European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

Moved by

[Lord Lisvane]

70: 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
3_(1) This paragraph applies if a Minister of the Crown—(a) proposes to make a statutory instrument, whether under this Act or any other Act of Parliament, to which paragraph 1(3), 6(3), 7(3), or 11 applies or which has the same purpose as an instrument to which those paragraphs apply, 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, or(c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 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 to the instrument. (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 subparagraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

[Lord Lisvane (CB)]

My Lords, I can be brief because the arguments on a Westminster sifting mechanism were deployed in Committee.

Amendment 70 continues the theme of constraints which should be imposed by Parliament on powers delegated to Ministers. For many of the sweeping regulation-making powers, the Government would have a choice under the Bill as to whether the affirmative or negative procedure is to be used. So, as the Bill stands, the scrutinised are to choose the level of scrutiny to which they are subject. This cannot be right. The sifting provisions now in the Bill are better than nothing, but not much, because it is the very making of a recommendation by a sifting committee that brings into play the Minister’s power to ignore the committee and to choose the negative procedure over the affirmative.

Two very red herrings—if I might call them that—entered into the debate in Committee. One was that because there are sifting mechanisms with teeth in the Legislative and Regulatory Reform Act 2006, the Public Bodies Act 2011 and the Localism Act 2011, and those Acts provide for the super-affirmative procedure, this would somehow introduce the super-affirmative procedure into this Bill. It would not and I agree with the Government that, given the time constraints, super-affirmative would not be appropriate. That is why this amendment does not provide for it.

The second red herring was that allowing one or other House to override the decision of a committee could undermine confidence not only in the sifting committee itself but in the whole committee structure. I have had a bit to do with Select Committees of both Houses over the past 45 years and I find this argument truly bizarre. A Select Committee is subordinate to the House that creates it. Select Committee recommendations are often ignored or rejected, usually at the instigation of the Government of the day. No plaster falls from the ceiling; committees do not go into an irreversible sulk; it is a perfectly normal feature of parliamentary life.

The Leader of the House said she hoped that occasions when the Government did not agree with a sifting committee’s recommendation would be “very rare”—even rarer if both committees made the same recommendation. If that is to be the case, what damage is done by putting the onus on the Government to reverse the decision in one House or the other, rather than giving Ministers carte blanche?

I make no apology for repeating my final point—that we will see a flock of exit Bills over the next few months. There will be a strong temptation for the Government to use this Bill as a precedent for ministerial powers in the others. This is one such power that I suggest should not be replicated. I beg to move.

--- Later in debate ---

I hope that the Government’s clear commitment to replicating the sifting mechanism in your Lordships’ House by building on the important work of the SLSC and providing additional staff and members demonstrates that we continue to take the established and valuable scrutiny role of this House seriously and that we will continue to do so when the sifting process is under way. With that, I hope that the noble Lord, Lord Lisvane, will feel able to withdraw his amendment.

[Lord Lisvane]

My Lords, I am most grateful to the Minister and to noble Lords who have taken part in this debate. From the remarks of the noble Baroness, Lady Smith of Basildon, it is clearly an opportunity for your Lordships to gain insight into that world of fascination and excitement which is statutory instrument procedure.

My noble friend Lord Bilimoria was much too kind to me when he credited me with the crafting of Amendment 70. There have been a few changes to it since we debated it in Committee, but it was actually crafted by the Delegated Powers and Regulatory Reform Committee, which regarded it as an extremely important matter of principle.

It would be churlish of me not to acknowledge some of the things that the noble Baroness the Leader of the House set out, including the improvements that have been and are to be made to the Bill by subsequent government amendment. I can well understand the nervousness that there must be in the minds of government business managers in this House and in the other House, with fleets of these SIs coming forward—different but alarming numbers have been quoted this evening—very little time and, in the back of some minds, the possibility of some rogue committees automatically upgrading everything to affirmatives. Here I was extremely grateful to the noble Lord, Lord Kirkwood of Kirkhope. He emphasised the responsible attitude taken by the SLSC, and I am quite sure that that will be replicated in sifting committees in both Houses. However, these are, to use the words of the noble Baroness, Lady Jay of Paddington, uncharted waters.

I thought that the Leader of the House was rather apocalyptic about timing when she piled period of time upon period of time, all made much more difficult by praying time of 40 days added at the end. If it is a matter of sifting, it is not a matter of judging and analysing merits but of asking: does this get over the bar? That rapidly becomes quite a straightforward process—so I think that that might be slightly overstated.

I also rather shied away from what I took to be the implied threat that, if your Lordships were so sagacious as to approve Amendment 70 this evening and the Commons were to reverse it, we might end up with no sifting process. If that were the reaction, I can only say that it would be highly unedifying, and I do not believe that that is likely to happen. It is important to remind ourselves that the regulation-making powers, including sweeping Henry VIII powers, are extremely extensive, and much debate on this Bill has centred on making the scrutiny of those effective.

It was kind of the Leader of the House to give us, once again, her strong expectation of what would happen, particularly if two committees were to agree. With all respect I have to say that, however strong an assertion and however deep a belief that is, it is not legislatively bankable. There is still at the heart of this matter an issue of principle, which is that the scrutinised should not be able to decide the level of scrutiny to which they are subject. So, with those thoughts in mind, I beg leave to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Lisvane]

77: Schedule 7, page 49, line 4, leave out paragraph 13

[Lord Lisvane]

My Lords, this amendment is consequential on Amendment 70, agreed by your Lordships a short time ago. I beg to move.

Amendment 77 agreed.