Retained EU Law (Revocation and Reform) Bill

Debate between Lord Lisvane and Viscount Hailsham

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

[Viscount Hailsham (Con)]

I thank the noble Lord for giving way, and I hate to cross swords with him on this matter, but the trigger point of “substantial change” is quite narrow. My noble friend Lady McIntosh spoke about lack of consultation, or inadequate consultation. That might surely be a reason for using the trigger power.

[Lord Lisvane (CB)]

I absolutely agree and, as the noble Viscount has made clear, a number of things could be interpreted as of sufficient gravity to trigger, we hope, the powers in the Bill, then the Act, and it would be for the Joint Committee to decide—as a number of committees of your Lordships’ House already decide—that the lack of consultation is a serious flaw in the bringing forward of proposals for, for example, delegated legislation. So I hope I have set the noble Viscount’s mind at rest, but I am happy to talk to him outside the Chamber if further reassurance is required.

--- Later in debate ---

[Viscount Hailsham (Con)]

I am sorry to press the noble and learned Lord—while looking straight at your Lordships’ House—but is the concept that there will then be on the Order Paper proposed amendments to the statutory instrument, or will there be an informal recommendation by the Select Committee? Those are not the same things. I would be very pleased if they were a power to amend statutory instruments, and I would really like to know what procedure is contemplated.

[Lord Lisvane (CB)]

It is with a certain amount of trepidation that I seek to answer the question. The noble and learned Lord, Lord Hope, will correct me if I am wrong, but as I understand it the idea is that the amendments—which might come from the Joint Committee or from another source, as foreseen in sub-paragraph (3) in the amendment—would come forward and could be to put to either House or both Houses as Motions that a certain order should be laid in a form so amended. If that Motion was agreed to—it is a sidestep procedurally because it is not acting on the text of the order itself—and the will of either House was that there should be such amendments then it would be for Ministers to re-lay the order, taking those amendments and the decision of the House or Houses into account.