European Union (Withdrawal) Bill

Debate between Lord Newby and Lord Adonis

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Newby]

My Lords, this amendment simply asserts a long-established principle of British practice and law, namely that public bodies are created via primary legislation. There are good reasons for this principle. Public bodies perform important functions. They cost money to establish and run, and they can often themselves levy fees and charges or bring enforcement actions in the courts. They typically have quite a big impact on the people and organisations that they regulate. They are, in short, important. They should not be capable of being established via secondary legislation for the simple reason that such legislation does not allow their purposes, scope and operating practices to be subject to adequate debate.

In the Commons, debate on any statutory instrument is limited to 90 minutes. While we can take slightly longer in your Lordships’ House, the nature of statutory instruments, as the Minister knows, is that they can only be approved unamended or rejected outright, except in the most extreme circumstances. If we attempt, as we very rarely do, to reject them outright, we are accused by the Government of exceeding our powers, and the noble Lord, Lord Strathclyde, is wheeled out to threaten us with dire consequences.

I had rather hoped that the noble Lord, Lord O’Donnell, who had planned to be in his place, was in his place, because he wrote the Cabinet Office guidance which clearly explains to Ministers that they should use primary legislation when establishing public bodies. However, in order to check whether I was right in thinking that it was normal practice to establish public bodies by primary legislation, I had a look at the public bodies that the Government proposed to abolish in the Public Bodies Act. These were a very wide range, from the Administrative Justice and Tribunals Council to the Victims’ Advisory Panel.

I asked the Library to discover by what power this random cross-section of public bodies had been established. Of the 34 listed in Schedule 1 to the Bill they looked at 27. They were without exception established by primary legislation, and while it is unsurprising in the case of larger entities such as the Competition Service—established by the Enterprise Act 2002—it was also the case with relatively insignificant ones such as the Home Grown Timber Advisory Committee, established by the Forestry Act 1967, or the Railway Heritage Committee, established by the Railway Heritage Act 1996. So what the Government are proposing in the Bill is without precedent. Certainly, any body established to fill a gap created by our exit from the EU would be more important than some of those I have already mentioned.

Is such a departure justified? I do not, as a matter of principle, believe that it is, but if it were to be justified, the only grounds I could imagine the Government plausibly advancing were that there were simply far too many bodies to be established by primary legislation by exit day. At first sight this argument looks as though it might have some merit. There are, excluding the EU’s core institutions such as the Commission and the Parliament, some 54 other EU bodies described by the EU as,

“specialised agencies and decentralised bodies”.

Virtually all of them are set out in Amendment 263, in the name of the noble Lord, Lord Whitty. But the truth is that we will not need to replicate anything like that number.

Clearly, we will not need to replicate the functions of the European Police College, or the Translation Centre for the Bodies of the European Union, or the European Institute for Gender Equality. We will not need to create new bodies in the area of financial regulation. In some cases, the question of whether we need to create new bodies or not is extremely unclear. The Prime Minister, in her speech last week, suggested we would be seeking associate membership of three bodies, which we are already members of by virtue of our European membership—namely, the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency. It is clear that, if we stayed in those bodies, the need to replicate them would be very small, if needed at all. However, the negotiating mandate published today by the European Council states that:

“The European Council further reiterates that the Union will preserve its autonomy as regards its decision making and excludes participation of the United Kingdom as a third country to EU institutions, agencies or bodies”.


It seems that, since the point at which I first drafted my speech for this evening, we may need to create three more bodies than I had originally envisaged. None the less, the total number we are talking about is substantially smaller than 54 and, almost certainly, is less than 10. Indeed the Government have already admitted that some bodies which will need to be created, will be created by primary legislation. We heard earlier today, when we were talking about environmental protections, that there will be an environmental protection Bill with a new environmental body created within it which replicates some of the functions of European environmental agencies.

So, despite the lack of clarity, we are talking about a relatively small number of bodies for which primary legislation should be needed—and there is almost certainly time for that legislation. Before leaving the subject, I would like to refer back to the debate we had earlier, when we discussed Euratom, and also discussed Amendment 263 in the name of the noble Lord, Lord Whitty. That debate asked an extremely important question of the Government, which was: will they publish strategies explaining how these various bodies are to be replicated, or not replicated, and what we should do to fill any gaps, so that we know what is happening? The answer given by the noble Lord, Lord Callanan, consisted of a single sentence. He said that it,

“would be neither helpful to Parliament, nor in the national interest”.—[Official Report, 21/2/18; col. 252.]

I suggest to the noble Lord that both those statements were false. It will be in the interest of Parliament to know how the Government intend to fill gaps in respect of public bodies caused by our leaving the EU. For the noble Lord to assume that he knows what is in the interest of Parliament is rather extraordinary. What he really means is that it is not in the interest of the Government to say what they will do to fill the gaps, because they clearly do not know. They do not know where they will get to in the negotiations and I suspect that, regarding some of these bodies, they do not know, full stop. I invite the Minister in his reply this evening to be a bit more gracious towards the noble Lord, Lord Whitty, and his suggestion, and to commit the Government to come forward with some suggestions as to how they are going to fill the gaps that they are about to create.

On the amendment itself, it is very straightforward. There is a well-established principle in British practice and law that public bodies are established by primary legislation. The Government are seeking to tear up that convention for no good reason and they should desist.

[Lord Adonis]

My Lords, the difficulty with having been in this House for a number of years is that all these debates come round and round. I wish that the noble Lord, Lord Newby, was right in saying that this is the first time we have been faced with sweeping powers for Governments to reform public bodies by secondary legislation. He may remember that one of the first acts of the coalition Government in 2010 was to introduce the Public Bodies Bill. I vividly remember the debates on that Bill because it gave sweeping powers to the Government to abolish public bodies by statutory instrument. Because it is the job of the Opposition to oppose draconian attempts by Governments to seize Henry VIII powers, those of us on this side of the House made exactly the same speech as the noble Lord, who was then sitting on the Bench opposite, has made, saying why that should not happen.

There was then one of those classic showdowns between the House of Lords and the House of Commons. From memory, it centred on whether the Youth Justice Board, which at that time was threatened with abolition, should be capable of being abolished and whether it should be done by primary or secondary legislation. We all thought that was a very bad idea because it was doing such a brilliant job of dealing with the problem of young offender institutions. I believe we saved the Youth Justice Board, and all the brilliant developments in penal policy that we have seen in this country in the last eight years, which have been such a phenomenal success, are no doubt due to its survival at the insistence of the House of Lords in 2010.

The proposal put forward by the noble Lord is all immensely worthy and I obviously support everything he has said. The power grab by the Government which the noble Lord, Lord Callanan, who I see is now back in his place, is trying to undertake is utterly reprehensible. I thought I heard the noble Baroness say earlier that the Government are prepared to move on this. I hope that the noble Lord and the noble Baroness have been speaking so that we can bank this great act of liberalism on the part of the noble Lord. It will be the first one that we have heard since he assumed his current place but we would welcome it greatly.

I simply note that in the great scheme of the United Kingdom leaving the European Union, this is a small issue. It is a classic House of Lords issue where we will probably achieve a great victory. It will make no difference whatever in the great scheme of things but I suppose that is why we are here.