European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I start by thanking my noble friend Lord Rooker for reminding us of the work of Lord Renton. Those of us who were privileged to serve in this House with Lord Renton, and others who served in the other House with him, will well recall what my noble friend said about his work. We would do well to remember it and so I thank my noble friend for reminding us.

As for the amendment moved by the noble and learned Lord, Lord Judge, it would be very difficult, if not impossible, not to feel the force of the logic that he so powerfully expressed. As the noble Lord, Lord Lisvane, said, it is not a very strong response to say that there are protections in the way in which statutory instruments will be presented to this House and the other House. I add to that the fact that there are other protections this House has said are necessary, at least in relation to certain changes, for example those which might affect elements that require—as this House has said—special protection when it comes to the use of the delegated powers this Bill is intended to provide.

Having said all that, there remains a strong logic in what the noble and learned Lord, Lord Judge, has said, and I think we all hope that is carefully considered by the Government, for both this Bill and future Bills. It is fair to say—like the noble and learned Lord, Lord Judge—that at least this Bill has some restrictions on the way these powers may be used, and I commend his requirement—his request—that when Ministers give reasons for the use of these powers, we understand just what they have in mind. This House and the other place should look carefully at that. That said, we will wait to see what the noble and learned Lord will do with his amendment.

What is being said about Amendment 53 is to be welcomed. That should not be overlooked. The noble Lord, Lord Callanan, has added his name to this amendment. It is one of the few occasions—I think the only occasion—when one gets five names on an amendment: when a Minister sees the error of his ways and adds his name to the amendment. That remark may be churlish of me—the noble Baroness, Lady Goldie, is nodding vigorously—but the important point is that we welcome the Government’s acceptance of that amendment. That was the most egregious part of the Henry VIII clause: that it should be possible to use it to amend even this very Bill, which your Lordships have spent so many hours and days debating. It is, therefore, good to see that go.

I ask the Minister—I think it may be the noble Baroness—to confirm one thing. Amendment 53 omits the words “including modifying this Act”, which currently appear in the clause. My belief is that those words were there because without them it would not be possible to use the power to amend the very Act in which the power appears. I believe that is stated in parliamentary counsel’s guidelines on clauses such as this.

I very much hope the noble Baroness will confirm that when she responds to the amendment. I know that attempts were made through the usual channels to make sure that whoever responded to the debate had notice of that question. I hope, therefore, that she has been adequately briefed on it. I think, however, that your Lordships will want confirmation that that is the purpose of this amendment. It was certainly the purpose when it was tabled: that it should take away this most egregious possibility of being able to use the power to amend the very Act itself. I will give the noble Baroness time to get clarity on that, but I can assure her that attempts were made through the usual channels to ensure that she was not taken by surprise by it. I do not know quite what happened.

In any event, we would certainly want Amendment 53, when we get to it shortly, formally moved by the noble Lord, Lord Lisvane, and I look forward to supporting it then. In the meantime, I wait to see how the noble and learned Lord deals with his amendment.

[Baroness Goldie (Con)]

My Lords, let me start on a positive note. My noble friend Lord Callanan was indeed pleased to add his signature to Amendment 53, tabled by the noble Lord, Lord Lisvane, which will remove the ability under Clause 9 to amend the Act itself. I note that this amendment is supported not just by the noble Lords in whose names it lies but by the Delegated Powers and Regulatory Reform Committee of this House. It was one of that committee’s recommendations for the Bill and, given that the Government are happy to support this amendment, we are pleased to be in such illustrious and learned company. It is a heady experience, I have to say.

I am sure that noble Lords will welcome this amendment to a part of the Bill that has continued to cause concern to many throughout its passage. It is important to explain why the Government included such a measure at the time of introduction—this may partly address the point raised by the noble and learned Lord, Lord Goldsmith. When the Bill was first drafted, this provision was not an attempt to hold open a back door to circumventing or undoing any of the protections or constraints in the Bill. Rather, it was seen as a necessary step to provide the flexibility to respond to developments in negotiations. Indeed, the fact that aspects of the Bill may need to be amended, depending on the outcome of these negotiations, still remains. Our acceptance of this amendment does not reflect a change in that regard. Rather, the decision to introduce in due course a withdrawal agreement and implementation Bill, which will give effect to the implementation period, the citizens’ rights agreement and the financial settlement, among other provisions of the withdrawal agreement, provides another door through which the Government may make all the changes required.

Without a strong justification for retaining Clause 9’s ability to amend the EU withdrawal Bill once it becomes an Act, the Government are indeed content to remove that ability. As with our amendment to remove Clause 8, I hope this shows the Government’s commitment to working with Parliament and I reassure the noble and learned Lord, Lord Judge—

[Baroness Goldie]

I listened with interest to that point, but I am not sure that I entirely agree with that construction of the change to Clause 9(2). Amendment 53 means that we will not be able to amend the Bill when it is an Act. It therefore restricts the scope of the power, which seems to have met with the satisfaction of those who have put their names to it. As I have said, that is a positive and, I hope, a helpful reassurance from the Government.

[Lord Goldsmith]

Can we just agree that, as far as the noble Baroness and the Government Front Bench are concerned, it is the belief of the Government that removing the words as proposed in the amendment to which the noble Lord, Lord Callanan, has put his name, would preclude the power in this clause being used to amend the Bill once it becomes an Act?

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords—

[Lord Goldsmith]

My Lords, my noble friend Lord Dubs, in moving this amendment, described it as a modest proposal. It is modest in two respects. First, for the reason that he gave: all he seeks is to replicate the current arrangements, already approved by Parliament and in operation at the moment. That is not a great change at all from where we are. There is a second reason that it is modest: I pay tribute to his modesty in producing this amendment, having fought for the previous amendment, having persevered, and he is absolutely right to ask the House again to support it. I hope the House will.

It sounds as though the Government are entirely in agreement with the objectives. They agree on the need to protect the most vulnerable children and to provide this way of safety for them to claim asylum where appropriate. It sounds as if the only difference may be over the way to deal with it. Everybody, including my noble friends Lord Dubs and Lord Bassam, the noble Baroness, Lady Sheehan, and the noble and learned Baroness, Lady Butler-Sloss, whose names are on the amendment, recognises that this will require negotiation with other countries, because we cannot do it entirely on our own. Does the Minister agree that if this House were to say in a clear vote tonight what it thinks the Government should do, and put it in the Bill, that will actually strengthen the hand of the Government when they come to negotiate with other countries and others? They will be able to say, “This is what our Parliament wants”—assuming that the other place agrees. Those circumstances will make it much easier to negotiate; that may be the only point.

I am not going to take any more of your Lordships’ time: I think it is time either for the Government to accept the amendment, as I hope they will, or, if they fail to do so, for my noble friend Lord Dubs to divide the House, in which case we will strongly support him through the Lobby.