European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Sharkey]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be known to many noble Lords. I will be brief in dealing with what is essentially a simple procedural proposal.

The issue is delegated legislation. This has already been the focus of a lot of debate, much of which has consisted of expressions of anxiety about the likely number of instruments; about the range of the powers that they confer; about timing; and about Parliament’s ability to conduct proper scrutiny. There are varying estimates of the number of SIs that the Bill will produce. The noble Lord, Lord Callanan, said in his letter of 20 February that it will be between 800 and 1,000. Our own EU Justice Sub-Committee thinks it may be 5,000, as the noble Earl, Lord Kinnoull, noted on Monday. What is clear is that the number will be very large. The noble Lord, Lord Callanan, estimates that 20% to 30% of those SIs will trigger the affirmative procedure. That estimate is no doubt based on the rules for categorisation set out in the Bill, and will certainly prove to be an underestimate once the sifting committees get to work.

As has been noted, the SIs will give the Government an extraordinary and quite unprecedented range of powers. They will enable the creation of criminal offences without primary legislation, as the noble and learned Lord, Lord Judge, has explained to us; they will allow law-making by tertiary legislation; and they will allow Ministers and, apparently, 109 others largely unfettered discretion to range across the statute book. All this presents a formidable challenge to Parliament when it comes to effective scrutiny. The Government seem to recognise—a bit—that the situation is unprecedented and requires special care. They have written some constraints into the SI-generating clauses, but not enough and not wide enough. These constraints do not, in any case, address the problem of sufficient and effective scrutiny.

We will come to proposals for dealing with the scrutiny problem when we reach the group beginning with Amendment 237 on Monday. These amendments will enable the House to debate how it might adapt our current SI scrutiny system so that we may deal effectively with the avalanche of SIs coming our way. There are at least three schemes for us to consider. But whatever system of scrutiny the House finally settles on, it should apply to all SIs generated by this Bill. The same system, whatever it turns out to be, should also apply to all other SIs, whatever their parent Act, if they are to be used for the purposes of maintaining a coherent and functioning statute book on withdrawal from the EU. It would be quite wrong, for example, to have a rigorous system of scrutiny of SIs generated by this Bill and a less rigorous system for SIs used for withdrawal purposes generated by existing Acts.

This is not a theoretical concern. We know that the Government intend to use SIs generated by existing Acts when they consider that to be appropriate, or perhaps even necessary. The Solicitor-General made it clear in his speech on day 2 of Committee in the House of Commons that that is what the Government would do. In response to that, Amendment 200 sets out to create a common minimum standard of scrutiny. It simply requires that, no matter their provenance, all SIs with the same withdrawal purposes should be subject to the scrutiny procedures we finally agree on SIs generated by this Bill. It does this by making the appropriate amendment to the Statutory Instruments Act 1946, and by specifying in language taken directly from this Bill what “withdrawal purposes” means.

In a brief conversation about this amendment with the noble Lord, Lord Callanan, and his officials, they reminded me that this amendment could not bind future Acts. That had occurred to us. Any future Act could, of course, write its own rules for withdrawal SI scrutiny, or indeed for anything else. But, if that happened, the Government would have to explain to Parliament why one type of scrutiny was appropriate for SIs generated by the withdrawal Bill, with another for SIs with the same purpose generated by subsequent Bills. We should have one minimum standard of scrutiny for any withdrawal-purposed SI, and this amendment is aimed at doing exactly that. Whatever scrutiny standards we eventually adopt for SIs arising out of this Bill, they should be the minimum standard applying across all similarly purposed SIs, wherever they come from, and whatever their parent Act. I beg to move.

[Lord Hope of Craighead (CB)]

There is a good deal to be said for the amendment moved by the noble Lord, Lord Sharkey, when one bears in mind the power given in each of Clauses 7, 8 and 9 to make any provision that could be made by an Act of Parliament under regulations made under these clauses. Of course, one can look back to an existing Act, which could be amended by the exercise of this power, for a purpose related to the Brexit arrangements. If one takes an existing Act—one can visualise all sorts of situations when that might arise—it would seem right that the same procedure should apply if the amendment is made for the purposes which one sees in Clauses 7, 8 and 9.

For future Acts I can see there is a problem, because one cannot control a future Parliament, but as far as the past is concerned I respectfully suggest that there is a lot to be said for the amendment.

[Lord Beith (LD)]

My Lords, I am sorry I missed the beginning of the speech of my noble friend Lord Sharkey as a result of unaccustomed speed breaking out on the Bill’s proceedings while I was having a cup of tea. Whether this will be repeated, I do not know.

I had discussions before with my noble friend to properly understand his amendment and its main aim, which is to embrace, within scrutiny procedures used for withdrawal Bill statutory instruments, all those statutory instruments for the same purpose that derive from other previous statutes. That is an interesting idea. When it comes to referring back to the Statutory Instruments Act 1946, it is worth recalling that the Act was surrounded by generous commitments, promises that prayers against negative instruments would always have time for debate on the Floor of the House and all sorts of undertakings that were completely unfulfilled in practice.

Whether the amendment can be made to work in precisely this form I am not quite sure, but I think that the purpose of ensuring that nothing is slipped through by anything less than at least the procedure of triage and scrutiny that we seek for statutory instruments under this Bill—if it becomes an Act—is extended to anything that does the same thing. We certainly would not want to create a perverse incentive for a Government to use the wrong legislation, or a different piece of legislation, for the statutory instrument simply because they could evade a form of scrutiny by doing so.

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[Baroness Humphreys]

I do not think so, because this new group has just been formed in the last couple of months or perhaps a little longer.

This group bypasses traditional media outlets because they know that these are increasingly irrelevant to young people, who only access the news items that interest them via social media. Their media posting today uses cartoons to combine a serious message with humour and it is aimed at the Labour leader this time. Entitled “Dear Jeremy Corbyn”, it reminds him that “the young people have supported you, they need you to support them”. This non-politically aligned group has realised that the co-operation of all people who hold the same opinions as they do is essential.

As ever, matters to do with the European Union come down to the personal and emotional. For the last 25 years, I and my compatriots have been proud to call ourselves Welsh, British and European. Our EU citizenship has given us the right to travel unhindered throughout Europe and has seen us accepted in every European country we visited. In Europe, we are citizens of everywhere, and we resent the fact that this right is being taken away from us and that future generations will not have the benefits of EU citizenship that we have enjoyed.

[Lord Hope of Craighead]

My Lords, the noble Lord should be rather careful about drawing comparisons between the EU as a place to travel and to work in, and Australia and Canada. My son studied in Canada, where there is a strict visa system for students: you have to leave as soon as you have finished your course, and he had to be very careful to get himself out of the country before his permission ran out. You need a visa even to visit Australia, and I suspect that it also has rules for visas if you have to work there. Of course people go there, and that visa system is comparatively relaxed, but it is not the same as the freedom we have in the EU.

[Lord Adonis]

My Lords, if I may take over from where the noble and learned Lord, Lord Hope, left off, of course even the access we have to Australia is hugely facilitated by the fact that it is a former colony which has the same language and so many practices which are familiar to Brits, and is therefore a comparatively easy and familiar place to travel. It does not at all make the argument that somehow divorcing ourselves from the continent will enlarge opportunities for young people. However, I am a natural optimist—indeed, one could hardly be otherwise in the hours we are all investing in seeking to improve the Bill. Some good things are coming out of the Brexit process; actually, the whole thing might stop as a result of them.

The noble Baroness is completely right that one thing that is happening is the massive engagement by young people in politics and the political process. That did not take place before. We had all bought into the idea that the young were not voting or taking an interest in the future, and that politics was decided by the elderly. We had the triple lock on pensions at the same time as we were trebling tuition fees. Those two policies, more than anything else, symbolise the political centre of gravity in the last 10 years—students were expected to pay more and more of the burden of university education while the retired got a better and better deal. That is all changing now. The young are voting and are engaged as never before. They voted in the last general election in numbers which we have not seen for a generation. It is very clear to me that if we move, as I think is increasingly likely, towards a referendum on the Prime Minister’s Brexit deal, then either in that referendum or whenever a general election comes we will see very high levels of engagement by the young. I think it is now very likely that that will include votes for 16 and 17 year-olds—there is probably a majority in the House of Commons for that now. I know that the noble Lord, Lord Robathan, who is a natural conservative, will be fiercely opposed to that.

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[Lord Judd]

My Lords, I would like to thank the noble Baroness, Lady Stroud, for that speech—not just for the speech but because it was the voice of compassionate, socially engaged conservatism, which I have always respected. May that tradition in the Conservative Party reassert itself. It is desperately needed at this juncture in our history. What the noble and learned Baroness, Lady Butler-Sloss, said about the legal situation was also a powerful argument, which the Government must answer. Are we going to strip what have been legal rights away?

In the context of this Bill, we debate from time to time what sort of Britain we want to be, and the noble Baroness, Lady Stroud, was absolutely right. I share completely her view about the sort of Britain we should be. I want us to be a Britain in which the world sees “Compassion” in capital letters in all our approach to public affairs. We seem to have lost that and I want to see it reasserted. I thank my noble friend Lord Dubs for having moved this amendment. His consistent and tireless work on this issue challenges us all. If we talk about family and its importance in society, this is an issue which we can no longer prevaricate about.

[Lord Hope of Craighead]

My Lords, I believe that the noble Baroness, Lady Stroud, was absolutely right to say that respect for family life lies at the heart of this matter. That in particular was the basis for the regulation we are looking at, Dublin III, and this provision, which is talking about those unaccompanied adults and children from outside who wish to join a family member who is already here in order to make the application. It is about respect for family life as well as seeking to give the benefit of the asylum application under the convention, to which we are, after all, already parties. So without elaborating and with great respect to what has been said by everyone who has spoken so far, I too support the amendment.

[Lord Tunnicliffe]

My Lords, it is a great shame that there is not more of a consensus between the two—or three—parties on the issue of refugees. We have debated it much over the years. Recently, we have got to what I would loosely call an uneasy peace, which is essentially based on my noble friend Lord Dubs’s Section 67 and Dublin III. That has produced modest numbers, but there are very real numbers of people meeting very real problems.

The noble and learned Baroness, Lady Butler-Sloss, put her finger on it. The rights individuals have as a result of Dublin III must be maintained. I hope the Minister will be able to assure us that the Government will either accept these amendments or make a very firm commitment to assure us that, one way or another, the effect of Dublin III will be maintained after Brexit.