European Union (Withdrawal) Bill

Baroness Deech Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, as a signatory to this amendment and the others in this group, I encourage Members to look at the words of the amendment and how they will alter the Bill. The Bill currently reads:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,


and so on, so the Minister still has the initiative. It is the criteria by which he takes that initiative that are important. Our amendment would simply take out a phrase so the Bill would read: “A Minister of the Crown may by regulations make such provision as is necessary”.

I shall go back to where the Government led us at the beginning of this process in a moment, but, first, when the Minister responds to the debate, which in Committee and to some extent this afternoon has been characterised by some support for this group of amendments, I plead with him not to rely on the rather flimsy arguments contained in his correspondence with our Delegated Powers Committee. Frankly, they are not worthy of him.

The same goes for his justification in Committee for government Amendments 83C, 83F and 83G to Schedule 7. We will deal with them in detail later, but they are an attempt to derail the formidable arguments for insisting on the relatively objective “necessary” instead of the blatantly subjective “appropriate” throughout Clauses 7, 9 and 17, which are the subject of this group.

As the noble Lord, Lord Lisvane, set out when moving this amendment, all the amendments in this group would replace “the Minister considers appropriate”—what could be more personal than that, where the Minister personally decides that something is appropriate?—with the strictly more objective test of “necessary”. That is the salient difference. That was the subject of much discussion in Committee, and other speakers have emphasised it this afternoon.

Frankly, the Minister’s arguments in his correspondence with the committee do not face up to this issue. For brevity, at this stage I will confine myself to just one or two examples. He asked us to explain “necessary for what purpose?”. The answer is to be found in his Bill. In Clause 7(1), by substituting “is necessary” for the phrase “the Minister considers appropriate”, it is clear what the regulation would do and why it would be necessary. I shall read it in full,

“such provision as the Minister considers”,

necessary,

“to prevent, remedy or mitigate … any failure … or … deficiency arising from the withdrawal of the United Kingdom from the EU”.

It is absolutely clear. Instead of asking why we think something is necessary, he should look in his Bill. That is precisely what Amendment 31 would secure.

The Government have further suggested that there is no material difference between “appropriate” and “necessary”. Why are we having this discussion if there is no difference? Our cross-party, non-partisan committee, which is answerable to your Lordships’ House, has unanimously disagreed. “Appropriate” means suitable, proper and apt, and other words which could be used; “necessary” means that it is judged objectively to be needed.

We should recall that the original position of the Government, when they set out what they intended to do with the Bill, was that only changes needed to make retained EU law work after exit day would be implemented. This amendment fulfils their promise. When it comes to the belated attempt to block these amendments, the Government’s reliance on a statement of “good reasons” for subjective ministerial decisions is totally inadequate, as the noble Lord, Lord Lisvane, has already said.

I return to my original point: the Minister has failed to persuade the cross-party, non-partisan Delegated Powers Committee, which looks very carefully at these issues on behalf of your Lordships’ House, and which has now reported to this effect to your Lordships’ House. So far, it would seem that many Members are similarly unpersuaded.

I hope I will be forgiven for sounding a little bit like Little Lord Echo, but speaker after speaker, at every stage of the Bill, has emphasised that this must not be used as an opportunity to turn the Executive into an elective dictatorship. It is the British Parliament that must take back control, not a minority Government. As a former Member of Parliament, I hope that the Commons will concur with your Lordships’ House and the Delegated Powers Committee on this point. Are the Government really going to go into the last ditch in defence of this apparently indefensible position?

[Baroness Deech (CB)]

My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

[Lord Goldsmith (Lab)]

My Lords, and what is wrong with that?

In Committee, in a most powerful speech, the noble Lord, Lord Wilson of Dinton, with his vast experience from inside the Civil Service, from knowing just what civil servants and Ministers would like to do, gave your Lordships the advice that,

“in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection”—

a very telling phrase. He continued:

“it should be the strict discipline of an objective test of what is necessary”.—[Official Report, 7/3/18; col. 1180.]

I respectfully completely agree with that. It is absolutely the case that, in circumstances where great powers are being given, one needs to be very clear where the discretion lies. Here it is not just Ministers but civil servants. We have been told that there are 109 Ministers, but under the Carltona principle—I have made this point several times and no one has yet contradicted it—many civil servants themselves in effect exercise these powers in the name of the Minister.

So Ministers and civil servants do what they think is appropriate. That is very different from things that are necessary in order to achieve the objectives set out in the clause. As a practising lawyer, I have no difficulty with the concept of what is necessary, but I believe—to use the words of the noble Baroness, Lady Falkner of Margravine, in a different context—that there is a profound distinction between saying, “You can do what you as a Minister consider appropriate”, and saying, “You can do only what is necessary to achieve these objectives”. If this House has a responsibility, I respectfully suggest that it is to ensure that we do not give the Executive more power than is necessary in order to achieve their objectives. The amendment would achieve that. If the Government want to come back with further clarification on the meaning of “necessary”, although I do not believe that is necessary at all, they can do so.