European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

80: Clause 7, page 5, line 39, leave out subsection (3)

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will speak also to Amendment 82, which itself is amended—or, in truth, corrected—by Amendment 82A.

Amendment 80 is pretty simple and is very much in line with the amendments we have debated today, which aim to restrict the very wide powers that Ministers—be they Minister number 1 or number 109 —have dreamed up for themselves in this Bill. The amendment would remove from Ministers the discretion to extend the definition of what constitutes a deficiency in retained law. That is important, given that Ministers have taken considerable powers to correct what they consider to be deficiencies. So it would be a two-way gain for Ministers: first, they could extend what they define as a deficiency and then they could use their powers to correct it.

The main thrust of Amendment 82 is to prevent secondary legislation under Clause 7 from being able to change the Equality Act 2010 or subordinate legislation made under that Act, or, indeed, later legislation, as in Amendment 82A. Again, it is about not reducing the rights and remedies that are available under EU retained law. While we were drafting Amendment 82 we also put in wording to restrict the ability under Clause 7 to impose taxes, fees, charges and to create quangos or introduce new criminal offences under secondary legislation. However, as I have alerted the Minister, we will not deal with that at this point because three separate groups are coming up and we will discuss the issue of criminal offences and fees later. The important thing for now is not allowing Ministers to extend the definition of deficiency or to use the regulations under Clause 7 to change the Equality Act and the subordinate legislation that flows from it. I beg to move.

[Baroness Ludford (LD)]

My Lords, I support Amendment 80 in the name of the noble Baroness, Lady Hayter. I cannot speak for her, but my remarks will also encompass Amendment 80A in the name of my noble friend Lady Bowles who, as the Committee will appreciate, is not in a fit state to speak to her amendment, although it relates to Clause 7(3).

Clause 7(3) is rather strange. It was inserted by the Government on Report in the other place. I am trying to resist the word “sneaky”, but the Government gave with one hand and took with another. On 16 January, David Lidington said in the other place:

“The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)”.—[Official Report, Commons, 16/1/18; col. 838.]


Amendment 14 was the one that led to the change in Clause 7(1) to put in “are” instead of “consist of but are not limited to”. So it was more specific on what ministerial powers could cover.

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[Baroness Goldie (Con)]

My Lords, this has been a short but interesting debate covering an important point. When my ministerial colleagues in the other place moved the amendment that inserted into the Bill the subsection that Amendment 80 would remove, the Government’s reasoning was accepted by the other place without a Division. That is an onerous responsibility upon me, and I hope I can replicate that performance and satisfy any concerns the noble Baroness has.

As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, was as said then, the Government are looking forward to using the expertise of this House to tighten any slack in the power and ensure that it is capable of neither too much nor too little. I have just addressed the importance of retaining Clause 7(3)(b), but I repeat that the Government believe we can be a responsible Government only by ensuring that we can provide for all the types of deficiency we discover.

Subsection (3)(a) provides that the meaning of “deficiencies” in Clause 7 includes those of a similar kind to those set out in subsection (2). The noble Baroness, Lady Ludford, and the noble Lord, Lord Beith, asked what this means and whether there are any examples. This ensures that, for example, deficiencies relating to arrangements between public authorities in the British Overseas Territories and the EU and its member states, or between the UK and the EEA and EFTA states are caught by the definition of a deficiency. They are not included in the list in subsection (2) but are very much of a similar kind to the types of deficiencies listed, and it is important that the power is wide enough to allow the Government to correct them. This House accepted at Second Reading the principle of resolving all the deficiencies in retained EU law using the power in Clause 7, and we cannot do this without both a type of sweeper—I think the legal term is “ejusdem generis”—and a power to provide for additional kinds of deficiency if they are later identified. I say to the noble Baroness, Lady Ludford, that that is why the clause is drafted the way that it is.

May I seek clarification from the noble Baroness, Lady Hayter? I was not quite clear whether she wanted to speak to Amendment 82 or whether she is forgoing that for the moment for the purposes of this debate.

[Baroness Hayter of Kentish Town]

I am speaking to only a part of Amendment 82 and to Amendment 82A —in other words, to the bits about not using Clause 7 to remove any rights and standards or to repeal or revoke the Equality Acts 2006 and 2010 or any subordinate legislation made under them. There is obviously much more in Amendment 82. There is stuff about criminal sanctions, raising taxes and setting up public bodies. I was making the point that I am not talking about those now because we have separate groups on those topics. The bit of Amendment 82 and Amendment 82A are about not using this power to make any changes under the Equality Acts.

[Baroness Goldie]

I am very grateful to the noble Baroness. I am looking at my speaking notes. It is a little difficult to disentangle the points to which she has just alluded. If the Committee will indulge me, I will perhaps try to cover the general points.

[Baroness Hayter of Kentish Town]

I emailed the Minister’s advisers very early this morning and spoke to them earlier, so I would hope they had got the Minister’s notes in the right place.

[Baroness Goldie]

I thank the noble Baroness. I shall soldier on as best I can with the material I have. By way of general comment on Amendment 82, I hope I can reassure the Committee that I understand the concerns many noble Lords have regarding the scope of the powers we are seeking to take in the Bill. I shall use this opportunity to allay, I hope, some of the concerns as we look at the general premise of this amendment in relation to the Clause 7(1) power.

The general concern is about the ability to create new public authorities, which was alluded to by the noble Baroness. Let me make it clear that we have been listening to Members of this House and the other place; the noble Baroness is not alone in having these concerns. As such, we have made it a priority to find a solution that will satisfy both Parliament and the objectives of the Bill, and the Government are looking very closely at whether the key powers need to be drawn as widely as they are in this regard. We will revisit this matter in more detail when we reach the amendments in the name of the noble Lord, Lord Newby, but I hope this satisfies the noble Baroness on this point for now and signals our commitment to listen to the concerns of noble Lords.

The noble Baroness, in her amendment, expressed some concerns about the power to create criminal offences. We will come back to this in more detail later in the debate on these clauses when we respond to the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Viscount, Lord Hailsham. If the noble Baroness wishes me to do so, I will deal with that in more detail now, but perhaps that is one of the areas she is happy for us to deal with later.

The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.

The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make it clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.

To reassure noble Lords of the Government’s commitment to ensuring transparency around any amendments made to equalities legislation, we tabled an amendment in the other place that will require Ministers to make a statement in the Explanatory Memoranda of all SIs made under this power and the Clause 8 and 9 powers confirming that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010.

Would the noble Baroness like me to respond on data protection? It is very helpful to get that reassuring shake of the head. In conclusion, I thank the noble Baroness for perhaps simplifying the matters immediately before us. I hope that the points I have raised in addressing her first amendment, and then those parts of her Amendment 82 she is concerned about, are enough to demonstrate the need for the power to have such scope and to be able to address all the deficiencies, including those alike to the types listed in Clause 7(2). In these circumstances, I urge the noble Baroness to withdraw her amendment.

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[Baroness Goldie]

I am not one to spurn the comments of attractive gentlemen, particularly when they are honeyed compliments uttered by the noble Lord, Lord Adonis. As I have said in previous debates, I may not always be able to acquiesce on points that he makes, but I understand that my noble friend the Minister is prepared to look again at the creation of new bodies. I cannot provide further detail at this stage, but it is an area where we have an open mind.

[Baroness Hayter of Kentish Town]

I thank the noble Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public bodies—perhaps even tonight. I will deal firstly with the amendment to take out Clause 7(3) on page 5. I was a little worried when the Minister said that it allowed some flexibility—which I take to mean wriggle room, or wanting to do something that is not quite allowed for. The noble Baroness, Lady Ludford, described the problem of subsection (3) better than I could. Our concern is partly that we are again back to the implications of where the Minister considers something—which is a very wide way of saying that where a Minister considers, without any test, they can then define something as “similar” to another deficiency. We may have to return to this, because I do not think that it is robust enough.

Her particular example did not help her case, given that Clause 7(2)(d)(i) involves the EU, an EU entity, a member state, or a public authority and a member state. EFTA and NATO must be the only other two bodies: could we just not write those in? To put in a whole clause just to allow for EFTA does not seem to me, with all that discretion, very appropriate. So I think we may want to return to that.

Amendment 82, as amended by Amendment 82A, is very much about not using regulations to amend, repeal or revoke either the Equality Act 2006 or the Equality Act 2010—or, indeed, to reduce any right conferred on a person by retained EU law, if it were to be made less favourable. The Minister may have said that that was not the intention but, without the words in our amendment, clearly that would be possible. For the moment, I hope that we can revert to the specifics, such as public bodies, taxes and criminal offences and put that to one side. However, we may need to return later to subsection (3). I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

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[Baroness Bowles of Berkhamsted]

My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.

[Baroness Hayter of Kentish Town]

In the absence of my noble friend Lord Bassam, I just want to encourage the Minister—though I am sure it is already in his notes—to comment on Amendment 244, which appears in this group. It requires that:

“The statement under sub-paragraph (2) must include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit, and that no policy decisions are being made”.


I appreciate that the Minister and other Ministers have said all the way along that this is not about making policy, so it should be an easy certification on this occasion for a Minister to sign. I hope that that might be accepted.

[Lord Callanan]

My Lords, Amendment 81 in the name of the noble Baroness, Lady McIntosh of Pickering, concerns the core concept of this Bill, namely that it preserves and makes functional the law at the moment of the UK’s exit from the EU. As the long and learned debates in this House and the other place demonstrate, this is of course something much simpler said than done. We can all agree that the law in the UK should not be considered deficient simply because the EU adopts a new law once the UK has left. The Bill reflects that with the provision in Clause 7(4) and, therefore, this would not constitute a valid trigger for the use of the power in Clause 7(1).

It is also the case that the law is not deficient simply because EU law, as is often the case in some areas, contains provisions that are adopted before our withdrawal but only come into force or apply after exit day. This reflects the approach taken in Clause 3, which provides for the conversion of direct EU legislation that is operative in the UK immediately before exit day. As the Government set out when we debated Clause 3, we believe that it is right that we incorporate only that law which is operative at the time of our exit. It is surely not taking back control to this Parliament and the devolved legislatures if we simultaneously preserve the automaticity of new provisions of what was EU law becoming operative in our law, months or perhaps years later. It would be unacceptable for EU law provisions to flow automatically into the UK many years after we have left and would undermine the clarity and certainty this Bill is designed to provide. That is why Clause 3 preserves only the law as individuals and businesses were bound by it immediately before exit day, and why that decision is reflected in Clause 7(4), which makes it clear that the law is not deficient simply because it does not contain planned future changes to EU law. In preserving EU law, the Government have drawn a line in the legal sand on exit day. Wherever the line was drawn, the outcomes would, of course, please some and not others. I note that the controversial ports regulation, although already in force, will enter into application only days before exit day. Clause 7(4) merely reflects this line in the legal sand.

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Let me go back to the questions posed earlier by my noble friend Lady McIntosh. On who will determine whether the law is deficient, the answer is Ministers, as constrained by courts and Parliament, in line with normal responsibilities. The SIs will be made largely before exit, to come into force on exit day—it may be redundant to say this, but they will be made largely between Royal Assent and exit day. I hope that has addressed her concerns and I hope noble Lords will feel able not to press their amendments.

[Baroness Hayter of Kentish Town]

Although Amendment 244, in the name of my noble friend Lord Bassam, asks for,

“a certification that the regulation does no more than make technical changes … and that no policy decisions are being made”,

I take the point that policy choices may be being made. Although it is not in this group, Amendment 244A says that there would be a certificate saying that either the change was just technical or a policy choice has been made. That amendment may not be in this group, but I am interested whether the Minister is closing his mind to the idea that there should be a certificate from the relevant Minister. That is what this amendment aims to do.

[Lord Callanan]

No. As I have made clear throughout the Bill, our minds are not closed on many of these matters. I think I gave the noble Baroness an example. It is a difficult distinction to draw about what is making policy or what is a policy choice. As I said, the choice between two regulators can be said to be a policy choice, but it is certainly not our intention to use any of the power in the Bill to massively expand on different levels of policy. It is our intention to impose a snapshot on exit day and ensure that the law is compliant and tidy, as we have said.

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[Baroness Hayter of Kentish Town]

My Lords, I think the good news is that we heard a hint earlier that this might be one of the areas where we are going to hear a bit of movement tonight. If the Chief Whip will allow us to go home after this group, we will be sent home in a very happy mood.

My name is also on these two amendments and I will not make the case again, because the noble Lord, Lord Newby, made the clearest of cases against the use of secondary powers to create new quangos, with others adding similar reasons for why this is not just a power too far but is in breach of government guidelines.

I will add only two points. First—this is a slight gripe, I am afraid—in answer to my Written Question as to whether there were other examples of NGOs established by secondary legislation, the noble Lord, Lord Young of Cookham, said that it was not possible to answer other than “at disproportionate cost”. But the Government must have known why I was asking this Question—they have a brain—and I would have thought that if there were some public bodies set up by secondary legislation they could have found a few examples. This was some time ago. Unfortunately it is an undated letter—like many I get from the Government —but it is HL1651, so I think it was probably last year that I asked it.

My second point—and in a sense it is really the point touched on by the noble Lord, Lord Beith—arises from my experience both as a consumer representative and as a former member of various regulatory bodies set up always by statute. It is simply to say that the very way we establish those bodies—whether it is the Charity Commission, the Competition Commission, the Legal Services Board or the National Consumer Council of which my noble friend Lord Whitty was such an eminent chair until the Public Bodies Act abolished it—affects how they do their job. The founding statute will spell out their task and set out the “have regards to” that influence how they set about their work. It will also define who sits on their boards, how they are appointed, to whom they report and whether, for example, they have a duty to heed consumers in the relevant industry, the regulated industry itself, the employees, the wider social considerations such as the environment or things like that—and indeed their degree of independence from the Government. It is a crucial part of the function of many public bodies.

Such limitations on the powers of those public bodies, and the requirements for how they operate, are written in primary legislation. They can be discussed carefully, they can be amended—as we did before with others, as the noble Lord, Lord Beith, said—they can be debated in this Chamber or in the other place, and they could have pre-legislative scrutiny. For example, setting up a new public ombudsman—as the Member in the other place Mr Jenkins has been recommending—could come by a Bill and could be amended after consultation with the relevant interested parties. That is the way that we should set up public bodies. Instead, this Bill says to a Minister, “Well, you decide. You decide how to set it up; you decide how its board will be established; you decide who to appoint it—probably you could decide to appoint your friends to it”—and Parliament will nod it through. That is not good enough and this power must be dispensed with.

[Lord Callanan]

My Lords, I welcome the opportunity to respond to the debate, if only to confound all the prejudices of the noble Lord, Lord Adonis, that I am some inflexible hardliner who never gives him anything he might want and that only my noble friend Lady Goldie can—I was going to say “satisfy him”, but perhaps I should not use that word. He could not put a cigarette paper between us, by the way. She might do so with more charm than me, but we are saying essentially the same thing.

I understand that a number of noble Lords are concerned about the scope of this power and I reassure your Lordships that the Government are listening to those concerns. When Clause 7 was drafted, we thought it would be only sensible for the sake of contingency to include in its scope the ability to establish new public authorities to ensure, as many amendments in the other place sought to ensure, against losing any important functions as they are transferred over from the EU, as no such public authority may currently exist in the UK. Certainty and continuity are, after all, the watchwords of the Bill.

We have been clear that our preference will always be, where possible, to transfer any functions returning from the EU to existing bodies in the UK, but it has proven necessary to legislate in parallel with negotiations because of the strict Article 50 timeline. Therefore, we do not know at this stage exactly which functions are returning. We must make this legislation without prejudice to those negotiations, where, as the Prime Minister said in her Mansion House speech last week, we are looking to continue a productive relationship with various EU bodies as part of our deep and special partnership.

The noble Lord, Lord Whitty, asked about our strategy towards the agencies. Where there is a demonstrable national interest in pursuing a continued relationship with any EU body or agency, the Government will consider carefully whether we should do so. However, as he knows, it is ultimately a matter for negotiations. We remain committed to keep Parliament as fully informed as possible without prejudice to our negotiating position.

However, we already know of one function that we expect to return to the UK and which it is agreed does not sit happily with any existing public body: our environmental protections. This prompted the Secretary of State for Environment, Food and Rural Affairs to announce our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on the environment—we discussed this extensively earlier—stepping in when needed to hold these bodies to account and enforce standards. As such, we need to retain the power until we can be confident of delivering all necessary legislative changes without it.

It is for this reason that I am sorry to say that we will not be accepting Amendments 83 and 94 in the name of the noble Lord, Lord Newby, which seek to remove this ability from the scope of the power. The Government have a responsibility to safeguard against the potential disruption and confusion caused to businesses and individuals as we exit the EU, and we believe that the ability to create new public authorities plays a big part in ensuring this. However, the Government also recognise their responsibility to Parliament in listening to Members’ concerns regarding the legislation it seeks to pass. Therefore, I can assure noble Lords that the Government are working hard on finding a resolution to this matter that will satisfy the concerns of noble Lords—maybe even the noble Lord, Lord Adonis—and we will revisit it on Report. In the meantime, with those assurances, I hope the noble Lord will be able to withdraw the amendment.