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.

--- Later in debate ---

Moved by

[Lord Lisvane]

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