European Union (Withdrawal) Bill

Lord Kirkwood of Kirkhope Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Bilimoria]

My Lords, briefly, I support the amendment of my noble friend Lord Lisvane who, with his vast experience, has come up with a suggestion that is essential, primarily because I feel that the balance between the Executive and the legislature has been truly tested during these Brexit times. This started with the Government trying to bypass Parliament in implementing Article 50, and then trying to not give Parliament a meaningful vote. At every stage, we have to make sure that the power comes back to Parliament.

The noble Lord, Lord Sharkey, said that the Government estimate that there will be 800 statutory instruments just as a result of the EU withdrawal Bill. How many statutory instruments does the Minister think that there will be in total, as a result of Brexit? I have heard somebody say 2,000, but there may be even more than that. It is therefore all the more important that we have proper scrutiny. We cannot entrust it to the Executive; Parliament has got to have the power, and I support my noble friend Lord Lisvane’s amendment.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I am pleased to support the noble Lord, Lord Lisvane, on Amendment 70. It is a very useful first step and if he presses his amendment I will be pleased to join him in the Lobbies. I shall speak to Amendments 70BA and 70BB, both of which are in this group. I am in a pretty precarious position because I am speaking to amendments to a government amendment which has not yet been moved and is subject to the right of pre-emption. If the noble Lord, Lord Lisvane, wins then I am wasting my time. I do not want to waste the House’s time although I do not mind wasting my own.

I am a member of the Secondary Legislation Scrutiny Committee. I do not speak for that committee but I have been a member of it for some time. These amendments take the last opportunity available to the House to persuade the Leader, who has been attentive to the issue of the extent of the relevant period for consideration, to increase the amount of time available to the Secondary Legislation Scrutiny Committee to 15 days. Amendments would do that in both Houses. It is not often that the House of Lords tells the House of Commons what to do, but it would be inelegant if the two Houses had different sifting periods.

I do not need to explain the role of the Secondary Legislation Scrutiny Committee. Most Members understand that it takes its duties very seriously and is largely trusted to point out matters of concern under the headings available to it to refer statutory instruments to the House. In my experience, it is a much better system than in the House of Commons. The worry of some members of the committee, which I share, is that in dealing with the flow of statutory instruments occasioned by Clauses 7 to 9 of the Bill, we will end up creating precedents which will in the long term dilute the quality of the scrutiny delivered by the Secondary Legislation Scrutiny Committee, and I know the chairman is very concerned about that.

Practical experience of the rhythm of how we deal with the flow of existing regulations shows that 10 days is not enough. It is enough for normal business. If we get the compliance we need from government departments in terms of answers to our queries and dealing with outstanding questions as SIs pass through the process and get expeditious returns, the committee is quite confident that in usual circumstances 10 days would be enough, but it is not enough for exceptional circumstances and there is no provision for exceptional circumstances in the legislation as it stands.

Noble Lords might think that this is a very small point, but if the important amendment moved by the noble Lord, Lord Lisvane, does not find favour with your Lordships’ House, there will be circumstances where Members on the Secondary Legislation Scrutiny Committee will on day 9 in the consideration of some order which is causing them continuing concern be faced with the question of what to do. Do they say they need to take further and better particulars from government departments and take further evidence from witnesses and risk going over the 10-day period, at which point the House’s responsibility for the issue ends as the Government will take the issue back and the SI will become by default a negative instrument, or do they say they are in some doubt about it and so will err on the side of caution? They do not really have the evidence to be sure that the instrument should be upgraded from a sift of a negative to an affirmative, but if I am unsure I will always by default argue within the committee for recommending an upgrade. If that kind of thing happens, it is going to create even more difficulty for business managers. It will not happen every week, or anything like it, but the Government’s wish to get the statute book in good order by exit day is absolutely understood and members of the Secondary Legislation Scrutiny Committee are responsible and diligent and understand the difficulties in doing that, but they are going to be put in a very difficult position.

I do not know where the 10-day limit came from. I think it originally came from the Delegated Powers and Regulatory Reform Committee, but there was no back-up about why it chose 10 days as opposed to 15 days, 13 days or anything else. With the help of the excellent staff of the Secondary Legislation Scrutiny Committee, we have done a grid and have come to the conclusion that it is not possible for the committee to meet twice within 10 days under this new regime, and that will be essential to be sure that exceptional circumstances are dealt with. On the grid we have done, it is clear that 15 days clears us from exceptional circumstances problems. In particular, I am very concerned about consulting devolved legislatures in other parts of the United Kingdom, particularly in relation to Clauses 7 to 9, as this Bill proceeds.

We are taking a big risk. We are going to put at risk the scrutiny process that we rely on day in, day out to keep the quality of the scrutiny process that the House is so rightly concerned about if we do not either make an exception or give some powers for someone to make a case on cause shown for getting an extra couple of days, or an extra five days, on instruments that can be shown to be exceptional. Although the scrutiny committee is doubling its numbers, making provisions and getting support from the Government for doing that, if we do not increase the relevant period for the consideration of sifting, we risk prejudicing the quality of the work that the scrutiny committee can do on behalf of the House in future.