European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Tyler (LD)]

My Lords, I am a co-signatory, with the noble Baroness, to Amendment 3, which leads this group. There is little that I need to add to what she has already said or, indeed, to what was said in the debate last week. However, I would like to raise one or two points with the Minister.

Looking at this as dispassionately and objectively as one can, one wonders whether Clause 21 was drafted before there was any confidence that there would be a new devolved Administration in Stormont. The impression is given that everything was going to have to be decided in London still, whereas since then there has been a very dramatic and welcome change in Northern Ireland—I give credit to the Minister and his colleagues for the part that they played in that. However, it looks as if this was thought through before that element was fully appreciated. It makes much better sense to go through the proper process of primary legislation and not to divert into secondary legislation for this purpose.

Last week, I quoted the noble Lord, Lord Anderson of Ipswich, who referred to this clause as being, “Henry VIII on steroids”. It is the most egregious example of a really powerful use of a Henry VIII power in the whole Bill. There are several others, but this is the most obvious one because, as the noble Baroness has already said, it allows the change in the statute to be made without a reference to Parliament fully in its role as scrutineer. The Minister will recall that, in a powerful recommendation, the Delegated Powers and Regulatory Reform Committee said:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”


The Bill should spell out how the power should be used, rather than the House just getting assurances from the Minister.

In last week’s debate, the Minister was kind enough to refer to this issue in the following terms:

“It would be very easy for me to say: ‘You have just got to trust me’. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland.”—[Official Report, 14/1/20; col. 639.]


As the noble Baroness has said, there is apparently such a letter: I have not seen it. I took part extensively in that debate. I was in the Committee until almost the last moment on Thursday; I was in the House again this morning at 9.30 am. I cannot be accused of being absent on leave; I have been around. Why did that letter not come to me? From what the noble Baroness said, I can assume that there is an attempt to justify this part of the Bill. I have huge respect for the Minister and his respect for this House is well known, but, frankly, it is not satisfactory for Members of your Lordships’ House to be given that sort of undertaking from a Minister. It makes it very difficult for me and, no doubt, other Members who attended that debate but did not take part, if they have not seen the justification given in the letter.

Given that the House has now voted to amend the Bill, it is going to the Commons, even if it is for a very short time. There must surely be an opportunity for the Minister to explain on the record—not just with a letter, which may go astray—why the exceptional use of Henry VIII powers which I have described is being made at this juncture. That is all I need to say at the moment, but I shall listen with great interest to what the Minister may say. Perhaps he is going to read us the letter.

[Lord Howarth of Newport (Lab)]

The noble Lord, Lord Tyler, refers to this as an “exceptional use” of Henry VIII powers. I wish I could be comforted to that extent, but it seems to me that the use of Henry VIII powers is an endemic vice in government, and I wonder why Ministers and officials never learn. The Henry VIII powers taken in relation to Clause 21 are very extensive indeed. I certainly accept what the Minister says, that it is not their intention to amend the devolution settlement, which ought to be amended by primary legislation. It is, none the less, offensive in principle to take such powers: it does not need to be done. The Government seem to think it is expedient, but it is actually very bad for trust between Parliament and the Executive, and, I think, bad for trust between politics and the people.

The Minister and I had a brief exchange in Committee on this, and on the particular question of whether the powers that the Government propose to take to themselves to alter primary legislation, or even abolish primary legislation by statutory instrument, would be subject to the affirmative or the negative procedure. He said his advice from his officials was that they would be subject to the affirmative procedure, and I agree that that is indeed the case where Clause 21 is concerned, but when we come to Clause 41, which is the most all-embracing, there is a socking great Henry VIII power. It is an almost megalomaniac provision and there is no such assurance available. As I understand the legislation, and as the Delegated Powers and Regulatory Reform Committee, more significantly, understands the legislation, the exercise of those powers under Clause 41 would be by the negative procedure. That is even more offensive, and it would be very helpful if the Minister would comment.

I hope the Minister will accept that, as a matter of general principle, the use of Henry VIII powers is objectionable; that if they are to be taken, they need to be defended in very clear and specific terms, as they have not so far been in the consideration of this legislation; and that the offence is compounded where the proposal is that the exercise of those powers should not be subject to the affirmative procedure.

[Baroness Butler-Sloss (CB)]

My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”


That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.

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[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy and Northern Ireland Office (Lord Duncan of Springbank) (Con)]

Forgive me, my Lords—I was too premature in eating my Polo Mints; I will save them for later.

As expected, this has been quite a technical debate, and I will do what I can to offer further details on some of the elements I have spoken of. The first thing I should stress to the noble Lord, Lord Tyler, is that the letter was sent to his Whips for onward distribution; it would have gone there on Thursday of last week, and I believe that the same is true for those on the Labour Benches. The letter has been sent out and made available. I am very happy to resend it, so that he can have the details, and I will not belabour the House by reading it out again.

At issue in this debate is the question of the scope and depth of the powers, and we have heard much reference to Henry VIII. I emphasise that Clauses 21 and 22 are required to enable both the UK and the devolved Administrations to fully implement the Northern Ireland protocol. Secondary legislation will be needed to further implement certain elements of that protocol before December 2020, which is the end of the implementation period. As a number of noble Lords noted, failure to do so could affect the ultimate agreement between the EU and the UK, with negotiations being conducted in the light of the UK not fulfilling its obligations under the withdrawal Act. What we are saying is that, in the calendar year ahead, there is much to be done and much is still uncertain, because it will emerge from the negotiations that take place between the UK and the EU. It is important to stress also that, where the issue affects the Northern Ireland protocol, the Northern Ireland Executive will have a role and be involved.

The powers we seek are broad, but they are constrained. First, they are Northern Ireland protocol-specific and can be exercised only to implement the protocol, to supplement it within domestic law or to deal with matters arising out of, or related to, the protocol. Regulations beyond this scope are ultra vires. It is important to stress that, as it limits what these powers can be used to do. A number of noble Lords have suggested that they could be wide-ranging and could up-end or repeal the fundamental devolution settlements for Scotland and Wales. In fact, because they are so specific, that is not a possibility.

Further, any use of the power in Clause 21 that seeks to amend primary legislation, including the fundamental devolution statutes, will be subject to the affirmative procedure. There is no suggestion whatever that this will be done in secret, or in any attempt to blind-side this or the other place. The purpose is to ensure that there is full scrutiny by all the authorities within these Houses. The procedure attached to the use of this power means that there are no circumstances where the Government could change or amend the devolution statutes without the full involvement and scrutiny of both Houses. It affords the fundamental opportunity, according to custom and practice, for this and the other place to be engaged. On the Government of Wales Act 2006 and the Scotland Act 1998, the Bill grants no vires for wholesale repeal of any of the devolution statutes—and I repeat “any”.

I turn to the specific points raised in the amendments. On Amendment 3, the powers are necessary to align Northern Ireland with certain elements of EU law. It is therefore necessary to ensure that the power in Clause 21 can be used to amend the withdrawal Act to ensure that the arrangements required in the protocol are operational and the statute book does not contain uncertainty. That is to happen in the time we have spoken of—by the end of this year.

The power will not be used to repeal any substantive provision in the European Union (Withdrawal) Act 2018. The noble Baroness, Lady Hayter, asked why the Government would wish to amend the withdrawal Act. I assure the noble Baroness that the Government have included the power with due consideration. If the statute book is not clear and in legal conformity with elements of the withdrawal Act, confusion and uncertainty could well result. Again, I reinforce that the Government cannot use this power to make changes to the 2018 Act for any purposes beyond those required for the full implementation of the protocol. It is the protocol itself that gains the ascendancy and restricts the onward actions in a wider sense.

The limits in Amendment 4 risk preventing the United Kingdom fulfilling its international obligations under the Northern Ireland protocol. The proposed restrictions create problems. Several details of the protocol require further decisions in the UK-EU joint committee to become fully operational. The Government have committed that representatives from the Northern Ireland Executive will be invited to form part of the UK delegation in any joint committee meetings where Northern Ireland-specific matters are discussed, and where the Northern Ireland Government are present. This is evidence that the UK places significant importance on maintaining Northern Ireland’s unique place in the union. It is important that, after a very long absence, we now have an Assembly and an Executive in Northern Ireland.

The Government will not use these powers to repeal the devolution statutes wholesale. Indeed, they are wholly incapable of doing so because of the inherent limitations of the power, which I have already touched on. It is the Government’s firm intention to fully engage with the devolved Administrations, and it will be important to do so with regard the withdrawal agreement, and to ensure that the protocol itself is correct and delivered in the right manner.

On Amendment 7, the power is necessary to implement certain elements of the protocol that are within devolved competence. Any modification of the Government of Wales Act 2006 by way of the power in Clause 22 could in practice occur only with the agreement of the Welsh Government; it is only with their full participation that Clause 22 could be delivered. The amendment could impede the Welsh Government in exercising their own legitimate power when implementing the protocol in areas of devolved competence in a manner that they deem appropriate. So, again, the clause, if amended in that way, would cause the Welsh Government a problem in the natural fulfilment of their powers.

The Government fully seek and intend to proceed in the spirit of engagement and co-operation with the devolved Administrations, and that will include the Joint Ministerial Committee. We should bear in mind that that committee has two strata that we are concerned with. The first is one with which the officials themselves are fully engaged; a lot of the issues that we are talking about regarding the Northern Ireland protocol are technical issues that will be dealt with primarily at official level. The second is the ministerial level at which decisions can be taken. The powers themselves are deemed to be essential and are required to implement the protocol.

I will try now to address some of the specific points raised by noble Lords today. The first, which is the most important, is the question of why the Government do not seek to use a Section 109 Order in Council. A number of Peers raised this point, suggesting that it is the correct way. I too was curious and sought specific advice on this. A Section 109 order can be used where appropriate to make amendments to Schedules 7A or 7B to the Government of Wales Act 2006. It would work in those areas. However, if amendments outside the scope of a Section 109 order were required, as updates to the protocol might require, it would not be possible to rely on a Section 109 order to make them. It is important to stress as we look at that that the Section 109 order would be adequate in only certain circumstances, not in all circumstances. Therefore, we cannot rely on that method to move forward.

There was also a question about other means that could be used. A question was raised by a number of noble Lords about whether powers to direct Welsh Ministers could be used to deliver this. Powers to direct are to compel acts in areas of devolved competence. Section 82 of the Government of Wales Act, which the noble and learned Lord, Lord Thomas, referred to, does not allow for amendment of the devolution statutes, which might be needed to implement the protocol. So, again, this route is not available to the Government to address the matters that might result from the ongoing negotiation between the EU and the UK.

I am being corrected, so I will put this on the record. On the joint committee, I should have said that for meetings discussing NI-specific matters and where the Irish—not the Northern Ireland—Government are present, representatives from the Northern Ireland Executive will be invited. Let me be clear on that.

The difficulty we face in this regard is that we now have before us several elements that we need to keep focused on. We will need powers to change the elements required for the Northern Ireland protocol itself. On the question of the concomitant impact on the Scotland Act or the Wales Act, the reason we have been so clear on this is that they will potentially be affected as elements of the negotiations unfold. That is why there needs to be an opportunity for them to be amended in the focused area, as required by the Northern Ireland protocol. They cannot be amended in a wholesale manner, whereby they could be repealed, revoked or amended beyond their constitutional necessity. That is why I was very clear in a letter that I wrote that the important point to take here is that these themselves can be addressed only via the need to institute the elements of the Northern Ireland protocol.

I am fully aware that this is an important issue and that people in Northern Ireland, Wales and Scotland are looking at this with some interest. The reality is that over the next few months we will have a serious negotiation on the future relationship between the UK and the EU, particularly on the Northern Ireland protocol. That will impact on the whole of the United Kingdom and all its manifest elements. However, I am also aware that I might not have fully satisfied your Lordships. If I have not, your Lordships might wish to take the mood of the House, because I will not be able to return to this matter at a later stage.

[Lord Howarth of Newport]

Before the Minister sits down, will he explain why the very extensive and potentially arbitrary powers the Government propose to take under Clause 41 are not subject to the affirmative procedure?

[Lord Duncan of Springbank]

I had a note on that. I will have to write to the noble Lord, because I am not sure that I can put my hands on that particular matter at this second. If he will allow me, I will come back to him on that. The point is that the amendments we are talking about concern Clauses 21 and 22, not Clause 41, which would not be amended by these particular amendments.

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[Lord Pannick (CB)]

My Lords, I declare an interest as a practising barrister. I have signed Amendments 12 and 13, tabled in the name of the noble Lord, Lord Beith, but I am very happy to support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern. The reason is that Clause 26 is fundamentally objectionable, because it would give the Minister a delegated power to decide which courts should be able to depart from judgments of the Court of Justice and what test those courts should apply. These are powers which step well over the important boundary between the Executive and the judiciary. They are matters which should not be decided by Ministers.

Perhaps I may briefly respond to the points made by the noble and learned Lord, Lord Keen, the Minister in Committee, because I anticipate that the noble Lord, Lord Callanan, will make the same points as his substitute today, as we have heard from the noble Lord, Lord Beith. The first point that the noble and learned Lord, Lord Keen, made was that we are not, as he put it, in “novel territory”, because Section 6 of the 2018 Act has already looked at which courts should have this power. The simple answer is that what is novel is a delegated power for Ministers, which I have described.

The noble and learned Lord’s second point was that there are safeguards because Clause 26 requires Ministers to consult the judiciary. That does not reassure me; it is still Ministers who will decide these important matters. His third point was that the power would, as he put it,

“be employed in a way that is consistent with our own constitutional norms and traditions”.—[Official Report, 15/1/20; col. 691.]

I suggest that it is no answer to the conferral of unacceptably broad powers to have Ministers assure us that they will exercise those powers reasonably. The objection is to the powers being conferred on Ministers, because once they are conferred the political and legal constraints if they decide to act unreasonably are limited.

The noble and learned Lord’s fourth point was that there are diverse views on the question of which courts should be able to depart from Court of Justice decisions, but this is not a new issue. We debated it at length on the 2018 legislation. Ministers have had plenty of time to consider whether the solution adopted in 2018 requires amendment. If Ministers want more time, and want to consult, the answer is not for them to take unacceptably broad powers. The answer is to bring a short Bill before Parliament, in a month or so, proposing such amendments—and then Parliament can decide.

These amendments raise issues of considerable constitutional concern and importance. As the noble Lord, Lord Beith, said, they have absolutely nothing to do with the merits of Brexit, the terms on which we leave the EU or the timetable for Brexit. It is, I suggest, our constitutional responsibility, when a Government bring forward a provision as constitutionally objectionable as Clause 26, to ask the House of Commons to think again. That is particularly so when, as the noble Lord mentioned, the Government have been in two minds—to put it politely—on this issue today.

[Lord Howarth of Newport]

The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.

The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.

[Lord Carlile of Berriew]

My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.

I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.

My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.

The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.

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As the noble Baroness, Lady Hayter, has said, that is what makes this an extremely important issue. It is one of the most significant and important ones in the legislation. It is why I am afraid that the Government have got off on the wrong foot. They have not got very far down the road, but they are on the wrong foot, and they would be well advised to accept the somewhat modified and more modest requirements set out in the amendment now before your Lordships compared with the one tabled for Committee.

[Lord Howarth of Newport]

The noble Lord, Lord Hannay, has remarked on the fact that the ambition and scope of this amendment are quite modest compared to the amendment that we debated last week in Committee. The redrafting has been wise. Gone is the requirement that Parliament should approve the negotiating mandate and stance of the Government and in effect give them their marching orders in the negotiations. The Executive must be allowed to do their job and in turn Parliament should do its job, and we should respect the separation of powers. It is for the Executive to negotiate the future relationship and it is for Parliament to hold the Executive to account. Parliament has numerous means of holding the Executive to account in the form of Questions, debates, Select Committee inquiries and many other procedural resources, and I anticipate that it will use that array of resources very extensively in the months to come.

I would add that I do not think that it is appropriate for parliamentary procedure to be prescribed in statute, and it is particularly inappropriate that this unelected House should make proposals of this nature to the House of Commons, which I suspect will not take very kindly to being told how to do its job.

All in all, I welcome the modification of the approach that is reflected in the amendment and I congratulate my noble friend and her colleagues who have thought it wiser to proceed on this basis rather than the one proposed the other day.

[Lord Wallace of Saltaire (LD)]

My Lords, this is an unusual Bill in a number of ways. We were debating in Committee that it has a clause which restates that parliamentary sovereignty has been established, so we are talking about some fairly fundamental constitutional issues. The relationship between Parliament and the Government is one about which I have heard Ministers make a number of self-contradictory comments in the days and weeks since the election in the rather triumphalist tone they have adopted. One Minister referred during the Committee stage to restoring the “normal relationship” between Parliament and the Government, by which I think he meant a nice safe majority in the Commons so that it does not criticise too much what the Government want to do.

The noble and learned Lord, Lord Keen, talked about the dualist approach to international negotiations whereby treaties, once they have been agreed, have to be transposed into domestic law and thus Parliament comes in, as it were, after the event. Given the importance of this negotiation, if one does believe in the principle of parliamentary sovereignty, the Government need to carry Parliament with them. That is the constitutional set of issues here, and we look forward to further discussions on what the constitution commission the Government are going to set up will be about. If it has the sort of forethought and consideration which was shown in the suggestion thrown out this weekend that the House of Lords might move to York, I have to say that it is not going to be a very good commission because it is quite clear that there was no thought behind that whatever.

It is not just the constitution; it is also about wisdom. Some of us heard the noble Lord, Lord Wilson of Dinton, remark in Committee that in his long career he had noted that it is when Governments are most self-confident and convinced that they can survive criticism that they are most likely to make mistakes. Here we are after an election in which the Government have established a majority on less than 45% of the vote, but it is a majority in the Commons according to our current antiquated rules. The wisdom of carrying the public and Parliament with them as they negotiate—particularly if they are going to negotiate for as hard a break with the European Union as the Chancellor has suggested—seems to me very powerful.

While I was at Chatham House, I was much involved in the various discussions about establishing the single market, and I remember all the talk then about why the Prime Minister was persuaded that the single market was in Britain’s interest and the extent to which we were taking our regulations for a large number of industrial and other standards from the United States extraterritorially. The Government are now suggesting that we will establish our own independent standards. An editorial in the Times this morning said that maybe we should not exclude chlorinated chicken, so we can begin to see that, if we move away from European standards, we will move under American standards, and that will be part of what emerges from the US/UK trade agreement.

I support this amendment on constitutional grounds and on the grounds of political wisdom. Parliament deserves to be carried along with the Government and the Government need to explain and justify their objectives as they proceed.