Retained EU Law (Revocation and Reform) Bill

Debate between Viscount Hailsham and Lord Lisvane

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

[Viscount Hailsham (Con)]

I thank the noble Lord for giving way, and I hate to cross swords with him on this matter, but the trigger point of “substantial change” is quite narrow. My noble friend Lady McIntosh spoke about lack of consultation, or inadequate consultation. That might surely be a reason for using the trigger power.

[Lord Lisvane (CB)]

I absolutely agree and, as the noble Viscount has made clear, a number of things could be interpreted as of sufficient gravity to trigger, we hope, the powers in the Bill, then the Act, and it would be for the Joint Committee to decide—as a number of committees of your Lordships’ House already decide—that the lack of consultation is a serious flaw in the bringing forward of proposals for, for example, delegated legislation. So I hope I have set the noble Viscount’s mind at rest, but I am happy to talk to him outside the Chamber if further reassurance is required.

--- Later in debate ---

[Viscount Hailsham (Con)]

I am sorry to press the noble and learned Lord—while looking straight at your Lordships’ House—but is the concept that there will then be on the Order Paper proposed amendments to the statutory instrument, or will there be an informal recommendation by the Select Committee? Those are not the same things. I would be very pleased if they were a power to amend statutory instruments, and I would really like to know what procedure is contemplated.

[Lord Lisvane (CB)]

It is with a certain amount of trepidation that I seek to answer the question. The noble and learned Lord, Lord Hope, will correct me if I am wrong, but as I understand it the idea is that the amendments—which might come from the Joint Committee or from another source, as foreseen in sub-paragraph (3) in the amendment—would come forward and could be to put to either House or both Houses as Motions that a certain order should be laid in a form so amended. If that Motion was agreed to—it is a sidestep procedurally because it is not acting on the text of the order itself—and the will of either House was that there should be such amendments then it would be for Ministers to re-lay the order, taking those amendments and the decision of the House or Houses into account.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Lisvane

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

[Lord Lisvane]

Before the Minister responds to that point, could he also answer my question? He has sought to make a distinction between a fee and a charge. Could he explain why, at page 761 of the latest edition of Erskine May, there is no distinction made between fees, charges, impositions, contributions or anything else of that sort? The test which is set out there, and is reflected in the current practice note from the Office of the Parliamentary Counsel—available on its website—is whether or not those payments are,

“akin to taxation in their effect and characteristics”.

I suggest that an additional test needs to be applied to the template which the Minister has offered.

[Viscount Hailsham]

I am sorry for my noble friend, but he did say that both the fees and the charges were subject to the affirmative procedure. I know that the fees are, but I am not sure where in the Bill I find the provision that charges are subject to the affirmative procedure. Will he tell the Committee?

European Union (Notification of Withdrawal) Bill

Debate between Viscount Hailsham and Lord Lisvane

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I hope that the noble Viscount will be kind enough to allow me to interpose very briefly. I support the thrust of Amendment 17 and certainly the aim that it seeks to achieve, but I have a couple of questions about the mechanisms that it proposes to do that. It proposes proceeding by resolution of each House. There are two issues. First, what happens if a straightforward approval Motion is amended and the final result is a resolution that overall approves an outcome but contains some sort of rider or condition? Regulating parliamentary proceedings by statute, in my experience, generally ends in some sort of tears. A question of whether the outcome met the requirements of the legislation could be resolved only by the courts, and that might not be a welcome result.

Secondly, what happens if one House comes to the required resolution but the other does not? Perhaps the solution is one that would endorse the sage advice given earlier by my noble and learned friend Lord Hope of Craighead which is to employ primary legislation, because that contains very well-understood mechanisms for securing agreement between the two Houses.

[Viscount Hailsham]

My Lords, I know the hour is late so I will be very short; I will confine myself to making three points. The first is to adopt the language of my noble friend Lord Deben. This House must recognise that, ultimately, the decision has to be made by Parliament. Historically, there has always been tension between the Executive and Parliament and I happen to be a Roundhead on this matter. Let us not forget, as my noble friend pointed out, that we would not be debating this Bill had the courts not intervened. The truth is that Governments always seek to advance ministerial power at the expense of Parliament and we must push back. The historians among us will remember John Dunning saying that,

“the influence of the crown has increased, is increasing, and ought to be diminished”,

and, with suitable alteration, that is where I stand.

My second point refers to what the noble Baroness, Lady Kennedy, said a propos the risk of there being no agreement. The noble Lord, Lord Kerr, assessed that risk as being higher than 30% and I entirely share that view. We need to address that in statutory language. That is what I tried to achieve in the new clause that would be introduced by my Amendment 32.

My final point, turning to the noble Lord, Lord Pannick—I know it is the view of the noble Baroness as well—is that assurances are well and good and I do not at all doubt the good faith of the Ministers who give them. But I prefer to see assurances in statutory language. Prime Ministers can go, Ministers can be sacked, Parliaments can change and Governments can cease to exist. One needs to enshrine assurances that stand against those changes in circumstances. Therefore, whenever we come to divide on this group of amendments, whichever is chosen, I shall support it because I stand in favour of parliamentary government.