European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

Moved by

[Baroness Goldie]

69C: Schedule 7, page 42, line 35, at end insert—
“(9A) See paragraph 3A for restrictions on the choice of procedure under sub-paragraph (9).”

[Baroness Goldie (Con)]

My Lords, I am pleased to move this group of amendments as the final piece—to use the analogy of the noble Lord, Lord Griffiths—of the devolution jigsaw puzzle in this Bill. The amendments in this group all relate, in different ways, to the scrutiny that the devolved legislatures will apply to the delegated powers for devolved Ministers in Schedules 2 and 4 to the Bill.

It is right that in conferring powers on devolved Ministers, the Bill should also provide for how they will be scrutinised. It would be irresponsible not to do that. We cannot confer powers and then make no provision for legislative scrutiny whatever. However, the Government recognise that the scrutiny of powers is ultimately a question for the legislature undertaking that scrutiny and the Administration being scrutinised. That is why the Bill consciously preserves the competence of the devolved legislatures, under the respective devolution statutes, to amend those parts of the Bill that make provision for scrutiny of devolved delegated powers. It is why we have sought the views of the legislatures and the devolved Administrations on the appropriate scrutiny arrangements, and these amendments reflect that engagement.

Amendments 69D, 72ZC, 78C and 115A allow for the “made affirmative” urgent scrutiny procedure to be used by devolved Ministers making regulations under their Schedule 2 powers. This was not included in the Bill as originally drafted because it is not a standard procedure in Edinburgh, Cardiff and Belfast. However, we have confirmed with the devolved institutions that this procedure is acceptable and that it should be available to devolved Ministers for the same reasons of urgency as it will be available to UK Ministers. These amendments will achieve that.

Amendments 69C, 70C and 77E provide for the “sifting committee” procedure to apply for negative procedure instruments laid by Welsh Ministers under their Schedule 2 powers. The National Assembly for Wales and the Welsh Government have both confirmed that this procedure should apply to the Welsh Ministers. These amendments would therefore apply the same procedure as currently applies in the Bill to UK Ministers.

Noble Lords will appreciate that there are very specific arrangements for committees in the Northern Ireland Assembly and this relates to the structures of power-sharing within the Northern Ireland devolution settlement. In that context it would not be appropriate for this procedure to apply, so we have not included it in the Bill. The Scottish Government have informed us that they and the Scottish Parliament wish to apply some form of sifting arrangement to the Schedule 2 power. However, their intention is to undertake this by means of their own legislation. As I have said, the Bill preserves the competence of the Scottish Parliament to legislate on this matter.

[Lord Wallace of Tankerness (LD)]

My Lords, I want to clarify what the Minister has just said. When she said that the Scottish Government and the Scottish Parliament wish to do it by their own legislation, is that their Continuity Bill, which is currently before the Supreme Court? If it is, what happens if the Supreme Court strikes it down, or maybe some other piece of legislation they bring forward?

[Baroness Goldie]

That is a reference to this Bill preserving the competence of the Scottish Parliament to legislate on that matter. I understand that it would have to make legislation within the competence of the Parliament. As the noble and learned Lord will be aware, the UK Government question the competence of the continuity legislation. That, therefore, as far as I am aware, is a completely separate issue and not what I was referring to.

Amendments 83KA, 83P, 83LA, 83MA and 112B require the Scottish Ministers to make the same explanatory statements when exercising the powers, under this Bill or when amending regulations made under Section 2(2) of the European Communities Act, that UK Ministers must make when exercising their powers. I will not stray into greater detail on each of these statements, as we have debated them at length already. I will, for the sake of clarity, remind noble Lords that this obligation to explain comprises seven elements. The first is a “good reasons” statement; the second is an equalities statement; the third is a statement explaining the purpose and effect on retained EU law of the instrument; the fourth is a statement of urgency when using the made affirmative procedure; the fifth is a “good reasons” statement when using any delegated powers to amend ECA Section 2(2) regulations; the sixth is, where appropriate, a statement of the “good reasons” for creating a criminal offence, and of the sentence attached; and the final one is, where appropriate, a statement to explain why sub-delegation of the power is appropriate. As is the case where a UK Minister sub-delegates the powers, there will also be a duty on the authority to which the power is delegated to then lay before the Scottish Parliament an annual report on the exercise of the sub-delegated power, if exercised that year.

Finally, Amendment 83AC makes a straightforward provision to clarify that the duties on UK Ministers to make explanatory statements when exercising powers under the Bill will apply when exercising the Schedule 2 powers jointly with a devolved Minister. A purpose of joint exercise will allow greater scrutiny by requiring instruments to be considered by this Parliament and the relevant devolved legislature. It would not, therefore, be correct for Parliament to receive less information in relation to the instrument than it would have received if the UK Minister had been acting alone, and this amendment clarifies that this will not be the case. The duty will not extend to devolved Ministers, but the statements, as with the instrument, will be the joint product of both Administrations. The statements, in being made available to Parliament, will also therefore be available to the devolved legislatures, and the relevant devolved Administration can choose whether to lay this alongside the joint instrument.

I hope that noble Lords will recognise these amendments for what they are: they are positively the product of our continued and sincere engagement with the devolved institutions. I also hope that your Lordships will welcome the steps this takes to respond to calls in this House and in other places for greater scrutiny of delegated powers. I beg to move.

Amendment 69C agreed.

Moved by

[Baroness Goldie]

69D: Schedule 7, page 43, line 1, leave out “paragraph 4” and insert “paragraphs 4 to 4C”

--- Later in debate ---

Moved by

[Baroness Goldie]

83C: Schedule 7, page 52, line 20, at end insert—
“(2A) Before the instrument or draft is laid, the relevant Minister must make a statement as to why, in the Minister’s opinion—(a) there are good reasons for the instrument or draft, and(b) the provision made by the instrument or draft is a reasonable course of action.”

[Baroness Goldie]

My Lords, the statutory instruments to come under this Bill are the means to a unique end—correcting our statute book and properly incorporating an entire new body of law into our domestic legal order. I hope that the group of amendments I now have the pleasure of introducing is a demonstration of the Government’s commitment to transparency before Parliament. This transparency will enable Parliament to subject the Executive to the scrutiny that is only right and proper when we bring before your Lordships proposals for delegated legislation. A key part of this transparency offer is the array of statements which we are committing in statute will accompany each of the SIs and be published alongside them in their explanatory memoranda.

Before addressing each of the amendments in this group in turn, I wish to put on record the answer to some questions which noble Lords have raised regarding the provision at sub-paragraph (6) of paragraph 22 of Schedule 7. This provision does not circumvent the obligation to make any of the statements in paragraph 22. Rather it is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for their failure, in addition to providing the original statement.

Amendment 83D in the name of the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Judge, in common with Amendment 11, accepted two weeks ago by the House, introduces a distinction into the Bill which the Government cannot accept. This is a Bill to make, in common parlance, largely technical changes; substantial policy will be brought forward elsewhere. However, the distinction between technical changes and policy decisions is not one that could ever be defined in statute. Even the most technical of changes could constitute a policy decision, including as to whether to make the change at all. Nor, even if the noble Lords were to accept that point, can any clear line be drawn between technical policy, minor policy or substantial policy changes.

This amendment would require each Minister making an SI to make a declaration which depends entirely on where one is sitting—the prism through which one would see the amendment. For example, to the fishing community in Lerwick, the rules on the make and size of nets are certainly a matter of policy in which it takes an interest, while packaged retail investment product customer information requirements are most certainly a technical matter. I hazard that the asset manager in Kensington might feel a little differently. This amendment risks saying that either everything is technical, or nothing is technical. I hope all sides of the House will agree that neither of these positions is true. This is a Bill to make largely technical changes: that is our policy choice. As I am afraid that the two cannot be cleft asunder, I must ask the noble Baroness and noble and learned Lord not to press their amendment.

Government Amendment 83C and its consequentials 83H and 83J ensure that, where a Minister makes regulations under Clauses 7(1), 9 or 17(1), a statement must be made as to why there are good reasons for the instrument, and the provision made is a reasonable course of action. This is in line with the Constitution Committee’s recommendation in its ninth report and is, I trust, further evidence of the Government’s willingness to give due consideration to all amendments which do not undermine the fundamental operation of the Bill. I hope noble Lords will indulge me as I once again quote the Constitution Committee in support of the proposal. Such an amendment, it said, would:

“require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially”.

The committee continued:

“In this way, the Government can secure the flexible delegated powers it requires, while Parliament will have a proper explanation and justification of their use that it can scrutinise”.


Of course, I cannot put forward these amendments without making reference to the “appropriate versus necessary” debate, which these government amendments were clearly a response to. This House came to a decision on that question which the Government are disappointed with. Nevertheless, I would still commend these amendments to the House in an effort to increase transparency by some considerable measure.

Government Amendment 83F is in a similar vein, and would require Ministers to make a statement as to the purpose of an SI before it is laid. The Government have reflected carefully on the concerns raised within this House that the intention behind a modification to retained EU law might not always be clear. Such concerns were particularly focused on how modified retained EU law may be interpreted in light of Clause 5(3), and whether a modification to retained EU law is to be subject to the principle of supremacy of EU law. These concerns have also been raised in relation to Clause 6(6) and whether an item of retained EU law which is modified after exit day is still to be interpreted in accordance with retained case law.

As was discussed in Committee, we expect in many, if not most, cases that it will be evident from the modification and the context whether the modification is intended, for example, to continue to benefit from the principle of supremacy, and whether modified retained EU law is intended to be interpreted by reference to retained case law. There is no getting away from the point that, ultimately, where such issues arise, they would need to be resolved by the courts on a case-by-case basis.

However, to ensure that there is the maximum clarity and transparency as the SIs are scrutinised and made, we have tabled Amendment 83F, which requires a Minister to make an explanatory statement about the purpose of the instrument, alongside the other explanations required in the same paragraph, including about the relevant pre-exit law and the effect of the instrument, if any, on retained EU law. The Government believe that this approach strikes the right balance by requiring Ministers to provide transparency on this point to Parliament and the courts without risking adversely fettering the discretion of our courts in terms of how SIs and modifications to retained EU law are interpreted. I hope, therefore, that this amendment can be supported across this House.

Noble Lords will all no doubt be aware of Amendment 83G, tabled by the Government, which would require a Minister to make a statement when exercising the powers to create a criminal offence. The statement will need to explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. The statement will be made in writing by a Minister before the instrument is laid and will then be published, usually in the Explanatory Memorandum, to inform the deliberations of the committees and the House.

We previously touched on this amendment during debate on Clause 7, when we said that we would discuss what form this statement would take. This is still ongoing, although we will update the House as and when any decision is made on the matter. This amendment comes following the recognition of growing concerns in the House regarding the use of the powers to create a criminal offence. The Government’s plans for creating an offence will now be even more transparent to Parliament, and our reasoning will have to be clear and justified. This will ensure that the committees will have all the relevant information necessary at their disposal to make sound decisions when considering these important instruments. I hope, and am sure, that the House will welcome this.

I thank your Lordships for bearing with me. These are important issues and we thought it important that the House should understand the reasoning behind the Government’s approach to these matters. The Government’s amendments here provide for a material increase in the transparency of the exercise of the powers in the Bill. No one should underestimate how seriously these obligations are being taken by Ministers and officials. They have been designed specifically to address the concerns expressed in Parliament, and the Government intend to meet our end of the bargain in enabling effective scrutiny of the legislation we propose. I beg to move.

--- Later in debate ---

[Lord Goldsmith]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith. The Government have moved on this, and that is to be recognised and appreciated, but they could have moved further, as the noble Lord, Lord Beith, has made very clear. It is slightly paradoxical that, as he says, the Government’s concern not to appear to be making policy changes prevents them adopting an amendment which makes it clear that what the instrument is to do is not to make a policy change. Be that as it may, although I find it hard to believe that the Government and their advisers could not have come up with a form of words that indicated the technical nature of the change being made while not falling into the trap of appearing to make policy changes, we would not prevent that amendment being agreed.

I want to underline three points which I invite the Minister to comment on. First, the way that these Ministers’ statements are described makes it clear that it is the statement of the Minister that is required. She spoke on at least one occasion about the Government’s view that something should be done, and no doubt the Minister would not do something if it were not the Government’s view. However, it is an important and critical part of the statement obligations that the Minister in question should apply his or her mind to the issue. That is the point that the noble and learned Lord, Lord Wallace of Tankerness, rightly made in the earlier debate. Therefore, I would be grateful for her confirmation that it will be understood that, where Ministers are to make such a statement, they have a personal responsibility to be satisfied. That is the whole point of including those words—so that the House or another place has the confidence and assurance that the Minister has focused on the issue and determined that the conditions are satisfied.

The second point I want to underline is that acceptance of these amendments does not in any way undermine the importance of the amendments that the House has already agreed in relation to the “appropriate” and “necessary” distinction. That requirement will remain, and the fact that the Minister’s statement may be expressed in different terms does not undermine it in any way. It will still be necessary—to use that word—for the necessity condition to be satisfied. I would be grateful for the noble Baroness’s confirmation of that.

My third point is that I, like the noble Lord, Lord Beith, am intrigued by the reference to the Government still considering the wording to be used for the creation of criminal offences. We look forward to seeing what they say. It sounds like it will be coming back at Third Reading, and on that I would welcome the Minister’s confirmation. In any event, in doing that, and as the Government consider their words, the House might expect the Minister’s statement to explain not just that there are good reasons for creating the offence but why there are good reasons for creating it in this way. Of course, as the noble Lord, Lord Beith, has said, there is no reason not to create criminal offences by primary legislation; our concern has been creating them by delegated legislation. The House will need to be satisfied that that is an appropriate thing to do in a given case. I look forward to hearing the response to those points.

[Baroness Goldie]

I now look forward to giving that response. I thank the noble and learned Lord for his comments. On his first point, which is fairly legitimate, he will be acutely aware that Ministers have not just a personal but a political responsibility. They are, in the office of being a Minister, responsible for having made the statement. That, I think, imputes to the Minister both a political and a personal responsibility. Governments of all colours act in good faith and the Ministers involved act in good faith. I think this House will be satisfied that Ministers of whatever political hue acting under these powers will genuinely have a personal focus on what is being discussed—I think “focus” was the word used by the noble and learned Lord.

The statement must both make the original statement and give an explanation of the delay in having brought the statement forward. I have tried to make that clear in my remarks: this is not an alternative responsibility but a complementary responsibility; the two things will apply. A Minister cannot shoal off one of them and offer the other. Both responsibilities will apply.

The final point was that, when creating an offence, the noble and learned Lord thought it was appropriate to justify not just why the offence was being created but why it was being created in this way. Again, that is ex facie. Part of the impact of the responsibilities of the Minister under the Bill, if so amended, is that they can expect to be questioned closely. Indeed, given the now very robust scrutiny procedures that are in place, Ministers will expect to be questioned closely not only as to why they are creating the offence, but why they are doing so in this way. That is implicit in the structure within which Ministers are now being asked to operate. I hope that to some extent answers the noble and learned Lord’s points.

[Lord Beith]

Before the noble Baroness sits down, I assume that she is going to answer the questions I put to her, not least about Third Reading but also about the importance of Ministers recognising that the inclusion of policy choices is something we would prefer not to see in delegated legislation.

[Baroness Goldie]

I am sorry. I did not have a detailed note about the point raised by the noble Lord, so may I undertake to write to him?

[Lord Beith]

I am sorry to press the noble Baroness, who is normally so helpful, but she has not clarified what she said about the Government reconsidering the wording in relation to criminal offences. It seems to me that, if the Government are reconsidering the wording, then we have to come back to that at Third Reading.

[Baroness Goldie]

We are not reconsidering. We are simply considering the appropriate text. The general point has been made clear by the Government: that they will not want to retract what is already their policy position. They will simply undertake to inform the House when a form of words has been adjusted.

[Lord Newby]

Is the Minister saying that the Government have no intention to come back on this issue at Third Reading?

[Baroness Goldie]

Indeed. That is the case.

Amendment 83C agreed.