Strategic Lawsuits against Public Participation

Lord Lisvane Excerpts

Thursday 1st December 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, it is the privilege of the legal profession to act for the weak against the powerful. On the specific point which the noble Baroness raises, I will write to her. I can assure her and the rest of the House that the provisions against SLAPPs are intended to be drawn widely. She brings forward the important question of whether there is an imbalance against women in the steps being taken in this abusive process. I am grateful to her and will correspond with her.

[Lord Lisvane (CB)]

My Lords, awaiting a suitable legislative vehicle is an ancient excuse—or possibly reason—for not legislating, but, with respect, I am a little sceptical about the Minister’s assertion that inserting these provisions in an economic crime measure would, as it were, narrow them. Putting these provisions in a Bill which is largely about a different subject does not, of itself, narrow them; the key thing is how those provisions themselves are drafted.

Queen’s Speech

Lord Lisvane Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Lisvane (CB) [V]]

My Lords, I add my warm congratulations to those of others and welcome the noble Baroness, Lady Fraser of Craigmaddie, and the noble Baroness, Lady Merron, who I was very glad to know in a previous life.

The Covid-19 pandemic has had a serious effect on the legislative process in terms of quantity of proposals, shortness of notice, difficulty of scrutiny and, insidiously, the confusion of guidance or ministerial instruction with the law. The report published today by the Constitution Committee, chaired by the noble Baroness, Lady Taylor of Bolton, has provided an excellent analysis of the effect on Parliament and has given us our own parliamentary road map, as it were, for the future. I much look forward to hearing from the noble Baroness in a moment or two. It is vital that those baneful legislative effects of the pandemic should not persist, but that does not mean that all will be fine once the dial is reset.

On Tuesday, we were told of some 30 Bills that Parliament will be invited to consider in just a few months of this Session. So I think it is reasonable to ask how well Parliament is equipped to pass good law. However welcome it may be to have, in the often-used phrase, “taken back control” or taken back sovereignty—whatever sovereignty may really mean in practice—the dice are ever more heavily loaded in favour of the Executive, as my noble and learned friend Lord Judge pointed out so compellingly.

I am not being unrealistic, of course. For years, Bills have not really been draft legislation; they have been word for word what the Government of the day wish to see upon the statute book. But the rules of the game have been changing. We have extensive delegation of powers to Ministers in SIs, with minimal parliamentary scrutiny, Henry VIII clauses which can negate scrutiny of primary legislation, and the use of delegated legislation to provide for matters of serious policy. We may pride ourselves on line-by-line scrutiny, about which I have my doubts, but if we really wish to equip Parliament to pass legislation that is respected and which maintains the accountability of Ministers and the authority of Parliament, we need to do a lot more than just reset the dial.

Let me turn to the union for a moment. Whatever the prospects for indyref2, the debate on the future of the union remains focused upon Scotland, and it remains binary. On the one hand, there is the possibility—remote, perhaps, but nevertheless—of independence and, on the other, of carrying on much as we are, with the hope that increased investment and joint projects will keep the centrifugal forces in check. But what will remain in the eyes of many will be what I have described to your Lordships before as the imperial condescension of the UK’s central government.

A symptom may be the term “devolution”, which I suggest is rapidly becoming outdated. If you devolve, you are giving away part of what you control. If you are the owner of the cake and you decide how much to give away, however tasty the morsel, this will not stop recipients being rightly resentful. I suggest that what is needed is a reshaping of the relationships, powers and responsibilities of the four members of the union. This has been the aim of the Constitution Reform Group, convened by the Marquess of Salisbury, a distinguished former Leader of your Lordships’ House, and of which I am a member. In the last Parliament, I introduced the group’s act of union Bill. In this Session, I hope to put before your Lordships a greatly improved and developed version of the Bill, seeking to replace the present top-down approach, where the centre decides what powers are to be given to the other parts of the UK, with a bottom-up approach in which the four parts agree upon the powers they need to serve their citizens best and to take a full part in a union which has been astonishingly successful, culturally and economically.

My last point is constitutional, in that it relates to our parliamentary home. The sound of the restoration-and-renewal can still being kicked down the road is increasingly depressing. I have a personal interest in this, having commissioned the first condition survey, which initiated the whole process the best part of a decade ago. All the issues have been well exposed and, it seems, endlessly discussed. The questions of political embarrassment and the impact on the public finances are the same as they were 70 years ago, although of course the cost of not having tackled the problem for all these years now has to be added, month by month, inexorably. The reality that will not go away is that, if we have a catastrophic failure of services, we will probably not be able to remain in the Palace of Westminster, and all the decisions that have been put off for so long will come to a head in the space of 24 hours. In my maiden speech in your Lordships’ House I urged rapid progress. And that was six years ago.

Queen’s Speech

Lord Lisvane Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Lisvane (CB)]

My Lords, your Lordships will recall that, over the centuries, Parliaments have been given nicknames to reflect their character. In 1388, there was the Wonder-Working Parliament—if only. In 1404, the Dunces’ Parliament was so called because—this will please my noble and learned friends—upon the instructions of King Henry IV it contained no lawyers.

So what shall we call the 2017 Parliament? Possibly the Gridlocked Parliament, but it was also a Parliament which saw well-established constitutional conventions and understandings ignored or trashed, the actions of a Prime Minister in the high duty of advising his Sovereign found to be unlawful and, in the House of Commons, the explicit wording of certain Standing Orders made subject to imaginative reinterpretation. We do not yet know what long-term damage has been done to our constitutional arrangements but of one thing we can be sure: there are some expensive noises coming from the engine.

I will swiftly touch on four issues. First, I warmly welcome the undertaking in the gracious Speech that the Fixed-term Parliaments Act will be repealed. That Act will go unlamented to its legislative grave but, in doing so, it may pose an interesting problem. The Act removed the discretionary prerogative power of dissolution; presumably, that must be restored in terms. I shall be very interested to see how the repeal Bill defines the nature and extent of those prerogative powers and whether there are implications for other aspects of the prerogative.

My second issue is the routine surrender of parliamentary power to the Executive by the extent of delegated powers granted to Ministers. This is a sad story which will no doubt be continued by the many Bills foreshadowed in the gracious Speech: extensive powers delegated to Ministers, including powers to amend primary legislation, often with little effective parliamentary scrutiny, often to achieve ends which are not made explicit to Parliament when the powers are granted, and all too often upon the criterion that a Minister thinks that such provision is “appropriate”—that baneful word—not “required”, not “necessary” but merely upon the unsupported judgment of a Minister of the present Administration, or of any future Administration, while the powers remain upon the statute book.

Your Lordships are sensitised to these issues, particularly by the excellent work of the Delegated Powers Committee, but there appears to be no similar sensitivity at the other end of the building, so the legislative power of Parliament continues to drain away. Let us hope that in this Parliament—an appropriate expression has just come to mind—we might consider “taking back control”.

Noble Lords, especially noble and learned Lords, have considered, and will consider, the implications of the Supreme Court judgment on prorogation. Tempted as I am, I will take only one aspect of that judgment for my third issue. For some years in my previous life, I was closely involved in protecting “proceedings in Parliament”, in the words of Article 9 of the Bill of Rights, from incursion or encroachment by the courts. This often involved complex issues.

As the Supreme Court quite rightly pointed out, the Bill of Rights is statute law and so falls to the courts to interpret but, of course, there is room for more than one opinion on the matter. It is a close call but, on balance, I think the court, in paragraph 69 of the judgment, was right to conclude that it was not precluded by Article 9 from considering the validity of the prorogation. I did, though, have the mischievous thought as to what the situation would be if, the ceremony of Prorogation not being considered by the Supreme Court to be a proceeding in Parliament, a Member of your Lordships’ House were, during that ceremony, to interrupt proceedings with words which were not only disorderly but actionable. Would he or she be protected by absolute privilege, as in a proceeding in Parliament? Perhaps it would be best for such a thing to remain in the realm of hypothesis.

My final issue is the preservation of the union. This is becoming a matter of increasing concern, and the centrifugal forces pulling our nation apart are ever greater. Noble Lords may recall that, in the last Parliament, I introduced the Act of Union Bill. That Bill resulted from the extensive work of the Constitution Reform Group, founded and chaired by the distinguished former Member—indeed Leader—of your Lordships’ House, Lord Salisbury.

The Bill sought a new devolution settlement—indeed, a new constitutional settlement for the United Kingdom —with the sharing of powers and responsibilities on a bottom-up, not top-down, basis and avoiding what I have described as the imperial condescension of Whitehall. The group has continued and broadened its work and, in addition to its membership from several parties and from none, it now also draws upon the help and advice of some senior figures in the world of finance and, I am glad to say, former First Ministers of Scotland, Wales and Northern Ireland, as well as of a great number of conferences and seminars.

I hope to introduce a new and improved version of the Bill in the present Parliament. I hope that, at the very least, it will support continuing serious debate about the future of the union and that, at need, it will provide a plan B; with the passing months this seems ever more necessary.

Parliament: Freedom of Speech and the Rule of Law

Lord Lisvane Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I start from the premise that there should be a comity between the courts and Parliament and that both should be, in the words of Lord Browne-Wilkinson in Prebble v Television New Zealand,

“astute to recognise their respective constitutional roles”.

There are two means of, as it were, keeping the tanks off each other’s lawns. One is article IX of the Bill of Rights, which says that parliamentary proceedings,

“ought not to be impeached or questioned in any Court or Place”,

outside Parliament. Over the years, the judiciary has generally been very careful to ensure that this is observed. The mirror image is the sub judice rule, enshrined in resolutions of the two Houses, which prohibits reference to active proceedings in the courts, subject to the right of Parliament to legislate on any matter and with the possibility of a waiver if, in the judgment of either presiding officer, this is justified.

I should note in passing, as this was something that much occupied me in my former life, that the sub judice resolutions in their present form date from 2001 and are sorely in need of updating. For example, following the Armed Forces Act 2006, there is now no mandatory post-trial review in court-martial proceedings. Moreover setting down a case for trial, one of the trigger points for the rule’s operation, is phraseology no longer used in the Civil Procedure Rules. The application of the rule to tribunals needs to be clarified, and I have long thought that its application to inquests—in effect, treating them as quasi- criminal proceedings—is simply not sustainable.

However, in the issue we are considering today, the sub judice rule is a bit of a red herring. It may apply to injuncted material but only if proceedings are still active; it will not apply to a final injunction unless an appeal is outstanding. The question before us is, I suggest, whether there should be a parallel rule to protect the rights conferred on an individual by the judicial process, and incidentally of respect for that individual’s private life under Article 8 of the European Convention on Human Rights.

Two particular cases were considered by Commons committees. In 1978, the Committee of Privileges considered the Colonel B case, which has already been referred to, and, in 1996, the Procedure Committee considered the Baby Z case. A more wide-ranging inquiry was undertaken by the Joint Committee on Privacy and Injunctions, which reported in March 2012. Part of the Joint Committee’s consideration was of parliamentary breaches of court injunctions. To what extent they were justified is neither here nor there. They related to people engaged in the popular sports of football and banking, and particularly to sportsmen who, in their private lives, had been a little too sporting.

My noble and learned friend Lord Brown of Eaton-under-Heywood referred to the suggestion made by my noble friend Lord Pannick in the Times a while ago. I hope I may be acquitted of vaingloriousness when I say that I was a few years ahead of my noble friend. In my memorandum, as Clerk of the House of Commons, to the 2012 Joint Committee, at pages 191 to 211 of the committee’s written evidence, I set out how the two Houses could deal with the problem. They could pass in effect a self-denying ordinance, on the pattern of the sub judice resolutions, stating the determination of each House to preserve Parliament’s freedom of speech, uphold the rule of law and respect the rulings of the courts, save either for the purpose of changing the law or if the chair had given prior—note, prior—authority for the rule to be set aside if the circumstances warranted it. This would be a high bar to clear. Such a resolution would also have an important declaratory function, which we should not underestimate. The Joint Committee was clearly attracted by this option but, in the end, concluded that there were not enough cases to constitute a real problem that needed to be dealt with in this way.

That was also the conclusion of the Commons Committee of Privileges in 1978, the Procedure Committee in 1996 and the Joint Committee on Parliamentary Privilege in 1999, which was endorsed by the Joint Committee on Parliamentary Privilege in 2013. It also wisely recommended against the codification of privilege in statute.

There we have it: it is a matter of proportionality. If, in your Lordships’ judgment, and that of the other House—and it would be sensible for the two to keep in step—these are events whose frequency and nature give rise to sufficient continuing concern, the means of addressing the issue are to hand.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

Moved by

[Lord Lisvane]

365: Schedule 8, page 64, line 33, leave out from first “time” to end of line 34

[Lord Lisvane (CB)]

My Lords, I can hear the strains of the “Farewell” Symphony as we prepare to tackle the penultimate amendment to be debated in Committee, and how appropriate it is that the very final amendment should be in the name of the noble Lord, Lord Adonis.

Amendment 365 is in my name and the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Baroness, Lady Hayter of Kentish Town, and it is very sharply focused. The Committee has already considered the issue of tertiary legislation, with Amendments 110 and 135 as vehicles. Those amendments combined the issue of the principle of tertiary legislation with that of sunsetting. Amendment 365 is about only sunsetting, so I need not trouble the Minister to revisit the general defence of tertiary legislation, which he made at cols. 1473 and 1474 at an unearthly hour on Monday 12 March, although it was then what the rest of the world knew as Tuesday 13 March.

On that occasion, the Minister also made a defence of the exemption of tertiary legislation from sunsetting. He said:

“Where sub-delegated or transferred legislative powers are crucial to the functioning of a regime, it would not be appropriate”—


how often that word “appropriate” recurs—

“for those powers to be subject to a sunset”.—[Official Report, 12/3/18; col. 1475.]

If one accepts the principle of bodies such as the Prudential Regulation Authority and the Financial Conduct Authority exercising tertiary powers in their role as continuing guardians of a regime—and the Minister made a very good case for that in his speech on that occasion—it also makes sense for them to continue to do so after two years have elapsed from exit day. Indeed, I feel that I am now starting to make the Minister’s speech for him. However, there remains a serious point, because if bodies responsible for the functioning of a regime are to continue to exercise their powers without a sunset, it is crucial that those powers are tightly drawn in the first instance, as there will be no opportunity for parliamentary scrutiny of the subsequent exercise of the powers that have been delegated to those bodies.

Therefore, perhaps the most helpful thing the Minister could do in replying to this debate would be to give your Lordships a clear assurance that the tertiary powers will be carefully circumscribed, and that when affirmative instruments delegating those powers come before Parliament—because the actual delegation will be subject to the affirmative process—they do not simply prescribe some general subject area in which the body is to operate and which is to be its responsibility, but are rather more specific and indeed constraining. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

--- Later in debate ---

We are keen to hear the views of noble Lords but, given the variety within these powers, the Government are very wary of prescribing a one-size-fits-nobody solution to scrutiny. That, I fear, would only store up even more discontent among noble Lords. I remain convinced that the delegated powers granted under this Bill will be needed for the foreseeable future and that the right way to address the exercise of delegated powers transferred or granted by the SIs under the Bill is not to sunset them all. Rather, it is for noble Lords to scrutinise closely and carefully the SIs transferring those powers and the conditions they set out, and to reject them if they do not meet their exacting standards. We in the Government are committed to making sure that Parliament has all the material it needs to do this. I therefore ask the noble Lord whether, in the light of that, he will consider withdrawing his amendment.

[Lord Lisvane]

My Lords, I am very grateful to the Minister and to his Opposition shadow for what they have said in this very short debate. It may be a good moment to pay tribute to the stamina of the Minister and his ministerial colleagues. We are on day 11—it must seem to them like day 43. They are no doubt musing on some parliamentary version of what used to be said of King Philip II of Spain: that if death came from Madrid, we would be immortal.

The Minister’s reply rather put the onus on to your Lordships to look at the affirmative instruments that would delegate these powers and decide whether they were sufficiently constrained. I think that might be the second-order question. The first-order question—and I know the Minister accepted this point, even though he did not reflect it in what he said—is for the Government to think very carefully about how these powers should be constrained in order to avoid any controversy in your Lordships’ House. If that message has been taken on board, I beg leave to withdraw the amendment.

Amendment 365 withdrawn.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I shall add to the compelling citation by my noble friend Lord Pannick of the Constitution Committee’s report on what the Delegated Powers and Regulatory Reform Committee said about Clause 17. It pointed out that, unlike the regulation-making powers in Clauses 7 to 9, there is,

“no time-limit on the making of regulations under clause 17”.

It also said that the powers to make consequential provision,

“should be restricted by an objective test of necessity”.

That is the golden thread of appropriateness and necessity that has been running through a number of debates and I hope that a constructive way forward can be found on that before Report.

The Delegated Powers Committee also points out that, although paragraph 100 of the delegated powers memorandum says that the Henry VIII powers are appropriately conferred, and that,

“a large number of ‘fairly straightforward’ changes, including to primary legislation, will be needed in consequence of this Bill … that does not explain why it is appropriate for the negative procedure to apply in all cases including those which are not ‘fairly straightforward’”.

The committee concluded:

“Where regulations under clause 17(1) amend or repeal primary legislation, the affirmative procedure should … apply in accordance with established practice”.

[Lord Newby (LD)]

It is a pleasure to follow the noble Lord, Lord Liddle, and others who have spoken. Normally, when something is about consequential and transitional provisions, your eyes glaze over, because what you are talking about is the sort of sweepings from the floor, in the legislative sense. But this is the most extraordinarily broad provision. It basically says that a Minister of the Crown can, by regulations, change virtually any provision in any Act.

As the noble Lord, Lord Liddle, pointed out, and as we have discussed, the effect of our membership of the EU has been like the tide rising across the legislative framework. It has gone into virtually every part of our legislative life. This provision, untrammelled as it is with any qualification at all, enables Ministers to amend by secondary legislation a whole swathe of legislation that is not directly covered by the earlier clauses of the Bill. No doubt the drafters of the Bill thought that this was a sort of belt and braces provision, because it covers everything else that might not have been covered by earlier clauses. However, as other noble Lords have said, it is surely far too broad.

The key definitional question is what the word “consequential” means. On a broad interpretation of it, any legislation that is consequential on our membership of the EU is covered by this provision, which is surely far wider than anybody in your Lordships’ House would wish to see. I hope that the noble Lord will be able to reassure us that, first, that was not the Government’s intention and, secondly, that they are willing to accept the recommendations of the two committees of your Lordships’ House. As this stands, of virtually all the provisions in the Bill, this is the one that gives Ministers the broadest unfettered powers to change primary legislation by secondary legislation and it clearly is not the will of the House that that should be allowable.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Adonis]

My Lords, speaking in the middle of the night I see my role as being purely a silent John the Baptist to the noble Lord, Lord Lisvane. I beg to move.

[Lord Lisvane (CB)]

My Lords, I shall speak to Amendment 240. I am really not cut out for the role that the noble Lord, Lord Adonis, has set out for me. I am not sure whether, in its emergency arrangements, the Bishops’ Bar is serving locusts and wild honey tonight. But I will do my best with Amendment 240, which has in common with the other amendments in this group the fact that it seeks to impose a restriction on the use of regulation-making powers. However, it is a little different and it reflects a recommendation of the Delegated Powers Committee.

If secondary legislation made by Ministers or Ministers in the devolved Administrations under Schedule 4 imposes a new fee or charge, those regulations will be subject to the affirmative procedure. But if the fee or charge is subsequently changed— the lovely word “modified” is used, but we can probably assume that the change would be an increase, just as new fares always turn out somehow to be higher—the regulations making that change are subject only to the negative procedure.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I am just wondering whether the noble Lord who moved this amendment is thinking that the House of Lords should not reject an SI outright once it has been confirmed by the House of Commons but should ask that it be reconsidered, and whether that should be the only option apart from approving it.

[Lord Lisvane]

My Lords, I think that if it were an SI concerned only with imposing a fee or charge, noble Lords would not have it laid before them.

[Baroness Goldie]

My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.

Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.

Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.

As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.

The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.

To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.

It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.

I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.

The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.

I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.

The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.

I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.

I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.

I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.

I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.

Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—

--- Later in debate ---

Moved by

[Lord Lisvane]

237: 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
(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument to which paragraph 1(3), 6(3), 7(3) or 11 applies, 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.(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 sub-paragraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

[Lord Lisvane]

My Lords, I will move Amendment 237 and speak to Amendments 237A and 239A. One of the host of extraordinary things about the Bill is that, for many of the regulation-making powers under Clauses 7, 8 and 9, the Government have a choice as to whether the affirmative or negative procedure is to be used. This applies even in some cases to Henry VIII powers. This is not a decision to be taken by Parliament but, as the Bill stands, arrogated to Government. It is consistent with the Executive carte blanche which characterises much of the Bill. The amendment on sifting which passed in the Commons and now appears at paragraph 3 of Schedule 7 appears to involve Parliament in the process and so it does, to an extent. The requirement in paragraph 3(3), for a draft to be laid and the Minister’s reasons to be given, is welcome. However, in a surprising irony, not only can the Minister then ignore any recommendation of the committee—as the Bill stands it is only a committee of the House of Commons, but the Minister has said that it will be extended to your Lordship’s House—it is the committee’s making of the recommendation which is the trigger. That is what brings into play the Minister’s ability to do just what he or she wants.

Therefore, Amendment 237 in my name and in those of the noble Baroness, Lady Hayter of Kentish Town, and the noble Lords, Lord Tyler and Lord Blencathra—respectively a member and the chairman of the Delegated Powers Committee—sets out, as recommended by that committee, a procedure that actually has teeth. It would give to a committee of either House the power to recommend the upgrading of the procedure from negative to affirmative. It would also allow the relevant House the opportunity to disagree with its own committee’s recommendation. It would work on the basis of highest common factor rather than lowest common denominator in that a recommendation in either House is enough to raise the bar to affirmative so there is no need for a reconciliation mechanism. It is slightly less ambitious than the heavyweight procedure in Amendment 238 in the name of the noble Lord, Lord Hodgson of Astley Abbotts, which we will come on to talk about shortly, but nevertheless it seeks to cure something that is very concerning in the Bill as it stands at the moment.

Last week I was rather beastly to the noble Baroness about precedents. That was mainly because the precedents that she was deploying were ones that I did not like. However, I have much better precedents for Parliament setting the level of scrutiny: the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011. I really do not see why a similar procedure cannot be adopted here. It would certainly be better for Parliament, rather than Ministers, to take the decision.

Amendment 237A, in the name of the noble Lord, Lord Sharkey, to which I have added my name, is an amendment to Amendment 237, which would simply allow either House to take the initiative directly rather than acting on the recommendation of a committee. Amendment 239A, also in the name of the noble Lord, Lord Sharkey, is not about sifting but it provides a reconciliation mechanism that would operate when the House took different views on an affirmative instrument. Of course, if a Government get into difficulty, it is always open to any Government to withdraw and relay an instrument or a draft that has been disapproved of by one or both Houses, as was famously and unfortunately not done in the tax credit case. The relaid instrument does not have to be very different either, but Amendment 239A would provide a transparent mechanism. I beg to move.

Amendment 237A (to Amendment 237)

Moved by

--- Later in debate ---

Amendment 237A (to Amendment 237) withdrawn.

[Lord Lisvane]

My Lords, I am extremely grateful to the Leader of the House for setting out in such detail what is proposed in terms of sifting and scrutiny. They are often combined as a single concept, but sifting as to importance, and so the procedure to be attached, is a rather separate concept from the scrutiny of what results. I am sure that noble Lords will want to study with considerable care the amount of detail—which we are very grateful for—that the noble Baroness has given us.

She saw Amendment 237 as being difficult to work because of the time involved, but the amendment is not linked to super-affirmatives and it is possible to craft something—it may well be between now and Report—which deals with one House dictating to the other in terms of the highest common factor that I referred to earlier and of the time limits involved; the noble Lord, Lord Sharkey, made a very good point about the distinction between 28 days and 60 days. If we are already talking in those terms, those are in parliamentary time quite extensive periods.

I did not really understand the logic of the argument that if the House rejects a committee’s view this is in some way to downgrade or demean the committee—here, I endorse what was said by the noble Lord, Lord Beith. Committees are subordinate to the House which appoints them. Any House can take a view on what a committee says to it. That seems a perfectly ordinary parliamentary relationship. Rather less acceptable—although I appreciate the lengths to which the noble Baroness went to set our fears at rest—is that Ministers will still be able to choose which procedure applies to which instrument. When under Clauses 7, 8 and 9 that includes the use of Henry VIII powers which may be subject to negative procedure, that will remain concerning. These are matters that I think noble Lords will wish to reflect on between now and Report. The application of creativity and inventiveness may take us some way along the road to agreement, but somewhere—it is an overused phrase in the current Brexit situation—a red line will need to be identified. In that spirit, I beg leave to withdraw the amendment.

Amendment 237 withdrawn.