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

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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.