European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Dykes

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I have often been in agreement with the noble Lord, Lord Wigley, in the course of these debates but I hope that he will forgive me on this occasion if I do not go with him. I wholly agree with the underlying sentiments that he has expressed; my concern is with the word “objective” because it is very difficult to define at any one time what an objective truly is. Some are stated and some are unstated—and even if stated, they may not represent the true state of mind of the person making the statement. The problem with an amendment of this kind is that it is capable of giving rise to litigation. I just do not see how a court could ever seriously determine whether the objective of a Government at any one time was sufficiently truly stated to give rise to the remedy which I know will be sought by the litigants. With the greatest respect to the noble Lord, although I agree strongly with his underlying sentiments, I do not think this is the way to achieve that objective.

[Lord Dykes]

My Lords, notwithstanding the very reasonable sentiments just expressed by the noble Viscount, Lord Hailsham, I think that I would be among others in paying tribute to the noble Lord, Lord Wigley, for the way in which he has taken the initiative on this subject. It is becoming increasingly complicated with the approach of the so-called exit day—whatever date that may be in legislation and so on—and, therefore, we need to think very carefully about this. Although this was a long time ago, I recall that the Maastricht treaty bestowed on citizens of each member state individual citizenship as EU citizens, too. It was a solemn and profound moment when that was announced many years ago in 1992, and it was made much of, mostly in the other member states but also in Britain as well. A lot of British citizens who were working abroad were delighted at the idea of being citizens of the European Union as well, which added to their obvious practical freedom of movement, although that was not essential to it.

We have now got to be very careful to make sure that the Government respond to the civilised and reasonable request for them to expand their minds a little bit into thinking about this matter, because it will be quite complicated. There is the question of the Irish Republic’s offer, which has already been mentioned by the noble Lord, Lord Wigley, and the special status that may emerge in Northern Ireland, not deliberately, according to the DUP, but accidentally. It is not much to their liking that a special status would be accorded to people there and they would remain individuals citizens of the EU. Is this a matter of collective bestowal of citizenship because of the Maastricht treaty in 1992, or is it now a matter of it being an individual proclivity if the right was there, given that there are exceptions to the idea that you have to be within only one member state to be a citizen and you can apply for citizenship from outside? It therefore may be that the very act of applying for citizenship and continuing to have the protection of the ECJ as individuals because of the bestowal of European citizenship would need to be included in this wide examination. It is a very complicated matter and should not be excluded from people’s mind and, mostly, the Government’s mind. They may be very unwilling to consider these matters, but they need to do so and we are grateful for this amendment and this debate.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Dykes

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.

[Viscount Hailsham]

My Lords, I rise to speak primarily —subject to pre-emption, whatever that means—to Amendments 73 to 79 and Amendments 117 to 119, which are in my name.

I think we ought to start the debate—although we have started it already—by reflecting on how very wide the powers contained in Clauses 7 to 9 are. They are powers exercised by regulation: mostly by the negative procedure, but some by the affirmative procedure. However—this is the critical point—in both instances, the regulations when laid cannot be amended. That raises an issue that I hope this House will come to on some subsequent occasion, because I have a number of amendments in my name on that very subject.

These powers are very wide-reaching. One way of ascertaining how significant they are—I hope the right reverend Prelate will forgive me if I use the word “significant” in this context—is to look at paragraph 2 of Schedule 7, which lists the provisions that can be made only by the affirmative procedure. I cite a few examples: the creation of a public authority and presumably the powers to be given to it; the transfer of legislative powers from an EU entity to a UK-based public authority; the levying of fees without specific limit, which I am sure noble Lords know we will come to later in Committee; the creation of criminal offences that attract a custodial sentence of up to two years, which, again, we will come to later in our debate; and the creation of powers to legislate or amend existing powers. These powers are not trivial in character. I have not sought to identify the various powers that could be exercised by way of the negative procedure, because their name is legion.

There is one fundamental rule in politics, which I have learned from 31 years in the House of Commons: if you give powers to Ministers and officials, those powers will be abused—sometimes by design and sometimes by inadvertence, but the abuse will happen and that is certain. It is especially so when the powers are created by secondary legislation because the parliamentary oversight is slight and ministerial oversight is often non-existent. So the question your Lordships should be asking—I agree with my noble friend Lord Lang that it is a pity more noble Lords are not asking themselves this question tonight—is whether the language in the Bill is sufficiently tightly drawn to prevent abuse. The answer to that question is manifest to all of us and all noble Lords who have spoken: no. The Bill does not prevent abuse; it enables abuse.

The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean. The noble Lord, Lord Campbell, is quite right about that. Might I suggest the Corbyn/Johnson test to your Lordships? It is very useful. I look to my side of the House and ask, “How many of your Lordships want to see Mr Corbyn possessed of these powers?” I now turn to the other side of the House, lest noble Lords think I am being partisan, and ask, “How many of your Lordships want to see Mr Johnson possessed of these powers?” The joke is that you can reverse the question and get the same answer.

We should not allow the draft as it is. I accept that the distinction between “necessary” and “essential” is pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” has been hallowed by legislation in the past. I encounter that word frequently in regulatory law, and the noble Lord, Lord Campbell, was absolutely right to touch on the point of judicial review. If you use the word “necessary”, it makes things easier to challenge. There have been many appeals in the regulatory framework where the courts have held that the test has not been laid out.

I want to comment on two other amendments I have ventured to propose. Amendments 74 and 117 require the Minister to have “reasonable grounds” for his or her decision on the need to trigger the regulation-making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit the discretion. I would very much like to know from the Minister why he objects to the use of reasonable grounds as the criterion for exercising the power. I am sure he is not going to say that he wants to rely on unreasonable grounds; that is not, I think, an argument he would like to put forward. We are entitled to know the justification.

I have one very small point on Amendment 75, which includes a reference to redundancy. What does that reference add to what is already covered by the retained part of Clause 7(2)(a)? It comes to this: the main issue for this House is to require a test of necessity to be imported into these three clauses and elsewhere in the Bill where the Government want us to accept a lower threshold of need—or, more precisely, put no threshold at all. I regard this as matter of considerable importance and I want to know—as I am sure the Committee does—why the Government want us to prefer a word that gives the maximum discretion to Ministers, but the minimum control and influence to Parliament and the courts.