European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Lisvane

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

[Lord Lisvane (CB)]

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”—


that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.


However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.