17th January 2019 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I can be extremely brief, as perhaps I should be since noble Lords have heard quite enough from me this afternoon. I pay tribute to the noble Lord, Lord Tyler, for his expertise and leadership on these issues.

It was Emerson who said:

“A foolish consistency is the hobgoblin of little minds”.


I plead guilty to consistency, foolish or otherwise. Noble Lords may recall—indeed, the noble Lord, Lord Young of Cookham, referred to it in his winding up speech in the previous debate—that almost exactly a year ago, at Second Reading of the European Union (Withdrawal) Bill, I asked your Lordships to consider the case of my three elderly and extremely nervous aunts. I wished to give them a treat and asked them to decide democratically what they would like to do. They chose to go to the cinema, but I discovered in the local paper that the only films on offer were “Reservoir Dogs” and “The Texas Chain Saw Massacre”. My conundrum was: do I say, “You must stick with your democratic decision”, or, “Now you know what’s on offer, what do you think”?

It must be for the elected House, not your Lordships’ House, to take any decision on whether there is a second referendum, in the light of knowledge of what is on offer—which at the moment, of course, is not yet clear. Were there to be a second referendum, much would need to be settled, and the noble Lord, Lord Adonis, has given us a preview of some of the things that might enter into discussion. Those things would need to be settled very quickly. There would be no shortage of those who say that there is no time and it is all too difficult. The Bills presented in the House of Commons yesterday seek to demonstrate that, should the political will exist, that will can be implemented.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with the leave of the House, I will speak also to Motion L and Motion M. The scope of the powers in this Bill is not an issue that either House has taken lightly, and it is not one that the Government take lightly, either. Before the Bill was introduced, the Government set out the shape and size of the task ahead and why it could be achieved only by the use of relatively broad delegated powers. I do not believe that any noble Lord rejects the premise of that task. All of us here today accept that our law must be corrected so that it works properly when we leave the EU and EU law ceases to apply in the United Kingdom. None of us wishes to face a scenario, once we leave the EU, where the law does not work or where it is left so complex, confusing and convoluted that we spawn a new generation of legal cases that inherit the mantle of Jarndyce v Jarndyce.

My ministerial colleagues in the other place have given examples of where this might come to pass if our law looked as if it was still referring to the EU. We have a duty to do everything we can to provide legal certainty, and I know that I share that goal with Peers across the House. We want a sensible solution, accepting that the powers should be as wide as is required but no wider. The Government have honoured their commitment on this front with the limits we have already put on the correcting power, and indeed the total removal of one of the key powers in the Bill now that further analysis has weakened the case for it.

We have followed the recommendation of your Lordships’ Constitution Committee and have required Ministers to make, alongside any exercise of the key powers in the Bill, a statement that they have “good reasons” for their course of action and an explanation of this to Parliament. We are happy to have been able to do as recommended by the committee, and we are grateful for its constructive and expert approach to this issue.

Noble Lords asked the Commons to consider again the test that should circumscribe the breadth of the correcting power. They have done just that and they have found that a stark test of necessity, while perhaps understandable in everyday language, is not acceptable on the statute book. Indeed the Commons have now voted four times in favour of “appropriate”—I repeat, four times. Given that, I do not think it would be the right course for this issue to return to the Commons yet again, when their view has been so clearly expressed. I ask noble Lords to consider that.

Having accepted what the task ahead is and the principle of how to approach it, we must ask ourselves today what statutory wording will permit the sensible, logical and common-sense corrections we all support without giving unnecessary discretion to Ministers? For example, our approach will permit us to end inappropriate reciprocal arrangements such as those established by the directive on the return of cultural goods, which could leave the EU 27 able to force UK nationals into court to demand the return of cultural objects brought here, with no power for the UK to take legal action in similar situations overseas.

Other potentially unnecessary but sensible and appropriate corrections to deficiencies would include folding the EU’s authorisation process for controlling the export of devices that risk being used for torture into the UK’s own more responsive and effective domestic export control regime. We looked at this important issue and, by sending our amendments, we asked the Commons to look again. As I said, they have done so. They have debated at length and they have decided that it remains clear that only the original wording of the Bill will suffice. I hope that noble Lords will respect the decision they have made. I beg to move.

[Lord Lisvane (CB)]

My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.

The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.

So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.

[Lord Goldsmith]

My Lords, in following what was said by the noble Lord, Lord Lisvane, I will make one observation. In this House, noble Lords have supported the noble Lord’s amendment, and rightly so, because the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the other place, that it is for Parliament to make such important decisions.

As the noble and learned Lord, Lord Keen of Elie, said, having got to the stage where the House of Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and does not think it necessary to go any further, we are not recommending that noble Lords should disagree the amendment. But the important point has been made, and two comments follow from that. First, we hope that Ministers will carefully realise the significance of the debate that has taken place; we imagine that they will. Secondly, we hope that people outside this House will realise that, in pushing and speaking to these amendments, this House has been doing its job of making sure that the Executive is held to account.

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[Baroness Evans of Bowes Park]

My Lords, appropriate scrutiny of delegated powers is crucial to ensuring that the Government are properly held to account by Parliament, and we accept that this is particularly important in relation to those granted under this Bill.

Last week the other place debated and rejected Amendments 110 and 128. Whatever some noble Lords might feel about the sifting mechanism proposed, it is what the other place favours and it has now demonstrated that across multiple Divisions.

As it stands, the Bill does not provide a statutory basis for a sifting mechanism in this House. I hope that noble Lords will agree that we must do something to rectify this or we will have no provision in the Bill allowing for a sifting process in this House whatever. I am pleased that when rejecting our amendments, the other place, quite rightly, left it up to us to decide whether or not to emulate its own sifting mechanism.

The Government have always believed that this House should have an analogous mechanism to that in the other place, which is why I worked with the Procedure Committee to agree the mechanism by which the Secondary Legislation Scrutiny Committee would conduct the functions which, in the other place, will be conducted by a new sifting committee.

Unfortunately, the Government’s amendments providing for that were pre-empted on Report by the amendments in the name of the noble Lord, Lord Lisvane. As the Commons has now made its view clear once more, the Government are returning to the proposals which this House did not have the opportunity to decide on, as amendments in lieu. Without their being accepted today, the sifting process would be deprived of the weight of expertise in this House on questions of secondary legislation and procedure.

I believe that our amendment strikes the right balance. It will ensure that there is sufficient time for the legislative challenge ahead: a challenge for which we all share responsibility. Although that means that the committees will have to react at pace, we are confident that they are well equipped to do so.

Most importantly, our amendment will put this House on an equal footing with the Commons and ensure that there is every opportunity to make recommendations which the Government are committed to respecting.

I know that there has been concern that Ministers may ignore the committees. I echo the sentiment of my right honourable friend the Secretary of State for Exiting the European Union when he said that there is likely to be a “political cost which will be significant” to going against a sifting committee recommendation.

As I made clear in our previous debates on this issue, the Government have always expected to have to justify themselves to the sifting committees where they agree, with Ministers either being called in person before the committee or writing to explain their views. I hope the House does not think that this is a commitment which Ministers would shirk or seek to shy away from.

However, in order to put this beyond doubt, the Government are happy to put their commitment into statute, and this is reflected in the amendments before us tonight. Ministers will be required to make and provide to Parliament a Written Statement explaining themselves if they disagree with a recommendation from one or both of the sifting committees. Your Lordships can be assured that there will be no hiding place from the light of your scrutiny. I beg to move.

[Lord Lisvane]

My Lords, it would be extremely churlish of me not to acknowledge the movement which the Government have undertaken on these issues, particularly including your Lordships’ House in the sifting process. During Commons consideration of the amendments, the Secretary of State for Exiting the European Union, deployed a rather familiar set of arguments, if I may put it in that way. Quoting the chair of the House of Commons Procedure Committee, he insisted that the Government proposals, under which Ministers will, despite the statements and other provisions, have the final word on whether the substantial amount of secondary legislation which may be brought forward under the Bill, should be subject to the affirmative or negative procedure. He insisted that that procedure had teeth. If it is really to have teeth, some significant dental work is still required. But these exchanges are not the place to consider matters of that sort. The point has been made and although, in an ideal world, it has not been completely adequately answered, I think we should leave the matter there. The test will be, of course, the first occasion on which the committee’s view differs from that of the Government.

[Lord Wallace of Saltaire]

I thank the Leader of the House for the generous remarks she made about the role of this House. It is particularly important that she sees it as an important part of her role to defend the role of this House and of Parliament as a whole. We have noticed in recent months, and even more in recent weeks, some pretty anti-parliamentary language in the press. I note that at the end of Quentin Letts’s one and a half page rubbishing of Dominic Grieve, he said:

“The sight of the elite grabbing power from the Queen’s government will rupture trust in the ballot box and could imperil centuries of British support for parliamentary democracy”.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

Moved by

[Lord Lisvane]

70: Schedule 7, page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert—
“Parliamentary committees to sift regulations made under section 7, 8, 9 or 17
3_(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument, whether under this Act or any other Act of Parliament, to which paragraph 1(3), 6(3), 7(3), or 11 applies or which has the same purpose as an instrument to which those paragraphs apply, and(b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”).(2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.(3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies.(4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made, or(c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply to the instrument. (5) For the purposes of this paragraph—(a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in subparagraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

[Lord Lisvane (CB)]

My Lords, I can be brief because the arguments on a Westminster sifting mechanism were deployed in Committee.

Amendment 70 continues the theme of constraints which should be imposed by Parliament on powers delegated to Ministers. For many of the sweeping regulation-making powers, the Government would have a choice under the Bill as to whether the affirmative or negative procedure is to be used. So, as the Bill stands, the scrutinised are to choose the level of scrutiny to which they are subject. This cannot be right. The sifting provisions now in the Bill are better than nothing, but not much, because it is the very making of a recommendation by a sifting committee that brings into play the Minister’s power to ignore the committee and to choose the negative procedure over the affirmative.

Two very red herrings—if I might call them that—entered into the debate in Committee. One was that because there are sifting mechanisms with teeth in the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011, and those Acts provide for the super-affirmative procedure, this would somehow introduce the super-affirmative procedure into this Bill. It would not and I agree with the Government that, given the time constraints, super-affirmative would not be appropriate. That is why this amendment does not provide for it.

The second red herring was that allowing one or other House to override the decision of a committee could undermine confidence not only in the sifting committee itself but in the whole committee structure. I have had a bit to do with Select Committees of both Houses over the past 45 years and I find this argument truly bizarre. A Select Committee is subordinate to the House that creates it. Select Committee recommendations are often ignored or rejected, usually at the instigation of the Government of the day. No plaster falls from the ceiling; committees do not go into an irreversible sulk; it is a perfectly normal feature of parliamentary life.

The Leader of the House said she hoped that occasions when the Government did not agree with a sifting committee’s recommendation would be “very rare”—even rarer if both committees made the same recommendation. If that is to be the case, what damage is done by putting the onus on the Government to reverse the decision in one House or the other, rather than giving Ministers carte blanche?

I make no apology for repeating my final point—that we will see a flock of exit Bills over the next few months. There will be a strong temptation for the Government to use this Bill as a precedent for ministerial powers in the others. This is one such power that I suggest should not be replicated. I beg to move.

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I hope that the Government’s clear commitment to replicating the sifting mechanism in your Lordships’ House by building on the important work of the SLSC and providing additional staff and members demonstrates that we continue to take the established and valuable scrutiny role of this House seriously and that we will continue to do so when the sifting process is under way. With that, I hope that the noble Lord, Lord Lisvane, will feel able to withdraw his amendment.

[Lord Lisvane]

My Lords, I am most grateful to the Minister and to noble Lords who have taken part in this debate. From the remarks of the noble Baroness, Lady Smith of Basildon, it is clearly an opportunity for your Lordships to gain insight into that world of fascination and excitement which is statutory instrument procedure.

My noble friend Lord Bilimoria was much too kind to me when he credited me with the crafting of Amendment 70. There have been a few changes to it since we debated it in Committee, but it was actually crafted by the Delegated Powers and Regulatory Reform Committee, which regarded it as an extremely important matter of principle.

It would be churlish of me not to acknowledge some of the things that the noble Baroness the Leader of the House set out, including the improvements that have been and are to be made to the Bill by subsequent government amendment. I can well understand the nervousness that there must be in the minds of government business managers in this House and in the other House, with fleets of these SIs coming forward—different but alarming numbers have been quoted this evening—very little time and, in the back of some minds, the possibility of some rogue committees automatically upgrading everything to affirmatives. Here I was extremely grateful to the noble Lord, Lord Kirkwood of Kirkhope. He emphasised the responsible attitude taken by the SLSC, and I am quite sure that that will be replicated in sifting committees in both Houses. However, these are, to use the words of the noble Baroness, Lady Jay of Paddington, uncharted waters.

I thought that the Leader of the House was rather apocalyptic about timing when she piled period of time upon period of time, all made much more difficult by praying time of 40 days added at the end. If it is a matter of sifting, it is not a matter of judging and analysing merits but of asking: does this get over the bar? That rapidly becomes quite a straightforward process—so I think that that might be slightly overstated.

I also rather shied away from what I took to be the implied threat that, if your Lordships were so sagacious as to approve Amendment 70 this evening and the Commons were to reverse it, we might end up with no sifting process. If that were the reaction, I can only say that it would be highly unedifying, and I do not believe that that is likely to happen. It is important to remind ourselves that the regulation-making powers, including sweeping Henry VIII powers, are extremely extensive, and much debate on this Bill has centred on making the scrutiny of those effective.

It was kind of the Leader of the House to give us, once again, her strong expectation of what would happen, particularly if two committees were to agree. With all respect I have to say that, however strong an assertion and however deep a belief that is, it is not legislatively bankable. There is still at the heart of this matter an issue of principle, which is that the scrutinised should not be able to decide the level of scrutiny to which they are subject. So, with those thoughts in mind, I beg leave to test the opinion of the House.

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Moved by

[Lord Lisvane]

77: Schedule 7, page 49, line 4, leave out paragraph 13

[Lord Lisvane]

My Lords, this amendment is consequential on Amendment 70, agreed by your Lordships a short time ago. I beg to move.

Amendment 77 agreed.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, if Amendment 52A is agreed to, I cannot call Amendment 53 for reasons of pre-emption.

[Lord Lisvane (CB)]

My Lords, Amendment 53 in this group is in my name and those of the noble Baronesses, Lady Hayter of Kentish Town and Lady Wheatcroft, the noble Lord, Lord Tyler, and—most recently and much to be welcomed—the noble Lord, Lord Callanan. In Committee I had occasion to speak about the legislative Damascus road so I am very glad that in respect of this issue at least the Minister has added this highway to his travel plans.

I respectfully commend my noble and learned friend Lord Judge for his excoriation of Henry VIII clauses. It is a very poor rejoinder to say that the exercise of these powers is subject to the way that Parliament deals with statutory instruments, whether they be affirmative or negative, because too often that is an occasion for merely perfunctory examination. Over a period of time—and I have looked at quite close quarters at the way that the threshold between primary and secondary legislation has moved upwards over the past couple of decades and more—it is ultimately subversive of the primary legislative process.

If my noble and learned friend presses his amendment, I will of course support him, but if he chooses not to do so or fails to convince your Lordships, I will fall back on my amendment, to which the noble Lord, Lord Callanan, has so helpfully added his name.

[Lord Rooker]

My Lords, I had not intended to speak in this debate, which is way above my pay grade, but in answer to the question asked by the noble and learned Lord, Lord Judge—which I invite the Minister to get briefed on—about how this has been allowed to happen and when, I say that it would not have happened in David Renton’s time. He was the Member for Huntingdonshire in the other place and was still active here at 92, taking parliamentary draftsmen apart on a weekly basis, under the Government of whom I had the privilege to be a member. I am sure the noble Lord, Lord Lisvane, recalls this. He was meticulous. He chaired a report in the other place in the late 1970s on the drafting of legislation. It was his life’s work. He could pick apart these issues. No one is doing that these days and it is allowing slipshod work by parliamentary draftspeople to get on to the statute book, and it is about time we did more about it.

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Moved by

[Lord Lisvane]

53: Clause 9, page 7, line 11, leave out “(including modifying this Act)”

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Moved by

[Lord Lisvane]

86: Clause 17, page 14, line 14, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane]

My Lords, as this amendment is consequential on Amendment 31, which was agreed by your Lordships on 25 April, I beg to move it formally.

Amendment 86 agreed.

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Moved by

[Lord Lisvane]

87: Clause 17, page 14, line 22, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane]

My Lords, this amendment is also consequential to Amendment 31. I beg to move.

Amendment 87 agreed.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

Moved by

[Lord Lisvane]

31: Clause 7, page 5, line 3, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane (CB)]

My Lords, in moving Amendment 31 I shall speak to the other three amendments in the group, which are to the same purpose and are also all tabled in the names of the noble Lords, Lord Tyler and Lord Cormack, and the noble and learned Lord, Lord Goldsmith. The first point to make is that the powers to make regulations proposed to be given to Ministers in Clause 7 and Clause 8—although I am glad to say that Clause 8 is to be removed from the Bill—and Clauses 9 and 17 are heavyweight. With the exception of the matters listed in Clause 7(7), which are to be modestly extended by government amendment, regulations can do anything that an Act of Parliament can do—including, of course, the wholesale amendment or repeal of statutes that have passed through the far more exacting process of primary legislation.

I am grateful to the Minister and his officials for their generosity with their time and explanations, and I know that I speak for other noble Lords—but on this issue I do not think that our points of view have come significantly closer. I see that the Minister is kindly indicating confirmation of that. On Report I must not hark back too readily to what occurred in Committee, but it is worth recalling that when an identical amendment was moved compellingly by my noble friend Lord Wilson of Dinton, out of the 16 noble Lords who contributed to the debate, the only noble Lord who spoke against the amendment was the Minister.

There have been several rounds of detailed exchange between the Government and the Delegated Powers Committee, of which I am a member, and the committee has reported on these issues in its 12th, 20th and 23rd reports. I will spare noble Lords a detailed recapitulation. The issue is this: if a Minister may exercise these powers when he or she thinks it appropriate, I suggest that this subjective test is inadequate. These amendments would not simply replace the word “appropriate” with “necessary”; they would also remove the words, “the Minister considers”, so that we would be left with a statement of objective necessity. The Government have argued strongly that this amendment would unduly constrain Ministers so that they might not be able to do things that needed to be done because they would not be confident of being able to demonstrate necessity. I accept that “necessary” is a high bar—but “appropriate” is a bar so low that it would challenge even the most lithe and determined limbo dancer.

The Government have sought to make the use of “appropriate” more acceptable by requiring Ministers to give “good reasons” and show that they are pursuing a “reasonable course of action” via government Amendment 83C. But this does not cure the problem. The good reasons and the reasonableness of a course of action are still only in the opinion of Ministers. In its 23rd report, the Delegated Powers Committee points out:

“The requirement to state good reasons is a very low threshold. We would always expect Ministers to have good reasons before doing anything, and certainly when making new law in secondary legislation”.


The committee goes on to say:

“It does not advance matters for Ministers to commit to lay a document that merely confirms their belief that they are acting lawfully”.


Finally, the committee said:

“The test for political decision-making is not simply whether there are good reasons. There may be good reasons for doing something and better reasons for not doing it”.


There is also the point that under paragraph 22(6) of Schedule 7, if a Minister “fails to make a statement” of good reasons, he or she has only to “make a statement explaining” why this has not been done—so, not a high threshold, then.

I have heard it said that, were your Lordships to agree to the amendments in this group, it would make the Bill unworkable. It is of course a practice of very long standing to describe the likely results of unwelcome amendments in apocalyptic terms, up to and including the onset of plague and asteroid strike. However, in this case the problem is easily cured. Clause 7 contains a lengthy definition of what constitutes or does not constitute a deficiency in EU retained law. Indeed, the definition runs to 39 lines. With this example before us, it would be a relatively simple matter to gloss “necessary” in order to include the things that Ministers may indeed need to do.

For example, they may want to avoid unnecessary public expenditure, ensure that there is no inert or irrelevant material on the statute book or avoid legal uncertainty, as the Delegated Powers Committee suggested. I would be both surprised and disappointed if parliamentary counsel were not able to draft a form of words so that the common sense things that Ministers will need to do as part of the repatriation process fall—and are clearly seen by Ministers, Parliament and the courts to fall—within the definition of “necessary”.

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[Lord Callanan]

I do apologise; he is behind the Bar, so he is not quite in his place. I hope he will not mind if I quote him. When comparable amendments were added by the Government to the Sanctions and Anti-Money Laundering Bill, and when speaking in support of government Amendment 9, to which he signed his name, he stated:

“I am satisfied that this will impose a real discipline on the Minister, backed up of course by the prospect of judicial review”.—[Official Report, 15/1/18; col. 439.]


That amendment passed without a Division—and I am sure the noble Lord will be supporting us in the Division tonight.

I know that I have offered new information in my speech today. In doing so, I hope that I have demonstrated that this is not simply a case of risk-averse Ministers erring on the side of caution. I can say with complete sincerity that the amendments on the Marshalled List today would necessitate a significant review of our secondary legislation programme and would surely lead to worse outcomes. In this, I agree with the noble Baroness, Lady Falkner. To avoid such a situation, I hope that the noble Lord will agree to withdraw his amendment. If, however, as I suspect, he wishes to test the will of the House, I suggest that he do so now, as this is not an issue the Government intend to return to at Third Reading.

[Lord Lisvane]

My Lords, I thank all noble Lords who have taken part in this debate—especially for their concision and brevity. I am in a position to help the noble Lord, Lord Skelmersdale, as I apprehended that his concern was that if the amendment were agreed, Clause 7(1) would be without a subject. But that subsection begins with the words:

“A Minister of the Crown”—


so it is quite clear who will be exercising the powers.

I listened very carefully to the noble Lord, Lord Bridges, and I hope that the difference of opinion which still remains between us is a demonstration that two reasonable people can disagree without either one being unreasonable.

I also listened very carefully to the noble Baroness, Lady Falkner of Margravine, who had the great courtesy to mention her concerns to me earlier. It seemed to me that her particular concern was the matter of discretion and the amount of time that would be required to make orders. I respectfully suggest that neither “appropriate” nor “necessary” will have an impact on time. There will be a great deal of pressure to produce the delegated legislation in the time required, but I do not believe that whether the word is “appropriate” or “necessary” will impact on that. In terms of ministerial discretion, there is still of course a substantial amount of discretion to be given to Ministers. The debate we are having is about the degree of constraint that there should be on that discretion.

The suggestion I made in moving the amendment, which the Minister was kind enough to recall, was reflected in the Delegated Powers Committee’s 20th report: namely, that some form of sensible definition, or at least the parameters of what could be done without going beyond the bounds of “necessary”, would be of great help to Ministers. If we are talking about avoiding legal uncertainty—and here I was most grateful for the intervention of the noble Viscount, Lord Hailsham, from his extensive professional experience—I do not think that adopting “necessary” would be necessarily an obstacle.

The Minister played the bowling in a very determined way, but the wicket has worsened substantially since Committee. He actually used the phrase about a course of action being “most sensible”—which seems to me to be at the heart of this. If one has some sort of expanded indication of what “necessary” can encompass, that seems to me to be exactly what is required. Nobody wants to stop Ministers doing things that are sensible—certainly I do not—but let us at least have them doing them on a canvas whose bounds are reasonably clear.

When he got on to “torturing” the English language, I felt that that really was a little hyperbolic. You do not torture a concept simply by telling people how you would like it interpreted. That seems again to me to be at the heart of the amendment.

The Minister’s Ofcom example was new material and very helpful, but it started to get into the area of whether there could be more than one solution to “necessary”—and, of course, there can, because, if there is a deficiency, there is not a single solution that is going to assuage that deficiency. There may be several of equal merit, and when they assuage that deficiency they demonstrate their necessity. So I did not really think that that was a particularly compelling example.

Of course, if we are to expect that significant policy changes will be made, the right route for making those changes is primary legislation, and there will be—as with a certain sense of foreboding we are well aware—a number of vehicles for such provision.

So I think that the Minister will not be surprised to hear me say that, despite a dogged defence of his wicket, I shall ask noble Lords to indicate their views, and I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Lisvane]

42: Clause 8, page 6, line 34, leave out “the Minister considers appropriate” and insert “is necessary”

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

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

[Lord Lisvane (CB)]

My Lords, I endorse everything that the noble Lord, Lord Tyler, has said in moving Amendment 305 in the unavoidable absence of the chairman of the Delegated Powers Committee, the noble Lord, Lord Blencathra. I know, the noble Lord being absent on parliamentary business, how much he regretted the unavoidable clash of commitments at this time. The noble Lord, Lord Tyler, was much too modest in his mention of the substitutes’ bench a moment or two ago.

In their delegated powers memorandum the Government have sought to make comparisons with procedures already established in the devolution legislation. I can be very brief, given the conspectus that the noble Lord, Lord Tyler, has given us. The sweeping effect of Clause 11 and Schedule 3 is to reserve to Westminster all returning competences unless the position is changed by Order in Council. The Delegated Powers Committee distils the problem effectively in paragraph 31 of its later, 12th report. The Government have said that the purpose of the Order in Council procedure is to provide an “appropriate mechanism”—there is that word “appropriate” again—to broaden the parameters of devolved competence in respect of retained EU law. However, as the noble Lord, Lord Tyler, made clear, the concept of the definition of retained EU law is anything but straightforward. The fundamental point is that something as important as the distribution of competences should not be left to take-it-or-leave-it statutory instruments. This is something for primary legislation and the much-enhanced scrutiny that it would receive.

[Lord Mackay of Clashfern (Con)]

My Lords, I sought to explain in reference to the amendment I moved last week my belief about the simplicity of the real issue in this area. It seems absolutely clear that all the devolved Administrations—and the UK Administration themselves—are subject to EU law. However, on Brexit day that will all disappear and there will be the powers—these are the ones I am particularly interested in—that were kept to the EU. I said last week, and nothing I have heard since has persuaded me to change my mind, that all the powers which are effectively exercised within a single devolved area should be devolved immediately. That is the result of the EU no longer being in charge of our procedures. In addition, those powers the EU has which to be effective require to operate in more than one of the devolved areas should go to the UK Parliament. I thoroughly believe that that is the only way in which this can be properly accomplished. The idea of doing it with some form of legislation other than primary legislation is doomed to failure. So far as I am concerned, for example, the amendment tabled by my noble and learned friend Lord Hope, which we will come to later, relates only to the idea that something of this kind can happen by statutory instrument. There is no power which creates statutory instrumental authority for this kind of thing. Therefore, what has happened is what Bishop Berkeley once said about the philosophers:

“We have first raised a dust and then complain we cannot see”.


That may have affected other areas of our national life.

This is a simple matter, and the simpler it is, the better what we are trying to do will be understood by ordinary people—the people who read the papers. Otherwise, we will be arguing away about what I certainly cannot understand and I venture to think that, if I cannot understand it, it is likely that one or two others will not understand it either.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

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

[Lord Adonis (Lab)]

The debate that I seek to initiate is on the ability to increase fees and charges by delegated or sub-delegated powers. It is a straightforward matter of proper parliamentary oversight that that should not happen.

Having said that, my role in this debate is one which I am now performing regularly in this Committee—to act as John the Baptist to my good noble friend Lord Lisvane, who is probably the greatest expert in the history of Parliament on the procedures which are adequate and necessary for raising fees and charges. I now make way for the authorised version to be given to the Committee.

[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

Lord Lisvane Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Hannay of Chiswick]

My Lords—

[Lord Lisvane (CB)]

My Lords—

[Baroness Goldie (Con)]

My Lords, the Chief Whip has asked me to indicate that there is some concern about the availability of facilities if we do not adjourn the Committee. I therefore propose that at this point we adjourn and I suggest that we resume after Questions have concluded.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Wednesday 14th March 2018 Lords Chamber

Without those three elements covering the three items—it being the right time, and Parliament being able to say to the Government, “Go back and negotiate along these lines”, the provision would not, in my respectful submission, be meaningful. It is plain, because the Commons passed the amendment to the current Clause 9, that they wanted a meaningful vote. I am sure that all the amendments will come back in a form that has broad agreement throughout the House, and that they will propose to spell out what the Commons can do. I very much hope that in his response to this amendment, the Minister will take more seriously the questions he has been asked—and those that he was asked on the previous group of amendments.

[Lord Lisvane (CB)]

My Lords, together with my noble and learned friend Lord Judge, and the noble Lords, Lord Tyler and Lord Adonis, I tabled notice of intention to oppose Clause 9 standing part of the Bill, in order to ensure a debate on the purport of the clause, not least on the generality of it—and not least because of the extended delegated powers that it contains. It has been a delight that that notion has been part of a debate with such outstanding speeches, including those of the noble Viscount, Lord Hailsham, the noble Lords, Lord Cormack and Lord Reid, and pre-eminently that of the noble Lord, Lord Patten of Barnes. I suggest that his speech should be written in letters of gold and set as a compulsory constitutional text—and after his speech a few moments ago, I would add the noble and learned Lord, Lord Falconer of Thoroton, to that roll of honour.

I was also musing on the effect of the words helpfully inserted in Clause 9(1) by Mr Dominic Grieve’s Amendment 7 in the Commons. If there were no deal, I wondered, would the requirement that the final terms of withdrawal should be approved by statute actually bite? But on reflection, I concluded that even if, at the end of the negotiation, there were nothing but scorched earth, there would have to be some sort of withdrawal agreement, and that in turn would make the proviso effective. In political terms it might, of course, be even more effective if no deal at all cast a different light on the fundamental question of withdrawal.

The area of great concern in Clause 9 is, of course, the powers proposed to be conferred by subsection (2). As I have Amendment 154 to that subsection, and as my noble and learned friend Lord Judge has asked me to move Amendment 153 in his unavoidable absence, I shall reserve any further remarks until we reach that group.

[Baroness McDonagh (Lab)]

My Lords, my noble friend Lady Kingsmill and I have been trying to get in on this group of amendments since the beginning of the debate. Unfortunately, the noble Baroness had a meeting with the Bank of England at 4 o’clock, and as the chair of a bank, she could not fail to go to it. I sought advice from the Minister, the noble Baroness, Lady Goldie, and she suggested that I should read the noble Baroness’s words into the record. I shall then make my own comments on Amendments 155 and 191.

On behalf of my noble friend Lady Kingsmill, I support Amendment 199. Many noble Lords have spoken eloquently about this amendment, which seeks to preserve our current relationship with the EU should Parliament decide not to approve the withdrawal agreement and ask the Government to go back to the negotiating table. The Brexit process has been characterised by uncertainty. We simply do not know what the final deal will look like, under what circumstances we will do business, be consumers, travel and work. We do not know what our future relationship with Europe will be, and Article 50 sets the clock ticking for when we would need answers to those questions.

This amendment seeks to ensure that the withdrawal deal put to Parliament is not a choice between a poor deal or no deal, whereby the UK would crash out of the EU and revert to WTO terms. Noble Lords have spoken about how that would be hard for our economy and for trade and services. It would, and it would also be hard for people. It is this last point, the rights of EU citizens, which I would like to touch on today. Negotiations are about the balance between what is gained and what is lost. Some of that will be quantifiable in financial terms but it will also be about culture, opportunity and identity.

My children have grown up as proud citizens of the UK and Europe. They do not question that you can be both, or that being one means diminishing the other. They have never had to question that they can travel, study, work and live across borders, and that their qualifications and skills are recognised. For them, Europe is a place of opportunities, not obstacles. When the UK leaves the EU, it is not just that generation which will lose a part of their identity and a sense of belonging, it is the UK as a whole.

I am an immigrant, brought to this country as a child from New Zealand. When I was 18 and a new undergraduate at Cambridge, I applied for a British passport to travel to Switzerland for a walking holiday with friends. I was refused on the grounds that I was not British because neither my father nor my grandfather was born in the UK. I was shocked and felt very insecure. Eventually, I obtained a New Zealand passport. On my return to the UK after my holiday, I was required to go to the purser’s office on the ferry and was questioned about my commitment to the UK by a police officer not much older than myself. I eventually received the stamp in my passport giving me indefinite right to stay. I think I have done pretty well since then.

A week ago, the House heard informed debate on amendments that sought to put the rights of EU citizens into the Bill. I welcome the fact that an agreement was reached in principle in December on EU citizens’ rights as part of the phase 1 agreement. However, as noble Lords raised last week, there remains uncertainty and anxiety for EU citizens about their position, in particular in the event of a failure to reach a withdrawal deal. Even if EU citizens’ rights are clarified in the withdrawal agreement, what if the rest of the withdrawal agreement is not a good deal for the UK and Parliament votes against it? What happens then? In those circumstances, until we are certain and ready and prepared for a successful positive future relationship with the EU, surely we should retain the status quo and relationship we have. Surely, we owe it to the EU citizens here and the generation who will have their British-European identity severed to extend Article 50 until the best deal can be reached. That is what this amendment seeks to ensure.

Speaking for myself, I support Amendments 151 and 199. I find myself in the very unusual and discombobulating circumstances of agreeing with most noble Lords on the other side of the Chamber. If noble Lords were present at this morning’s debate, they would appreciate that we are in danger of breaking out into unity across Benches and parties.

--- Later in debate ---

Moved by

[Lord Lisvane]

153: Clause 9, page 7, line 10, leave out subsection (2)

[Lord Lisvane]

My Lords, I must convey to the Committee the sincere apologies of my noble and learned friend Lord Judge, who has a long-standing and unbreakable engagement outside the House and who has asked me to move Amendment 153 on his behalf. I will also speak to Amendment 154 in my name.

Both the Constitution Committee, in its ninth report, and the Delegated Powers Committee, in its 12th report, expressed grave doubts about the breadth of the powers contained in Clause 9. They also suggest—as has been touched on by a number of noble Lords in the previous debate—that, as a further Bill is required by the amended Clause 9(1), Clause 9 as a whole is unnecessary, as any regulation-making powers can be included in the Bill that is now contemplated by Clause 9(1). That is a persuasive case, and perhaps it would indeed be better—despite what the Minister said in reply to the previous debate—if Clause 9 were in effect to be deferred to that later Bill.

However, whether it is here or whether it is there, the real mischief at the heart of Clause 9 needs to be cured. Clause 9(2) is a whacking great Henry VIII power, allowing Ministers to make in regulations any provision that could be made by an Act of Parliament—something of which my noble and learned friend Lord Judge has been such a trenchant critic. In a piece of legislative pulling oneself up by one’s own bootstraps, it would also allow Ministers to modify the Act which will result from this Bill itself.

The rather measured phrases—“make any provision” and “modifying”—should not mask the extent of the powers. Clause 9(2) would allow Ministers to make regulations that would amend or repeal any Act of Parliament whenever passed. And the power relating to the Act resulting from this Bill would allow Ministers to amend or even repeal it, setting at naught a number of weary hours that your Lordships have spent on this text.

The Delegated Powers Committee set out some ways in which Ministers would be empowered to use SIs, among other things to,

“alter the scope of ‘retained EU law’ so that … it includes EU legislation passed after exit day”,

to keep the supremacy of EU law for certain purposes, with the supervision of the ECJ, or to change the whole basis of the regulation-making powers elsewhere in the Bill so that “necessary or appropriate”—the subject of our argument last Wednesday—would become irrelevant, and the powers could be used for major policy change without restriction.

The Minister rightly said in reply to the previous debate that these powers would have to be used in the terms in which Clause 9 is framed, so they would be about provision relating to the withdrawal. Of course, a parliamentary vote on the withdrawal deal would, or could, in effect be a constraining factor. But the extent of that constraint is wholly dependent on another factor, which is how much detail is contained in whatever document or test becomes the subject of that meaningful vote.

The power could also be used to remove the Bill’s time limits on the regulation-making power, which at the moment provide at least some reassurance. As with other delegated powers, Ministers have sought to say as the noble Lord, Lord Callanan, did in reply to the previous debate. He gave a number of examples—not frightening or alarming ones—of the way in which the powers could be used. I do not for a moment question the good faith in which Ministers give us these examples, but once again one has to emphasise that what matters is what is in the Act. If current Ministers do not use those powers in the ways authorised by the Act, other Ministers may do so.

The Constitution Committee concluded that giving Ministers the powers in Clause 9(2) would require “the strongest of justifications”. The Delegated Powers Committee went further, calling the power, despite its exercise being subject to the affirmative procedure, “wholly unacceptable”.

I have never felt that Henry VIII is an entirely welcome dinner guest—if I may put it like that. But his presence can be made just about tolerable by observing what I would like to call the rule of the three “S”s. The first “S” is scope: the exercise of such a power must be subject to tight constraints. Merely what might be thought “appropriate”—we are back to that again—for the purposes of implementing the withdrawal agreement does not qualify. The second “S” is scrutiny. Even though the affirmative procedure will apply to Clause 9(2) regulations by virtue of paragraph 7(1) of Schedule 7, the opportunities for effective scrutiny are likely to be limited, and the luxury of time for that scrutiny is unlikely to be available. The third “S” to bear in mind when his majesty comes to dinner is sunset. It would generally be better if Henry VIII powers were not on the statute book, but if they are, they should not linger there. Clause 9 provides that,

“No regulations may be made under this section after exit day”.


But as Ministers would have the power to alter exit day, this does not really give the reassurance it suggests. In my submission, therefore, Clause 9 fails those three tests of scope, scrutiny and sunset. It needs major surgery. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.

We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.

There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.

I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:

“No regulations may be made under this section after exit day”.


However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?

At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.

--- Later in debate ---

[Baroness Goldie]

I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.

I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.

[Lord Lisvane]

I thank the Minister for responding to the debate with her customary courtesy, precision and humour. She invited us to consider some precedents. It called to mind the occasion in 1881 when Speaker Brand introduced into the House of Commons, on his own initiative and without any consultation, the concept of the closure. He came under a great deal of fire rather quickly for this so he asked my learned predecessor, Sir Thomas Erskine May, to find him a reason for having done it. May, after a rapid and I think somewhat fevered search, discovered a precedent in 1603. He said later that he had discovered something that convinced the House of Commons better than any argument: “I have found a precedent”. In this case I have to say with great respect to the Minister that I did not find her precedents particularly compelling. If one identifies something which in legislative terms is rebarbative and not particularly acceptable, the fact that it has been done once is a very poor argument for repeating the offence.

I agreed with I think everything that the noble and learned Lord, Lord Mackay of Clashfern, said. Indeed, in my short time in your Lordships’ House I do not believe that I have been guilty of disagreeing with anything he has said. He made a point about timing which I think is very important. It may well be that, in contemplation of the withdrawal arrangements, provision can be made under Clauses 7 and 8, according to the restricted purposes set out in those clauses—although not particularly restricted—in which case the solution would be to make SIs, and I would hope that they would be subject to the affirmative procedure. Although the noble Baroness invited us to think that the affirmative procedure is a simply wonderful thing, it is not even half a loaf in legislative terms; it is a great deal less. However, it could be done by those means with delayed commencement dates. I agree entirely with the noble and learned Lord, Lord Goldsmith, that if these requirements are known, the best course is to find a way of putting them in primary legislation, with all the controls and scrutiny that would attract.

I do not know how sensitive my radar is but I think I detect some serious doubts, still, around the Chamber about Clause 9(2), and certainly about the last part of Clause 9(2), so I think it may be that the noble Baroness will be taken up on her very generous offer to reflect those doubts in the appropriate quarter before we take these provisions forward. In that spirit I beg leave to withdraw the amendment.

Amendment 153 withdrawn.