Retained EU Law (Revocation and Reform) Bill

Lord Hacking Excerpts

Consideration of Commons amendments
Monday 26th June 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think it is appropriate that I speak to Motion B1 in my name, on the issue of parliamentary scrutiny. That issue remains as important this afternoon as it has been since the Bill first arrived in this House and the noble and learned Lord, Lord Judge, addressed us, with his usual skill, as to the importance of the issue. I have been doing my best to secure its place in the Bill at every stage, but each attempt has been rejected, either as novel and untested, which happened twice, or as incompatible with the system that the Bill lays down, on the last occasion. I regret very much that I have not been able to devise any other way of achieving that object that would be acceptable to the Government.

However, I did find two words, buried in a long and rather complicated paragraph in Schedule 5, which I think may at least open the door to something which is worth looking at more carefully, and that is the subject of my amendment. I am particularly grateful to the noble Lord, Lord Callanan, for being prepared to speak to me so that I could explain the purpose of my amendment and ask him whether he would be prepared to make a statement, in effect, giving me, in his words, what I was asking for in my amendment: words of explanation about these two words and reassurance about how the Government propose to respect the need for Parliament to be kept properly informed and consulted at each stage as the process of revocation proceeds.

The two words I am talking about, by way of explanation, are to be found in paragraph 6 of Schedule 5, which sets out an elaborate screening process in a case where a Minister is of the view that these statutory instruments should be subject to the negative procedure. The protection lies in the hands of screening committees of both Houses, which can take the view that the instrument should be subject to the affirmative procedure. If that is done, the Minister has the opportunity to give an explanation and perhaps try to persuade the committees to change their mind.

The important point for my purposes is to be found in sub-paragraph (12) and the words:

“Nothing in this paragraph prevents a Minister of the Crown from deciding at any time before a statutory instrument containing regulations under section 11, 12 or 14 is made that another procedure should apply in relation to the instrument”.


It is the words “another procedure” that caught my attention, because there is no further explanation in the schedule as to what that other procedure might be, except that in the following sub-paragraph there is a declaration that the statutory procedure for laying regulations in draft under the 1946 Act is not to apply, so we cannot have the statutory procedure of the 40-day period; that has been ruled out. My question to the Minister is: what is this other procedure that is available? The Minister has been very good in explaining in considerable detail what he builds into these words. In effect, he is providing me with exactly what my amendment is asking for. I welcome very much the clarity of his statement and we will of course bear it very closely in mind as the process proceeds.

My concern has always been that we are moving into the unknown. We have been told many times that the dashboard contains information. The dashboard sets out a list of names of the instruments, but it does not tell us, at least at the moment, what is to be done with them. That is the importance of the statement that the Minister has made today, because we need to be told, as everything proceeds, what is going on and what is planned and be able to express our views as to whether the proposals are acceptable or sensible or otherwise. I thank the Minister for his statement and I also express my warm thanks to all noble Lords who have supported me throughout my campaign and enabled me to maintain my campaign to the point I have reached today, but in the light of what the Minister has very kindly said, I am not intending to press my amendment.

[Lord Hacking (Lab)]

My Lords, I thank the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, for their persistence on these issues that they have brought before the House. I hear with a little disappointment that the noble and learned Lord does not intend to press further with his amendment in its current form. From their efforts, it is absolutely clear that this House strongly holds that, if the Bill is to become law, it must contain proper parliamentary scrutiny over the treatment of all EU legislation, whether that treatment is to revoke, amend or approve it. There are in the region of 4,000 regulations that need to be considered.

I remind the House of the Divisions that have resulted from these efforts. There have been three Divisions on Report and two more in our jousts with the Commons during so-called ping-pong. On each occasion, we have replied not to the Government as a whole or to the House of Commons as a whole, but to a small caucus of Government Ministers and parliamentary draftsmen. I ask noble Lords to look at the substantial numbers in the House—up to 400 Members and sometimes more—who voted on all five of these amendments. For example, on 6 June no fewer than 439 Members voted and on 20 June no fewer than 422. The majorities on each occasion ran between 91 and 60 votes.

The question is what happens now. Sadly, although most understandably, it appears that the noble and learned Lord, Lord Hope, and, I imagine, the noble Lord, Lord Anderson, are saying that this is the time to give up. This could bring the Parliament Acts into consideration. I will not go into them, but I have examined their application very carefully. I have also had good conversations with the noble Lord, Lord Fox—he need not look so startled; he must remember them—about their relevance. The serious difficulty with the Parliament Acts is that, if we held our ground, the House of Commons would have to present this Bill in its original form to the House of Lords. As the noble and learned Lord wisely commented to me, “Oh really?” I took that plainly as a riposte for us not to involve them. The question of the Parliament Acts must now arise on another occasion, which may not be far off.