European Union (Withdrawal) Bill

Debate between Lord Faulks and Lord Falconer of Thoroton

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, three pretty clear themes are emerging around the House. First, you should be able to use the subordinate legislation to change EU retained law only where it is necessary to make EU retained law work. Secondly, it should affect only technical matters; and thirdly, it should not take away any individual’s rights. So there are three requirements: it must be necessary to make it work, affect only technical matters and not take away anybody’s rights. The argument for being allowed to go further has not been made anywhere, and I would be very interested to hear the Minister say why those three principles should not apply to every piece of subordinate legislation under the Act. If the Government want to go further, primary legislation should be used. Unless there is a case for going further, this Act should be appropriately limited.

[Lord Faulks (Con)]

The Bingham Centre makes the very cogent point that there is no clear analysis so far as to what the body of EU law is in an easily accessible form, so that businesses and individuals can ascertain what applies to them. However, the Solicitor-General said in the other place that there are 12,000 EU regulations currently in force in the UK and around 7,900 statutory instruments implementing EU legislation.

I understand the fears expressed around the House, particularly on the opposite Benches about the feeling that the Government have all sorts of sinister plans to take away rights. They will do so if they feel it necessary, by primary legislation, it is said, but no other way. This amendment would make it very difficult to do anything other than by primary legislation. First, a list of so-called technical provisions has to be established—a considerable challenge. No changes can modify any of the matters which are set out in Amendment 21. Those matters seem to cover more or less everything. What is to say that labelling and packaging is not a matter for consumer standards? Matters of health and safety entitlements, equality entitlements and rights of protection—almost anything can come within those definitions. Similarly, there are environmental standards and protection. I am not talking about fundamental matters such as the working time directive, but a great deal of the various regulations and statutory instruments that come from Europe are relatively trivial. Even those who endorse very much what has come from Europe would accept that not all of it is critical or crucial to our society going forward. That will make it almost impossible to change anything, which may be the desire of members of the party opposite who do not want to leave the European Union—or those all around the House.

That is the effect of this amendment. So far as Amendment 22 is concerned, on “human rights protection”, the noble Lord, Lord Cashman, was very succinct; he did not specify what “human rights protection” meant. We had a debate on the Charter of Fundamental Rights—

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Faulks and Lord Falconer of Thoroton

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 29th November 2017 Lords Chamber

[Lord Falconer of Thoroton]

The width of this power seems extraordinary and constitutionally offensive. As I understand the drafting of the Bill, it is open to a Minister to pass regulations which allow him to identify individuals on whom he can impose a sanction or prohibition that he has invented. What is more, the only restriction on him is that it must be for the purposes set out in Clause 2(1). If the Minister honestly believes that the invention of a new sanction or prohibition is justified by “a foreign policy objective” of the Government—for example, gaining support from one country by attacking its nationals in this country—the power given by Clause 39 would entitle them to invent a new prohibition and impose it by regulations. Furthermore, should any primary legislation stand in the way of a Minister inventing such a new prohibition that he or she believes is designed to promote a foreign policy objective, that primary legislation can be amended to get rid of an objection by the very same regulations under Clause 44(2). That a Minister could do by secondary legislation such a thing—for example, restrict somebody’s spending their own money, prevent them leaving their home, take away their car or stop certain sorts of bank account being used—without primary legislation strikes me as well beyond what any responsible Government would think should be done by secondary legislation. Can the Minister confirm that my analysis of what could theoretically be done is right, and explain why it is appropriate that that be done by secondary legislation?

[Lord Faulks]

The noble and learned Lord puts a rather sinister construction on this clause. I do not want to add to my noble friend’s discomfort, but I need some persuading that Clause 39 is necessary given the width and nature of the sanctions and the purposes. It was important that the Government resisted the attempt to narrow “a foreign policy objective”, which was an amendment that we debated on the previous occasion, but “a foreign policy objective” gives the Government quite a lot of room for manoeuvre having identified an appropriate sanction. While I suspect that Clause 39 was inserted as a “just in case” provision rather than to give Ministers extraordinary power of the sort that has been discovered, it nevertheless remains at least open in theory to a Minister to exercise power in a way I think all noble Lords find difficult to accept.

[Lord Falconer of Thoroton]

I intervene only to say this: I did not suggest that the motive of the Government was to do this. My experience as a Minister is that you put through legislation and many years later, after emollient assurances given in the House of Lords, those pesky lawyers look at what is possible under the Act. What I have described is possible. Let us imagine if those very same pesky lawyers said, “Well, you might have difficulty getting that through with primary legislation because of the extraordinary width of the powers, but actually we’ve found these rather clever powers in the Sanctions and Anti-Money Laundering Bill which allow you to do it without primary legislation”. That is the danger.