European Union (Withdrawal) Bill

Baroness McIntosh of Hudnall Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:

“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.


The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.

I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:

“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.


Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.

I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, with apologies to the Committee, I should have made it clear when the noble Lord, Lord Liddle, moved his amendment that, if it is agreed to, I cannot call Amendments 253 to 256, by reasons of pre-emption.

[Lord Cormack (Con)]

My Lords, I support strongly what the noble Lords, Lord Liddle and Lord Pannick, said. This is the underlying theme of the Committee stage of this Bill: what we are seeing is a proposed accretion of power to the Executive at the expense of Parliament. We have made this point numerous times over the past several days—it seems like years. It is crucial not only that my noble and learned friend the Minister gives some recognition and assurances today—we can ask for no less—but that the Bill is amended, preferably by government amendment, before Report. I have said this many times, but if taking back control means anything, it means taking back control for Parliament and not for the Executive. The Government have to recognise, in a way that, sadly, my noble friend Lord Callanan, seemed incapable of recognising the other day, that Parliament is supreme and that, in particular, the other place is where the ultimate decision should be made.

I do not want us to be on a collision course with government. I hope that the Government, recognising the fundamental constitutional importance of these issues, will agree to accede to your Lordships’ Constitution Committee and delete this provision in Clause 17. It is incumbent on a Government who are concerned about the supremacy of Parliament to do precisely that and not to leave within the Bill a clause that gives, theoretically, untrammelled powers in many circumstances to Ministers. I hope that my noble and learned friend will be able to give us some comforting words today but, however comforting the words may be, they will not be enough until this provision is removed from the Bill.