European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

Moved by

[Lord Judge]

34: Clause 7, page 6, line 17, leave out “relevant”

[Lord Judge (CB)]

My Lords, the issue that these amendments give rise to is quite an important constitutional one. This will not be a great moment after having had the excitement of a vote involving 500 or more Peers, but if we could add up to 100 it would be very successful. There are two reasons why there is no great interest in this issue, and one is that we have become habituated to the creation of criminal offences by regulation. It happened under the last Labour Government and the coalition Government, and it happens under this Government. Over the past 20 to 25 years there has been a proliferation of these clauses. Constitutionally, that is an aberration. We should not be creating criminal offences that can lead to an individual being imprisoned by regulation that, for the reasons we have discussed over the past few weeks, is controlled only by negative or affirmative resolution, which, as we have seen, is no sort of control at all.

The constitutional principle was upheld during the debates on the sanctions Bill. Those noble Lords who were here will remember a very significant vote in favour of an amendment to that Bill which would have deleted the ability of a Minister of the Crown to create criminal offences by regulation. There was cross-party support for the amendment and, as I say, the Government were defeated. The end result was that I had a series of meetings with the noble Baroness, Lady Bowles, who is not in her place. We then met with the Treasury Minister, with the Bill team and twice with parliamentary counsel to argue about how best to preserve constitutional certainty in relation to the creation of criminal offences. It was not easy. One significant point was made that certainly affected me: there will be occasions when it may be necessary—to use the word we now have—to allow for an offence to be created by regulation. A compromise was put forward and was accepted. It was put before the other place and, on this particular issue, that Bill will now proceed.

Faced with that, it seemed to me that we had to reflect again on the absolute nature of this amendment. I see that the Government have put forward proposals in government Amendments 83C and 83G which coincide with the suggestions made by the Constitution Committee, of which I am a member. I am speaking today only for myself, of course, not for the committee. The Government have recognised that there needs to be a significant increase in the element of parliamentary scrutiny and, if I may say so, proposals to encourage ministerial hesitation before proceeding by way of regulations to create criminal offences.

I really am not suggesting more than this. This is a start. It is a pullback from a process to which, as I said, we have become habituated. It is a process; it is an advance. It had not been made when the present Bill came before the House. The Bill has now come before the House, and we have discussed it. We have debated it in Committee, we have now discussed it again and ministerial amendments have been made. I welcome those, as I said at the start. I welcome the proposal that these amendments should be made. Ultimately, it is not my decision whether Amendments 83C and 83G should be supported in the House. If they were, that would provide a significant improvement to the current arrangements. There is nothing more I can usefully say. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we have heard from the noble and learned Lord, Lord Judge, an indication of where the Government have arrived on this issue and that there will in future be a document stating why this measure is needed and what necessitated it, according to the Minister.

The Government’s changes, which I welcome, do not go as far as Amendment 34 and the others in the group, but they insert an element of both written explanation and scrutiny of the use of these powers. I still doubt the need for these powers. Since the Bill was introduced in the Commons—not even when it came here—I have been asking for examples of where such new offences might need to be created. Finally, after numerous times of asking, the Government this week were able to provide just one example; that is all. It related to the marketing of medicine where it is an offence to produce false or misleading information in applications for approvals. After six months, that was the only example they gave of where such a new criminal offence, imprisonable for up to two years, might be needed, so I am still not entirely persuaded. However, given the new procedure that will come up later in the Bill, it should include the written statement as part of the Explanatory Memorandum and say that such powers will be available only in relation to our exit from the EU anyway. If the Minister could confirm that they are also subject to the timings of sunset clauses, we would see the Government’s amendments as a great improvement.

Finally, these will be orders that the House could not simply debate or put down a regret Motion about. However, if necessary, there is a backstop so that if we were not persuaded by the written statement, we would still be able to ensure that the orders did not go ahead. I hope that will never happen. I hope that they will not be used that much; clearly, there is no plethora of examples where the Government feel the need for them. Given where the extra scrutiny has now been inserted, given that there is a sunset on these powers—I think I am right in saying that—and given that they will be used only for the purpose of exiting the EU, we would certainly be content with the noble and learned Lord, Lord Judge, withdrawing his amendment.

--- Later in debate ---

I have taken some time to explain the background to all this. I think it is a very important issue and that the noble and learned Lord, Lord Judge, has done the Chamber a favour with his persistence in requiring that this be teased out. However, I hope he will consider these concerns which the Government have about the removal of this power from the Bill, as the Government have endeavoured to consider his concerns about the provisions as they were drafted. I equally hope that the amendment tabled by the Government ensuring greater transparency to Parliament goes far enough that he feels able to withdraw and not press his amendments. I wish to make it clear that I cannot give any reassurance that the Government will return to this issue at Third Reading, so if the noble and learned Lord wishes to test the will of the House, I suggest that he should do that now.

[Lord Judge]

It is very tempting but I will not. The reason that I have been prepared to compromise with an interference with what I regard as a fundamental constitutional principle is that I recognise that there is a continuity required. We cannot suddenly not have criminal offences which exist on 31 March but which we no longer have on 1 April. I recognise that. I am also persuaded to act against my instinct by the fact that this is a sunset provision.

I shall in a moment seek leave to withdraw the amendment but may I urge the Government and, in due time—time will undoubtedly produce it—a Government who are from the current Opposition, as they now are: can we please stop this sticking into primary legislation of provisions which casually create criminal offences punishable with imprisonment? As I said earlier, it is a constitutional aberration. Notwithstanding my doubts about my own position, I am prepared to take the course that I am now but I assure the Minister that I would not necessarily take it if, in the course of the next few Bills we have to deal with, we have clauses such as this just put in. But for the time being, with gratitude to the Minister for her explanation to the whole House, I seek leave to withdraw this amendment.

Amendment 34 withdrawn.

--- Later in debate ---

[Baroness Oppenheim-Barnes (Con)]

My Lords, I am very sympathetic to this amendment’s aims, and have been ever since we joined the market. It relates to an issue that was one of my strongest concerns when making up my mind to vote against going in in the first place, which I did: the question of all the animal welfare measures, little and big, and the worst measure of all, which sees animals waiting overnight and longer at the docks—for perhaps two or three days—without any care. That alone would be good enough to make me Brexit for life, if I was not already. This debate allows me to bring to the cause a little good news. I understand that the animals which were being held at the ports because they had to be delivered alive in France have now been given help. The local animal welfare departments have removed them from the ports and are giving them water and food while they wait. That is only a small thing, but it is important and it is taking the lead.

I too am concerned about the judicial review. I do not want to see the whole issue bound up by complicated legal matters when the kind of thing that is necessary is available in a much less complicated way—and because it is less complicated, it is easier to police and to maintain. I hope that those moving this amendment, with whom I have great sympathy, will look again at these provisions. I want us to get this right. I do not want us to regret it. When the time comes, I want us to be able to say of this big achievement that what we have done is acceptable, enforceable and very badly needed.

[Lord Judge]

My Lords, I want to add my voice and underline, if I may, how serious the issue arising under subsections (3) to (7) is. There are many executives that would be desperately pleased to have provisions such as these in primary legislation. There is no reason whatever why Parliament should not be able to deal with any issue arising in the context of sentient animals—there is no exclusion about that. However, to exclude the possibility of somebody seeking a remedy before the court would be an astonishingly dangerous principle to put into any legislation. The fact that it arises in this very sensitive issue relating to animals is one thing, but a lot of citizens, and individuals who happen to live in this country, rely on the possibility of taking the Government or the local authority to court to make them account for the exercise of, or failure to exercise, their powers. This would set an alarming precedent.

[Lord Mackay of Clashfern (Con)]

My Lords, the subject of animals is an extremely important one and I have great sympathy with the spirit behind both the amendments in this group. However, this subject needs to be properly dealt with in a statute of the United Kingdom. I know that criticism has been made of the attempts so far, but there is always room for improvement, and constructive suggestions have been liberally made in the consultations. As far as I am concerned, it would be much better to have a good United Kingdom statute for these animals than to try to do it through adapting part of an EU treaty.

The technical question of judicial review is quite difficult. I am not sure just how crucial it is to the amendment from the noble Lord, Lord Trees, but, years back, skilful Lords of Appeal—Lord Reid, a Scottish judge, and Lord Wilberforce from this jurisdiction—developed a theory that makes it next to impossible to prevent judicial review in an Act of Parliament. They did so by saying that what Parliament has protected is the judgment that is supposed to be come to, but, if the judgment that is come to has been falsified by some mistake or lack of proper process, then it is not a judgment protected by these provisions—Anisminic was the case. As was said by the noble and learned Lords, Lord Hope and Lord Judge, at the end of a long process, the attempt to restrict judicial review was eventually torpedoed by these judges, with support of course. It is for that reason that the Government decided some considerable time ago not to put such protected clauses into legislation, because it is apt to mislead the public—they think that these clauses are, at face value, worth while, but when Lord Reid and Lord Wilberforce got on to them, they were not worth the paper they were written on.