European Union (Withdrawal) Bill

Lord Liddle Excerpts

Wednesday 21st March 2018 Lords Chamber

Moved by

[Lord Liddle]

252: Clause 17, page 14, line 14, leave out subsections (1) to (3)

[Lord Liddle (Lab)]

My Lords, I move this amendment on behalf of my noble friend Lord Adonis. He apologises for his absence this morning. I assure noble Lords that he is not having the well-deserved lie-in that many of us feel that we are entitled to; he is on a trip to Dublin with the noble Lord, Lord Heseltine, and Sir Nick Clegg to see what can be done about the question of the Irish border and how to resolve that particular trilemma.

The purpose of the amendment is to draw the Committee’s attention to what is written in Clause 17. We hear lots of soporific, mellifluous legalese in these discussions, but I draw the Committee’s attention to what Clause 17(1) of the Bill actually says. The Minister can perhaps then give me a little tutorial on why it is necessary and not as dangerous as it appears to be to my eye. The clause states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”.


That is a sweeping enabling power for the Executive. The aim of the amendment is to establish from the Government the purpose of their having this sweeping power. This Bill is about Britain’s withdrawal from the European Union. It covers, as we have seen in the debate about Brexit since the referendum, many different aspects of our national life, so what is meant by this clause?

To the extent that we have any bedtime these days, for my bedtime reading I am trying to read books that explain the rise of populism in Europe. In a way, Brexit is a general phenomenon of a rise of populism in Europe and the United States. One book that I am reading at the moment is Professor Richard J Evans’s first volume on the rise of the Third Reich. One moment that makes me proud to be a social democrat is that it was the Social Democrats alone who voted against the enabling Act that set up Hitler’s dictatorship. I am not for one moment of course suggesting that there is a parallel, but why do we as a House have to grant the Government this sweeping legislative power? Can the Minister please explain? I beg to move.

[Lord Pannick (CB)]

My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:

“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.


The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.

I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:

“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.


Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.

I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not going to draft at the Dispatch Box and I will not give undertakings about any part of this clause at this stage. I am saying that we will look at it in the context of the observations that have been made in Committee, and we will do that responsibly.

[Lord Liddle]

My Lords, I welcome that assurance from the Minister. I have been surprised by the passion that this short debate has aroused. It raises many serious issues about what powers the Government are giving themselves as a result of this Bill. The Minister is aware of the concerns of the noble Lord, Lord Pannick, and my noble and learned friend Lord Goldsmith about this power. To my non-legal mind, when my noble and learned friend talks about the power that is in consequence of this Act because it repeals the European Communities Act 1972, the potential scope of what could be done is extremely large. When we come back to this on Report I hope that the Government will be able to provide us with some assurance that the scope will not be impossibly big. On that basis, I beg leave to withdraw the amendment.

Amendment 252 withdrawn.