Queen’s Speech

Baroness Jay of Paddington Excerpts

Wednesday 28th June 2017 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, I want to focus on the role of Parliament, and specifically the role of this House, in delivering the Brexit legislation. This may seem slightly arcane in the context of some of the strategic issues that we have heard about in the debate, but those who campaigned to take us out of the European Union fervently asserted that this would restore the sovereignty of the Westminster Parliament. If indeed we are to take back exclusive control of our laws and law-making processes, we need to be sure that Parliament will play its proper constitutional role in the relevant legislation.

I have to say that the gracious Speech and the earlier White Paper, Legislating for the United Kingdom’s Withdrawal from the European Union, are not encouraging, proposing as they do that a large number of measures will need to be executed very quickly to meet the exacting timeframe of two years, both for the negotiations with the European Union and for this parliamentary Session. My suspicion is that we may find that it is the Executive—the Government—rather than Parliament who have taken back greater control. It is obvious, as several noble Lords have said in this debate, that Brexit will dominate our proceedings for the foreseeable future. We have had eight related Bills laid before us in the gracious Speech and an educated guess that some 80,000 pages of statute will need to be dealt with. All this places a huge burden on government departments as well as on Parliament, and given the time constraints as well as the parlous state of the Government’s majority in the House of Commons, it would not be surprising if officials and Ministers tried to find short cuts and to cut corners through, for example, using secondary legislation to amend primary legislation using the notorious so-called Henry VIII powers, which as noble Lords are very well aware are subject to lesser scrutiny. When he spoke yesterday, my noble friend Lord Kennedy of Southwark flagged up concerns in this area, and your Lordships’ Delegated Powers and Regulatory Reform Committee, as well the Select Committee on the Constitution, have already identified potentially serious problems.

Outside Parliament, the Institute for Government recently suggested that the Government should avoid undermining legitimate scrutiny by producing draft legislation and full impact assessments before Brexit Bills are introduced. I would like to draw special attention to the recent and detailed work of the Hansard Society in this area. Here I declare an interest as a trustee of the organisation. The society intends to publish a further guide to the scrutiny of the repeal Bill before Second Reading, a guide that earlier in the debate the noble Lord, Lord McNally, said the Government should seize with open hands. Be that as it may, the Hansard Society has already stated that,

“Parliament is to be asked to repeal, convert or correct a vast body of law emanating from the European Union and to give the Government future powers—the timing, scope and application of which cannot be fully known at the time the powers are granted … Unless restricted by Parliament, the inclusion of widely scoped delegated powers to Ministers in uncertain circumstances could result in a substantial transfer of power to the Executive”.

The Hansard Society is particularly concerned about the scrutiny of statutory instruments, and we should remember that it is expected that up to 1,000 statutory instruments may need to be considered in connection with Brexit. This House is, of course, well-practised and authoritative in such procedures, but there are now widespread calls for the Commons methods to be urgently reviewed.

After the Strathclyde review in the last Session of the relative powers of the two Houses on secondary legislation and the Government’s subsequent commitment that they would not undertake any change in the law, I hope that your Lordships’ House will continue to assert its proper constitutional position. Indeed, it is interesting that some of the current proposals to improve scrutiny in the Brexit process want to establish new joint ways of working between the Houses. The Institute for Government suggests a committee to provide advice to the Commons on which measures should be subject to enhanced scrutiny procedures. The Hansard Society goes further with its proposal that a way should be found so that your Lordships’ DPRRC, which of course has no Commons equivalent, reports its findings on Brexit legislation when a Bill is first introduced and does not wait until it comes to this House.

I have no doubt that Ministers will argue that anything that expands and complicates the scrutiny process will dangerously threaten the crucial two-year timetable, but it is imperative that sufficient time and attention is given to replacing the 40 years of EU-related law that determines so much of our lives today. If Parliament is prevented from doing this either by government tactics or by our own inadequate process, we really will be handing a proverbial blank constitutional cheque to the Executive.