European Union (Withdrawal) Bill

Debate between Lord Skelmersdale and Baroness Goldie

Wednesday 14th March 2018 Lords Chamber

[Lord Skelmersdale (Con)]

My Lords, this has turned into a clause stand part debate by any other name and I have been listening to it very carefully. The second amendment in this group would remove the words in Clause 9(2), “(including modifying this Act)”. This is rather curious because I know that many of your Lordships voted against Brexit in the referendum and in their heart of hearts still believe and hope that Brexit will never happen. That applies not only to noble Lords but also to Members of another place. But those words, of course, would include exactly what they want; namely, the repeal of the European Communities Act 1972.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Lisvane, for his contribution and other noble Lords for their comments. This has been a genuinely interesting debate on a very important issue. When I was asked to respond to this group of amendments, I suspected that I had drawn the short straw. I realise that there are various parts of this Bill which for your Lordships are indigestible, but I think that what tops the list of gastric turbulence is the deployment of Henry VIII powers. Let me start by saying that if, when I have finished speaking, it remains the view of this Committee that subsection (2) of Clause 9 is a constitutional abomination, I shall faithfully reflect that view to my colleagues in the other place who ultimately determine the Government’s position. Having given that undertaking, I hope that noble Lords will permit me the opportunity to attempt to persuade them that subsection (2) is in fact a proportionate approach to the position in which we find ourselves, a question which has been very legitimately posed by the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Goldsmith. For the benefit of them both, here I go.

It all starts from the Government’s commitment, which I hope is welcomed by all noble Lords, to ensuring that the outcome of the negotiations under Article 50 can be implemented in time for day one of our exit from the European Union. This Bill is designed to provide the essential legislative mechanisms to ensure that the UK statute book can continue to function once we have left the European Union. It would be wrong to pre-empt the outcome of the negotiations, and it is crucial that we have sufficient flexibility to make changes to the Bill to ensure that its provisions do not ultimately contradict the agreement that we have reached as to the terms of our withdrawal.

It is not unprecedented to create powers that are able to amend the very Bill in which they are created. Of course, we would expect the exercise of such powers to be subject to parliamentary control, as is the case within this Bill. Your Lordships may ask with some justification whether there are any precedents for this. I can point noble Lords to the Enterprise Act 2002 and the Third Parties (Rights against Insurers) Act 2010, which also confer powers to amend their own Acts. Noble Lords will note that these Acts were passed when those opposite me were sitting on the Government Benches. Arguably, we are being transparent in that we have made it explicit that this particular power might need to be used to amend the Bill once it is enacted. By doing so, we are also making it clear that the other powers in the Bill cannot be used to do so, and of course, as with all the other uses of Clause 9, it could be used only to make provisions to implement a withdrawal agreement on which Parliament would already have voted.

In the present circumstances and given the inherent uncertainty of what the withdrawal agreement will contain at the detailed level, it is vital that we are prepared for scenarios where we need to modify any Act to give effect to the withdrawal agreement in domestic legislation. It is recognised by both the Opposition and the Government that in our preferred negotiated outcome, some amendments may have to be made to the EU withdrawal Act—for example, to facilitate an implementation period. This is an inevitable consequence of the uncertainty that arises from the ongoing negotiation.