European Union (Withdrawal) Bill

Lord Hope of Craighead Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I can see that. On the other hand, it is sometimes wise to be prepared if you can foresee a thing that is required and have it ready. We also have the scope to discuss it in this Bill, whereas I imagine the discussions on the withdrawal agreement Bill will be pretty complicated—I assume the latter will be a good deal more complicated than this Bill, and if it is going to require the sort of consideration that this Bill has had it will take some time. There is something to be said for trying to prepare, but of course it is necessary to ensure that the preparations are adequate—that is what the amendment of the noble Lord, Lord Lisvane, deals with.

I am conscious that we may be trying to regulate the House of Commons a bit. I have never had the honour of being a Member of the House of Commons, as so many of your Lordships have, but my impression is that the House of Commons has plenty of powers to control what the Government do. Of course, if necessary, it has a very extreme power in that connection.

[Lord Hope of Craighead (CB)]

My Lords, I mentioned on Monday that an aspect of Clause 9(2) is of concern to the devolved Administrations. How does the Sewel convention fit into the scheme which Clause 9(2) sets out? If one were making the amendments which are being contemplated by an Act of Parliament it would be plain that the Sewel convention, with its effects, would apply to that statute—and the Government have always shown their willingness to follow the convention according to its terms. But if a Minister makes a provision by delegated legislation then, as I understand it, the Sewel convention does not apply, because Sewel was talking about primary legislation. Is the Minister prepared to undertake that the principle of the Sewel convention will apply to an order made with reference to Clause 9(2), which makes a provision that would otherwise be made by an Act of Parliament?

The importance of this question has been highlighted, if I may say so, by the point made by the noble and learned Lord, Lord Mackay of Clashfern, because by necessity this would have to deal with legislation which affects the devolved Administrations in areas devolved to them. The ordinary rule is that that would not be done without their consent. Clarification is needed. The Minister may feel that she cannot give me a clear answer today. If she cannot give the undertaking that I am looking for, I would be very grateful if she would write, because this affects the way I would view any vote on this issue. It may also affect what we talk about on Report.

This is a very important matter. The issue has really been thrown up by the way in which the clause has been drafted—and it has no doubt been drafted in this way for good reasons, as the noble and learned Lord, Lord Mackay of Clashfern, has explained. If one is to have this clause, clarification is required.

[Lord Bilimoria]

My Lords, I support both these amendments. I appreciate what the noble and learned Lord, Lord Mackay, with all his experience, has said to us to try to explain why these particular clauses exist and the intention behind them. But from my experience in business, whenever I have had any problems with a contract it is because there have been grey areas or clauses have not been clearly drafted, leaving scope for different interpretations. Here we are beyond grey areas or a badly drafted clause in a contract—this Bill gives unfettered powers to the Government. We have to realise that the Prime Minister using these powers may not be Theresa May—it could be Boris Johnson or Jacob Rees-Mogg.

How many thousands of statutory instruments are the Government expecting to implement as a result of this Bill? It is important to note that it is very difficult for the House of Lords to challenge statutory instruments. With primary legislation, we have the role of challenging what the Commons has done—as we are doing now. Quite often what the Commons does is nowhere near good enough. That is why this House has hundreds of amendments to this Bill and had over 500 amendments to the higher education Bill. That is our job. But when it comes to statutory instruments, we were warned very clearly in 2015, “Don’t go too far. It’s not your job to challenge them too much”. The noble Lord, Lord Lisvane, in his excellent introduction to his amendment, spoke of the three “S”s, one of which is scrutiny, but we will be deprived of that scrutiny by these unlimited powers.

Going one step further, this issue goes back to the constitution and the delicate balance between not only the Executive and the legislature but the Executive and the judiciary. Will the Minister acknowledge that statutory instruments can be challenged by the judiciary? Do we want to have non-stop challenge by the judiciary, overriding Parliament, when we should have the power and take back control? Do we want that to happen? It is much better that things are absolutely clear. Therefore, these amendments are crucial, because it is too dangerous and, quite frankly, irresponsible to give any Government such unfettered powers.

--- Later in debate ---

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.

[Lord Hope of Craighead]

I am very grateful to the Minister for that answer but my point really is: what happens if the Minister of State decides to exercise the power? Obviously, the question in the first instance is whether the devolved legislatures would give consent to what is in the Bill, but my question is directed to the next stage, which is the exercise of the power, which the Minister has quite rightly said is not covered expressly by the Sewel convention. The question is whether the principle that underlies it would apply to the exercise of the power when it is exercised by a Minister of State. It may be that Ministers would like to think about that before giving a definitive answer, because it is a very important question and relates to something we may have to come back to on Report.

[Baroness Goldie]

I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.

I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.