European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

[Baroness Kramer]

The noble Viscount gives a superb example. We can think of parking charges and a whole wide variety. That is why it is really important that there is clarity over when a statutory instrument is the appropriate mechanism and when, frankly, it is not. The Bill as it stands does not give that clarity.

I also put my name to these amendments for another reason. Most in this Committee will remember the time of the tax credit debacle, a major policy change that most of us regarded as a change that should have been introduced as part of a welfare Act. The Government sought to accomplish that through a statutory instrument attached to a Finance Bill. Because of the nature of charges and money-type instruments, it is very possible to use them to affect very broad policy issues and not just the narrow issue of revenue raising. That is why Amendment 127, for example, is an important amendment, as are others in this category. We are all concerned about the inappropriate use of Henry VIII powers, since this Government have actually tried to use these to achieve those much broader policy ends in the past. We have to be sure that we are not leaving a mechanism by which that could be repeated, because that really would be a coach and horses through many of the concerns and issues that have been raised.

[Lord Lisvane (CB)]

My Lords, I support the amendments in the name of the noble Baroness, Lady Hayter of Kentish Town, and I shall speak to Amendment 126, which is in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. Amendment 126 would bring Clause 8 into line with Clauses 7 and 9.

Taxation matters can be dealt with by statutory instrument. For example, they can restrict relief from Customs and Excise duties or VAT under the Customs and Excise Duties (General Reliefs) Act 1979. But taxation, as it is normally and properly understood, is undoubtedly a matter for primary legislation. What is troubling here is the potential width of these powers and the lack of indication of how the Government intend to use them.

The Delegated Powers Committee’s 12th report says:

“At committee stage in the House of Commons, the Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker) indicated that the power to tax by statutory instrument in clause 8 was needed because the power was not available under clause 7”—


that is true enough. It continued by saying that,

“furthermore, taxation might be needed to ‘comply with international arrangements’”.

The committee then pointed out, and I entirely endorse what it said:

“The question which remains unanswered is why taxation by Ministers in statutory instruments is an acceptable alternative to taxation”,


approved by Parliament, with the normal rigour of the process, in primary legislation.

The Minister will need to give your Lordships some very hard examples of why a statutory instrument would be used and not primary legislation. If that is not known at this stage, the withdrawal and implementation Bill we are promised might well be the vehicle for making those changes in primary legislation, if the precise requirements are known at that stage. But this potentially wide power to tax by statutory instrument is, as I say, more than troubling. I am not suggesting that indications of how a power is expected to be used will in themselves suffice, although they should give your Lordships a clue to why the power is required, which is perhaps a more important question to address. What matters, of course, is what ends up in the Act. The use of the power then will not be trammelled by reassuring indications of how, at this stage, it is expected to be used.

Perhaps I may finish by enlarging on my noble friend Lord Turnbull’s masterly catalogue of fees and charges and their various characteristics, to add another category. In the financial procedure of the House of Commons, a fee that is levied and then applied for the good of the industry as a whole is not treated as a tax, so it does not require ways and means cover. As I say, that is merely a footnote to my noble friend’s excellent speech.

[Lord Tyler (LD)]

My Lords, I am a co-signatory to Amendment 126, as the noble Lord, Lord Lisvane, said. I want to underline a couple of the points he has made. This amendment derives, as he said, from the work of the Delegated Powers and Regulatory Reform Committee of your Lordships’ House, which, I remind the House, is cross-party and non-party. It is entirely devoted to advising the House on important issues relating to the way we handle secondary legislation.

The noble Lord, Lord Lisvane, has been characteristically modest in not quoting the committee’s specific comment, which is very powerful. It said at paragraph 20(c):

“The Government should demonstrate a convincing case (if one exists) before the supremacy of the House of Commons in financial matters gives way to taxation by statutory instrument”.


This may be only a minor incident, but it is part of a much bigger pattern. I worry—I am getting old, I think—that Ministers and civil servants do not seem to have spent quite so much time with their history books as I used to when I took a degree in that subject. The power of Parliament to hold the Executive to account in matters of taxation goes back beyond even the 300 years to which the noble Lord, Lord Turnbull, referred. It could be said to go back to Magna Carta or Simon de Montfort’s Parliament, or indeed to the decision of our colonial cousins to declare independence: “No taxation without representation”.

This is very sensitive territory. We are surely entitled to demand a full explanation of why the regulations under Clause 8, unlike those under Clauses 7 and 9, may impose new taxation or increase taxation, allowing the supremacy of the House of Commons in financial matters to give way to taxation by secondary legislation.

The noble Lord, Lord Lisvane, referred to some discussions that took place in the other place on 13 December, when the Minister, Robin Walker, sought to explain why the provisions of Clause 7 could not apply and why Clause 8 was necessary. I shall quote him in detail because I think it is important:

“In addition, there are restrictions on the use of clause 7 relating to, for example, taxation that might, in some circumstances, prevent important changes to comply with international arrangements from being made. We need this power because we need to be prepared for all eventualities”.—[Official Report, Commons, 13/12/17; col. 557.]


There are three triggers there: “taxation”, “important changes”—this is not just trivial stuff—and “all eventualities”. Throughout discussion on the Bill, we have constantly been told that Ministers require a great deal of room for manoeuvre and flexibility; they need to be able to move fast. In this case, they have made the case themselves for proper discussion and consideration. Matters relating to taxation in these circumstances require the most composite and careful care. We should be seeking comprehensive scrutiny, not the usual approval of SIs.

If any noble Lords on the Conservative Benches think these are trivial issues, I invite them to consider how a future Government of a distinctly different colour might choose to use these unprecedented powers in relation to taxation. The very important role of Parliament is here before your Lordships’ House today. I know we will be told of the need for speed, flexibility, expediency et cetera, and that all the usual excuses for slipshod legislation will be trotted out, but this is an issue of considerable principle and of considerable responsibility for your Lordships’ House and the other place, and we must do what we can to assist it to fulfil that responsibility. Whether or not Brexit actually happens, these amendments to this clause are of huge long-term importance. We could be establishing a precedent for taxation being treated as a secondary issue, rather than as a matter that should always come in the form of primary legislation.

I was disappointed not to have been able to be here last Wednesday for the Committee, but I noted with admiration the range of expertise from all over the House and the eloquence with which it was deployed. This is not an area we can simply wave through as though it were just some small technical question. This goes to the very heart of the balance between government and Parliament. I think it was the noble Lord, Lord Cormack, who last week quoted the late Lord Hailsham warning of a slide towards “elective dictatorship”. We are back there again this afternoon, and I say amen to that.

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[Lord Deben]

There is a large number of fees that are paid to, for example, the Environment Agency, to carry out certain services. We have no idea whether those fees are equalled by the amount of work that is done. The Environment Agency says: “We want this amount of money because we need it”. There is no proof. If one were to prove that the agency spent less money than the fee, does it then become a charge or a tax? There is a real issue here. My noble and learned friend Lord Mackay points to the fact that one may define it like this but how does one prove it, and how does the House deal with it? Is it not better to not have this distinction at all?

[Lord Lisvane]

Before the Minister responds to that point, could he also answer my question? He has sought to make a distinction between a fee and a charge. Could he explain why, at page 761 of the latest edition of Erskine May, there is no distinction made between fees, charges, impositions, contributions or anything else of that sort? The test which is set out there, and is reflected in the current practice note from the Office of the Parliamentary Counsel—available on its website—is whether or not those payments are,

“akin to taxation in their effect and characteristics”.

I suggest that an additional test needs to be applied to the template which the Minister has offered.

[Viscount Hailsham]

I am sorry for my noble friend, but he did say that both the fees and the charges were subject to the affirmative procedure. I know that the fees are, but I am not sure where in the Bill I find the provision that charges are subject to the affirmative procedure. Will he tell the Committee?

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I am delighted to follow the noble Baroness, Lady Young, whose name stands at the head of Amendment 227A. I will add just two points in addition to endorsing the unhappiness of the noble Viscount, Lord Hailsham, partly conveyed through his lead amendment and other amendments in this group.

So far, the practicalities of Brexit have been a conversation primarily between government and Parliament. If the use of the sweeping ministerial powers in the Bill will carry credibility with our fellow citizens, that conversation needs to be joined by the huge army of those who will be directly affected. However—and I think we could all draft the reply of the Minister, just after the headnote that says, “resist”—the possibility of consultation throws into sharp relief the extraordinary pressures of time under which the EU-related parts of the statute book will have to be repatriated and adjusted. Even if there is a two-year period of transition—or implementation; I do not think the two are the same, by any means—a three-month consultation period would be luxurious indeed. Yet effective consultation—that is, beyond the usual suspects—cannot be done quickly.

My second point relates to the relationship between the Lords and the Commons. I cannot help but remark that if Ministers agreed to be bound by the test of necessity rather than appropriateness, their problems in this area might be very much fewer. It seems pretty clear that there will be heavyweight regulations—probably quite a lot of them—for both Houses to consider. As the Bill is drafted at present, there may be too many that are subject to the negative procedure and not enough that are subject to the affirmative procedure, but in any event we will have to focus minds on what will happen if the two Houses disagree.

So far as affirmatives are concerned, I have put my name to an amendment in the name of the noble Lord, Lord Sharkey—Amendment 239A—which explores a possible dispute resolution procedure. However, if major regulations come forward on which there manifestly has been insufficient consultation, the possibility of disagreement between Lords and Commons would increase. Given the inevitable degree of political contention and unyielding pressures on time, this might become a matter of serious concern. I suggest that systematic consultation offers a possible way of reducing that hazard.

[Baroness Neville-Rolfe (Con)]

I rise to speak to Amendments 249, 250 and 251. Several noble Lords will know of my lifelong concern for good-quality regulation. The Bill will, by its very nature, lead to the creation of a vast number of SIs of exceptional importance, so proper scrutiny is more important than ever, as the noble Lord, Lord Lisvane, just said.

I am concerned about content, scheduling, consultation and time for debate. On content, I want the Government to follow the good practice of the Nuclear Safeguards Bill, where making the draft implementing regulations available has helped to reassure people and made its passage easier. I have suggested five areas where specimen regulations might be made available: agriculture, customs, financial services, immigration and intellectual property. My amendment says that specimen regulations should be made available within a month of Royal Assent—which is what the Public Bill Office felt able to approve—but my suggestion to the Minister is to make specimen SIs available for our consideration before Report.

I understand and fully support the objective of putting extant EU laws onto the UK statute book from day one; anything else would lead to the utmost confusion. However, there is still much to ponder and much scope for mistakes. All these problems will be lessened by allowing all interests to see and comment on what is envisaged, as has been said. We need to know which enforcement body will take over what are now EU duties, as we discussed at length in relation to the new environment body. For example, in financial services it could be the FCA, the PRA or even the Treasury. In agriculture, the situation is equally complicated, not least because of the extra dimension of devolution. We need to know the criminal and civil penalty regime for each area and, as debated earlier, the approach to fees and charges—especially for SMEs, which I know will be a concern in relation to intellectual property and immigration. We need to understand the future arrangements for standard setting and the sharing of intelligence. Exemplar SIs could—and probably would—cast reassuring light on all of this.

On scheduling and consultation, I start by thanking the Minister, as he kindly arranged for me to meet one of his officials and those responsible in the Treasury for the SI work on financial services. This was very reassuring. The numbers on financial services are fewer than I feared—80 to 100 SIs—and I understand that they will take account of existing UK regulations. Hopefully, this will mean that practitioners will be able to find their way round the law more easily than they can do now. I believe there is some sympathy for my suggestion that it would be wise to publish SIs for consultation, which is the subject of my amendment and of others. The process of SI sifting and review in Parliament will, unfortunately, only allow an SI to be debated and agreed or rejected by either House. There is no scope for amendment so SIs need to be right first time. Will the Minister provide some commitment to publication of and/or consultation on draft SIs, at least in the five areas I have identified?

In practice, if—as I hope—a transition period is agreed, and thus for relevant purposes we effectively remain in the EU during transition, there is a fair amount of time to do this properly. But if the negotiations go badly and we have to rush for the line, it may be as well to have done as much consultation as possible early. Finally, and Amendment 251 relates to this, we need time to debate the more important SIs in a planned way. There is a substantial issue here which has not yet been fully acknowledged by the Government. One solution could be to group related SIs and to set aside significant time—perhaps one day a week—when they could be considered on the Floor of the House. These SIs will be mini-Bills, important future statutes as we leave the EU, and our existing arrangements for EU scrutiny are inadequate if this new need is to be met satisfactorily.

I believe that all noble Lords will want to know, before they agree to the significant delegated powers in the Bill, that the scrutiny system envisaged can meet the needs of the moment and hence attract confidence across the House.

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Moved by

[Lord Lisvane]

110: Clause 7, page 6, line 27, at end insert—
“( ) Where regulations under subsection (1) confer power to legislate by subordinate instrument, the instrument is subject to the same parliamentary control and the same time limit in subsection (8) as are the regulations.”

[Lord Lisvane]

My Lords, in moving Amendment 110 I shall speak also to Amendment 135, both of which are also tabled in the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler, who like me is a member of the Delegated Powers Committee. The amendments seek to place controls upon the use of sub-delegation and the creation of tertiary legislation. We have had something of a preview to this in the debate on Amendment 71 held last Wednesday, and earlier today the horror story about the Bar Standards Board told by the noble Lord, Lord Thomas of Gresford, which I think would have greatly alarmed my nervous maiden aunts.

I was extremely grateful to my noble friend Lord Wilson of Dinton for moving Amendment 71 last Wednesday and to the Committee for its understanding of why I could not do so myself. My noble friend made a magisterial and compelling speech in which he pointed out that the powers in Clauses 7, 8 and 9 could be used to sub-delegate. Indeed, so compelling was his speech that the only person who disagreed with him in the debate was the Minister. That reminded me of the story of Benjamin Jowett: when he was the Master of Balliol and was outvoted 20 to one at a college meeting, he said, “Gentlemen, we appear to have reached deadlock”.

This Bill is riddled with provisions which have serious constitutional implications, and the unrestricted power of sub-delegation is one of them. It allows Ministers to authorise bodies and even individual persons to make law without the approval of Parliament. As the Delegated Powers Committee pointed out, there is no requirement for this legislation to be made by statutory instrument. If it is not made by SI, the Statutory Instruments Act 1946 does not apply to it and the legislation does not have to be laid before Parliament or even published. The possibility that law which the citizen must obey might not be published offends against the first of the late Lord Bingham’s eight principles of the rule of the law: that the law must be accessible as well as clear and predictable.

The Government memorandum submitted to the Delegated Powers Committee suggested that the power to make tertiary legislation is intended to be used sparingly. Once again we come back to the fact that what matters is what is on the face of the Act. If the power of sub-delegation is there, you can bet that it will be used whenever convenient to the Government of the day. Moreover, it will go on being used. In addition to these amendments, I have tabled Amendment 365 to paragraph 28 of Schedule 8 which would complete the removal of the exemption for tertiary legislation from the two-year sunset provision for secondary legislation-making powers. Slightly oddly, it has not been grouped with these amendments, but when we reach it, it will provide us with a further opportunity to consider the Government’s response to the amendments in this group.

As the Delegated Powers Committee points out, the power to make tertiary legislation could be given to new bodies to control and regulate, by legislation and without any parliamentary control, areas that are currently governed by EU law. These include aviation, banking, investment services, chemicals, agriculture, fisheries and medicines. They would all become in effect judges in their own cause. Amendments 110 and 135 would subject sub-delegation to the same parliamentary control and time limits as regulations in the first tier of delegation. I beg to move.

[Lord Judge (CB)]

My Lords, if we reflect on the words used by my noble friend Lord Lisvane, it is really rather chilling. There will be power in a Minister to create laws by giving him or her a blank sheet of paper so that he or she can write out whatever he or she thinks is appropriate. It will be uncontrolled and unscrutinised.

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[Lord Callanan]

We said that we would return to this matter on Report, but we are now talking about the sub-delegation of those fees and charges.

Moving on to Amendment 352 in the name of my noble friend Lord Hailsham, I am in total agreement with the principle that the Government should not raise fees or charges from the public, whether businesses or individuals, without considering the impact on those who will pay or the impact on both the payers and the wider economy. I may be wrong but I doubt that many in this Committee, other than the noble Lord, Lord Macpherson, who is sadly not in his place and is of course intimately familiar with it, will have read Managing Public Money. This weighty tome is easily available online and serves as the sacred text of Her Majesty’s Treasury regarding many things, including the setting of new fees and charges. It sets out that charges on the public must be subject to the general practices on consultation and economic and financial analysis. Without this, the consent of Her Majesty’s Treasury to establishing a new fee or charge, required by paragraph 3 of Schedule 4 for all new fees or charges under the Bill, cannot be obtained.

I hope that this long explanation, for which I apologise at this late hour, and my other points have gone some way to reassuring noble Lords. I am happy to continue discussing these important issues, but in the meantime I hope noble Lords will not press their amendments today.

[Lord Lisvane]

My Lords, I am extremely grateful to the Minister for the detail he went into in his reply, particularly at this late hour. I also pay tribute to him for his customary generosity in being prepared to discuss these matters outside the Chamber. He recommended one weighty tome with which, as a former accounting officer, I am moderately familiar. Perhaps I may recommend to him another weighty tome, Craies On Legislation, edited in masterly fashion by Daniel Greenberg, former parliamentary counsel. I think it is at chapter 3.5.1 that he will find a very good treatment of the dos and don’ts of sub-delegation. That might be something we discuss before we come back to these matters on Report.

Of course, he is absolutely right to say that the consigning of these powers to a body or a person will require the affirmative procedure, and that is fine up to a point, but the exercise of the powers, once sub-delegated, will be free of the trammels of the accepted processes, so it becomes even more important that, in the consigning of the powers, the constraints on how they can be used by the consignee, if I can use that rather unlegislative term, are made absolutely clear. That is something, perhaps, on which we can have further conversations between now and Report. On that basis, I beg leave to withdraw Amendment 110.

Amendment 110 withdrawn.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Hannay of Chiswick]

My Lords—

[Lord Lisvane (CB)]

My Lords—

[Baroness Goldie (Con)]

My Lords, the Chief Whip has asked me to indicate that there is some concern about the availability of facilities if we do not adjourn the Committee. I therefore propose that at this point we adjourn and I suggest that we resume after Questions have concluded.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Adonis]

My Lords, speaking in the middle of the night I see my role as being purely a silent John the Baptist to the noble Lord, Lord Lisvane. I beg to move.

[Lord Lisvane (CB)]

My Lords, I shall speak to Amendment 240. I am really not cut out for the role that the noble Lord, Lord Adonis, has set out for me. I am not sure whether, in its emergency arrangements, the Bishops’ Bar is serving locusts and wild honey tonight. But I will do my best with Amendment 240, which has in common with the other amendments in this group the fact that it seeks to impose a restriction on the use of regulation-making powers. However, it is a little different and it reflects a recommendation of the Delegated Powers Committee.

If secondary legislation made by Ministers or Ministers in the devolved Administrations under Schedule 4 imposes a new fee or charge, those regulations will be subject to the affirmative procedure. But if the fee or charge is subsequently changed— the lovely word “modified” is used, but we can probably assume that the change would be an increase, just as new fares always turn out somehow to be higher—the regulations making that change are subject only to the negative procedure.

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[Lord Mackay of Clashfern]

My Lords, I am just wondering whether the noble Lord who moved this amendment is thinking that the House of Lords should not reject an SI outright once it has been confirmed by the House of Commons but should ask that it be reconsidered, and whether that should be the only option apart from approving it.

[Lord Lisvane]

My Lords, I think that if it were an SI concerned only with imposing a fee or charge, noble Lords would not have it laid before them.

[Baroness Goldie]

My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.

Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.

Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.

As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.

The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.

To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.

It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.

I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.

The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.

I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.

The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.

I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.

I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.

I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.

I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.

Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—

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Moved by

[Lord Lisvane]

237: Schedule 7, page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert—
“Parliamentary committees to sift regulations made under section 7, 8, 9 or 17
(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument to which paragraph 1(3), 6(3), 7(3) or 11 applies, and(b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”).(2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.(3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies.(4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made.(5) For the purposes of this paragraph—(a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in sub-paragraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

[Lord Lisvane]

My Lords, I will move Amendment 237 and speak to Amendments 237A and 239A. One of the host of extraordinary things about the Bill is that, for many of the regulation-making powers under Clauses 7, 8 and 9, the Government have a choice as to whether the affirmative or negative procedure is to be used. This applies even in some cases to Henry VIII powers. This is not a decision to be taken by Parliament but, as the Bill stands, arrogated to Government. It is consistent with the Executive carte blanche which characterises much of the Bill. The amendment on sifting which passed in the Commons and now appears at paragraph 3 of Schedule 7 appears to involve Parliament in the process and so it does, to an extent. The requirement in paragraph 3(3), for a draft to be laid and the Minister’s reasons to be given, is welcome. However, in a surprising irony, not only can the Minister then ignore any recommendation of the committee—as the Bill stands it is only a committee of the House of Commons, but the Minister has said that it will be extended to your Lordship’s House—it is the committee’s making of the recommendation which is the trigger. That is what brings into play the Minister’s ability to do just what he or she wants.

Therefore, Amendment 237 in my name and in those of the noble Baroness, Lady Hayter of Kentish Town, and the noble Lords, Lord Tyler and Lord Blencathra—respectively a member and the chairman of the Delegated Powers Committee—sets out, as recommended by that committee, a procedure that actually has teeth. It would give to a committee of either House the power to recommend the upgrading of the procedure from negative to affirmative. It would also allow the relevant House the opportunity to disagree with its own committee’s recommendation. It would work on the basis of highest common factor rather than lowest common denominator in that a recommendation in either House is enough to raise the bar to affirmative so there is no need for a reconciliation mechanism. It is slightly less ambitious than the heavyweight procedure in Amendment 238 in the name of the noble Lord, Lord Hodgson of Astley Abbotts, which we will come on to talk about shortly, but nevertheless it seeks to cure something that is very concerning in the Bill as it stands at the moment.

Last week I was rather beastly to the noble Baroness about precedents. That was mainly because the precedents that she was deploying were ones that I did not like. However, I have much better precedents for Parliament setting the level of scrutiny: the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011. I really do not see why a similar procedure cannot be adopted here. It would certainly be better for Parliament, rather than Ministers, to take the decision.

Amendment 237A, in the name of the noble Lord, Lord Sharkey, to which I have added my name, is an amendment to Amendment 237, which would simply allow either House to take the initiative directly rather than acting on the recommendation of a committee. Amendment 239A, also in the name of the noble Lord, Lord Sharkey, is not about sifting but it provides a reconciliation mechanism that would operate when the House took different views on an affirmative instrument. Of course, if a Government get into difficulty, it is always open to any Government to withdraw and relay an instrument or a draft that has been disapproved of by one or both Houses, as was famously and unfortunately not done in the tax credit case. The relaid instrument does not have to be very different either, but Amendment 239A would provide a transparent mechanism. I beg to move.

Amendment 237A (to Amendment 237)

Moved by

--- Later in debate ---

Amendment 237A (to Amendment 237) withdrawn.

[Lord Lisvane]

My Lords, I am extremely grateful to the Leader of the House for setting out in such detail what is proposed in terms of sifting and scrutiny. They are often combined as a single concept, but sifting as to importance, and so the procedure to be attached, is a rather separate concept from the scrutiny of what results. I am sure that noble Lords will want to study with considerable care the amount of detail—which we are very grateful for—that the noble Baroness has given us.

She saw Amendment 237 as being difficult to work because of the time involved, but the amendment is not linked to super-affirmatives and it is possible to craft something—it may well be between now and Report—which deals with one House dictating to the other in terms of the highest common factor that I referred to earlier and of the time limits involved; the noble Lord, Lord Sharkey, made a very good point about the distinction between 28 days and 60 days. If we are already talking in those terms, those are in parliamentary time quite extensive periods.

I did not really understand the logic of the argument that if the House rejects a committee’s view this is in some way to downgrade or demean the committee—here, I endorse what was said by the noble Lord, Lord Beith. Committees are subordinate to the House which appoints them. Any House can take a view on what a committee says to it. That seems a perfectly ordinary parliamentary relationship. Rather less acceptable—although I appreciate the lengths to which the noble Baroness went to set our fears at rest—is that Ministers will still be able to choose which procedure applies to which instrument. When under Clauses 7, 8 and 9 that includes the use of Henry VIII powers which may be subject to negative procedure, that will remain concerning. These are matters that I think noble Lords will wish to reflect on between now and Report. The application of creativity and inventiveness may take us some way along the road to agreement, but somewhere—it is an overused phrase in the current Brexit situation—a red line will need to be identified. In that spirit, I beg leave to withdraw the amendment.

Amendment 237 withdrawn.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I endorse everything that the noble Lord, Lord Tyler, has said in moving Amendment 305 in the unavoidable absence of the chairman of the Delegated Powers Committee, the noble Lord, Lord Blencathra. I know, the noble Lord being absent on parliamentary business, how much he regretted the unavoidable clash of commitments at this time. The noble Lord, Lord Tyler, was much too modest in his mention of the substitutes’ bench a moment or two ago.

In their delegated powers memorandum the Government have sought to make comparisons with procedures already established in the devolution legislation. I can be very brief, given the conspectus that the noble Lord, Lord Tyler, has given us. The sweeping effect of Clause 11 and Schedule 3 is to reserve to Westminster all returning competences unless the position is changed by Order in Council. The Delegated Powers Committee distils the problem effectively in paragraph 31 of its later, 12th report. The Government have said that the purpose of the Order in Council procedure is to provide an “appropriate mechanism”—there is that word “appropriate” again—to broaden the parameters of devolved competence in respect of retained EU law. However, as the noble Lord, Lord Tyler, made clear, the concept of the definition of retained EU law is anything but straightforward. The fundamental point is that something as important as the distribution of competences should not be left to take-it-or-leave-it statutory instruments. This is something for primary legislation and the much-enhanced scrutiny that it would receive.

[Lord Mackay of Clashfern (Con)]

My Lords, I sought to explain in reference to the amendment I moved last week my belief about the simplicity of the real issue in this area. It seems absolutely clear that all the devolved Administrations—and the UK Administration themselves—are subject to EU law. However, on Brexit day that will all disappear and there will be the powers—these are the ones I am particularly interested in—that were kept to the EU. I said last week, and nothing I have heard since has persuaded me to change my mind, that all the powers which are effectively exercised within a single devolved area should be devolved immediately. That is the result of the EU no longer being in charge of our procedures. In addition, those powers the EU has which to be effective require to operate in more than one of the devolved areas should go to the UK Parliament. I thoroughly believe that that is the only way in which this can be properly accomplished. The idea of doing it with some form of legislation other than primary legislation is doomed to failure. So far as I am concerned, for example, the amendment tabled by my noble and learned friend Lord Hope, which we will come to later, relates only to the idea that something of this kind can happen by statutory instrument. There is no power which creates statutory instrumental authority for this kind of thing. Therefore, what has happened is what Bishop Berkeley once said about the philosophers:

“We have first raised a dust and then complain we cannot see”.


That may have affected other areas of our national life.

This is a simple matter, and the simpler it is, the better what we are trying to do will be understood by ordinary people—the people who read the papers. Otherwise, we will be arguing away about what I certainly cannot understand and I venture to think that, if I cannot understand it, it is likely that one or two others will not understand it either.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 10th sitting (Hansard - continued): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Adonis (Lab)]

The debate that I seek to initiate is on the ability to increase fees and charges by delegated or sub-delegated powers. It is a straightforward matter of proper parliamentary oversight that that should not happen.

Having said that, my role in this debate is one which I am now performing regularly in this Committee—to act as John the Baptist to my good noble friend Lord Lisvane, who is probably the greatest expert in the history of Parliament on the procedures which are adequate and necessary for raising fees and charges. I now make way for the authorised version to be given to the Committee.

[Lord Lisvane (CB)]

My Lords, there are few better warm-up men than the noble Lord, Lord Adonis, but I fear that I will disappoint your Lordships. As the Question formally before the Committee is whether Clause 12 shall stand part of the Bill, I will speak to Amendments 348 and 349 rather than moving Amendment 348. The amendments are in my name and those of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Lord, Lord Tyler. I can be very brief, even at this refreshingly early hour of the evening, as the issues in both amendments have already been considered by the Committee in one way or another. It may indeed be that we have had a sneak preview of the Minister’s response on both issues.

Amendment 348 would prevent fees or charges to be levied by tertiary legislation. At an earlier stage, I expressed concern that this Bill, already proposing to confer sweeping powers upon Ministers, should go even further and permit the making of the law of the land by persons and bodies authorised by a Minister. The authorisation would, as the Minister said in an earlier debate, be subject to the affirmative procedure, but once that authorisation had been made, the law made under it would be under no sort of parliamentary control and, unless in the form of a statutory instrument—which it would not be—would not even be required to be published.

The arguments against tertiary legislation become even stronger when the powers being given to persons and bodies would allow them to levy fees and charges which might well be used to gold-plate their functions. Clause 14(1) defines “public authority” by reference to Section 6 of the Human Rights Act 1998, and Section 6(3) of that Act, in turn, defines “a public authority” as including a court or tribunal—which is fine—but also,

“any person certain of whose functions are functions of a public nature”.

That spreads the net very wide indeed.

Amendment 349 returns to the issue of ancient principle that taxation should be by primary legislation, not by statutory instrument. When this was considered by the Committee earlier in its proceedings, your Lordships were supportive of the proposition that it should be for the House of Commons to impose taxation by primary legislation, not for Ministers to do it by regulations. In a sense, we are possibly getting a little punch drunk as we see power after power after power being arrogated to Ministers. This is one which should not be.

[Lord Judge (CB)]

My Lords, I was not able, for unavoidable reasons, to be here when the issue of tertiary legislation was addressed in the course of the debate on this Bill, so I want to add something. I do not think that even those who do not see eye to eye with me would accuse me of being an ardent advocate of secondary legislation: I am not. I spoke about this at Second Reading and have been extremely reticent on the issue in Committee, but I shall return to it in much greater detail on Report.

I support my noble friend Lord Lisvane. The provision we are considering—I will take it quite slowly, because this is how I see it—would vest powers in a Minister to use secondary legislation, with negligible proper scrutiny, if any, to bestow lawmaking powers on a public authority, with even less scrutiny. It amounts, in effect, to scrutiny being diminished to extinction. In that process, we as lawmakers are not doing right. We are simply handing power over to people who should not have it. This tertiary form of legislation is, therefore, even more questionable than secondary legislation, for the same reasons and—I add, at this time of night—with knobs on.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

Moved by

[Lord Lisvane]

355: Schedule 5, page 39, line 18, leave out sub-paragraph (3) and insert—
“(3) Any direction given under this paragraph must be contained in regulations.”

[Lord Lisvane (CB)]

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”—


that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.


However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.

--- Later in debate ---

[Baroness Goldie]

I hear the noble Lord. I did not in any way wish to draw a specific comparison between the two. I was simply describing the magnitude of constitutional challenge which is confronting the country. I had no wish to conflate the two situations in any way. The noble Lord is quite right that there are profound differences. If it caused concern, I apologise.

[Lord Lisvane]

My Lords, I am grateful to the Minister for her lengthy and very detailed reply. I am also grateful to noble Lords who have taken part in the debate and expressed supportive views. Particularly telling were the twin points made by the noble Lord, Lord Pannick. The first was about the availability of the corpus of legislation and clarity and certainty on that point. His subsequent point, made in an intervention, was about the risks of challenge in the courts. The Government would clearly wish to avoid that. The noble Viscount, Lord Hailsham, made the helpful point that an enhanced process would allow it to be judged whether Ministers had got it wrong and for that judgment to be made in time.

The Minister answered the issue very much in terms of administrative practicality—pragmatism, if you will. She quoted some precedents—we have traded precedents on successive days in Committee, and some have been good and some have been less so. But an army of embryo precedents—if such a concept can be allowed—is about to march towards your Lordships’ House from the other end of the building in the form of the Taxation (Cross-border Trade) Bill, which I referenced in moving the amendment. I think we need to be very cautious about rather distant precedents contained, for example, in the Energy Act.

As I say, the noble Baroness answered very much in terms of administrative convenience, practicality and so on. She talked about the volume of the regulations. I do not think that a sensible solution is beyond the wit of man and woman to devise in this case. Could there not be a cumulative list of ministerial decisions on items of legislation that have been identified as falling within this provision on the DExEU website, so that everybody knows what is coming, which could be wrapped up in one SI every month or every six weeks? That would seem to me to reduce the burden.

The Minister was very kind to be concerned about the burden on the Queen’s printer and the National Archives. However, I am sure that, given their experience and resources, that is a burden which they are well capable of carrying.

Powerful as the Minister’s reply was on these administrative matters, I do not think that the volume of legislation—or transactions, if you will—is enough to outweigh the issue of principle that lies behind this. I know the noble Baroness will forgive me for this image, but when she touched, fairly briefly, on the issue of principle, I seemed to hear the desperate scrabbling of fingers on a rather treacherous cliff edge. She was much more certain on the issues of administrative feasibility.

The Minister did make one prediction with which I completely agree: this is an issue which is bound to arise once again at Report. On that basis, I beg leave to withdraw the amendment.

Amendment 355 withdrawn.

--- Later in debate ---

[Baroness Goldie]

I can always rely on the noble Lord to lighten the proceedings and introduce an element of light relief. I do not imagine that the Queen’s printer is some inky-fingered individual stabbing away in a dark basement. If the Queen’s printer is as busy as the noble Lord implies, the less we give them to do, the better. That is why I think that the direction to exclude things from the Queen’s printer would be very timely. I shall of course find out more information for the noble Lord.

[Lord Lisvane]

I wonder if I could, as they say, be helpful. I think that the Queen’s printer is the Keeper of the National Archives, who also holds the title “Queen’s Printer”.

[Baroness Goldie]

I am grateful to the noble Lord, Lord Lisvane. As the late FE Smith, said, I am no wiser but I am certainly better informed.

--- Later in debate ---

[Baroness Goldie]

Then I offer a heartfelt tribute to Mr Jeff James.

[Lord Lisvane]

If it assists the noble Lord, Lord Foulkes of Cumnock, he is also the Queen’s printer for Scotland.

[Lord Beith]

I recommend that the Minister and other Ministers pay a visit to Kew, which is a very nice place, and have a look at the small but diligent unit that tries to maintain an accurate record and account of what the law of this country is.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

Moved by

[Lord Lisvane]

365: Schedule 8, page 64, line 33, leave out from first “time” to end of line 34

[Lord Lisvane (CB)]

My Lords, I can hear the strains of the “Farewell” Symphony as we prepare to tackle the penultimate amendment to be debated in Committee, and how appropriate it is that the very final amendment should be in the name of the noble Lord, Lord Adonis.

Amendment 365 is in my name and the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Baroness, Lady Hayter of Kentish Town, and it is very sharply focused. The Committee has already considered the issue of tertiary legislation, with Amendments 110 and 135 as vehicles. Those amendments combined the issue of the principle of tertiary legislation with that of sunsetting. Amendment 365 is about only sunsetting, so I need not trouble the Minister to revisit the general defence of tertiary legislation, which he made at cols. 1473 and 1474 at an unearthly hour on Monday 12 March, although it was then what the rest of the world knew as Tuesday 13 March.

On that occasion, the Minister also made a defence of the exemption of tertiary legislation from sunsetting. He said:

“Where sub-delegated or transferred legislative powers are crucial to the functioning of a regime, it would not be appropriate”—


how often that word “appropriate” recurs—

“for those powers to be subject to a sunset”.—[Official Report, 12/3/18; col. 1475.]

If one accepts the principle of bodies such as the Prudential Regulation Authority and the Financial Conduct Authority exercising tertiary powers in their role as continuing guardians of a regime—and the Minister made a very good case for that in his speech on that occasion—it also makes sense for them to continue to do so after two years have elapsed from exit day. Indeed, I feel that I am now starting to make the Minister’s speech for him. However, there remains a serious point, because if bodies responsible for the functioning of a regime are to continue to exercise their powers without a sunset, it is crucial that those powers are tightly drawn in the first instance, as there will be no opportunity for parliamentary scrutiny of the subsequent exercise of the powers that have been delegated to those bodies.

Therefore, perhaps the most helpful thing the Minister could do in replying to this debate would be to give your Lordships a clear assurance that the tertiary powers will be carefully circumscribed, and that when affirmative instruments delegating those powers come before Parliament—because the actual delegation will be subject to the affirmative process—they do not simply prescribe some general subject area in which the body is to operate and which is to be its responsibility, but are rather more specific and indeed constraining. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

--- Later in debate ---

We are keen to hear the views of noble Lords but, given the variety within these powers, the Government are very wary of prescribing a one-size-fits-nobody solution to scrutiny. That, I fear, would only store up even more discontent among noble Lords. I remain convinced that the delegated powers granted under this Bill will be needed for the foreseeable future and that the right way to address the exercise of delegated powers transferred or granted by the SIs under the Bill is not to sunset them all. Rather, it is for noble Lords to scrutinise closely and carefully the SIs transferring those powers and the conditions they set out, and to reject them if they do not meet their exacting standards. We in the Government are committed to making sure that Parliament has all the material it needs to do this. I therefore ask the noble Lord whether, in the light of that, he will consider withdrawing his amendment.

[Lord Lisvane]

My Lords, I am very grateful to the Minister and to his Opposition shadow for what they have said in this very short debate. It may be a good moment to pay tribute to the stamina of the Minister and his ministerial colleagues. We are on day 11—it must seem to them like day 43. They are no doubt musing on some parliamentary version of what used to be said of King Philip II of Spain: that if death came from Madrid, we would be immortal.

The Minister’s reply rather put the onus on to your Lordships to look at the affirmative instruments that would delegate these powers and decide whether they were sufficiently constrained. I think that might be the second-order question. The first-order question—and I know the Minister accepted this point, even though he did not reflect it in what he said—is for the Government to think very carefully about how these powers should be constrained in order to avoid any controversy in your Lordships’ House. If that message has been taken on board, I beg leave to withdraw the amendment.

Amendment 365 withdrawn.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

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

Moved by

[Lord Lisvane]

31: Clause 7, page 5, line 3, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane (CB)]

My Lords, in moving Amendment 31 I shall speak to the other three amendments in the group, which are to the same purpose and are also all tabled in the names of the noble Lords, Lord Tyler and Lord Cormack, and the noble and learned Lord, Lord Goldsmith. The first point to make is that the powers to make regulations proposed to be given to Ministers in Clause 7 and Clause 8—although I am glad to say that Clause 8 is to be removed from the Bill—and Clauses 9 and 17 are heavyweight. With the exception of the matters listed in Clause 7(7), which are to be modestly extended by government amendment, regulations can do anything that an Act of Parliament can do—including, of course, the wholesale amendment or repeal of statutes that have passed through the far more exacting process of primary legislation.

I am grateful to the Minister and his officials for their generosity with their time and explanations, and I know that I speak for other noble Lords—but on this issue I do not think that our points of view have come significantly closer. I see that the Minister is kindly indicating confirmation of that. On Report I must not hark back too readily to what occurred in Committee, but it is worth recalling that when an identical amendment was moved compellingly by my noble friend Lord Wilson of Dinton, out of the 16 noble Lords who contributed to the debate, the only noble Lord who spoke against the amendment was the Minister.

There have been several rounds of detailed exchange between the Government and the Delegated Powers Committee, of which I am a member, and the committee has reported on these issues in its 12th, 20th and 23rd reports. I will spare noble Lords a detailed recapitulation. The issue is this: if a Minister may exercise these powers when he or she thinks it appropriate, I suggest that this subjective test is inadequate. These amendments would not simply replace the word “appropriate” with “necessary”; they would also remove the words, “the Minister considers”, so that we would be left with a statement of objective necessity. The Government have argued strongly that this amendment would unduly constrain Ministers so that they might not be able to do things that needed to be done because they would not be confident of being able to demonstrate necessity. I accept that “necessary” is a high bar—but “appropriate” is a bar so low that it would challenge even the most lithe and determined limbo dancer.

The Government have sought to make the use of “appropriate” more acceptable by requiring Ministers to give “good reasons” and show that they are pursuing a “reasonable course of action” via government Amendment 83C. But this does not cure the problem. The good reasons and the reasonableness of a course of action are still only in the opinion of Ministers. In its 23rd report, the Delegated Powers Committee points out:

“The requirement to state good reasons is a very low threshold. We would always expect Ministers to have good reasons before doing anything, and certainly when making new law in secondary legislation”.


The committee goes on to say:

“It does not advance matters for Ministers to commit to lay a document that merely confirms their belief that they are acting lawfully”.


Finally, the committee said:

“The test for political decision-making is not simply whether there are good reasons. There may be good reasons for doing something and better reasons for not doing it”.


There is also the point that under paragraph 22(6) of Schedule 7, if a Minister “fails to make a statement” of good reasons, he or she has only to “make a statement explaining” why this has not been done—so, not a high threshold, then.

I have heard it said that, were your Lordships to agree to the amendments in this group, it would make the Bill unworkable. It is of course a practice of very long standing to describe the likely results of unwelcome amendments in apocalyptic terms, up to and including the onset of plague and asteroid strike. However, in this case the problem is easily cured. Clause 7 contains a lengthy definition of what constitutes or does not constitute a deficiency in EU retained law. Indeed, the definition runs to 39 lines. With this example before us, it would be a relatively simple matter to gloss “necessary” in order to include the things that Ministers may indeed need to do.

For example, they may want to avoid unnecessary public expenditure, ensure that there is no inert or irrelevant material on the statute book or avoid legal uncertainty, as the Delegated Powers Committee suggested. I would be both surprised and disappointed if parliamentary counsel were not able to draft a form of words so that the common sense things that Ministers will need to do as part of the repatriation process fall—and are clearly seen by Ministers, Parliament and the courts to fall—within the definition of “necessary”.

--- Later in debate ---

[Lord Callanan]

I do apologise; he is behind the Bar, so he is not quite in his place. I hope he will not mind if I quote him. When comparable amendments were added by the Government to the Sanctions and Anti-Money Laundering Bill, and when speaking in support of government Amendment 9, to which he signed his name, he stated:

“I am satisfied that this will impose a real discipline on the Minister, backed up of course by the prospect of judicial review”.—[Official Report, 15/1/18; col. 439.]


That amendment passed without a Division—and I am sure the noble Lord will be supporting us in the Division tonight.

I know that I have offered new information in my speech today. In doing so, I hope that I have demonstrated that this is not simply a case of risk-averse Ministers erring on the side of caution. I can say with complete sincerity that the amendments on the Marshalled List today would necessitate a significant review of our secondary legislation programme and would surely lead to worse outcomes. In this, I agree with the noble Baroness, Lady Falkner. To avoid such a situation, I hope that the noble Lord will agree to withdraw his amendment. If, however, as I suspect, he wishes to test the will of the House, I suggest that he do so now, as this is not an issue the Government intend to return to at Third Reading.

[Lord Lisvane]

My Lords, I thank all noble Lords who have taken part in this debate—especially for their concision and brevity. I am in a position to help the noble Lord, Lord Skelmersdale, as I apprehended that his concern was that if the amendment were agreed, Clause 7(1) would be without a subject. But that subsection begins with the words:

“A Minister of the Crown”—


so it is quite clear who will be exercising the powers.

I listened very carefully to the noble Lord, Lord Bridges, and I hope that the difference of opinion which still remains between us is a demonstration that two reasonable people can disagree without either one being unreasonable.

I also listened very carefully to the noble Baroness, Lady Falkner of Margravine, who had the great courtesy to mention her concerns to me earlier. It seemed to me that her particular concern was the matter of discretion and the amount of time that would be required to make orders. I respectfully suggest that neither “appropriate” nor “necessary” will have an impact on time. There will be a great deal of pressure to produce the delegated legislation in the time required, but I do not believe that whether the word is “appropriate” or “necessary” will impact on that. In terms of ministerial discretion, there is still of course a substantial amount of discretion to be given to Ministers. The debate we are having is about the degree of constraint that there should be on that discretion.

The suggestion I made in moving the amendment, which the Minister was kind enough to recall, was reflected in the Delegated Powers Committee’s 20th report: namely, that some form of sensible definition, or at least the parameters of what could be done without going beyond the bounds of “necessary”, would be of great help to Ministers. If we are talking about avoiding legal uncertainty—and here I was most grateful for the intervention of the noble Viscount, Lord Hailsham, from his extensive professional experience—I do not think that adopting “necessary” would be necessarily an obstacle.

The Minister played the bowling in a very determined way, but the wicket has worsened substantially since Committee. He actually used the phrase about a course of action being “most sensible”—which seems to me to be at the heart of this. If one has some sort of expanded indication of what “necessary” can encompass, that seems to me to be exactly what is required. Nobody wants to stop Ministers doing things that are sensible—certainly I do not—but let us at least have them doing them on a canvas whose bounds are reasonably clear.

When he got on to “torturing” the English language, I felt that that really was a little hyperbolic. You do not torture a concept simply by telling people how you would like it interpreted. That seems again to me to be at the heart of the amendment.

The Minister’s Ofcom example was new material and very helpful, but it started to get into the area of whether there could be more than one solution to “necessary”—and, of course, there can, because, if there is a deficiency, there is not a single solution that is going to assuage that deficiency. There may be several of equal merit, and when they assuage that deficiency they demonstrate their necessity. So I did not really think that that was a particularly compelling example.

Of course, if we are to expect that significant policy changes will be made, the right route for making those changes is primary legislation, and there will be—as with a certain sense of foreboding we are well aware—a number of vehicles for such provision.

So I think that the Minister will not be surprised to hear me say that, despite a dogged defence of his wicket, I shall ask noble Lords to indicate their views, and I wish to test the opinion of the House.

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Moved by

[Lord Lisvane]

42: Clause 8, page 6, line 34, leave out “the Minister considers appropriate” and insert “is necessary”

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

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

[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.

[Lord Lisvane (CB)]

My Lords, Amendment 53 in this group is in my name and those of the noble Baronesses, Lady Hayter of Kentish Town and Lady Wheatcroft, the noble Lord, Lord Tyler, and—most recently and much to be welcomed—the noble Lord, Lord Callanan. In Committee I had occasion to speak about the legislative Damascus road so I am very glad that in respect of this issue at least the Minister has added this highway to his travel plans.

I respectfully commend my noble and learned friend Lord Judge for his excoriation of Henry VIII clauses. It is a very poor rejoinder to say that the exercise of these powers is subject to the way that Parliament deals with statutory instruments, whether they be affirmative or negative, because too often that is an occasion for merely perfunctory examination. Over a period of time—and I have looked at quite close quarters at the way that the threshold between primary and secondary legislation has moved upwards over the past couple of decades and more—it is ultimately subversive of the primary legislative process.

If my noble and learned friend presses his amendment, I will of course support him, but if he chooses not to do so or fails to convince your Lordships, I will fall back on my amendment, to which the noble Lord, Lord Callanan, has so helpfully added his name.

[Lord Rooker]

My Lords, I had not intended to speak in this debate, which is way above my pay grade, but in answer to the question asked by the noble and learned Lord, Lord Judge—which I invite the Minister to get briefed on—about how this has been allowed to happen and when, I say that it would not have happened in David Renton’s time. He was the Member for Huntingdonshire in the other place and was still active here at 92, taking parliamentary draftsmen apart on a weekly basis, under the Government of whom I had the privilege to be a member. I am sure the noble Lord, Lord Lisvane, recalls this. He was meticulous. He chaired a report in the other place in the late 1970s on the drafting of legislation. It was his life’s work. He could pick apart these issues. No one is doing that these days and it is allowing slipshod work by parliamentary draftspeople to get on to the statute book, and it is about time we did more about it.

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Moved by

[Lord Lisvane]

53: Clause 9, page 7, line 11, leave out “(including modifying this Act)”

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Moved by

[Lord Lisvane]

86: Clause 17, page 14, line 14, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane]

My Lords, as this amendment is consequential on Amendment 31, which was agreed by your Lordships on 25 April, I beg to move it formally.

Amendment 86 agreed.

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Moved by

[Lord Lisvane]

87: Clause 17, page 14, line 22, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Lisvane]

My Lords, this amendment is also consequential to Amendment 31. I beg to move.

Amendment 87 agreed.

European Union (Withdrawal) Bill

Lord Lisvane Excerpts

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

Moved by

[Lord Lisvane]

70: Schedule 7, page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert—
“Parliamentary committees to sift regulations made under section 7, 8, 9 or 17
3_(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument, whether under this Act or any other Act of Parliament, to which paragraph 1(3), 6(3), 7(3), or 11 applies or which has the same purpose as an instrument to which those paragraphs apply, and(b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”).(2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure.(3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies.(4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if—(a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and(b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made, or(c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply to the instrument. (5) For the purposes of this paragraph—(a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament,(b) “sitting day” means, in respect of either House, a day on which that House sits.(6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in subparagraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

[Lord Lisvane (CB)]

My Lords, I can be brief because the arguments on a Westminster sifting mechanism were deployed in Committee.

Amendment 70 continues the theme of constraints which should be imposed by Parliament on powers delegated to Ministers. For many of the sweeping regulation-making powers, the Government would have a choice under the Bill as to whether the affirmative or negative procedure is to be used. So, as the Bill stands, the scrutinised are to choose the level of scrutiny to which they are subject. This cannot be right. The sifting provisions now in the Bill are better than nothing, but not much, because it is the very making of a recommendation by a sifting committee that brings into play the Minister’s power to ignore the committee and to choose the negative procedure over the affirmative.

Two very red herrings—if I might call them that—entered into the debate in Committee. One was that because there are sifting mechanisms with teeth in the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011, and those Acts provide for the super-affirmative procedure, this would somehow introduce the super-affirmative procedure into this Bill. It would not and I agree with the Government that, given the time constraints, super-affirmative would not be appropriate. That is why this amendment does not provide for it.

The second red herring was that allowing one or other House to override the decision of a committee could undermine confidence not only in the sifting committee itself but in the whole committee structure. I have had a bit to do with Select Committees of both Houses over the past 45 years and I find this argument truly bizarre. A Select Committee is subordinate to the House that creates it. Select Committee recommendations are often ignored or rejected, usually at the instigation of the Government of the day. No plaster falls from the ceiling; committees do not go into an irreversible sulk; it is a perfectly normal feature of parliamentary life.

The Leader of the House said she hoped that occasions when the Government did not agree with a sifting committee’s recommendation would be “very rare”—even rarer if both committees made the same recommendation. If that is to be the case, what damage is done by putting the onus on the Government to reverse the decision in one House or the other, rather than giving Ministers carte blanche?

I make no apology for repeating my final point—that we will see a flock of exit Bills over the next few months. There will be a strong temptation for the Government to use this Bill as a precedent for ministerial powers in the others. This is one such power that I suggest should not be replicated. I beg to move.

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I hope that the Government’s clear commitment to replicating the sifting mechanism in your Lordships’ House by building on the important work of the SLSC and providing additional staff and members demonstrates that we continue to take the established and valuable scrutiny role of this House seriously and that we will continue to do so when the sifting process is under way. With that, I hope that the noble Lord, Lord Lisvane, will feel able to withdraw his amendment.

[Lord Lisvane]

My Lords, I am most grateful to the Minister and to noble Lords who have taken part in this debate. From the remarks of the noble Baroness, Lady Smith of Basildon, it is clearly an opportunity for your Lordships to gain insight into that world of fascination and excitement which is statutory instrument procedure.

My noble friend Lord Bilimoria was much too kind to me when he credited me with the crafting of Amendment 70. There have been a few changes to it since we debated it in Committee, but it was actually crafted by the Delegated Powers and Regulatory Reform Committee, which regarded it as an extremely important matter of principle.

It would be churlish of me not to acknowledge some of the things that the noble Baroness the Leader of the House set out, including the improvements that have been and are to be made to the Bill by subsequent government amendment. I can well understand the nervousness that there must be in the minds of government business managers in this House and in the other House, with fleets of these SIs coming forward—different but alarming numbers have been quoted this evening—very little time and, in the back of some minds, the possibility of some rogue committees automatically upgrading everything to affirmatives. Here I was extremely grateful to the noble Lord, Lord Kirkwood of Kirkhope. He emphasised the responsible attitude taken by the SLSC, and I am quite sure that that will be replicated in sifting committees in both Houses. However, these are, to use the words of the noble Baroness, Lady Jay of Paddington, uncharted waters.

I thought that the Leader of the House was rather apocalyptic about timing when she piled period of time upon period of time, all made much more difficult by praying time of 40 days added at the end. If it is a matter of sifting, it is not a matter of judging and analysing merits but of asking: does this get over the bar? That rapidly becomes quite a straightforward process—so I think that that might be slightly overstated.

I also rather shied away from what I took to be the implied threat that, if your Lordships were so sagacious as to approve Amendment 70 this evening and the Commons were to reverse it, we might end up with no sifting process. If that were the reaction, I can only say that it would be highly unedifying, and I do not believe that that is likely to happen. It is important to remind ourselves that the regulation-making powers, including sweeping Henry VIII powers, are extremely extensive, and much debate on this Bill has centred on making the scrutiny of those effective.

It was kind of the Leader of the House to give us, once again, her strong expectation of what would happen, particularly if two committees were to agree. With all respect I have to say that, however strong an assertion and however deep a belief that is, it is not legislatively bankable. There is still at the heart of this matter an issue of principle, which is that the scrutinised should not be able to decide the level of scrutiny to which they are subject. So, with those thoughts in mind, I beg leave to test the opinion of the House.

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Moved by

[Lord Lisvane]

77: Schedule 7, page 49, line 4, leave out paragraph 13

[Lord Lisvane]

My Lords, this amendment is consequential on Amendment 70, agreed by your Lordships a short time ago. I beg to move.

Amendment 77 agreed.