European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Wednesday 14th March 2018 Lords Chamber

Without those three elements covering the three items—it being the right time, and Parliament being able to say to the Government, “Go back and negotiate along these lines”, the provision would not, in my respectful submission, be meaningful. It is plain, because the Commons passed the amendment to the current Clause 9, that they wanted a meaningful vote. I am sure that all the amendments will come back in a form that has broad agreement throughout the House, and that they will propose to spell out what the Commons can do. I very much hope that in his response to this amendment, the Minister will take more seriously the questions he has been asked—and those that he was asked on the previous group of amendments.

[Lord Lisvane (CB)]

My Lords, together with my noble and learned friend Lord Judge, and the noble Lords, Lord Tyler and Lord Adonis, I tabled notice of intention to oppose Clause 9 standing part of the Bill, in order to ensure a debate on the purport of the clause, not least on the generality of it—and not least because of the extended delegated powers that it contains. It has been a delight that that notion has been part of a debate with such outstanding speeches, including those of the noble Viscount, Lord Hailsham, the noble Lords, Lord Cormack and Lord Reid, and pre-eminently that of the noble Lord, Lord Patten of Barnes. I suggest that his speech should be written in letters of gold and set as a compulsory constitutional text—and after his speech a few moments ago, I would add the noble and learned Lord, Lord Falconer of Thoroton, to that roll of honour.

I was also musing on the effect of the words helpfully inserted in Clause 9(1) by Mr Dominic Grieve’s Amendment 7 in the Commons. If there were no deal, I wondered, would the requirement that the final terms of withdrawal should be approved by statute actually bite? But on reflection, I concluded that even if, at the end of the negotiation, there were nothing but scorched earth, there would have to be some sort of withdrawal agreement, and that in turn would make the proviso effective. In political terms it might, of course, be even more effective if no deal at all cast a different light on the fundamental question of withdrawal.

The area of great concern in Clause 9 is, of course, the powers proposed to be conferred by subsection (2). As I have Amendment 154 to that subsection, and as my noble and learned friend Lord Judge has asked me to move Amendment 153 in his unavoidable absence, I shall reserve any further remarks until we reach that group.

[Baroness McDonagh (Lab)]

My Lords, my noble friend Lady Kingsmill and I have been trying to get in on this group of amendments since the beginning of the debate. Unfortunately, the noble Baroness had a meeting with the Bank of England at 4 o’clock, and as the chair of a bank, she could not fail to go to it. I sought advice from the Minister, the noble Baroness, Lady Goldie, and she suggested that I should read the noble Baroness’s words into the record. I shall then make my own comments on Amendments 155 and 191.

On behalf of my noble friend Lady Kingsmill, I support Amendment 199. Many noble Lords have spoken eloquently about this amendment, which seeks to preserve our current relationship with the EU should Parliament decide not to approve the withdrawal agreement and ask the Government to go back to the negotiating table. The Brexit process has been characterised by uncertainty. We simply do not know what the final deal will look like, under what circumstances we will do business, be consumers, travel and work. We do not know what our future relationship with Europe will be, and Article 50 sets the clock ticking for when we would need answers to those questions.

This amendment seeks to ensure that the withdrawal deal put to Parliament is not a choice between a poor deal or no deal, whereby the UK would crash out of the EU and revert to WTO terms. Noble Lords have spoken about how that would be hard for our economy and for trade and services. It would, and it would also be hard for people. It is this last point, the rights of EU citizens, which I would like to touch on today. Negotiations are about the balance between what is gained and what is lost. Some of that will be quantifiable in financial terms but it will also be about culture, opportunity and identity.

My children have grown up as proud citizens of the UK and Europe. They do not question that you can be both, or that being one means diminishing the other. They have never had to question that they can travel, study, work and live across borders, and that their qualifications and skills are recognised. For them, Europe is a place of opportunities, not obstacles. When the UK leaves the EU, it is not just that generation which will lose a part of their identity and a sense of belonging, it is the UK as a whole.

I am an immigrant, brought to this country as a child from New Zealand. When I was 18 and a new undergraduate at Cambridge, I applied for a British passport to travel to Switzerland for a walking holiday with friends. I was refused on the grounds that I was not British because neither my father nor my grandfather was born in the UK. I was shocked and felt very insecure. Eventually, I obtained a New Zealand passport. On my return to the UK after my holiday, I was required to go to the purser’s office on the ferry and was questioned about my commitment to the UK by a police officer not much older than myself. I eventually received the stamp in my passport giving me indefinite right to stay. I think I have done pretty well since then.

A week ago, the House heard informed debate on amendments that sought to put the rights of EU citizens into the Bill. I welcome the fact that an agreement was reached in principle in December on EU citizens’ rights as part of the phase 1 agreement. However, as noble Lords raised last week, there remains uncertainty and anxiety for EU citizens about their position, in particular in the event of a failure to reach a withdrawal deal. Even if EU citizens’ rights are clarified in the withdrawal agreement, what if the rest of the withdrawal agreement is not a good deal for the UK and Parliament votes against it? What happens then? In those circumstances, until we are certain and ready and prepared for a successful positive future relationship with the EU, surely we should retain the status quo and relationship we have. Surely, we owe it to the EU citizens here and the generation who will have their British-European identity severed to extend Article 50 until the best deal can be reached. That is what this amendment seeks to ensure.

Speaking for myself, I support Amendments 151 and 199. I find myself in the very unusual and discombobulating circumstances of agreeing with most noble Lords on the other side of the Chamber. If noble Lords were present at this morning’s debate, they would appreciate that we are in danger of breaking out into unity across Benches and parties.

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Moved by

[Lord Lisvane]

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

[Lord Lisvane]

My Lords, I must convey to the Committee the sincere apologies of my noble and learned friend Lord Judge, who has a long-standing and unbreakable engagement outside the House and who has asked me to move Amendment 153 on his behalf. I will also speak to Amendment 154 in my name.

Both the Constitution Committee, in its ninth report, and the Delegated Powers Committee, in its 12th report, expressed grave doubts about the breadth of the powers contained in Clause 9. They also suggest—as has been touched on by a number of noble Lords in the previous debate—that, as a further Bill is required by the amended Clause 9(1), Clause 9 as a whole is unnecessary, as any regulation-making powers can be included in the Bill that is now contemplated by Clause 9(1). That is a persuasive case, and perhaps it would indeed be better—despite what the Minister said in reply to the previous debate—if Clause 9 were in effect to be deferred to that later Bill.

However, whether it is here or whether it is there, the real mischief at the heart of Clause 9 needs to be cured. Clause 9(2) is a whacking great Henry VIII power, allowing Ministers to make in regulations any provision that could be made by an Act of Parliament—something of which my noble and learned friend Lord Judge has been such a trenchant critic. In a piece of legislative pulling oneself up by one’s own bootstraps, it would also allow Ministers to modify the Act which will result from this Bill itself.

The rather measured phrases—“make any provision” and “modifying”—should not mask the extent of the powers. Clause 9(2) would allow Ministers to make regulations that would amend or repeal any Act of Parliament whenever passed. And the power relating to the Act resulting from this Bill would allow Ministers to amend or even repeal it, setting at naught a number of weary hours that your Lordships have spent on this text.

The Delegated Powers Committee set out some ways in which Ministers would be empowered to use SIs, among other things to,

“alter the scope of ‘retained EU law’ so that … it includes EU legislation passed after exit day”,

to keep the supremacy of EU law for certain purposes, with the supervision of the ECJ, or to change the whole basis of the regulation-making powers elsewhere in the Bill so that “necessary or appropriate”—the subject of our argument last Wednesday—would become irrelevant, and the powers could be used for major policy change without restriction.

The Minister rightly said in reply to the previous debate that these powers would have to be used in the terms in which Clause 9 is framed, so they would be about provision relating to the withdrawal. Of course, a parliamentary vote on the withdrawal deal would, or could, in effect be a constraining factor. But the extent of that constraint is wholly dependent on another factor, which is how much detail is contained in whatever document or test becomes the subject of that meaningful vote.

The power could also be used to remove the Bill’s time limits on the regulation-making power, which at the moment provide at least some reassurance. As with other delegated powers, Ministers have sought to say as the noble Lord, Lord Callanan, did in reply to the previous debate. He gave a number of examples—not frightening or alarming ones—of the way in which the powers could be used. I do not for a moment question the good faith in which Ministers give us these examples, but once again one has to emphasise that what matters is what is in the Act. If current Ministers do not use those powers in the ways authorised by the Act, other Ministers may do so.

The Constitution Committee concluded that giving Ministers the powers in Clause 9(2) would require “the strongest of justifications”. The Delegated Powers Committee went further, calling the power, despite its exercise being subject to the affirmative procedure, “wholly unacceptable”.

I have never felt that Henry VIII is an entirely welcome dinner guest—if I may put it like that. But his presence can be made just about tolerable by observing what I would like to call the rule of the three “S”s. The first “S” is scope: the exercise of such a power must be subject to tight constraints. Merely what might be thought “appropriate”—we are back to that again—for the purposes of implementing the withdrawal agreement does not qualify. The second “S” is scrutiny. Even though the affirmative procedure will apply to Clause 9(2) regulations by virtue of paragraph 7(1) of Schedule 7, the opportunities for effective scrutiny are likely to be limited, and the luxury of time for that scrutiny is unlikely to be available. The third “S” to bear in mind when his majesty comes to dinner is sunset. It would generally be better if Henry VIII powers were not on the statute book, but if they are, they should not linger there. Clause 9 provides that,

“No regulations may be made under this section after exit day”.


But as Ministers would have the power to alter exit day, this does not really give the reassurance it suggests. In my submission, therefore, Clause 9 fails those three tests of scope, scrutiny and sunset. It needs major surgery. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.

We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.

There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.

I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:

“No regulations may be made under this section after exit day”.


However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?

At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.

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[Baroness Goldie]

I am grateful to the noble and learned Lord for teasing that out. I shall undertake to investigate and to write to him on the point.

I have presented my case. I realise from the responses to my presentation that this may not have been the most persuasive or cogent advancement of my position and I recognise that changing the Committee’s mind on this may be a tall order, but I hope I have, for your Lordships at least, made this fare a little more digestible. I urge noble Lords to reflect on the arguments I have advanced. As I have said, though, if the view of the Committee is ultimately that this element of the Bill remains unpalatable, I shall take that view away and we can see where we are on Report. In the meantime, I ask the noble Lord to withdraw his amendment.

[Lord Lisvane]

I thank the Minister for responding to the debate with her customary courtesy, precision and humour. She invited us to consider some precedents. It called to mind the occasion in 1881 when Speaker Brand introduced into the House of Commons, on his own initiative and without any consultation, the concept of the closure. He came under a great deal of fire rather quickly for this so he asked my learned predecessor, Sir Thomas Erskine May, to find him a reason for having done it. May, after a rapid and I think somewhat fevered search, discovered a precedent in 1603. He said later that he had discovered something that convinced the House of Commons better than any argument: “I have found a precedent”. In this case I have to say with great respect to the Minister that I did not find her precedents particularly compelling. If one identifies something which in legislative terms is rebarbative and not particularly acceptable, the fact that it has been done once is a very poor argument for repeating the offence.

I agreed with I think everything that the noble and learned Lord, Lord Mackay of Clashfern, said. Indeed, in my short time in your Lordships’ House I do not believe that I have been guilty of disagreeing with anything he has said. He made a point about timing which I think is very important. It may well be that, in contemplation of the withdrawal arrangements, provision can be made under Clauses 7 and 8, according to the restricted purposes set out in those clauses—although not particularly restricted—in which case the solution would be to make SIs, and I would hope that they would be subject to the affirmative procedure. Although the noble Baroness invited us to think that the affirmative procedure is a simply wonderful thing, it is not even half a loaf in legislative terms; it is a great deal less. However, it could be done by those means with delayed commencement dates. I agree entirely with the noble and learned Lord, Lord Goldsmith, that if these requirements are known, the best course is to find a way of putting them in primary legislation, with all the controls and scrutiny that would attract.

I do not know how sensitive my radar is but I think I detect some serious doubts, still, around the Chamber about Clause 9(2), and certainly about the last part of Clause 9(2), so I think it may be that the noble Baroness will be taken up on her very generous offer to reflect those doubts in the appropriate quarter before we take these provisions forward. In that spirit I beg leave to withdraw the amendment.

Amendment 153 withdrawn.