Northern Ireland Protocol Bill

Debate between Baroness Butler-Sloss and Lord Purvis of Tweed

Committee stage
Monday 7th November 2022 Lords Chamber

[Baroness Butler-Sloss (CB)]

I want to add to the two speeches that have just been given, with every word of which I agree. The Minister may say that we are being hypocritical, as was said earlier, because there have been earlier Bills where we have allowed Henry VIII clauses; but I have been in this House since 2006 and in my time I have never seen a Bill anything like this one, with enhanced Henry VIII powers—or Henry LXIV powers. To my knowledge, in my time we have never had a Bill that has gone so far beyond what one might almost call the “normal” Henry VIII clauses. I entirely agree with what the noble and learned Lord and the noble Lord, Lord Pannick, said. It really is time that the Government stand back and ask, “Is this actually reasonable? What is it that we are trying to do?” It is utterly unacceptable.

[Lord Purvis of Tweed (LD)]

My Lords, it is very hard to follow those three eminent contributions. The egregious nature of this clause and its subsections goes beyond parliamentary affrontery because they impinge on the devolved Administrations as well. Not content with abusing this Parliament, Clause 22(6) will abuse the other Parliaments in the UK as well by creating new powers for Ministers of the Crown over those of devolved authorities. As the delegated powers memorandum blithely puts it:

“Where a matter would normally fall within the legislative competence of the devolved administrations and the passage of devolved primary legislation would not be appropriate”,


as the Minister of the Crown would say, “or timely”, on a timetable that the Minister of the Crown would set,

“it may be appropriate to create a new devolved delegated power by exercise of this power.”

It is a Trojan horse for abusing not only Parliament but Parliaments.

I have not been a Member of your Lordships’ House for as long as the noble and learned Baroness but I have been here nine years and I was a member of a devolved authority. This is not how we should be making legislation at all. This is the clause about which Sir Robert Neill said at Committee stage in the Commons,

“this is Henry VIII, the six wives, Cardinal Wolsey and Thomas Cromwell all thrown in together”.—[Official Report, Commons, 13/7/22; col. 370.]

The serious issue is that I do not know what limits the Government expect there will be on these powers. Could there be new criminal penalties? If not, they should not be within this. How about new tax powers? If that is not the intent, it should not be made possible by this Bill. Could it affect any part of the withdrawal agreement on other rights and freedoms? If that is not the Government’s intent, they should say so, but there are no such restrictions.

This is a Trojan horse, and in looking at some of the clauses a side of me wonders whether I should oppose it. It is so broad that we could rejoin many of the EU institutions we have left—just from this wee clause in this wee Bill. That might suit our Benches, so perhaps we had better not complain too much. Through Clause 22(6) and other sweeping regulation-making powers, we could rejoin the customs union and many of the institutions. If that is not the Government’s intention, the Minister should say so at the Dispatch Box. If he does not, we could use it for that purpose.

More seriously, and I will close on this, the noble Lord, Lord Kerr, has been consistent since the outset in using a phrase that has struck me: this is not what we do when it comes to international law. The noble and learned Lord, Lord Judge, hoped over the weekend that this was all a dream and that he would arrive here on Monday to find that, like Bobby Ewing in “Dallas”, these three days in Committee never really happened. I arrived back in the country this morning from speaking at a parliamentary gathering in Buenos Aires—a network of parliamentarians supporting the International Criminal Court—in the presence of the president of the ICC. I have to say to the Minister that there have been very few times that I have been embarrassed to say that I am a British parliamentarian, but the knowledge of parliamentarians from across the world about what we are doing with this legislation shocked me. They know what we are doing. There are international gatherings about how Parliaments can support the international rules-based system, the ICC and international standards in law. This is not what we do. But it is even worse than that because our Government tell other countries what they should not do, but we are doing it at home. This is an opportunity to stop it. I hope that, even at this stage, the Government will listen to the noble and learned Lord, Lord Judge, and just stop it.