European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Lisvane (CB)]

My Lords, I shall add to the compelling citation by my noble friend Lord Pannick of the Constitution Committee’s report on what the Delegated Powers and Regulatory Reform Committee said about Clause 17. It pointed out that, unlike the regulation-making powers in Clauses 7 to 9, there is,

“no time-limit on the making of regulations under clause 17”.

It also said that the powers to make consequential provision,

“should be restricted by an objective test of necessity”.

That is the golden thread of appropriateness and necessity that has been running through a number of debates and I hope that a constructive way forward can be found on that before Report.

The Delegated Powers Committee also points out that, although paragraph 100 of the delegated powers memorandum says that the Henry VIII powers are appropriately conferred, and that,

“a large number of ‘fairly straightforward’ changes, including to primary legislation, will be needed in consequence of this Bill … that does not explain why it is appropriate for the negative procedure to apply in all cases including those which are not ‘fairly straightforward’”.

The committee concluded:

“Where regulations under clause 17(1) amend or repeal primary legislation, the affirmative procedure should … apply in accordance with established practice”.

[Lord Newby (LD)]

It is a pleasure to follow the noble Lord, Lord Liddle, and others who have spoken. Normally, when something is about consequential and transitional provisions, your eyes glaze over, because what you are talking about is the sort of sweepings from the floor, in the legislative sense. But this is the most extraordinarily broad provision. It basically says that a Minister of the Crown can, by regulations, change virtually any provision in any Act.

As the noble Lord, Lord Liddle, pointed out, and as we have discussed, the effect of our membership of the EU has been like the tide rising across the legislative framework. It has gone into virtually every part of our legislative life. This provision, untrammelled as it is with any qualification at all, enables Ministers to amend by secondary legislation a whole swathe of legislation that is not directly covered by the earlier clauses of the Bill. No doubt the drafters of the Bill thought that this was a sort of belt and braces provision, because it covers everything else that might not have been covered by earlier clauses. However, as other noble Lords have said, it is surely far too broad.

The key definitional question is what the word “consequential” means. On a broad interpretation of it, any legislation that is consequential on our membership of the EU is covered by this provision, which is surely far wider than anybody in your Lordships’ House would wish to see. I hope that the noble Lord will be able to reassure us that, first, that was not the Government’s intention and, secondly, that they are willing to accept the recommendations of the two committees of your Lordships’ House. As this stands, of virtually all the provisions in the Bill, this is the one that gives Ministers the broadest unfettered powers to change primary legislation by secondary legislation and it clearly is not the will of the House that that should be allowable.