European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Forsyth of Drumlean]

I suggest to the noble Baroness that it would save us all a great deal of time and effort in coming here if she simply read out all our speeches on our behalf, using this rather extraordinary procedure that she has embarked upon.

[Baroness Goldie (Con)]

My Lords, the noble Baroness, Lady Kingsmill, wanted to participate earlier but had an inescapable engagement. She and her colleague, the noble Baroness, Lady McDonagh, spoke to me. I felt that, in all the circumstances, it would be in our interests because, as far as I am aware, we have not had a female contribution to this debate. It is appropriate that the noble Baroness, Lady McDonagh, be given the opportunity to express her views and, in these exceptional circumstances, to convey the views of her noble friend Lady Kingsmill.

[Lord Forsyth of Drumlean]

Far be it for me to argue with my noble friend, but this is not a matter of gender, it is a matter of procedure of the House. If one is able to read out other people’s speeches without limit, it creates a most extraordinary precedent. I hope those in charge of our procedures will consider whether it is something that should be repeated.

--- Later in debate ---

[Lord Skelmersdale (Con)]

My Lords, this has turned into a clause stand part debate by any other name and I have been listening to it very carefully. The second amendment in this group would remove the words in Clause 9(2), “(including modifying this Act)”. This is rather curious because I know that many of your Lordships voted against Brexit in the referendum and in their heart of hearts still believe and hope that Brexit will never happen. That applies not only to noble Lords but also to Members of another place. But those words, of course, would include exactly what they want; namely, the repeal of the European Communities Act 1972.

[Baroness Goldie]

My Lords, I thank the noble Lord, Lord Lisvane, for his contribution and other noble Lords for their comments. This has been a genuinely interesting debate on a very important issue. When I was asked to respond to this group of amendments, I suspected that I had drawn the short straw. I realise that there are various parts of this Bill which for your Lordships are indigestible, but I think that what tops the list of gastric turbulence is the deployment of Henry VIII powers. Let me start by saying that if, when I have finished speaking, it remains the view of this Committee that subsection (2) of Clause 9 is a constitutional abomination, I shall faithfully reflect that view to my colleagues in the other place who ultimately determine the Government’s position. Having given that undertaking, I hope that noble Lords will permit me the opportunity to attempt to persuade them that subsection (2) is in fact a proportionate approach to the position in which we find ourselves, a question which has been very legitimately posed by the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Goldsmith. For the benefit of them both, here I go.

It all starts from the Government’s commitment, which I hope is welcomed by all noble Lords, to ensuring that the outcome of the negotiations under Article 50 can be implemented in time for day one of our exit from the European Union. This Bill is designed to provide the essential legislative mechanisms to ensure that the UK statute book can continue to function once we have left the European Union. It would be wrong to pre-empt the outcome of the negotiations, and it is crucial that we have sufficient flexibility to make changes to the Bill to ensure that its provisions do not ultimately contradict the agreement that we have reached as to the terms of our withdrawal.

It is not unprecedented to create powers that are able to amend the very Bill in which they are created. Of course, we would expect the exercise of such powers to be subject to parliamentary control, as is the case within this Bill. Your Lordships may ask with some justification whether there are any precedents for this. I can point noble Lords to the Enterprise Act 2002 and the Third Parties (Rights against Insurers) Act 2010, which also confer powers to amend their own Acts. Noble Lords will note that these Acts were passed when those opposite me were sitting on the Government Benches. Arguably, we are being transparent in that we have made it explicit that this particular power might need to be used to amend the Bill once it is enacted. By doing so, we are also making it clear that the other powers in the Bill cannot be used to do so, and of course, as with all the other uses of Clause 9, it could be used only to make provisions to implement a withdrawal agreement on which Parliament would already have voted.

In the present circumstances and given the inherent uncertainty of what the withdrawal agreement will contain at the detailed level, it is vital that we are prepared for scenarios where we need to modify any Act to give effect to the withdrawal agreement in domestic legislation. It is recognised by both the Opposition and the Government that in our preferred negotiated outcome, some amendments may have to be made to the EU withdrawal Act—for example, to facilitate an implementation period. This is an inevitable consequence of the uncertainty that arises from the ongoing negotiation.

[Baroness McIntosh of Pickering]

My noble friend is referring to a situation that presumably would take place under the next Bill, when we have agreed the deal and then lay out the ground rules of the transitional arrangements and our future relationship. I am confused by what the timeframe for these regulations under Clause 9(2) will be, because subsection (4) clearly states:

“No regulations may be made under this section after exit day”.


If the Bill reaches Royal Assent by June this year, for example, how will we have enough time to scrutinise—under subsection (2)—any regulations adopted before that time? It is all very confusing.

[Baroness Goldie]

If I can continue, I might be able to reassure my noble friend by giving some illustrations of where the Government anticipate these powers may need to be used.

[Lord Goldsmith]

Before the Minister resumes—without wishing to interrupt her further—can I just take her back to the point she made about the Enterprise Act and the Third Parties (Rights against Insurers) Act? I do not have them in front of me, but does she agree that they are Acts of a very different nature to the constitutional Act that this Bill—and the surrounding legislation—gives rise to and were not subject to the same degree of scrutiny as the current legislation is being subjected to?

[Baroness Goldie]

I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.

There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.

It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.

[Lord Beith]

Under the provisions of Clause 9, that could not be done before the passage of the withdrawal agreement Act. Therefore, should it be necessary, that can be done in that Act, either by specific provisions in the Act—which most of us would prefer—or by statutory instruments provided for under the Act. Nothing can happen before the withdrawal agreement Act is passed, so the idea that this will help with situations in the meantime is not valid.

[Baroness Goldie]

I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.

[Lord Goldsmith]

To take that slightly further, following the question from the noble Lord, Lord Beith, if the withdrawal agreement provides that, after exit, there will be some continuing cases that can be decided by the CJEU, that is what the withdrawal agreement will say, and that, therefore, can easily be provided for in the implementation of the withdrawal agreement legislation, can it not?

[Baroness Goldie]

No one is saying that it could not be; it is just that there may be advantage in anticipating that and trying to introduce an earlier and swifter procedure to deal with it. I suppose that that, in essence, is the justification or argument that the Government are advancing: we want both flexibility and, if necessary, rapidity in responding to whatever situations are there.

[Lord Goldsmith]

If, as the noble Baroness’s answer suggests, it does not need to be done in this way but can be done in the other way we are suggesting, that really answers the question that has been posed to the Government: why do you need this wide-ranging, constitutionally unacceptable power? The answer appears to be that the Government do not need it, because it can be done in the way that others have indicated.

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.

[Lord Hope of Craighead]

I am very grateful to the Minister for that answer but my point really is: what happens if the Minister of State decides to exercise the power? Obviously, the question in the first instance is whether the devolved legislatures would give consent to what is in the Bill, but my question is directed to the next stage, which is the exercise of the power, which the Minister has quite rightly said is not covered expressly by the Sewel convention. The question is whether the principle that underlies it would apply to the exercise of the power when it is exercised by a Minister of State. It may be that Ministers would like to think about that before giving a definitive answer, because it is a very important question and relates to something we may have to come back to on Report.

[Baroness Goldie]

I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.

I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.

[Lord Lisvane]

I thank the Minister for responding to the debate with her customary courtesy, precision and humour. She invited us to consider some precedents. It called to mind the occasion in 1881 when Speaker Brand introduced into the House of Commons, on his own initiative and without any consultation, the concept of the closure. He came under a great deal of fire rather quickly for this so he asked my learned predecessor, Sir Thomas Erskine May, to find him a reason for having done it. May, after a rapid and I think somewhat fevered search, discovered a precedent in 1603. He said later that he had discovered something that convinced the House of Commons better than any argument: “I have found a precedent”. In this case I have to say with great respect to the Minister that I did not find her precedents particularly compelling. If one identifies something which in legislative terms is rebarbative and not particularly acceptable, the fact that it has been done once is a very poor argument for repeating the offence.

I agreed with I think everything that the noble and learned Lord, Lord Mackay of Clashfern, said. Indeed, in my short time in your Lordships’ House I do not believe that I have been guilty of disagreeing with anything he has said. He made a point about timing which I think is very important. It may well be that, in contemplation of the withdrawal arrangements, provision can be made under Clauses 7 and 8, according to the restricted purposes set out in those clauses—although not particularly restricted—in which case the solution would be to make SIs, and I would hope that they would be subject to the affirmative procedure. Although the noble Baroness invited us to think that the affirmative procedure is a simply wonderful thing, it is not even half a loaf in legislative terms; it is a great deal less. However, it could be done by those means with delayed commencement dates. I agree entirely with the noble and learned Lord, Lord Goldsmith, that if these requirements are known, the best course is to find a way of putting them in primary legislation, with all the controls and scrutiny that would attract.

I do not know how sensitive my radar is but I think I detect some serious doubts, still, around the Chamber about Clause 9(2), and certainly about the last part of Clause 9(2), so I think it may be that the noble Baroness will be taken up on her very generous offer to reflect those doubts in the appropriate quarter before we take these provisions forward. In that spirit I beg leave to withdraw the amendment.