European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, I cannot resist the invitation. First, a word of apology to the noble Baroness, Lady Hayter; I was not here for her very first words, but I was on my way.

Can we just pause? We are going to give a Minister power, if he so chooses, to impose taxation. The whole basis of our democracy started because no taxation was allowed without representation. The Americans picked it up in 1776, but it goes right back to Clause 12 of Magna Carta. The way Henry VIII powers are being used now has led to constant protests by the parties in opposition and by Cross-Benchers.

The time has come for us to address the difficult problem and decide that, if the powers given under these Henry VIII clauses are being misused, we will reject the affirmative process when they are put before us and take it on. If and when Labour comes to power, and one day it will, or if and when the Liberals come to power, and maybe they will, let us hope that when they are addressing Parliament and creating Henry VIII clauses they will remember their hostility to them now and allow the then Opposition, the Conservatives, to lead an attack on affirmative resolutions misusing these powers.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak to Amendments 5 and 7. The same arguments apply to both, so I will deal with them together.

The purpose of these amendments, as with all the amendments we have moved, is to try to ensure that, for the future and in the passage of this Bill, the union is strengthened. To that end, it is of the greatest importance that amendments to the devolution statutes should be made only by primary legislation or by the procedures under the pieces of legislation, such as Section 109 of the Government of Wales Act, that allow amendments to be made by consent. Secondly, we should go forward in our negotiations with the European Union and in the adjustments necessary within the UK in a spirit that honours the constitution as changed as a result of devolution—not merely its letter, but its spirit.

The amendments that we seek to raise address two distinct points. First, why are these powers needed, if it is said that they are, to implement the international obligations of the United Kingdom? Secondly—this is quite a distinct issue—why are these powers needed to implement the United Kingdom Government’s commitment to unfettered access for Northern Ireland goods to Great Britain? They raise entirely different constitutional issues and need to be looked at separately.

As regards the claim that they are needed to implement the international obligations of the United Kingdom, the powers under the Government of Wales Act, particularly Sections 82 and 114, give the Government very significant powers to direct the Welsh legislature and Welsh Ministers, so that what they do complies with international obligations. It is difficult to see why those are not sufficient.

Secondly, the astonishing breadth of these powers enables the Minister to repeal the devolution statutes. The Minister has in his helpful letter indicated that the Government would never contemplate doing so. Indeed, it is asserted that there would be no power to do so given the restrictions in the Bill on what can be done in respect of these powers to the implementation of the protocol. If that is the case, why is this not spelled out in legislation? Why is there not some limit on the Henry VIII powers?

--- Later in debate ---

[Lord Duncan of Springbank]

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

[Lord Thomas of Cwmgiedd]

Before the Minister sits down, could he possibly give some illustration of the kind of provisions for which he and his officials feel it would be necessary to use these very extensive powers that cannot be done under the various sections of, for example, the Government of Wales Act, to which we have referred? Can he give some assurance about what they are? Are they merely technical issues or are they further? It seems extraordinary that, when there are these detailed powers and it is asserted that they are insufficient, no illustration can be given as to why they are necessary.

European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, earlier in our deliberations we debated some relatively small-scale Henry VIII powers that the Government were seeking to arrogate to themselves. We listened to entirely unsatisfactory explanations from the Front Bench attempting to justify them. But here we have a really egregious set of Henry VIII powers—the most whopping great Henry VIII powers.

If you look at Clauses 21 and 41 together, you see that the Government are proposing to take to themselves a power not only to amend primary legislation but even to abolish any statute that may have been enacted in centuries past to right up until the end of this year. I do not for a moment think that is what the Government specifically intend to do but it is offensive in principle that they should draft legislation of this character.

Let us bear in mind that the purpose of Brexit is to restore parliamentary government. It is not a decent thing for the Government to do to take this opportunity to make a large power grab on the part of the Executive. The Government should be respectful of Parliament. They should be prepared to work with Parliament. If they have significant changes of policy and legislation that they wish to propose, I do not doubt that Parliament will engage very constructively with the Government in their purposes.

Henry VIII powers are objectionable in principle and it is essential that the Minister gives us a full explanation and, if he can devise one, a justification for the taking of these extraordinary powers, which are constitutionally improper. It will not do if he seeks to argue that circumstances in Northern Ireland are peculiarly sensitive and complex. They always are, but there are certain abiding constitutional principles that the Government should respect, and that should be the spirit of this new Government’s approach in their dealings with Parliament.

[Lord Thomas of Cwmgiedd (CB)]

I will make one or two observations, if I may. I accept that it is plainly the obligation of the United Kingdom Government to take steps to implement their international obligations—the justification given by the Minister in his summing up yesterday evening. It is also right that there may be circumstances in which changes to the devolution legislation are needed. But there are ways of doing this, which have been admirably explained.

This Henry VIII clause is extraordinary because it enables the Government not merely to amend the Act but to repeal it. I cannot conceive that anyone who was drafting this with a degree of sense would ever have thought the Government would repeal the Act. When you look at the wording—it is quite useful to look at wording—this has been drafted without any regard to the realities of a union Government. This clause is manifestly deficient in that it goes way beyond anything that could conceivably be needed, even if you ignore the argument about the precedent being set.

The Government should think again. There are proper ways of doing things. I respectfully ask them to see whether they can come back with something different, or, at the very least, explain fully what they intend to do—what consultation they intend to carry out—before they repeal the Act. It is difficult to see how you would ever think that the Act needed to be repealed. One must always recall that the union of England and Wales was brought about by Henry VIII. It would be an extraordinary irony if a Henry VIII clause was used to begin the undermining of that union.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

My Lords, this has been an interesting discussion, which has focused on a broad range of issues affecting the wider devolution settlement.

Some things need to be set out very clearly at the outset. The first thing is that the purpose of the protocol, which was not mentioned a great deal in the discussion, is to ensure the delivery of clean access within the island of Ireland between Ireland and the UK. This is to ensure the integrity of the customs union of the United Kingdom but also that we have the powers available as we go forward in the calendar year ahead to make necessary amendments in real time to the various elements that will be required as we seek to deliver on the Northern Ireland protocol. The important thing to stress is that we are in a situation in which time is of the essence, but that can never be an excuse.

Secondly, a number of noble Lords have spoken of the repeal of the devolution settlements almost as a Domesday scenario. There was a reference to Henry VIII powers being used, in essence, to eliminate the devolution settlement with Wales or anywhere else. It is important to stress that this clause is in no way designed for, or seeks to achieve, that purpose. Where there are elements of primary legislation which are to be amended, this will be done through the affirmative procedure, which allows significant scrutiny to take place in both this House and the other place. It is important to recognise that we are not just talking about the letter of the law here, but the wider settlements which we have discussed more broadly with regard to Wales and Scotland. The very notion that we can, by some fiat, undo that which has been set in place through the devolution settlements is, frankly, borderline ludicrous. It is not going to happen.