European Union (Withdrawal) Bill

Lord Judge Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, without this Bill exit day will be an Armageddon of legal chaos. Governments, public authorities and every single citizen will be in a complete mess; he or she will simply not know where they stand. I welcome the Bill. The result, of course, will be that parliamentary sovereignty will be restored. Parliament will no longer be subject to the supremacy of European law. The Bill itself speaks about this, but I do not understand why. It is a concept known in Europe, not a concept known in this country. When we leave Europe, the concept of European supremacy will simply be ridiculous.

This means that all the laws sent to us by Europe for the last 40 years or so will have legal force, not because they come from Europe but because, and only because, our Parliament has in effect re-enacted them for as long as it wishes them to stay in place and made them part of our constitutional arrangements. That, indeed, is parliamentary sovereignty. The summary, in the end, is this: the supremacy of European law will be at an end and the ultimate law-making power will have returned home.

This Bill duly honours the result of the referendum. I shall not spend time arguing the merits or demerits of the decisions that have been made by this country—we have heard quite a lot of them. I just want to draw attention to this: a little scrutiny reveals the flaws in this Bill, and we must rectify them. The Constitution Committee has identified a whole series of problems with it, and I shall not repeat them. I want to make a much broader point arising from the Constitution Committee’s report, but also from any reading of this Bill. Looking at the Bill as a whole, with the excitement of sovereignty returning home, I ask rhetorically: does the Bill as presently drafted, simultaneously serve to reduce sovereignty, not in constitutional theory, but in constitutional practice?

For the last 40 years parliamentary authority over the Executive has steadily diminished. It is no good fooling ourselves: that is what has been happening whichever party has been in power, and even in the time of a coalition. Perhaps this is because, under our obligations under the European Communities Act 1972, we had to accept laws. Perhaps it is because time is shorter than it was. However it has occurred, Parliament has acquiesced and perhaps been blind to the problem. Regulation-making powers have been strewn around Ministers like confetti at a happy wedding. Not a single Bill comes before this House in which there are not regulation-making powers. The last Bill we looked at, the Sanctions and Anti-Money Laundering Bill, was nothing but regulation-making powers. There was nothing in it except for regulations or regulation-making powers.

I take these figures from The Devil is in the Detail, a marvellous book by the Hansard Society. Do we appreciate that every year 12,000 pages—12,000 small-typed pages—of laws are made by regulation? I wonder who reads them all—nobody. That is the result of vesting power in the Executive. So if parliamentary sovereignty is to mean what it says, law-making by Ministers should be reduced. We should look very closely when we decide that we are going to give these law-making powers.

This Bill as drafted, undoubtedly enhances ministerial law-making. In theory, that is all fine—there is parliamentary scrutiny. In the Commons, the Government accepted an amendment saying that there would be a sifting committee, and the Leader of the House suggested that she would have the same arrangement here. That is fine—till when? Do your Lordships realise what the sifting committee’s power actually is? It is the power to require an affirmative rather than a negative resolution procedure.

Again, I am taking my figures from the book that I have recommended, and I do recommend it—the summary is very easy. The whole book is pretty well written but when noble Lords have read the summary, they will not need to go much further. It tells us that since 1950 170,000 statutory instruments have been made. Of those, 17 have been rejected—that is, 0.01%. That has happened in the Commons 11 times, the last occasion being 1979. In this House, it has happened six times. On the last occasion, we were nearly drummed out of existence for having the nerve to take on the Government over one of their regulations, which was to do with the £4.5 billion arising from tax credits. Incidentally, I hope everybody realises that Mr Osborne was using powers given to him by a Labour Government. That is the problem.

My time is nearly up. When we come to look at the Bill, can we please examine whether it gives more powers to the Minister than he or she should ever have and whether we should control the Executive better than we do? If we do not do that now with this Bill, we will never ever recover the opportunity to do so again.