European Union (Withdrawal Agreement) Bill

Lord Tyler Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

In moving Amendment 46 I will speak to the other amendments in the group, which essentially have the same effect. Under the Bill there will be no extra sifting procedure of the sort that we established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments that were laid using the negative procedure. Quite a large number of instruments were recommended for upgrade to the affirmative procedure, and the process helped to identify a variety of drafting errors that could otherwise have left the statute book inoperable in the event of a no-deal Brexit.

Our thoughtful and highly experienced Delegated Powers and Regulatory Reform Committee has recommended a sifting mechanism for this Bill along the lines of the 2018 Act. It would be able to recommend an upgrade from the negative to the affirmative procedure where the regulations were seen to be significant. That recommendation has been endorsed by our Constitution Committee, given the importance and potential breadth of powers in the Bill. It has also recommended that the sifting mechanism should be added as part of parliamentary scrutiny. In particular, the committee concurs with the recommendation of the DPRRC that the powers in Part 1, which are not accompanied by a sunset provision and are thus particularly important, should be subject to a sifting mechanism, as well as those in Part 3 and for the Clause 18 powers.

Rather than duplicate unnecessarily the provisions laid out in the 2018 Act, the amendments tabled in my name seek to make clear that the relevant delegated powers would be subject to these provisions. Given that we are in Committee, I hope that the Minister will understand that any issues in the drafting are the result of not having gone through all detail before, and that he will focus instead on the principle that the wide-ranging powers allowed for under the current Bill should be subject to a greater level of scrutiny. That, as I say, is not only for the sake of Parliament but to protect the Government from any errors.

I know that there may be some noble Lords who will probably disagree, having spent many a long afternoon in the Moses Room, but actually the sifting mechanism in the 2018 Act did work really well, and I think that that was the view of Ministers as well as those doing the scrutiny. Given that, it is slightly hard to see why the Government have not thought to repeat that process in this Bill, particularly given that it has been recommended by the DPRRC and the Constitution Committee. I beg to move.

[Lord Tyler (LD)]

My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.

I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.

I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—

“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”—

was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.

--- Later in debate ---

[Lord Callanan]

I thank the noble Baroness, Lady Hayter, and the noble Lord, Lord Tyler, for their opening statements on the amendments in this group. Of course, I well remember the many debates that we had during the passage of the 2018 Act on the extremely important subject of delegated powers. It is of great interest to us. I do not think the other place took as much interest in it, but it is nevertheless an important subject and I am grateful to both the noble Baroness and the noble Lord for raising it.

I will say at the start that the Government have read with care the reports of the Delegated Powers and Regulatory Reform Committee and, of course, the Constitution Committee, which were referred to. I am also grateful, as I said in my opening at Second Reading, for their contribution to the exit process to date.

I will speak first to the amendments of the noble Baroness, Lady Hayter. I note that they are co-signed by the noble Lord, Lord Blencathra, who is not in his place. He is a signatory to these amendments and an extremely distinguished chair of the committee. A number of Members here are, of course, veterans of the debate that we had during the passage of the EU withdrawal Act about the introduction of a sifting mechanism into the Act. I agree that the sifting mechanism introduced then was a contribution to the unique set of circumstances in which we found ourselves as a consequence of that Act. I will argue today that the circumstances in which we find ourselves now are very different from those of the 2018 Act.

The first point, of course, is that the volume of statutory instruments that we will make under this Bill will be significantly less than those made under the 2018 Act. I suspect that this comes as a significant relief to many noble Lords. Secondly, the powers themselves are much narrower and more specific in nature. The DPRRC report itself acknowledged that:

“The scope of each power is … naturally constrained by the scope of the … matter contained in the Agreements that it is intended to address.”


Even more importantly, we have set out the procedure to be used when exercising the powers in this Bill. Ministers do not have the discretion that was afforded to them in the 2018 Act regarding the procedure attached to the use of the powers in this Bill. The argument then was that we needed a sifting mechanism because of the wide discretion given to Ministers to select the appropriate procedure. We do not have that procedure in the way this is drafted. As Members have observed, the general approach that we have taken is that the affirmative procedure will apply when the powers in the Bill are exercised so as to modify primary legislation—the so-called Henry VIII power—or retained direct principal EU legislation; the affirmative procedure will always apply in those circumstances.

Where the negative procedure applies, Members of the House may scrutinise the regulations and may, of course, pray against them should they wish to do so, as is usual for regulations of this kind. The sifting mechanism that was inserted in the 2018 Act worked very well. It was a unique response to a unique Bill. There were always going to be a huge amount of SIs introduced. There was much less certainty at the time about how they would be used, and a considerable amount of ministerial discretion on the procedure to be used. I submit to the House that none of those conditions applies to this withdrawal agreement Bill. I hope I have explained why the procedures for the powers in this Bill are of a different nature to those in the withdrawal Act and why the Government therefore cannot accept these amendments.

I turn to Amendment 66A, tabled in the name of the noble Lord, Lord Tope. As noble Lords are aware, consequential powers are standard provisions in legislation—even legislation of great constitutional importance, such as the Constitutional Reform Act or the devolution statutes. The Bill already includes many consequential amendments at Schedule 5, but we also need to take a power to make further consequential provisions to the statute book. Again, this power is limited to making amendments consequential to the contents of the Act itself and. like consequential powers in other primary legislation, this power will be construed strictly by the courts. It is in everyone’s interest that the statute book functions effectively.

[Lord Tyler]

Is the Minister really saying that Clause 41(1) is so limited in that way? Perhaps I may read it to him again:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act.”


That is very widely drawn. If, as he said just now, there are fewer orders in prospect, that makes it all the more important that, with something as important as this, the recommendations of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee be taken into account. I cannot see that his argument stands up.

[Lord Callanan]

The clause that the noble Lord quoted comes under the consequential provisions. As I just said, the consequential power is construed strictly by the courts. I am advised by departmental lawyers that there is an extremely narrow focus; they are amendments that can be made only as a direct consequence of the Bill when it is enacted. I do not think that it in any way provides leeway for a Minister to make things up on the spur of the moment and amend primary legislation. The powers are very strictly constrained to consequential amendments, and this is not an unusual provision. It exists in many other Acts, including those I quoted earlier. We believe that moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make consequential changes before exit day.

As I said also on the other amendments, I am sure that the noble Lord will agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members will still have the opportunity to pray against regulations should they consider it appropriate—and, as I said, there are the restrictions on the use of that power that I mentioned earlier.

I hope that, with the reassurances I have given noble Lords and a fuller explanation of the powers we propose to take, the noble Baroness will feel able to withdraw her amendment.

Brexit: Further Referendum

Lord Tyler Excerpts

Thursday 17th January 2019 Lords Chamber

Asked by

[Lord Tyler]

To ask Her Majesty’s Government what legislation is necessary to enable a further referendum on the United Kingdom’s membership of the European Union to take place in 2019.

[Lord Tyler (LD)]

My Lords, I am delighted to be able to open this very topical debate. I am disappointed only that for obvious reasons the noble Lord, Lord Young of Cookham, is not able to respond, since I know from long personal knowledge that he would have been fully acquainted with the issues to which I will refer. However, I was delighted to note his comment just now about referendums. I will take that away and think about it again. In the meantime, it seems that he and the Cabinet Office have been able to brief the noble Lord, Lord Callanan, the Minister who is to respond, which is just as well since the subject of this debate has relatively little to do with his department.

Incidentally, I was interested to see a Written Answer yesterday from the Minister in which he announced,

“we will be leaving the European Union on 20 March 2019”.

He may be leaving on that date but the rest of us have to wait nine more days, or possibly nine more weeks—or not at all.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

I am grateful to the noble Lord for the opportunity to correct that. It was an administrative error. It did not correspond to the draft of the Parliamentary Question that I signed off. I have spoken to the Permanent Secretary in my department, who is instituting an inquiry into how that happened. I have also written to the noble Lord, Lord Bassam, to apologise for the error and correct the record.

[Lord Tyler]

I am delighted that the Minister has had that opportunity. I suspect that it was handwriting; if his is anything like mine, “0” and “9” occasionally look much alike.

The subject on the Order Paper does not directly argue the merits or demerits of a further referendum on our relationship with our present partners in the EU. I note in passing, however, that the unprecedentedly large majorities in both Houses defeating the Government’s current preferred deal, to which the noble Lord, Lord Young, referred just now, together with the ever-increasing insistence that a crash-out no deal is unacceptable, means that the Cabinet and Parliament may together move in the direction of a new referendum. That is certainly the view of all serious commentators since those votes, while of course the vote last night removes the alternative of a snap election. I should say that next month I will celebrate the 45th anniversary of my first election to the other place. I have never experienced anything quite like the irresponsible prevarication of kicking the can down the road, which is of course evident again in the other place this very afternoon with the Business Statement. It is quite extraordinary.

However, that is not the subject of this debate: I am sure that the Minister and other speakers will not wish to spend precious time on it. Rather, we are concerned here with the practicalities of electoral law. I am extraordinarily grateful to the noble Lord, Lord Lisvane, for still being here—I suspect that he has missed his lunch. He and I anticipated, way back in September 2018, that the circumstances could arise if and when the Government or Parliament, or both, had to examine the need for new legislation. We were anxious that the pressure of time in such circumstances might mean that a consensus on the necessity of dealing with acknowledged defects in the 2015 Act was ignored or that both Houses were forced to rush through inadequately scrutinised proposals. In our experience, nothing results in imperfect law more than claims of expediency or lack of time. We were reinforced in our determination that such a process could not and should not be cobbled together at the last minute when an authoritative report from the Constitution Unit at UCL was published in October—it has been referred to in the excellent Library brief for this debate.

With the expert advice of Dr Alan Renwick from the unit, the professional assistance of the experienced legislative draftsman, Daniel Greenberg, and supervision by a cross-party/non-party reference group comprising also the noble Baroness, Lady Quin, and the noble Lord, Lord Hodgson of Astley Abbotts, we produced the draft Bills before Christmas.

Significantly, we concluded that a very short “paving Bill” would be necessary to authorise the Electoral Commission to start preparations before Royal Assent for the main Bill because there is clearly a tight timetable ahead. By this means, we calculate that polling day could be any time before the beginning of May 2019 or even earlier. That would be very helpful in terms of the European parliamentary elections that follow at the end of May.

Of course, individual members of this team have differing views on the desirability of a further referendum and do not necessarily endorse every word of the drafts. However, we all agree that Parliament must consider and approve properly prepared, effective and updated legislation for this purpose.

On Monday this week, just before the votes in the two Houses, a formidable cross-party group of MPs, led by my right honourable friend Vince Cable and including Dominic Grieve and Chuka Umunna, published our draft Bills and endorsed this approach. Subsequent events have clearly justified their and our commitment to concentrate on relevant preparation rather than wasting millions of pounds and millions of hours on the no-deal distractions. As noble Lords may be aware, yesterday Mr Grieve formally presented our cross-party draft legislation in the other place.

No doubt other Members of Your Lordships’ House participating this afternoon will have examined these draft Bills, which are included in the Library brief together with all the other relevant discussion that has taken place in both Houses in recent weeks and months, so I do not need to take them through every aspect of our proposals but simply highlight the crucial features.

The draft paving Bill, the preparatory legislation, is limited to authorising the Electoral Commission to consult on the choice of the ballot paper question, which will also affect the choice of lead campaign organisations, before Royal Assent for the main Bill. This could be taken through both Houses in a matter of a few days or even hours. We were guided by a wide range of expert opinion and took careful note of the views of the Electoral Commission in opting for a simple binary choice, just as in 2016, between two very firm, detailed and easily intelligible options—indeed, much firmer and more intelligible than in that case.

Our initial proposal is that the choice should be between the leave conditions negotiated and recommended by the Government and remaining within the existing, well-understood conditions of EU membership. Much as electoral reform anoraks like me might enjoy a three-way, AV or two-question poll, we agree with all the expert evidence that we have received that this would be both confusing and likely to result in variable and unclear results.

The other area of potential variation on the 2015-16 legislation that concerned us was the franchise. Since I successfully supported the inclusion of 16 and 17 year-olds at one stage of the 2015 Bill in your Lordships’ House, and lost that only when support fell away at ping-pong, I am only too aware of the case for them to vote on such an important decision for their future. That case will be made again, I know, together with that for all EU citizens permanently resident in the UK and all UK citizens resident abroad.

However, we were persuaded by the Constitution Unit and others that to include in this first draft a change in the franchise compared with 2015-16 position would be seen to be moving the goalposts. Therefore, we have not done so at this stage.

This did not preclude us from examining carefully the generally agreed case for removing defects in the 2015 Act where the subsequent experience of the Electoral Commission, the Information Commissioner’s Office and the DCMS Select Committee had identified the need for greater transparency relating to spending returns on the one hand and the authorship and payment for online messaging on the other. Our schedule to the main Bill, especially items 3 to 6, deals with those matters.

In my usual constructive and positive way, always helpful to Ministers, I am both posing the Question and providing the Answer today. This is practical contingency planning, compared with the nonsensical preparations for the crash-out no deal that the noble Lord, Lord Young, referred to earlier as now really removed from our consideration. I am sure that other Members of your Lordships’ House will be equally concerned to ensure that Parliament, if now faced with this challenge, is well prepared—in a former life, I was a Boy Scout, as no doubt were other Members of your Lordships’ House: be prepared.

I can confirm that my right honourable friend Vince Cable and other colleagues have raised these practical issues with the Prime Minister and her senior Ministers in response to her invitation following the vote last night. This debate could not be more topical and I am delighted to introduce it.

--- Later in debate ---

[Lord Sherbourne of Didsbury]

Thank you. When we had the referendum in 2016, everybody knew the result would be accepted. I have here just one example of what the late Lord Ashdown said on the eve of referendum day:

“I will forgive no one who does not respect the sovereign voice of the British people once it has spoken. Whether it is a majority of 1% or 20%”.


For all of us—in or out—when the British people have spoken, we do what they suggest. As Lord Ashdown said, “they command”.

If we have a second referendum, we will be invalidating the result of the first—we will be saying that it did not really count. In fact, by definition, we will also be invalidating the second and beginning to remove a cornerstone of confidence in our democratic system.

My second point is that, in a general election, the electorate delegate to politicians the responsibility for taking complicated decisions. In this referendum we have learned the problems that occur when politicians delegate to the public responsibility for taking a complicated decision. We ought to have realised that this is a very difficult thing to do. The people decided that they wanted to leave the European Union. If the public are now told by the politicians that they are so hopeless, so incompetent, so utterly useless that they have to ask the people to do the job that they should be doing, they will further undermine public confidence in them. We know what happens when that chasm widens. We see it today in many countries in Europe, and we saw it in pre-war Europe in the 1930s. I fear that if the politicians are yet again seen to be useless, saying to the public, “We were no good—we’ll have to hand it over to you again”, the chasm between politicians and the public will become ever wider.

[Lord Tyler]

I point out to the noble Lord that his two arguments are mutually contradictory. On the one hand he says that we should not respect the results of referenda, for reasons he has just given, and on the other he says that we have to respect that of the 2016 referendum.

[Lord Sherbourne of Didsbury]

No; I said that we should accept the result of the referendum but that public confidence in the acceptance would be eroded. If we have a second referendum and the public believe that the politicians have said, “We don’t think you made the right decision; therefore, it’s invalid”, they will think, “Why is the second referendum more valid than the first?”

--- Later in debate ---

[Lord Callanan]

My Lords, I thank the noble Lord, Lord Tyler, for so excellently introducing this important subject and giving us an opportunity to debate it today, and I thank all other noble Lords who contributed.

I will first address the remarks made by my noble friend Lady Browning, who made a number of excellent points, which were amplified by the noble Lord, Lord Adonis. She asked a number of questions about the technical conduct of referenda, and some of her points were also reflected in the report of the DCMS Select Committee and others. The Government are currently considering this matter, but it is not within the purview of my departmental responsibilities—it is a matter for the Cabinet Office—so perhaps it would be best for me to write to my noble friend, and copy other noble Lords, with the detailed responses to her questions.

The referendum held in the summer of 2016 was indeed a historic event for the United Kingdom, a vote for which there was the highest ever turnout for a UK-wide referendum and, moreover, the highest turnout in any election or referendum since 1992. I am sorry to disappoint the noble Baroness, Lady Wheeler, but it is our firm view that there can be no second-guessing of the outcome of such a vote—not when more than 17.4 million people voted to express, in the clearest of terms, an instruction to the Government, as Parliament had asked them to do, to withdraw from the European Union.

The Prime Minister addressed this in the Commons on Tuesday evening. Despite the vote against the deal, the Government still stand by their commitment to the British people to respect the clear result from the 2016 referendum. In 2016 we committed to respect that vote, and we remain committed now. We continue to work to deliver our exit from the European Union on 29 March—not 20 March. We will not hold a second referendum, and to do so would be to disrespect the result of the 2016 vote.

[Lord Tyler]

I am sure the Minister appreciates that it is difficult still to say that it is the will of the people that this particular situation should be resolved on the basis of the discussion and decision in 2016 when the latest public opinion poll, published today, shows that 56% of the population—presumably, both leavers and remainers from 2016—are in favour of a new referendum, and only 44% are against. Contrast that with the support for the Government’s current deal, and that looks to be a pretty popular way in which the will of the people is being expressed.

[Lord Callanan]

I understand the firm view of the Liberal Democrats on this; they have been dogged in pursuing it. I do not know whether the noble Lord was in the House yesterday, when I addressed the subject in a Question from the noble Lord, Lord Dykes, on opinion polling and whether public opinion has moved. There are clearly lots of different opinion polls around, but yesterday I quoted an analysis of the opinion polling that has been produced—I do not have it in front of me at the moment—which suggests that in fact, if you look at all the polls in the round, there has been no significant change in public opinion on the issue. The public remain deeply divided on the subject—which of course is why we held the referendum in the first place.

Brexit: People’s Vote

Lord Tyler Excerpts

Thursday 25th October 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, last week the Prime Minister was questioned by Conservative MP Heidi Allen, who asked whether she accepted,

“the reality that there is no way that no deal will pass through this House. I ask with the greatest respect: what option does that leave us other than going back to the people? What else can we do?”.

The Prime Minister chose her words with care:

“If, at the end of the negotiation process, both sides agreed that no deal was there, that would actually come back to this House, and then we would see what position the House would take in the circumstances of the time”.—[Official Report, Commons, 15/10/18; col. 426.]


That is surely the correct constitutional position. Especially with a minority Government, with no likely majority for any specific outcome amongst MPs, that is the crucial fact of political life. In our parliamentary democracy, this applies whether the Government comes back with a deal or recommends no deal. Clearly, in both circumstances, the Prime Minster and her Ministers, whatever they may have said previously, have to contemplate how they can get the approval of the British public.

Both the reports to which references have been made, one from the Constitution Unit at UCL entitled The Mechanics of a Further Referendum on Brexit and The Roadmap to a People’s Vote, come to similar conclusions when identifying the most likely scenarios for a new referendum. The former sets out the most likely sequence as follows:

“More likely, a cross-party majority in parliament in favour of a second referendum could force the government’s hand … Procedural considerations could provide an incentive for ministers to propose a conditional referendum of this kind as a compromise in the event that the ‘meaningful vote’ motion is initially rejected”.


In other words, as MPs from all four major parties have said in recent days, this may well prove to be the only viable option for the Prime Minister and the Cabinet—it is her “Get out of jail free” card. Meanwhile, it is surely unthinkable that Mr Corbyn could successfully whip all Labour MPs to support her, let alone the ERG headbangers; they too will insist that the trust should be put in the people.

We come now to the practicalities, to which reference has been made. I have looked at these with other Members of your Lordships’ House, with the aid of these two important reports. I have examined the bare necessities for a new referendum Bill, to make sure that we have the basic elements in place if and when such a Bill is required. The two reports give us some invaluable guidance. We will have to accept that the very tight timetable, both for the legislative process and the campaign itself, imposes rigorous constraints.

The new Bill will have to be drafted to mirror the 2015 Act as far as possible. It must have the same franchise, to avoid accusations of the establishment “changing the goalposts”. Similarly, the choice must be binary: either to accept the Government’s recommendation, whether it is an eventual negotiated deal, or a no-deal situation, crashing out and falling back on WTO rules; or to remain a member of the EU on current terms, which is obviously the clear choice. The one big area of reform that must be incorporated relates to the inadequacy of transparency of the digital campaign in 2016; there are already proposals available for that. Otherwise, only relatively minor tightening-up is necessary.

Is there time to complete this legislative process through both Houses, and also to have the campaign itself? First, that depends on the Commons getting on with the “meaningful vote” in good time. Secondly, as has already been said, it depends whether, and on what terms, the other 27 member states agree to the postponement of the Article 50 deadline. It seems that that will be helpful, as has also been said.

In summary, the Minister may huff and puff at the conclusion of this debate, but he is not an elected Member of the House of Commons. Neither he, nor the Prime Minister, can stop this development, nor will they wish to do so, if all the other options are closed off for them. It is practical, political and constitutionally appropriate, and it looks increasingly inevitable. Those of us who marched on Saturday can be confident that we are on the right side of history, just as we were on opposing the illegal invasion of Iraq, and that the tide of public opinion is with us.

--- Later in debate ---

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, today’s debate has been a good one—although there was a hint of déjà vu about it. I seem to have heard many of the arguments a number of times before.

I thank and pay tribute to the noble Lord, Lord Campbell, for introducing the debate so ably. I greatly enjoyed his history lesson, although I think he was a bit unkind to David Cameron for fulfilling his manifesto promise to call the referendum in the first place. The noble Lord was conveniently forgetting about the crucial role played by the Liberal Democrats in this. After all, I think it was the Liberal Democrat party under Nick Clegg that first called for a “real referendum on Europe”. It was in one of their famous petitions and on one of their many focus leaflets distributed around the country—so they can definitely claim that they were ahead of the game on this one. However, building on the powerful contribution of my noble friend Lord Finkelstein, I note that the petition did not say, “It’s time for two real referenda on Europe”.

I also thank all other noble Lords who participated in the debate. I will refer to some of their contributions as I go. The Motion calls on this House to take note of the case for a so-called “people’s vote” on the outcome of the negotiations between the Government and the European Union on our withdrawal from the EU. I agree with my noble friend Lord Lamont that the term is somewhat Orwellian. I assume that the debate is timed to coincide with last week’s demonstration in London, which had an interesting range of speakers. One of them was the leader of the Liberal Democrats, Vincent Cable. Apparently he seems to have forgotten that he once called the idea of a second referendum,

“seriously disrespectful and politically utterly counterproductive”—

as, indeed, the Liberal Democrats discovered at the last election. Then there was the Mayor of London, Sadiq Khan. After the original, authentic 2016 people’s vote, he said that the establishment needed to respect the result and that a second referendum would lead to cynicism among voters. They were both right the first time.

I say to the noble Lord, Lord Russell, and to his son, to my noble friend Lady Wheatcroft, to the noble Lord, Lord Tyler, and to all the other marchers at the weekend that, however passionate it was—I recognise, as the noble Baroness, Lady Hayter, said, that it was a passionate demonstration and that people believed strongly in what they were saying—it was, of course, only a small fraction of those who participated in the original 2016 people’s vote. That point was well made by the noble Lord, Lord Grocott.

We have already had a people’s vote in June 2016 and the people voted to leave the European Union. The calls for a second referendum are being led by a small group of diehard remainers who, by definition, do not respect the result of referenda—so why should we believe that they would somehow respect the result of another referendum? If they did succeed in overturning the result, why should leavers respect that outcome? It is a recipe for years of political and constitutional chaos. On the issue of how long it would take to hold another referendum, which I thought was powerfully addressed by the noble Lord, Lord Trevethin, in his excellent contribution, my estimate that it could take up to a year might even have been an underestimate. That was a powerful contribution.

Calling the result into question, as the Motion seeks to do, exposes three issues of fundamental importance for our country: first, the Government’s mandate, given by the British people, to secure our withdrawal from the European Union; secondly, the long-held constitutional traditions that underpin our democracy; and, thirdly, the importance of ensuring the integrity of our negotiations. I will deal with each of them in turn.

First, the result of the referendum gave the Government a clear mandate from the British people to deliver our withdrawal from the EU. It is a mandate that the Government have been working to deliver since then. I remind noble Lords that it was this Parliament that overwhelmingly voted to put the question of the UK’s membership of the European Union to the British electorate in the first place. It is worth reminding ourselves of the simple question that was put to the people on 23 June 2016. It asked:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”


The noble Lord, Lord Anderson, said in a somewhat puzzling intervention that it was not clear what the electorate said in that vote. I profoundly disagree. The result of the referendum was a clear answer to that question, giving a clear directive to the Government to withdraw from the European Union—which we respected through our notification under Article 50.

The result reflected not only extensive campaigning from both sides but considerable and prolonged debate at national and parliamentary level, underpinned by a commitment from spokesmen from all the major political parties to respect the outcome of the vote. Almost three-quarters of the electorate took part in that people’s vote, resulting in 17.4 million votes to leave the European Union. That was the highest number of votes cast for anything in UK electoral history. Parliament then overwhelmingly confirmed the result of the referendum by voting by clear and convincing majorities in both Houses for the European Union (Notification of Withdrawal) Bill.

Further still, at the last general election, more than 80% of the British people voted for parties committed in their manifesto to respecting the leave result. I respect the position of the Liberal Democrats. They campaigned against the result at the last general election and they got 7% of the vote for their trouble.

A clear majority of the electorate voted to leave and the Government believe that we must respect both the will of the British people and the democratic process which delivered that result. As the Secretary of State for Exiting the European Union noted earlier this month:

“It was close but it was clear. Britain voted to leave the EU. Respecting the result: that’s the essence of our democracy”.


Secondly, seeking to second-guess the results of the referendum would be a dangerous precedent to set for our democracy and the principles that underpin our constitutional order. The British people must be able to trust their Government both to effect their will and to deliver the best outcome for them. In the summer of 2016, millions of people came out to have their say. People trusted that their vote would count—that, after years of feeling ignored by politics, their voices would be now heard. As the Prime Minister pointed out, to ask the question all over again would be a gross betrayal of our democracy and a betrayal of that trust.

More than that, there is a danger of giving rise to the same forces that have brought to power in many other European countries extremist parties to the left and to the right. I agree with my noble friend Lord Shinkwin that if we overturn the result of the referendum we run the risk of the same thing happening here. By placing partisan interests above those of the British people, we will undermine the faith that they hold in our political establishment. That would be hugely damaging to the powerful democratic values of this country and this Government—a point powerfully made by my noble friend Lord Lamont and the noble Lord, Lord Grocott, in his excellent speech. It risks profound constitutional, legal and political difficulties that would be a distraction from the Government’s efforts to secure the best possible deal for the UK.

I reassure the noble Lord, Lord Marks, and my noble friend Lord Higgins that we have always said that we will give Parliament a say on the final deal once it is agreed. Of course, the EU withdrawal Act set out exactly how that meaningful vote would work.

[Lord Tyler]

In the precise circumstances to which the Minister just referred, does he agree with the Prime Minister that, if the House of Commons decided it was necessary to have a further return to the public, it must happen?

[Lord Callanan]

I am not going to question the devices of the House of Commons. Clearly, the House of Commons will make its own decisions. The legal principles underpinning it and underpinning the meaningful vote are quite clearly set out in the EU withdrawal Act. It is of course open to the House of Commons to amend that Motion. However, an amendment for a referendum would not necessarily be legally binding on the Government; it would merely prevent us ratifying the treaty.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Rooker]

My Lords, I had not intended to speak in this debate, which is way above my pay grade, but in answer to the question asked by the noble and learned Lord, Lord Judge—which I invite the Minister to get briefed on—about how this has been allowed to happen and when, I say that it would not have happened in David Renton’s time. He was the Member for Huntingdonshire in the other place and was still active here at 92, taking parliamentary draftsmen apart on a weekly basis, under the Government of whom I had the privilege to be a member. I am sure the noble Lord, Lord Lisvane, recalls this. He was meticulous. He chaired a report in the other place in the late 1970s on the drafting of legislation. It was his life’s work. He could pick apart these issues. No one is doing that these days and it is allowing slipshod work by parliamentary draftspeople to get on to the statute book, and it is about time we did more about it.

[Lord Tyler (LD)]

My Lords, I am a signatory to Amendment 53, as the noble Lord, Lord Lisvane, said, and I want to contribute one very small thought to your Lordships. Many of us will recall that at the outset of consideration of this Bill by your Lordships’ House, there were many attacks in anticipation that we might amend it. But the very fact that the Minister has signed our amendment indicates that your Lordships’ House is doing its job. That is the whole point of our presence in the legislative process.

Ministers were egged on and convinced by the more incendiary Back-Benchers in the other House, and the tabloid media, that it would be outrageous if your Lordships’ House amended in the tiniest detail this wonderful Bill that was going to be put in front of us. The Minister has now helped us do some amending. We have already had seven changes, I think, improving the Bill, with a large majority in some cases. So I plead with the Minister to recognise in future that we are doing our job when we improve this Bill. It did not come to us perfect. It will go back to the other place a great deal better than when it came to us. I hope that there will not be so many incendiary attacks on your Lordships’ House in future by curious Back-Benchers in the other House.

Incidentally, I yield to nobody in wishing to reform your Lordships’ House, as some noble Lords will know to their cost. I was a strong supporter of the agreed Cross-Bench 2012 Bill. I now find it rather odd that the people who want to reform this House, or indeed to abolish it, are the very people who stood in our way on that occasion.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, as a signatory to this amendment and the others in this group, I encourage Members to look at the words of the amendment and how they will alter the Bill. The Bill currently reads:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,


and so on, so the Minister still has the initiative. It is the criteria by which he takes that initiative that are important. Our amendment would simply take out a phrase so the Bill would read: “A Minister of the Crown may by regulations make such provision as is necessary”.

I shall go back to where the Government led us at the beginning of this process in a moment, but, first, when the Minister responds to the debate, which in Committee and to some extent this afternoon has been characterised by some support for this group of amendments, I plead with him not to rely on the rather flimsy arguments contained in his correspondence with our Delegated Powers Committee. Frankly, they are not worthy of him.

The same goes for his justification in Committee for government Amendments 83C, 83F and 83G to Schedule 7. We will deal with them in detail later, but they are an attempt to derail the formidable arguments for insisting on the relatively objective “necessary” instead of the blatantly subjective “appropriate” throughout Clauses 7, 9 and 17, which are the subject of this group.

As the noble Lord, Lord Lisvane, set out when moving this amendment, all the amendments in this group would replace “the Minister considers appropriate”—what could be more personal than that, where the Minister personally decides that something is appropriate?—with the strictly more objective test of “necessary”. That is the salient difference. That was the subject of much discussion in Committee, and other speakers have emphasised it this afternoon.

Frankly, the Minister’s arguments in his correspondence with the committee do not face up to this issue. For brevity, at this stage I will confine myself to just one or two examples. He asked us to explain “necessary for what purpose?”. The answer is to be found in his Bill. In Clause 7(1), by substituting “is necessary” for the phrase “the Minister considers appropriate”, it is clear what the regulation would do and why it would be necessary. I shall read it in full,

“such provision as the Minister considers”,

necessary,

“to prevent, remedy or mitigate … any failure … or … deficiency arising from the withdrawal of the United Kingdom from the EU”.

It is absolutely clear. Instead of asking why we think something is necessary, he should look in his Bill. That is precisely what Amendment 31 would secure.

The Government have further suggested that there is no material difference between “appropriate” and “necessary”. Why are we having this discussion if there is no difference? Our cross-party, non-partisan committee, which is answerable to your Lordships’ House, has unanimously disagreed. “Appropriate” means suitable, proper and apt, and other words which could be used; “necessary” means that it is judged objectively to be needed.

We should recall that the original position of the Government, when they set out what they intended to do with the Bill, was that only changes needed to make retained EU law work after exit day would be implemented. This amendment fulfils their promise. When it comes to the belated attempt to block these amendments, the Government’s reliance on a statement of “good reasons” for subjective ministerial decisions is totally inadequate, as the noble Lord, Lord Lisvane, has already said.

I return to my original point: the Minister has failed to persuade the cross-party, non-partisan Delegated Powers Committee, which looks very carefully at these issues on behalf of your Lordships’ House, and which has now reported to this effect to your Lordships’ House. So far, it would seem that many Members are similarly unpersuaded.

I hope I will be forgiven for sounding a little bit like Little Lord Echo, but speaker after speaker, at every stage of the Bill, has emphasised that this must not be used as an opportunity to turn the Executive into an elective dictatorship. It is the British Parliament that must take back control, not a minority Government. As a former Member of Parliament, I hope that the Commons will concur with your Lordships’ House and the Delegated Powers Committee on this point. Are the Government really going to go into the last ditch in defence of this apparently indefensible position?

[Baroness Deech (CB)]

My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

--- Later in debate ---

I understand—and can tell from some murmurings—that these examples might not sound like life or death issues, but the point I would stress is that this kind of policy outcome will be happening on many hundreds of occasions across the statute book as corrections are made. While they might not be critical in every single circumstance, the sum total of all such instances would be a statute book in a far worse state. I am proud of this House’s reputation as a promoter of good public policy, and I urge noble Lords to give serious thought to the consequences of the amendments.

[Lord Tyler]

I am grateful to the Minister for giving way. How can what he is arguing be reconciled with the White Paper, which stated that,

“legal and policy changes would be made under the Bill only when it was necessary to ensure that the law continues to function properly after exit day”?

[Lord Callanan]

I think I have addressed that in my remarks, but I have some more comments to make which I think will address the noble Lord’s concerns.

However, as we have said throughout the passage of this legislation, we will give due consideration to all amendments that do not undermine the fundamental operation of the Bill. That is why we have accepted the recommendation of the Constitution Committee and tabled government amendments to ensure that, where the powers in Clauses 7(1), 9 or 17(1) are used, a statement must be made as to why there are good reasons for the instrument and the provision made is a reasonable course of action. Of course, we are going further with Clause 8 and propose to remove it from the Bill in its entirety. These amendments will be dealt with in a later grouping on Schedule 7, but they are key to set the context of this debate. They demonstrate the Government’s willingness to accept additional scrutiny if that scrutiny is appropriate.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

Moved by

[Lord Tyler]

305: Clause 11, page 7, leave out lines 37 and 38

[Lord Tyler (LD)]

My Lords, on behalf of the noble Lord, Lord Blencathra, and at his request, I will move Amendment 305 in his name and speak to the other amendments which he has tabled in this group.

The noble Lord is chairman of the Delegated Powers and Regulatory Reform Committee, on which I also serve. He is involved today in important discussions in Edinburgh in that capacity and very much regrets this clash of commitments. He had anticipated that the group would be reached last Wednesday but it was not to be. My role as the nominee from the substitutes’ bench enables me to emphasise two points in support of the amendments. First, although they may seem primarily concerned with the devolution implications of the Bill in its current form, and the noble Lord, Lord Blencathra, might have referred to his Scottish connections, these issues are in fact of more general UK constitutional significance. As a Cornishman and fellow Celt, I agree with him. Secondly, his request to me—I hope other members of the DPRRC enthusiastically endorse his suggested amendments—underlines the unanimity with which this non-partisan, cross-party committee advises the House on these important issues.

Although the amendments in this group refer to the proposed treatment of retained EU restrictions in devolution legislation in Clause 11, and to executive competence in Schedule 3, it is the strong contention of the noble Lord, Lord Blencathra, and the DPRRC, that wider constitutional precedents are in play here.

To reinforce these points I refer Members of your Lordships’ House to the main arguments we advanced in our third report of this Session, but since it was published as long ago as September 2017 and others may not recall all the detail, I wish to refresh some memories. The Government’s delegated powers memorandum described Clause 11 as a transitional arrangement to provide certainty after exit day and allow intensive discussion and consultation with devolved authorities on where lasting common frameworks are needed. As regards the power to prescribe exceptions by Order in Council, the memorandum asserted that its purpose is to provide an appropriate mechanism to broaden the parameters of devolved competence in respect of retained EU law. It adopts a similar approach to established procedure within the devolution legislation for devolving new powers: for example, Section 30 orders in the Scotland Act 1998. Without the power, it would be necessary for the UK Parliament to pass primary legislation to legislate the consent Motions from the relevant devolved legislatures in order to release areas from the new competence limit.

Our committee doubted the validity of those precedents and whether that was the best way to deal with them in any case. We said in our report at paragraph 54:

“We doubt whether the powers in clause 11 and Schedule 3 are analogous to existing procedures in the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended in 2017)”.


The lists of reserved matters in the devolution enactments are, for the most part, relatively straightforward, but this is not the case with the concept of retained EU law, which is defined in Clause 6, as follows:

“anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6),

of Clause 6,

“(as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time)”.

I think all Members of your Lordships’ House will agree that that is complex, obscure and something of a moving target in view of the words in brackets at the end of that definition. Therefore, there may well be significant potential for disputes after exit day between the UK Government and the devolved Administrations about what does or does not constitute retained EU law. It might ultimately require resolution by the Supreme Court. There is a warning note for us all.

The committee was also puzzled by the memorandum’s description of Clause 11 as a transitional provision. It is not drafted in those terms and could remain indefinitely. The Government in their advice to the committee and to the House appear to envisage that the Order in Council procedure will distribute competences returned from the EU to the devolved institutions, following negotiations with them, but the memorandum gives no convincing explanation as to why it is considered appropriate to implement any agreement following these negotiations by delegated legislation rather than by primary legislation—a separate Bill. Revisions to the three devolution settlements in the light of EU withdrawal will be of considerable constitutional significance. The committee anticipates that both Houses of Parliament would wish to closely scrutinise proposed legislation amending the settlements and to have the opportunity to amend it, as has happened with all major changes to devolution since 1998.

I quote paragraph 59 in full. It states:

“On an issue as important as this, we regard it as unacceptable for Parliament to be presented with a draft Order in Council and given a simple choice of ‘take it or leave it’. The Government should instead bring forward a separate Bill. It is, of course, not for us to express a view as to which competencies returned from the EU should be devolved to Belfast, Cardiff or Edinburgh. We are concerned only with the issue of whether it is appropriate for this to be done by delegated powers. In our view, it is not”.


Then our recommendation at paragraph 60 states:

“The Order in Council powers in clause 11 and Schedule 3 are inappropriate and should be removed. Separate Bills should be introduced in Parliament to provide for the conferral on devolved institutions of competencies repatriated from the EU”.


The noble Lord, Lord Blencathra, has been forthright in arguing the case presented by the Delegated Powers and Regulatory Reform Committee. He asked me to say:

“I am totally committed to the amendments and my absence should not be regarded as any lack of support for them … whatever the powers are then they should be in primary legislation as were all the devolved settlements”.


I beg to move.

--- Later in debate ---

I thank noble Lords for a useful discussion on this issue but, in the light of the undertakings I have given about the specific and the generality, I appeal to the noble Lord, Lord Tyler, to withdraw the amendment at this stage.

[Lord Tyler]

My Lords, I apologise to the Minister that the news that I was the nominated understudy on this occasion did not reach him. I thought I had informed everyone who needed to know.

The noble Lord, Lord Blencathra, will be delighted not only by the views expressed by other noble Lords but by the fact that the Minister is listening regarding the way this important matter should be treated. I am particularly grateful to the noble and learned Lord, Lord Mackay. Given his experience and expertise, when he says that something is so complex in this sensitive area that it is doomed to failure—I think I quote him correctly—his colleagues on the Government Front Bench should listen carefully to that advice.

The Minister accepts that there is some merit to the Delegated Powers and Regulatory Reform Committee’s argument. The committee will welcome that and the noble Lord, Lord Blencathra, and those of us on the committee will be pleased to enter into discussions on the issue. However, we need to do it quickly because the matter should be dealt with on Report: we do not want it dragging on to Third Reading. All parts of the House want these matters to be considered carefully and quickly so that the other House can see where we are taking this important issue in the context of devolution, as the noble Lord, Lord Cormack, said.

There is unanimity in the House, as there was in the Delegated Powers Committee. I am grateful for the responses today—not least from the Minister—and in the meantime I beg leave to withdraw the amendment.

Amendment 305 withdrawn.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, I was not able, for unavoidable reasons, to be here when the issue of tertiary legislation was addressed in the course of the debate on this Bill, so I want to add something. I do not think that even those who do not see eye to eye with me would accuse me of being an ardent advocate of secondary legislation: I am not. I spoke about this at Second Reading and have been extremely reticent on the issue in Committee, but I shall return to it in much greater detail on Report.

I support my noble friend Lord Lisvane. The provision we are considering—I will take it quite slowly, because this is how I see it—would vest powers in a Minister to use secondary legislation, with negligible proper scrutiny, if any, to bestow lawmaking powers on a public authority, with even less scrutiny. It amounts, in effect, to scrutiny being diminished to extinction. In that process, we as lawmakers are not doing right. We are simply handing power over to people who should not have it. This tertiary form of legislation is, therefore, even more questionable than secondary legislation, for the same reasons and—I add, at this time of night—with knobs on.

[Lord Tyler (LD)]

My Lords, I endorse the contributions of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, and draw attention to the work of the Delegated Powers and Regulatory Reform Committee, on which the noble Lord, Lord Lisvane, and I sit. One of the things the committee found most uncomfortable was the extent to which Ministers have played games with words in their explanatory memoranda. We were particularly critical of the reference in Schedule 4 to tax-like charges. The committee stated:

“A ‘tax-like charge’ means a tax. Taxes and tax-like charges should not be allowed in subordinate legislation. They are matters for Parliament, a principle central to the Bill of Rights 1688”.


It is not so late and therefore I shall indulge in some further remarks. My only really respectable connection with your Lordships’ House is that of my ancestor, the great Bishop Jonathan Trelawny, the Cornish folk hero who was one of the seven bishops to defy James II’s attempts to impose rules upon this country without Parliament’s acceptance. His portrait is in the Peers’ Guest Room—he is the one at the end with the Beatles haircut.

I make that point because I am amazed and ashamed that Members of the House of Commons have not seen the dangers in this part of the Bill. I speak as a former Member of the House of Commons. This issue goes back to not just the Bill of Rights and the Glorious Revolution of 1688, but far earlier. Reference was made to the Bill of Rights in previous exchanges in Committee. The short-circuiting of the most basic responsibility and role of the House of Commons of approving taxes seems to me an extremely important issue. We should not allow this precedent to be pursued in this Bill. It is the historic role of the House of Commons. I recall that when we had exchanges about tax credits, the former Chancellor of the Exchequer, Mr George Osborne, sought to short-circuit and get round the normal process by which the House of Commons decides financial matters. I remember at the time that the noble Lord, Lord Forsyth, referred, I think, to ship money and Charles I, saying that the last time a member of the Executive sought to short-circuit Parliament, he lost his head.

[Baroness Kramer (LD)]

My Lords, I shall add a very quick word because so much has already been said. There is an irony in Schedule 4 which may interest the Committee: namely that the power to provide for fees and charges has been handed to Ministers by means of either secondary or tertiary regulation, depending on which part of this measure you are looking at. Paragraph 3 of Schedule 4 states:

“A Minister of the Crown may only make regulations under paragraph 1 with the consent of the Treasury”.


The irony of that is, frankly, extraordinary because it shows where the Government intend the power of the land to lie. We have always suspected that the Treasury is handed some of the greatest powers that are denied to Parliament. If it is considered fit for the Treasury to be able to intervene in fees and charges, then surely it is Parliament’s right to be able to intervene, scrutinise and monitor those fees and charges.

--- Later in debate ---

[Lord Callanan]

The noble Lord is right—I am sorry.

I will try to give a relatively detailed explanation. For any policy to be complete, it must have a practical answer to the question of how it will be funded. Clause 12 and Schedule 4 are that answer here. I hasten to add that they are not the answer to all money matters in relation to Brexit. The withdrawal agreement and implementation Bill will provide the statutory underpinning for paying our negotiated financial settlement with the EU and any other financial matters related to the withdrawal agreement. Before I proceed, I make it completely clear that I have heard the principled and eloquently expressed concerns about the powers in Schedule 4 and their scrutiny, and we will look closely at this ahead of Report. I regret to say that I am unable to provide too much detail on that at the moment, but we will carefully consider this issue.

Clause 12 and Schedule 4 provide that all the money which might flow into and out of the Exchequer as a consequence of the Bill is made “proper”, in line with the rules governing public expenditure and as laid down between the Commons and the Treasury in the PAC concordat of 1932—which I assume even the noble Lord, Lord Lisvane, was not around to take part in. Maybe his maiden aunts were around at the time to take part—who knows? These are obviously provisions relating to spending and charges on the public and were closely examined by the other place, which has privilege in financial matters, before the Bill reached us.

It is evident that the process of taking on new functions from the EU, and in the future running them, will cost money. Some of this will be public measures funded from general taxation—and, I hope, more efficiently than they were funded at the EU level. Some will be paid for by users of services to ensure that taxpayers, both corporate and individual, do not end up unfairly subsidising specialist provision. Where the line will fall is clearly a matter for debate in some cases, and I expect that as SIs come before Parliament for scrutiny, that question will, in a handful of cases, be relevant to the discussion. These provisions of the Bill, however, are key to ensuring that the rest of the Bill can be given real-world effect. I hope noble Lords will agree that without funding, the essential EU exit preparations enabled by the Bill could not be put into practice.

I thank the noble and learned Lord, Lord Judge, and the noble Lords, Lord Lisvane and Lord Tyler, for Amendment 348. The Government, as has been said at other times and in other places, are aware of the risks and concerns posed by any legislative sub-delegation to public authorities, but we remain convinced that conferring powers on public authorities other than Ministers to allow them to make provisions of a legislative character can be an appropriate course of action. I stress that, like any other form of sub-delegation under this Bill, any transfer of legislative power must be approved by both this House and the other place following a debate. It will not be possible for an SI to pass through this place, under the eyes of noble Lords, without a thorough and reasonable explanation of how any sub-delegation will be exercised in practice.

In this exceptional Bill, it is right that, although we must address all the issues that we discussed at Second Reading and which will arise under the Bill, Parliament also keeps a close and strict eye on all matters where any financial burden can be imposed on individuals and businesses. However, I remind noble Lords that this power is only available if the public authority is taking on a new function under the Bill and that the fees and charges must be in connection to that function. This is not a general power for the Government or any other public authority to raise moneys as they please.

The Government envisage sub-delegating this power in limited circumstances—for example, where Parliament has already granted to a public authority the power to set up its own rules for fees and charges of the type envisaged by this power, and, for good reasons, made it independent of the Government.

[Lord Tyler]

Will the Minister clarify one point? As I understand it, the affirmative procedure would apply to secondary legislation under Schedule 4 where there is a new fee or charge, but only the negative procedure would apply in subsequent regulations modifying those fees. That is an important qualification of the assurances he was giving to the Committee just now.

[Lord Callanan]

The noble Lord makes a good point. I will answer his question later. In line with the Bill’s aim to provide continuity, Parliament should have the option of approving the ability of authorities such as the Financial Conduct Authority and the Bank of England to independently make fees and charges for firms that will, after exit and under this Bill, fall under their regulatory remit.

Amendment 349 comes to the heart of the purpose of these powers and I thank the same noble and learned Lords for tabling it. This power is designed to ensure that those using specialist services transferred from the EU to the UK pay for them. This involves providing for fees and charges which, though not taxes in the common sense of the term, are at least tax-like. For the benefit of the noble Lord, Lord Tyler, let me clarify what we mean by tax and tax-like charges in this context. Under the guidance laid down by the Treasury, although fees and charges for services that are set on a strict cost-recovery basis are not taxes, any fee or charge that goes further than direct cost recovery is likely to count as taxation or to be tax-like. This would be the case if it cross-subsidises to construct a progressive regime between large multinationals and small enterprises, if it is a compulsory levy in a regulated and surveilled sector, such as banking, or if it funds the broader functions of an organisation not directly part of the cost of providing a service, such as enforcement.

I hope we can all agree that, as part of providing continuity, this Bill should enable the Government to continue to fund public services in an appropriate manner. Because the Government have directly prohibited the increase or imposition of taxation, including tax-like charges of the type I have just described under other relevant powers in the Bill—particularly Clause 7(1)—we require the ability to do so under this power. To give an example, without this the Bank of England would not be able to bring trade repositories—a vital piece of financial market infrastructure currently supervised at the European level—within the scope of its levy-based funding regimes. This House approved the creation of those delegated regimes through the relevant legislation and I hope that, with the proper information before it, it will approve the relevant power in this Bill, subject to the use of the affirmative scrutiny procedure.

Having said all that, let me repeat what I said at the start. We are looking closely at this matter ahead of Report. We will try to see how we might provide appropriate reassurance to a number of the fairly reasonable concerns that have been raised by noble Lords. Even with that caveat, I recognise that noble Lords may still have concerns but I hope that I have given some insight into the Government’s position and satisfied the House of the honourability of the Government’s intentions. I hope that noble Lords will agree, therefore, to not press their amendments or object to Clause 12 standing part.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Hayter of Kentish Town, and I shall speak to Amendment 126, which is in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. Amendment 126 would bring Clause 8 into line with Clauses 7 and 9.

Taxation matters can be dealt with by statutory instrument. For example, they can restrict relief from Customs and Excise duties or VAT under the Customs and Excise Duties (General Reliefs) Act 1979. But taxation, as it is normally and properly understood, is undoubtedly a matter for primary legislation. What is troubling here is the potential width of these powers and the lack of indication of how the Government intend to use them.

The Delegated Powers Committee’s 12th report says:

“At committee stage in the House of Commons, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker) indicated that the power to tax by statutory instrument in clause 8 was needed because the power was not available under clause 7”—


that is true enough. It continued by saying that,

“furthermore, taxation might be needed to ‘comply with international arrangements’”.

The committee then pointed out, and I entirely endorse what it said:

“The question which remains unanswered is why taxation by Ministers in statutory instruments is an acceptable alternative to taxation”,


approved by Parliament, with the normal rigour of the process, in primary legislation.

The Minister will need to give your Lordships some very hard examples of why a statutory instrument would be used and not primary legislation. If that is not known at this stage, the withdrawal and implementation Bill we are promised might well be the vehicle for making those changes in primary legislation, if the precise requirements are known at that stage. But this potentially wide power to tax by statutory instrument is, as I say, more than troubling. I am not suggesting that indications of how a power is expected to be used will in themselves suffice, although they should give your Lordships a clue to why the power is required, which is perhaps a more important question to address. What matters, of course, is what ends up in the Act. The use of the power then will not be trammelled by reassuring indications of how, at this stage, it is expected to be used.

Perhaps I may finish by enlarging on my noble friend Lord Turnbull’s masterly catalogue of fees and charges and their various characteristics, to add another category. In the financial procedure of the House of Commons, a fee that is levied and then applied for the good of the industry as a whole is not treated as a tax, so it does not require ways and means cover. As I say, that is merely a footnote to my noble friend’s excellent speech.

[Lord Tyler (LD)]

My Lords, I am a co-signatory to Amendment 126, as the noble Lord, Lord Lisvane, said. I want to underline a couple of the points he has made. This amendment derives, as he said, from the work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House, which, I remind the House, is cross-party and non-party. It is entirely devoted to advising the House on important issues relating to the way we handle secondary legislation.

The noble Lord, Lord Lisvane, has been characteristically modest in not quoting the committee’s specific comment, which is very powerful. It said at paragraph 20(c):

“The Government should demonstrate a convincing case (if one exists) before the supremacy of the House of Commons in financial matters gives way to taxation by statutory instrument”.


This may be only a minor incident, but it is part of a much bigger pattern. I worry—I am getting old, I think—that Ministers and civil servants do not seem to have spent quite so much time with their history books as I used to when I took a degree in that subject. The power of Parliament to hold the Executive to account in matters of taxation goes back beyond even the 300 years to which the noble Lord, Lord Turnbull, referred. It could be said to go back to Magna Carta or Simon de Montfort’s Parliament, or indeed to the decision of our colonial cousins to declare independence: “No taxation without representation”.

This is very sensitive territory. We are surely entitled to demand a full explanation of why the regulations under Clause 8, unlike those under Clauses 7 and 9, may impose new taxation or increase taxation, allowing the supremacy of the House of Commons in financial matters to give way to taxation by secondary legislation.

The noble Lord, Lord Lisvane, referred to some discussions that took place in the other place on 13 December, when the Minister, Robin Walker, sought to explain why the provisions of Clause 7 could not apply and why Clause 8 was necessary. I shall quote him in detail because I think it is important:

“In addition, there are restrictions on the use of clause 7 relating to, for example, taxation that might, in some circumstances, prevent important changes to comply with international arrangements from being made. We need this power because we need to be prepared for all eventualities”.—[Official Report, Commons, 13/12/17; col. 557.]


There are three triggers there: “taxation”, “important changes”—this is not just trivial stuff—and “all eventualities”. Throughout discussion on the Bill, we have constantly been told that Ministers require a great deal of room for manoeuvre and flexibility; they need to be able to move fast. In this case, they have made the case themselves for proper discussion and consideration. Matters relating to taxation in these circumstances require the most composite and careful care. We should be seeking comprehensive scrutiny, not the usual approval of SIs.

If any noble Lords on the Conservative Benches think these are trivial issues, I invite them to consider how a future Government of a distinctly different colour might choose to use these unprecedented powers in relation to taxation. The very important role of Parliament is here before your Lordships’ House today. I know we will be told of the need for speed, flexibility, expediency et cetera, and that all the usual excuses for slipshod legislation will be trotted out, but this is an issue of considerable principle and of considerable responsibility for your Lordships’ House and the other place, and we must do what we can to assist it to fulfil that responsibility. Whether or not Brexit actually happens, these amendments to this clause are of huge long-term importance. We could be establishing a precedent for taxation being treated as a secondary issue, rather than as a matter that should always come in the form of primary legislation.

I was disappointed not to have been able to be here last Wednesday for the Committee, but I noted with admiration the range of expertise from all over the House and the eloquence with which it was deployed. This is not an area we can simply wave through as though it were just some small technical question. This goes to the very heart of the balance between government and Parliament. I think it was the noble Lord, Lord Cormack, who last week quoted the late Lord Hailsham warning of a slide towards “elective dictatorship”. We are back there again this afternoon, and I say amen to that.

European Union (Withdrawal) Bill

Lord Tyler Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Triesman (Lab)]

My Lords, I want to make clear my unequivocal support for the last three speeches. The critical issue that my noble friend Lord Adonis raised on the interplay between the various clauses that deal with the timing and the possibilities of how that could go wrong and the points made by my noble friend Lord Hain and also the noble Viscount, Lord Hailsham, on the sovereignty of Parliament seem to me to be right at the very heart of what the whole process in this House is about. It is either about us assuming the responsibilities that we are supposed to have and display, or it is about giving Ministers what they have plainly wanted throughout, which is the ability to take decisions irrespective of what Parliament might wish. I hope that Ministers will not be tedious enough to get up and deny that this is what they have been trying to do. At every key stage of this process, whether in front of the Supreme Court or elsewhere, it has been essential to force out of the Government an understanding of the role of Parliament and that Parliament will not be set aside.

Like everybody else, I have of course thought hard about why anybody would put a hard date into a clause of a Bill of this kind. Why would you do it? The answer is that it is a party management issue—and only a party management issue. I am sure that many noble Lords on the Government’s side of the House will recognise that there are costs and disadvantages alongside what they might regard as advantages in taking the steps that they have taken. But the advantage they perceive—which seems to outweigh everything else—is that they can say with conviction to the people who are determined that we leave, crash out, or go any which way out of the European Union that they have set a hard date and have in some sense given certainty by virtue of that. I believe—and I think in this debate the House overall is likely to believe—that the complexities with which this country and this Parliament are faced in trying to deal with this absolutely massive constitutional, economic, security and every other kind of issue means that the setting of a hard date is about as arbitrary a thing as you could conceivably do in the circumstances.

In his response to the last debate, which I regret I found very limited, the noble Lord, Lord Callanan, said of a number of the amendments that they required reports to be made and the dates for many of those reports were arbitrary. There could scarcely be a more arbitrary date than this date, when almost nothing has been learned so far about the Government’s intentions and when there is absolutely no certainty that we will learn any more about those intentions. The fact is that setting a date makes it more or less impossible to conceive of all the different elements being drawn together with sufficient coherence for any of us to exercise that final act of parliamentary authority that we have all been promised.

I recall just three, four or perhaps five weeks ago, the noble Lord, Lord Heseltine, spoke on industrial strategy. He made the telling point that, whenever we deal with people from other countries who have strong industrial strategies, strong industrial histories and a great deal of success in all those, we go about it believing that our native wit and wisdom is so superior to all of them that we can constantly get exactly what we want from them and they will never have a presentable argument to put to us. The noble Lord, Lord Heseltine, quite rightly said that if you look at the countries where we tend to take that view—Germany, Japan, China now and the United States—you come across people who are extremely competent at developing industries and strategies, who have views and will argue for those views and who may very well prevail. In this discussion about what future trade will be like, those arguments will be displayed with great ability and, I have no doubt, will not be the pushover that many on the Government Benches seem to think they will be.

I suspect that one argument that will be made about having a hard date is that it focuses negotiation and is a means of drawing a negotiation to some sort of conclusion. I have said before in your Lordships’ House—and I do not say it to cause offence—that my experience is that, by and large, politicians are not the best negotiators that you ever come across. Many of us have spent parts of our lives as trade union negotiators or general secretaries of trade unions, have done negotiation in government, in the Foreign Office—in my case—and so on or have spent a great deal of their lives negotiating in business and in industry. I say without any doubt in my mind that if I wanted to make my life more difficult in any negotiation, I would say, “Here is the deadline”, and let everybody else stretch me out across the rack that I had made for myself, because that would be the easiest thing that they could conceivably do—and they will do it. If you are in a position of enormous strength, I guess you could say, “Well, we have set a date, we are going to push everybody else along”. But if you are not in a position of enormous strength and if, peradventure, you are in a position of enormous weakness, everybody else will take the maximum possible advantage and they will succeed.

I have heard some of the comments made by others who have business experience, and I draw attention to my entries in the register as well. In business, I have never once seen the weaker party in a negotiation have any advantage out of a fixed deadline. If we ever needed to learn that in spades, we would look at what is happening in Northern Ireland now and the constant setting of deadlines—which has happened in the past—only to find that the people of violence, or the people who have been prepared to allow people of violence to push the envelope further, have always been those who took the greatest advantage of it and made it more or less impossible for anybody else to make real progress.

I hope that we will not trap ourselves in that way. These amendments give us a means of not trapping us in that way, and I urge all noble Lords to give us the best chance we can have, rather than the worst.

[Lord Tyler (LD)]

My Lords, I do not wish to emulate either the forensic skill or the eloquence of those who have already contributed to the debate but rather ask the Minister a very specific question. He will be aware that in Clause 14—the interpretation clause—there is a specific reference to exit day, which is spelled out in subsection (4):

“A Minister of the Crown may by regulations—


(a) amend the definition of ‘exit day’ in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and


(b) amend subsection (2) in consequence of any such amendment”.


As the noble Lord, Lord Hain, said, that is secondary legislation. The Minister will be only too well aware that the Delegated Powers and Regulatory Reform Committee, on which I serve on behalf of your Lordships’ House, is already very critical of the number of powers that Ministers are taking under this Bill, not least because it sets a precedent for powers that will be expected by Ministers under subsequent Bills in the series that relate to Brexit. Therefore, it is important for your Lordships’ House to be told very clearly at this stage by what process the Government intend to put that secondary legislation before the two Houses of Parliament. Will it be by the negative resolution, the affirmative resolution or, indeed, the super-affirmative resolution, as that completely changes the way in which Parliament will be able to exert its control, as noble Lords have suggested? If the process is to be undertaken by negative resolution, that is very limited and the powers of the two Houses of Parliament would be so undermined as to be laughable. If it is to be done by the affirmative resolution, there is more opportunity for discussion and either House can decide what should be done in those circumstances. However, I suspect we will be told that this has to be done with such speed that it will have to be done by an accelerated process, which will inevitably mean that there is no proper opportunity for either House to decide whether we agree with this process.

The super-affirmative process may well be selected. The Minister may be better informed than most Ministers on the Government Front Bench but I defy him to spell out to the House this evening which of these options will be put in place. This is of critical importance. We should not just sweep away this opportunity to take this decision. As all noble Lords who have spoken in this debate have said, it is an extremely important one which will colour the views of your Lordships’ House when we look at some of the other powers that Ministers seek to take under the Bill. Again, I refer to the recommendations of the Delegated Powers and Regulatory Reform Committee. If we really are taking back control, here is an early opportunity for the Government to show who exactly is taking back control.

[Lord Hamilton of Epsom]

My Lords, I am somewhat confused by this debate because it has been suggested that the Government have taken a hard line in saying that a decision should be reached on our future relationship with the EU by 29 March next year. It is not the Government’s date; it is the Article 50 date as drafted—as the noble Lord, Lord Hain, acknowledged —by the noble Lord, Lord Kerr of Kinlochard, one afternoon in his garden in Brussels, when he decided that it should be two years from the moment when Article 50 was moved. Therefore, it is not our date, it is the EU’s date, or, more precisely, the date of the noble Lord, Lord Kerr. I do not quite know why we are now saying that somehow this is the Government taking a hard line. When the House of Commons voted by an overwhelming majority to move Article 50, surely that was on the understanding that the negotiations would be completed in two years from when it was moved. Therefore, we now seem to want to go against the other place and tell it that it has decided on the wrong date.

On top of that, the EU has made it clear that it wants the negotiations to be completed not by 29 March 2019 but by October or November this year, so it is bringing the date forward. I do not accept the remarks of the noble Lord, Lord Triesman, on deadlines. Perhaps he found deadlines inconvenient when he was a trade union negotiator, but it strikes me that they are the only thing which works when you are negotiating with the EU, and that everything seems to be decided at the last minute. It is important that we keep to 29 March next year and I would be very unhappy if that were changed.

--- Later in debate ---

[Lord Callanan]

I am sorry to disappoint the noble Baroness, but we will be having a number of Brexit Bills, not least of which will be the withdrawal agreement and the implementation Bill, once we have reached agreement. I shall endeavour to respond to all the questions that I have been asked.

Repealing the European Communities Act is an important step to ensure that there is maximum clarity on the law that will apply in the UK after we leave the EU. I cannot see the sense in needing a separate Act to repeal the European Communities Act. This repeal in Clause 1 is front and centre of the Bill; indeed, this Bill was originally called the great repeal Bill. To prevent this Bill from repealing the European Communities Act would undermine perhaps the most important part of it.

I suspect that I have read the intention of the noble Lord, Lord Adonis, correctly when I say that he would prefer the European Communities Act to be repealed in the withdrawal agreement and implementation Bill that was announced by the Secretary of State in November. That Bill would then deal with the implementation period and our relationship to EU law during that period. This may be founded on the misconception that, if Parliament does not repeal the European Communities Act and appoint an exit day, that will somehow prevent the UK exiting the EU. If that is the case, I am sorry that I have to disappoint the noble Lord: our leaving the EU is a matter of international law, and we are leaving no matter what is or is not done to the European Communities Act.

I will address the noble Lord’s question about exit day and procedure. What will become Section 14(4)—currently Clause 14(4)—could be used to change the exit day in the Bill only if the Article 50 period were to be extended; it could not be used to prevent us leaving the EU. That is a matter of international rather than domestic law. The exercise of Section 14(4) to alter the exit day in domestic law in accordance with Article 50 would be subject—in answer to the noble Lord, Lord Tyler—to the affirmative procedure in both Houses. I will give more detail on that in a minute. We do not expect to use this power and we are leaving the EU on 29 March 2019.

The noble Lord, Lord Hain, and the noble Baroness, Lady Hayter, asked further questions about our exit day and the amendment. In the other place we tabled an amendment which set exit day in order to provide certainty and clarity, and we accepted further amendments on the issue, again to provide further clarity. The amendments set the exit day in the Bill as 11 pm on 29 March 2019, while retaining the technical ability to amend the date at a later stage. As I said, that can happen only if the European Council—including the UK, of course—unanimously decides to change the date on which the treaties cease to apply to the UK, as set out in the famous Article 50. We do not intend this to happen.

I will give the noble Lord, Lord Tyler, more detail on his point. Any change to exit day in domestic law under the power of what will become Section 14(4) will be by the affirmative procedure, guaranteeing a vote in both Houses. The affirmative procedure in this instance is provided for in paragraph 10 of Schedule 7.

Providing for the date of the repeal of the 1972 Act in the Bill that implements our withdrawal agreement might seem tidy in certain scenarios, but it would put the legislative cart before the diplomatic horse in what I feel would be quite a dangerous way. Both the withdrawal agreement and the implementation period are, of course, still matters for negotiation. This Bill, being agnostic on the negotiations, is designed to prepare the statute book for our withdrawal. I say to the noble Baroness, Lady Hayter, that there will be additional legislation to implement our withdrawal agreement. As I said a moment ago, this Bill is designed to implement the clearly expressed will of the British people to leave the EU, and therefore the date of repeal is set at the point that the UK will fall out of the Treaty on European Union and the Treaty on the Functioning of the European Union.

There are many demands on parliamentary time, as we know to our cost, and this is the Bill that will prepare our statute book for exit. The amendment would force the date of repeal into the agenda of another Bill. This is the right time and place for the debate on the repeal of the ECA, and the debate should incorporate all the additional context and provisions necessary for a smooth exit. Indeed, if we did not reach an agreement and the second of the noble Lord’s amendments were agreed, we would be in a state almost of paradox. To repeal the ECA, the Government would be compelled to enact a statute for the purposes of Clause 9(1) of the Bill— a clause which itself is predicated on the existence of a withdrawal agreement. So we would be forced to enact a statute enabling us to approve the final terms of the withdrawal agreement and set the date of the repeal of the European Communities Act without such a withdrawal agreement existing. That is too much of a logical conundrum to ask any Bill to bear, and not an acceptable way to go about legislating.

Clause 1 will provide certainty to businesses and individuals that the European Communities Act will be repealed on exit day. Any attempt to change this while negotiations are ongoing would lead only to a lack of clarity on the law that will apply in the UK after we leave the EU. This would run counter to the primary aim of the Bill, so I hope that the noble Lord will be willing to withdraw his amendment.

[Lord Tyler]

I am grateful to the Minister for seeking to clarify the point about process, and I take on board what he said about paragraph 10 of Schedule 7. But will he give an absolute undertaking to the Committee that there will be no attempt to accelerate the process? I think he would accept that, if the Minister in this case were seeking to do something at speed, for expediency’s sake—surely that would be the only circumstance in which it would be necessary to change the date—it would be extremely difficult to give both Houses of Parliament advance notice and the usual time for consultation. Is the Minister giving us an absolute undertaking that the normal process and timescale will apply and that there will be no attempt to accelerate the process?

[Lord Callanan]

Yes, I am giving the noble Lord an assurance that the normal timescale of the affirmative procedure for statutory instruments would apply in this case.

European Union (Notification of Withdrawal) Bill

Lord Tyler Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Foulkes of Cumnock]

No. As my noble friend Lord Hain rightly said, in Scotland and Wales what was put to the people was absolutely clear. It was a specific proposal—there was no doubt about it—to set up a Parliament for Scotland and a Parliament for Wales. What we put at the last referendum was not as clear. We did not know the way forward; we did not know the options before us.

[Lord Tyler (LD)]

Perhaps I may help. I think I am right in saying that all previous referenda have always been confirmatory. They agreed to what Parliament set before the nation. That was not the case, of course, in June of last year.

[Lord Foulkes of Cumnock]

I find myself, unusually, agreeing with the noble Lord, Lord Tyler. Having seen him on television recently, he has taken me by surprise. They have been confirmative and that is what we are talking about in this referendum. I think the noble Lord, Lord Newby, agrees that it will be a confirmatory referendum after Parliament has agreed or otherwise the proposal that comes from the Government in relation to Europe. On that basis I will back his amendment.