European Union (Withdrawal) Bill

Lord Judge Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

Moved by

[Lord Judge]

52A: Clause 9, page 7, line 10, leave out subsection (2)

[Lord Judge (CB)]

My Lords, I bring this amendment with support from all sides and wonder whether your Lordships would be kind enough to listen to me while I read to you the effect of Clause 9(1) and (2) taken together:

“A Minister of the Crown may by regulations … make any provision that could be made by an Act of Parliament (including modifying this Act)”.


By contrast with primary legislation, which has been through all the legislative processes in both Houses, with all the opportunity for discussion, debate, rethinking, amendment and, above all, scrutiny that are inherent in our processes to create primary legislation, this clause vests power in a single individual, a Minister, one man or woman, to promulgate new laws by regulation drafted in their own departments. What is worse, that single individual is by regulation empowered to override, repeal or amend primary legislation which has been enacted after both Houses have been through the processes which I have just described.

I have said before, and venture to repeat myself, that in a democracy that is a remarkable lawmaking power given to a single individual. Vesting such power in a single individual is a very dangerous constitutional habit. Clauses such as this are inserted into primary legislation with what I at best can say is casual indifference. It would be interesting to be able to know, and we never shall, when a Minister signing off proposed primary legislation questioned the inclusion of such a clause. Was it last year, 10 years ago or maybe 20? Even more, would it not be wonderful if a Minister not only questioned it but insisted on its removal? I cannot imagine anybody here thinks it happens very often. Such clauses go into Bills like confetti strewn about at a wedding.

What about us, Parliament? We have not been as assiduous as we should have been. As I have said before—I am sorry, it is a mantra that you will hear me repeating—the last time the Commons rejected a statutory instrument was in 1979, just about 40 years before exit day. There was a much more recent example in this House, as all noble Lords will remember, but the proper exercise of those powers by this House was treated as if it had created a constitutional crisis. It had not, of course, but many thought that it had. On the basis that the scrutiny process of regulations in the Commons has become obsolete, this power to make new law and override existing law by ministerial regulation is effectively synonymous with ministerial proclamation running the country.

The very same House of Commons which is said to have given that dangerous Henry VIII these powers would regard our efforts to control them, our distortion of our legislative processes, as at the very best pusillanimous. It is a remarkable feature of Clause 9(2) that it actually repeats words in that notorious Act of Proclamations 1539. The Act provides that royal proclamations were to be obeyed,

“as though they were made by Act of Parliament”.

That is why I read out what our current provisions are proposing to put in. I think that it is a shameful echo. For lawmaking purposes, it means that one man’s or woman’s word is equivalent to the entire parliamentary process. In 1539, that very same Commons—I regret that it was the Commons, not the Lords—did something that it is never given credit for. Remember that it was dealing with Henry VIII and Thomas Cromwell. But the Commons expressly qualified that very wide grant of powers by making the provision that the words should not be understood to mean that anyone,

“of what estate, degree or condition soever”,

should have,

“their inheritances, lawful possessions, offices, liberties, privileges, franchises, goods … taken from them … nor that by any proclamation to be made by virtue of this act, any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’ time”.

Occasionally one needs to reflect on the courage of the Commons to stand up to Henry VIII all those years ago. History has been unkind to it. The Speaker ended up in the Tower. It was on an almost certainly trumped-up charge of dishonesty and fraud, but that was where he ended up. Those noble Lords who think that Thomas Cromwell lost his head because Henry VIII did not find Anne of Cleves bonny and buxom in bed should think again. The reason he lost his head was that for the first time in the whole time when Henry VIII relied on him he did not get from Parliament what the King wanted. So let us remember the express qualifications in that notorious Act of Proclamations. They are magical words and we today have forgotten about them—we do not include them.

These particular Henry VIII clauses are about as pointless as they can ever have been anyway. They do not come into force before the “meaningful vote”—no further words from me on that—and they may not be exercised anyway after exit day, which is less than 12 months away. What is the point of them? The opportunity for exercising these powers, if Parliament chooses to give them to the Minister, are minimal, and such opportunity as there will be will be diminished by the requirement in Amendment 83C for the Minister to explain why it is reasonable for these powers to be exercised. I trust the Minister will accept, and indeed perhaps indicate to the House, that it is perfectly sensible, if the Minister is giving good reasons for any decision, for the Minister to explain which pieces of primary legislation it is proposed to amend, repeal, revoke or tamper with. Then at least the scrutinising process can say what it is we are looking at.

I am using a ridiculous example to make my point: the Statute forbidding Bearing of Armour 1313 says that you must not come within one mile of Parliament armed. Okay, we can get rid of that—I suppose—because we have modern Acts to deal with the problem. But I make this trivial point because we need to know what it is considered that we should interfere with before it is possible for us to say that there are good reasons for doing so. I beg to move.

[The Deputy Speaker (Baroness Morris of Bolton) (Con)]

My Lords, if Amendment 52A is agreed to, I cannot call Amendment 53 for reasons of pre-emption.

--- Later in debate ---

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

[Lord Judge]

My Lords, we have made some progress. If the use of this extraordinary power—extraordinary in the sense of the power rather than extraordinary in the sense of the number of times it is used—will be limited to dealing with technical amendments, which will be explained by highlighting the legislation under consideration, we have made some progress and I shall not test the opinion of the House today.

However, Henry VIII clauses are unacceptable save in the most special circumstances. Although I shall not divide the House today, I shall watch as each new Bill comes before us, in connection not only with Brexit, to make sure that the Minister looking at the first draft of the Bill asks why it contains a Henry VIII clause, why it is needed and what it is for so that we do not suddenly find a whole cluster of Henry VIII clauses bursting through at the seams such that we are unable to control them. We have made some progress. It is not enough for the long term, but for tonight we have done very well. I beg leave to withdraw the amendment.

Amendment 52A withdrawn.