European Union (Withdrawal Agreement) Bill

Lord Tyler Excerpts

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

[Lord Tyler (LD)]

My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.

Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.

Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”


The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.

In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:

“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]


As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.

Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.

[Lord Howarth of Newport (Lab)]

The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.

The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.

I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.

European Union (Withdrawal Agreement) Bill

Lord Tyler Excerpts

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

[Baroness Hayter of Kentish Town (Lab)]

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

[Lord Tyler (LD)]

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”


In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]


Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.

Queen’s Speech

Lord Tyler Excerpts

Tuesday 27th June 2017 Lords Chamber

[Lord Tyler (LD)]

My Lords, over the last few days the constantly muddled and largely misleading comments on the proper constitutional role of your Lordships’ House have persuaded me that I should spend a few minutes on that this evening, because obviously it affects every single proposal in the gracious Speech.

Last week, my noble friend Lord Purvis reminded the House that we are all minorities now. The Prime Minister’s Faustian pact with the DUP yesterday does not change that. It follows, therefore, that not only is the Salisbury-Addison convention irrelevant—indeed, it was declared dead and buried by the 2006 Select Committee on parliamentary conventions, on which I served—but all the other conventions do not really apply either, except, of course, that which relates to the primacy of the elected other place.

Let me explain. This is not a coalition. It has no fully agreed programme of government, supported by a majority of MPs elected in the previous general election. It therefore has no manifesto mandate. With many others, I permitted myself a hollow laugh when the noble Lord, Lord Barker, said on television that he would have preferred a repeat of the Conservative-Liberal Democrat “strong and stable coalition”. Alone of all the Governments in my political lifetime, the 2010 coalition was a true majority Government. They were supported by a clear majority of those who voted. They could legitimately claim that the conventions redefined by the Select Committee report and approved by both Houses did apply. This Government cannot so claim.

In short, the committee briefly examined the circumstances of a minority Government but could reach no agreement and made no recommendations for the role of your Lordships’ House whatsoever in such circumstances, as referred to by my noble friend Lord McNally. We are now in a completely new situation.

Many in the House served in the short Parliament of 1974, as I did as an MP. Indeed, my noble friends Lord Beith and Lord Steel were very active Members, as we had to be in that Parliament. Even that short Parliament does not provide a firm precedent for our situation now, because there was then the presence of a large number of Conservative hereditary Peers in this House, and it was still largely a bilateral House in the other place, so of course the Salisbury-Addison agreement was thought to be generally applicable.

In any case, Prime Minister Wilson craftily avoided any controversial or contentious legislation for the whole of that summer, and simply waited for his opportunity to achieve a working majority. Anyone who thinks that is the situation now is well away in a fool’s paradise. Brexit is clearly very contentious, and I do not think the Prime Minister is going back to the polls.

This has urgent and vital lessons for all parts of this House, but especially for those of us who believe that Mrs May’s appeal to the country to back her approach on Brexit manifestly failed. In particular, those who have resolutely argued for a very different approach—on the Conservative, Labour and Cross Benches, as well as my colleagues here—have a constitutional duty, as well as a right, to stick to our judgment of what is in the country’s best interests in these circumstances. I trust that the Labour Front Bench will no longer simply roll over at the first whiff of pong in ping-pong.

The noble Baroness, Lady Smith of Basildon, has a fully justified reputation for personal integrity, but she should bear in mind that the majority of Labour voters, particularly younger ones, have now twice said that they have a more positive view of the relationship with the EU than Messrs Corbyn and McDonnell. The Labour leadership in the Commons may still regard the single market as a capitalist conspiracy, but most of their voters do not. She and her colleagues really do not have to just suspend their own judgment, or desert those Labour voters. We should all take note of the copious signs of opinion, in the country as a whole, calling for a fresh approach. Some 69% now record support for continuing in the customs union and 53% want the public to decide, in a referendum, whether or not to accept the Brexit deal, rather than politicians.

With a minority Administration, not a coalition, this House has an overriding obligation to examine everything put before us with “extra special care”—I quote the words of the noble Lord, Lord Strathclyde, to the Conventions Committee on this issue. And, yes, that applies as much to the flood of secondary Brexit-related legislation that we are told to expect as to the Bills themselves. How ironic: this process could end up with Parliament taking back control, with your Lordships’ House in the vanguard.

House of Lords Reform Bill [HL]

Lord Tyler Excerpts

Friday 21st October 2011 Lords Chamber

[Lord Elton]

My noble friends Lord Trefgarne and Lord Caithness have made points that resonate strongly with me and with several other noble Lords. It is perfectly true that we are now in this position by the consent of a large number of our former noble friends—they are still our noble friends but they are no longer Members of this House—on the strict understanding that the rearguard would remain until a satisfactory position had been reached. That is a point of principle. The noble Lord, Lord Howarth, said very nice things about hereditary Peers, but fine words butter few Peers. We are here on an honourable understanding built on the understanding of many others who served this House for a very long time.

Why, therefore, do I support the Bill—as I do with a heavy heart? It seems to me that the real basic principle is not to do with undertakings that we have been given or the perception of the British public at the present time, it is the protection of the British people from their future Governments down the generations to come. The House of Commons, for various reasons, is now on occasion firmly in the grip of the Government of the day. We saw that very clearly in 2003. I would love to expand on that, but your Lordships want to get on.

The same circumstances would automatically arise if this were to be an elected House. We have to try to find a means by which an acceptable House remains without being replaced by an elected House. Reform is necessary, but it must not be a House made up of people who can be removed by the Whips of any governing party at their whim by deselection. That being so, we have to find something that is workable and acceptable. It seems to me quite possible that my noble friend Lord Trefgarne’s heroic efforts to forge something acceptable from the draft Bill at present before his Committee may fail. What emerges may not be acceptable; in fact I very much doubt that it will. That being so, the search will be on, if time permits, for something else. If that something else is already here and working, there is a good chance that it will last. Therefore, I have to swallow my pride in the past and my affection for the present and leave my loyalty to the British people and to this sad but necessary device.

[Lord Tyler]

My Lords, I am very pleased to follow the noble Lords, Lord Elton and Lord Howarth of Newport. I do not accept the general point that they are making about the Government’s Bill, but that is not before your Lordships' House today. We face a specific set of proposals from my noble friend Lord Steel of Aikwood and supported by many colleagues across the House. Since Second Reading, we have had many expressions of support for Clause 10 and for the Bill generally. It is important to remind your Lordships that they have come from all parts of the House.

I read the two-day debate in June on the White Paper and draft Bill, during which a whole range of views was expressed about this Bill as being the right way forward in the transitional period. This is not an exclusive list, but support came from the noble Baronesses, Lady Boothroyd, Lady Noakes, Lady Taylor of Bolton and Lady Royall of Blaisdon, the noble Lords, Lord Wakeham, Lord Bilimoria, Lord Low of Dalston, Lord Faulkner of Worcester, Lord Rodgers of Quarry Bank, Lord MacGregor of Pulham Market, Lord Elder, Lord Forsyth of Drumlean, Lord Cobbold, Lord Howarth of Newport, Lord Lucas, Lord Mackenzie of Framwellgate, Lord Stewartby, Lord Foulkes of Cumnock, Lord Gilbert and Lord Lyell, together with the noble Viscount, Lord Bridgeman, the noble Marquess, Lord Lothian, and the noble Earl, Lord Glasgow. There was a great range of support to make progress along the lines proposed by my noble friend and included in the clause. I, therefore, want to address the question that Clause 10 stand part.

--- Later in debate ---

[Lord Trefgarne]

My Lords, I cannot be persuaded by that at all. I agree with my noble friend that the size of the House and the need to reduce the numbers are important matters. However, the view that we came to in earlier discussions was that what is proposed in the Bill goes a very short way in that direction. We need much more significant proposals for reducing the numbers if that is what we wish to do. My noble friend rejected the idea of an age limit; that did not find favour with him or many others of your Lordships. I suggest that the numbers can be dealt with through something other than the provisions of the Bill, which are not particularly effective in that regard. It is not therefore right to say that we are unreasonably delaying the reduction in numbers.

[Lord Tyler]

Does my noble friend recognise that the whole theme of today’s debate—and, I thought, the consensus all around the House—was that we are setting in place urgent but transitional measures? As I pointed out to your Lordships earlier, the Prime Minister and Deputy Prime Minister anticipate the first elections for the House taking place in 2015. So what is the point of delaying the implementation of this Bill when, frankly, it is urgent and necessary now and there is a strong consensus to do that?

[Lord Trefgarne]

My Lords, we are anticipating that the main Bill, subject to the scrutiny by the Joint Select Committee, will somehow not succeed. I do not agree with that.

--- Later in debate ---

[The Earl of Erroll]

Can I just alert your Lordships to a danger? If we say that all the amendments are withdrawn and that we should leave them until Report, there are two issues. First, if Amendment 163 is then voted through, none of the amendments will qualify for Report. Part 1 will not be there any more. If it has been removed from the Long Title, I do not think that Part 1 can exist. Therefore, as none of the amendments can be debated on Report, it is a cunning way of getting rid of them by the back door. Secondly, there will be a very lengthy Report stage.

[Lord Tyler]

Of course, Amendment 163 does not have to be pressed to a Division either.

[The Earl of Erroll]

I bet it will be because you have made sure that there are enough people on your side to get it through. It is a very cunning way of getting this through without the whole House being aware that we are trying to reform the House of Lords and not looking at how people will get here. A half measure is being put in place, which is very dangerous for the future. How people get here is just as important as trying to get rid of people.