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.