European Union (Withdrawal Agreement) Bill

Debate between Baroness Butler-Sloss and Lord Howarth of Newport

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

[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.

[Baroness Butler-Sloss (CB)]

My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”


That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.