European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

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

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on some of these amendments. I will be extremely brief. We are now at the core of the Bill, and at the core of how the Government respond to it. I cannot recall reading two such critical reports from committees of this House as the two we have had on these clauses— for example the suggestion that Clause 9 is wholly unacceptable and the suggestion that Clause 7 leaves very considerable uncertainty, both of which are from the Delegated Powers Committee. I therefore ask the Minister to offer us the prospect that the Government will come back on Report with their own recognition of the strength of feeling in this House. Without question, the Government will lose heavily on this the first time it is tested, and quite possibly again after it has gone back to the other place if the Commons sustains it.

We are in a position at which we need from the Government some reassurance on these constitutional issues, as well as these issues of trust, as they put through a Bill with a huge range of flexibility. We need reassurance on the Government’s future intentions, as their future intentions on much of this are still not entirely clear. I simply ask the Minister to be generous and to stretch his freedom of action as far as he can in the way he responds.

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

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In fact, the Government seem to have portrayed it as some kind of limitation in itself, but I do not read subsection (3) like that. Having purported to restrict Clause 7(1) somewhat, in response to the criticisms in the other place, the Government then attempted to put back the greater latitude in subsection (3)—that Ministers can regulate if there is a “similar kind” of deficiency. What on earth is “similar”? Of course, that begs a big question, but it seems to me that this was not properly examined in the other place. It just got slipped in as part of a response to concerns but it actually adds to the concerns about ministerial powers. It certainly does not remove them but inserts a new cause of worry. So I fully support Amendment 80, which would delete subsection (3), because subsection (3) undoes the good work that was done in a modest tightening-up of Clause 7(1).

[Baroness Whitaker]

My Lords, I support my noble friend’s Amendment 82. Yet again it is the issue of using secondary legislation under Clause 7 to make changes, in this case to the Equality Act 2010 or to subordinate legislation made under that Act, or to reduce rights or remedies under EU retained law,

“in comparison with the position immediately before exit day”.

Your Lordships’ Committee made its views on the abuse of Clause 7 abundantly clear during the earlier debate. Surely the same reasoning applies.

[Lord Beith]

My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:

“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.


In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?

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[Baroness Altmann (Con)]

My Lords, I have added my name to these amendments. I believe that public bodies should be established by primary legislation. Parliament must have the opportunity to properly scrutinise and access the expenditure associated with trying to replicate bodies to which we already belong. The Bill, and in particular Clause 7, contains elements that are frightening to those of us who believe in parliamentary democracy. Handing such powers to the Executive is a gross dereliction of duty. I encourage my noble friend to urgently ask his department to reconsider the Government’s current intention to leave so many excellent EU agencies and try to recreate our own versions.

[Baroness Whitaker]

My Lords, it must be inherently undemocratic for bodies that have significant obligations, for instance under the Equality Act or the Human Rights Act, not to be set up with the full parliamentary scrutiny of primary legislation, so I support these amendments.