European Union (Withdrawal) Bill

Lord Lisvane Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with the leave of the House, I will speak also to Motion L and Motion M. The scope of the powers in this Bill is not an issue that either House has taken lightly, and it is not one that the Government take lightly, either. Before the Bill was introduced, the Government set out the shape and size of the task ahead and why it could be achieved only by the use of relatively broad delegated powers. I do not believe that any noble Lord rejects the premise of that task. All of us here today accept that our law must be corrected so that it works properly when we leave the EU and EU law ceases to apply in the United Kingdom. None of us wishes to face a scenario, once we leave the EU, where the law does not work or where it is left so complex, confusing and convoluted that we spawn a new generation of legal cases that inherit the mantle of Jarndyce v Jarndyce.

My ministerial colleagues in the other place have given examples of where this might come to pass if our law looked as if it was still referring to the EU. We have a duty to do everything we can to provide legal certainty, and I know that I share that goal with Peers across the House. We want a sensible solution, accepting that the powers should be as wide as is required but no wider. The Government have honoured their commitment on this front with the limits we have already put on the correcting power, and indeed the total removal of one of the key powers in the Bill now that further analysis has weakened the case for it.

We have followed the recommendation of your Lordships’ Constitution Committee and have required Ministers to make, alongside any exercise of the key powers in the Bill, a statement that they have “good reasons” for their course of action and an explanation of this to Parliament. We are happy to have been able to do as recommended by the committee, and we are grateful for its constructive and expert approach to this issue.

Noble Lords asked the Commons to consider again the test that should circumscribe the breadth of the correcting power. They have done just that and they have found that a stark test of necessity, while perhaps understandable in everyday language, is not acceptable on the statute book. Indeed the Commons have now voted four times in favour of “appropriate”—I repeat, four times. Given that, I do not think it would be the right course for this issue to return to the Commons yet again, when their view has been so clearly expressed. I ask noble Lords to consider that.

Having accepted what the task ahead is and the principle of how to approach it, we must ask ourselves today what statutory wording will permit the sensible, logical and common-sense corrections we all support without giving unnecessary discretion to Ministers? For example, our approach will permit us to end inappropriate reciprocal arrangements such as those established by the directive on the return of cultural goods, which could leave the EU 27 able to force UK nationals into court to demand the return of cultural objects brought here, with no power for the UK to take legal action in similar situations overseas.

Other potentially unnecessary but sensible and appropriate corrections to deficiencies would include folding the EU’s authorisation process for controlling the export of devices that risk being used for torture into the UK’s own more responsive and effective domestic export control regime. We looked at this important issue and, by sending our amendments, we asked the Commons to look again. As I said, they have done so. They have debated at length and they have decided that it remains clear that only the original wording of the Bill will suffice. I hope that noble Lords will respect the decision they have made. I beg to move.

[Lord Lisvane (CB)]

My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.

The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.

So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.

[Lord Goldsmith]

My Lords, in following what was said by the noble Lord, Lord Lisvane, I will make one observation. In this House, noble Lords have supported the noble Lord’s amendment, and rightly so, because the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the other place, that it is for Parliament to make such important decisions.

As the noble and learned Lord, Lord Keen of Elie, said, having got to the stage where the House of Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and does not think it necessary to go any further, we are not recommending that noble Lords should disagree the amendment. But the important point has been made, and two comments follow from that. First, we hope that Ministers will carefully realise the significance of the debate that has taken place; we imagine that they will. Secondly, we hope that people outside this House will realise that, in pushing and speaking to these amendments, this House has been doing its job of making sure that the Executive is held to account.

--- Later in debate ---

[Baroness Evans of Bowes Park]

My Lords, appropriate scrutiny of delegated powers is crucial to ensuring that the Government are properly held to account by Parliament, and we accept that this is particularly important in relation to those granted under this Bill.

Last week the other place debated and rejected Amendments 110 and 128. Whatever some noble Lords might feel about the sifting mechanism proposed, it is what the other place favours and it has now demonstrated that across multiple Divisions.

As it stands, the Bill does not provide a statutory basis for a sifting mechanism in this House. I hope that noble Lords will agree that we must do something to rectify this or we will have no provision in the Bill allowing for a sifting process in this House whatever. I am pleased that when rejecting our amendments, the other place, quite rightly, left it up to us to decide whether or not to emulate its own sifting mechanism.

The Government have always believed that this House should have an analogous mechanism to that in the other place, which is why I worked with the Procedure Committee to agree the mechanism by which the Secondary Legislation Scrutiny Committee would conduct the functions which, in the other place, will be conducted by a new sifting committee.

Unfortunately, the Government’s amendments providing for that were pre-empted on Report by the amendments in the name of the noble Lord, Lord Lisvane. As the Commons has now made its view clear once more, the Government are returning to the proposals which this House did not have the opportunity to decide on, as amendments in lieu. Without their being accepted today, the sifting process would be deprived of the weight of expertise in this House on questions of secondary legislation and procedure.

I believe that our amendment strikes the right balance. It will ensure that there is sufficient time for the legislative challenge ahead: a challenge for which we all share responsibility. Although that means that the committees will have to react at pace, we are confident that they are well equipped to do so.

Most importantly, our amendment will put this House on an equal footing with the Commons and ensure that there is every opportunity to make recommendations which the Government are committed to respecting.

I know that there has been concern that Ministers may ignore the committees. I echo the sentiment of my right honourable friend the Secretary of State for Exiting the European Union when he said that there is likely to be a “political cost which will be significant” to going against a sifting committee recommendation.

As I made clear in our previous debates on this issue, the Government have always expected to have to justify themselves to the sifting committees where they agree, with Ministers either being called in person before the committee or writing to explain their views. I hope the House does not think that this is a commitment which Ministers would shirk or seek to shy away from.

However, in order to put this beyond doubt, the Government are happy to put their commitment into statute, and this is reflected in the amendments before us tonight. Ministers will be required to make and provide to Parliament a Written Statement explaining themselves if they disagree with a recommendation from one or both of the sifting committees. Your Lordships can be assured that there will be no hiding place from the light of your scrutiny. I beg to move.

[Lord Lisvane]

My Lords, it would be extremely churlish of me not to acknowledge the movement which the Government have undertaken on these issues, particularly including your Lordships’ House in the sifting process. During Commons consideration of the amendments, the Secretary of State for Exiting the European Union, deployed a rather familiar set of arguments, if I may put it in that way. Quoting the chair of the House of Commons Procedure Committee, he insisted that the Government proposals, under which Ministers will, despite the statements and other provisions, have the final word on whether the substantial amount of secondary legislation which may be brought forward under the Bill, should be subject to the affirmative or negative procedure. He insisted that that procedure had teeth. If it is really to have teeth, some significant dental work is still required. But these exchanges are not the place to consider matters of that sort. The point has been made and although, in an ideal world, it has not been completely adequately answered, I think we should leave the matter there. The test will be, of course, the first occasion on which the committee’s view differs from that of the Government.

[Lord Wallace of Saltaire]

I thank the Leader of the House for the generous remarks she made about the role of this House. It is particularly important that she sees it as an important part of her role to defend the role of this House and of Parliament as a whole. We have noticed in recent months, and even more in recent weeks, some pretty anti-parliamentary language in the press. I note that at the end of Quentin Letts’s one and a half page rubbishing of Dominic Grieve, he said:

“The sight of the elite grabbing power from the Queen’s government will rupture trust in the ballot box and could imperil centuries of British support for parliamentary democracy”.