European Union (Withdrawal) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

238: Schedule 7, page 45, line 23, at end insert—
“Parliamentary committees to sift regulations made under section 7, 8 or 9 and the super-affirmative procedure
3A_(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument to which paragraph 1(1), 6(1), or 7(1) applies, and(b) is of the opinion that the instrument should be subject to approval by resolution of each House of Parliament (“the affirmative procedure”). (2) Before laying a draft of the instrument, the Minister must lay before both Houses of Parliament a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the affirmative procedure.(3) The affirmative procedure applies unless, within the relevant period, either House of Parliament requires the super-affirmative procedure to apply, in which case the super-affirmative procedure applies.(4) A House of Parliament is taken to have required the super-affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the memorandum was laid before the House, that the super-affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made.(5) For the purposes of this paragraph—(a) where an instrument is subject to the super-affirmative procedure, it may not be made unless the procedures set out in paragraph 3B have been followed,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Section 6(1) of the Statutory Instruments Act 1946 (alternative procedure for certain instruments laid before Parliament) does not apply in relation to any statutory instrument to which this paragraph applies.”

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, this is the graveyard shift, but graveyard shift or not I shall speak also to Amendment 239. It is my first contribution in Committee on this Bill and when one finds one’s amendment sandwiched between ones being moved by such luminaries as the noble Lord, Lord Lisvane, and my noble friends Lord Norton of Louth and Lord Lexden, one needs to proceed with a certain degree of care. In these amendments I return to an issue I raised at Second Reading; namely, the weaknesses of the procedures for scrutinising secondary legislation, which the noble Lord, Lord Tyler, talked a great deal about very fluently in his contribution a few minutes ago. In my view, in the very special circumstances that prevail with respect to this country’s departure from the European Union, I was concerned that, maybe inadvertently, there could be what is vulgarly called a power grab by the Executive during this process of redrawing our relationship with the EU and refocusing our legal and regulatory structure on a UK-centric basis.

In part, these amendments may serve to address some of the issues, and concerns raised in earlier debates; notably by my noble friend Lady Neville-Rolfe in Amendments 249 to 251, which we were debating in the early hours of last Tuesday morning. As I say, my fundamental concern remains the weakness of our procedures for scrutinising secondary legislation. The noble Lord, Lord Sharkey, referred to what he graphically called the nuclear option, which is really the only option open to us. Not surprisingly, while Members of your Lordships’ House will finger the nuclear button—sometimes even lovingly finger the nuclear button—they have proved rather reluctant to press it. I am not a lawyer, nor am I an expert on parliamentary procedure, so I need to place on record my great thanks to the Public Bill Office of your Lordships’ House for helping me give legal form to my practical objections. Therefore I do not pretend that Amendments 238 and 239 are perfect: they are of course at this stage probing amendments, not least because I expected that my noble friend the Leader of the House would have some words to say today about the evolving position of the scrutiny of Brexit secondary legislation.

None the less, the purpose behind my amendments is to give the Committee a chance to discuss a possible new procedure that might be described as a sub-nuclear option; a new super-affirmative procedure to be available for use where particularly significant statutory instruments are being discussed. In establishing this new procedure I have sought to achieve a balance between, on the one hand, the need of the Government to have a reasonable chance of getting their business through—as we have heard in earlier debates tonight, it would surely be irresponsible for us not to have the proper legal practice in place on D-day, therefore the Government need some protection against capricious behaviour—and on the other hand, to give either or both Houses of Parliament the means to require the Executive to think again, and to do so over a timescale that allows public and other opinion to be aroused, discerned and tested, thereby reducing the possibilities of mission creep.

Finally, the think-again option should be limited to regulations concerning this country’s withdrawal from the European Union, so it has an in-built sunset clause. My thinking has been informed, to some extent, by the time I served as a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House. So, with that, to horse!

--- Later in debate ---

[Baroness Goldie]

At this time of night my reading qualities are not at their most alert. May I look at that in more detail and revert to my noble and learned friend?

[Lord Hodgson of Astley Abbotts]

My Lords, I thank my noble friend for her reply. She short-changed herself in only one sense: that was that the noble Lord, Lord Adonis, described her as mellifluous. Never was she more mellifluous than in dealing with the noble Lord, Lord Beith, and my noble friend Lady McIntosh. The hour is late; we have had a long and helpful contribution from my noble friend the Leader of the House which demands careful scrutiny, so all that I would like to do now is to thank all those who participated in this short debate. I beg leave to withdraw the amendment.

Amendment 238 withdrawn.