Extension of Franchise (House of Lords) Bill [HL]

Lord Norton of Louth Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, the noble Lord, Lord Rennard, quoted one paragraph of the Parliament Act 1911 but he did not then quote the next paragraph, which recognises that, if you change the composition of this House, you also have to revisit the powers of the House.

I congratulate my noble friend Lord Naseby on introducing a Bill that has the merit of brevity. I would normally begin by addressing the merits of the argument, but on this occasion I shall look first at the level of support for the measure. How much support does it enjoy, be it from the public or from Members of the House?

Proposals for change to your Lordships’ House, be they great or small, rarely excite interest outside the House. I have in various writings on reform of this House quoted Janet Morgan, who once wrote:

“On Summer evenings and Winter afternoons, when they have nothing else to do, people discuss how to reform the House of Lords. Schemes are taken out of cupboards and drawers and dusted off. Speeches are composed, pamphlets written, letters sent to the newspapers. From time to time the whole country becomes excited”.


Well, the political classes may become excited but there is little evidence of the whole country ever doing so. Even in 1910, when there were two general elections, with Lords reform ostensibly being to the fore, the electorate remained as uninterested as it had been before the House rejected the 1909 Budget. As George Dangerfield wrote of the December election campaign:

“The country was indifferent, and politicians were hard put to it to stir up its lethargy”.


I am not sure that Lords reform was to the forefront of popular concerns either when the House of Lords Reform Bill was before the Commons in 2012.

Given that, it is not surprising that the issue before us today attracts no obvious public interest. I did a post on my blog about it and invited comments on the Bill. It attracted a grand total of two responses, the first of which was:

“It’s a non-issue. The Lords sitting in the upper house are small in number (and should be much smaller still—I suggest by drawing lots) and relatively balanced politically, so it’s unlikely to affect any election, so who cares? It’s not worth three sentences to discuss”.


Public indifference is matched by apparent indifference on the part of Members of this House. The speakers’ list for today may be notable for quality, but not for quantity. There is no clear, swelling demand for change on the part of Members, and in my view, that is significant. I notice also that the issue has not been the subject of much study. Even the Library briefing note relies on a blog post I did some years ago on the legal position of the prohibition.

I turn to the issue of principle. The argument, which has been made since the 19th century and is repeated today by my noble friend Lord Naseby, is that the House of Commons has powers denied the Lords, not least in terms of taxation, and Peers, the same as other citizens, should be able to vote for those who determine taxation. As my noble friend has mentioned, members of appointed second chambers elsewhere get to vote for members of the elected house.

In this country, we are now almost the only citizens not able to vote for MPs. I say almost, because certain other categories, notably prisoners, are also disfranchised. Once released from jail, they can vote—as indeed can anybody in this House who retires from membership. Mention of prisoners brings me on to the rights argument. We cannot argue that we are denied a basic right without conceding that prisoners are as well. In the Hirst case, the ECHR did not hold that prisoners should have the right to vote but that a blanket ban on prisoners being able to vote was in contravention of the convention.

There is a key difference between us and prisoners, which leads me to address the case against the Bill. Prisoners have no voice in Parliament; we do. It may not be as great as that of MPs, but we have a security of tenure denied those in the other place. The votes of Peers in a general election are not likely to swing the outcome, even in the closest of contests, but the fact of having the right to vote in addition to a place in Parliament—and a secure one—may seem a privilege too far. We may not vote on issues of taxation, but we have privileges that are denied to citizens. We can debate finance Bills at Second Reading. If a Bill is certified as a money Bill, we can offer amendments. Although the Commons is not obliged to consider them, there have been occasions when it has accepted amendments. In short, we can engage government in a way that the ordinary citizen cannot.

As I have said, the Bill will not excite great interest but, if passed, it may contribute to perceptions that we are seeking more for ourselves and do nothing to increase public understanding of the role played by this House. We add value to the political process, and we do so at relatively little cost. Indeed, if one could ascribe monetary value to the raft of changes we achieve to public legislation, I believe it would more than offset the costs of running the institution.

As my noble friend Lord Young of Cookham is well aware, I am keen to ensure that we improve our scrutiny of legislation. We do a good job, but I believe that we could do it even better. As I have stressed before in this House, ensuring that we deliver good law is a public good. That is what we should be focusing on, and ensuring that our scarce resources, including time, are devoted to it. That is what the public should see us doing. We should be thinking of public service, not self-service. We need to focus on raising awareness of the work of this House and what it contributes to the nation. This measure is, I fear, something of a distraction and may prove unhelpful if—it is a very big if—it gets noticed.

Referendums

Lord Norton of Louth Excerpts

Thursday 13th June 2019 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Lord, Lord Soley, on raising this important issue. I wish to raise two problems with referendums.

The noble Lord raised the issue in the context of representative democracy. In a representative democracy, electors choose those who will govern on their behalf and can then hold them to account for their actions. The problem with a referendum is that there is no accountability. Electors cannot hold themselves to account for the outcome of a referendum. A referendum is thus, strictly speaking, an irresponsible act.

Once a decision is taken, it is left to others to implement. This leads to the second problem. We know how people vote in a referendum, as there is a formal, recorded outcome. We do not know definitively why they voted as they did. Politicians may think they know. The EU referendum is a case in point. We hear politicians claim that people did not vote for a hard or a soft Brexit, when what they mean is that they think electors voted in a way that aligns with their preference. They cannot prove it.

The result is that it leaves those who are responsible for acting on the outcome in a difficult, if not impossible, situation. I have previously likened the UK’s membership of the European Union to a marriage, a marriage of convenience, arranged late when the previous preferred relationship was not proving fruitful. Now electors have voted for a divorce. That is the starting point. How do you divide the assets? Who gets custody of the children? Those responsible for negotiating the terms of the divorce know definitively only that a divorce has been agreed.

I have previously expressed opposition to referendums on grounds of principle, but we are now faced with referendums as a part of our constitutional architecture. We cannot undo their use, but we need to think through how we handle them in future, as the noble Lord, Lord Soley, indicated. We need to learn from not just the EU referendum but earlier ones as well. Will the Minister tell us what thought has been given to a generic referendums Bill? We need such a measure before we embark on another referendum.

Preparing Legislation for Parliament (Constitution Committee Report)

Lord Norton of Louth Excerpts

Wednesday 12th June 2019 Lords Chamber

Moved by

[Lord Norton of Louth]

That this House takes note of the Report from the Constitution Committee The Legislative Process: Preparing Legislation for Parliament (4th Report, HL Paper 27).

[Baroness Goldie (Con)]

My Lords, the noble and learned Lord, Lord Judge, finds himself addressing matters of sentencing in the Moses Room. By agreement through the usual channels, it has been arranged that the noble and learned Lord will speak after my noble friend Lord Dunlop. All relevant contributors to the debate have been informed.

[Lord Norton of Louth (Con)]

My Lords, I beg to move the first of the two Motions standing in my name on the Order Paper. I do so in place of the noble Baroness, Lady Taylor of Bolton, who chairs the Constitution Committee, which has produced the two reports we are considering. She is very sorry to miss today’s proceedings.

It is a pleasure for me to open the debate. In 2004, the Constitution Committee, which I had the honour of chairing, published a report, Parliament and the Legislative Process. We looked at the legislative process holistically, examining not only the process once a Bill was introduced but what happened prior to a Bill’s introduction and after it had received Royal Assent. We took the view that success should be measured not by whether a Bill received Royal Assent—seen by some Ministers as the end of the process—but rather by whether it achieved its intended effect.

Among our recommendations were that Bills should be subject to pre-legislative scrutiny as the norm and not the exception, and that there should be a structured process of post-legislative scrutiny, assessing Acts against the criteria set for achieving their purpose. We also advanced proposals for the more effective examination of Bills as they pass through Parliament, including that every Bill should at some stage during its passage be subject to scrutiny by an evidence-taking committee. Some of our recommendations were subsequently adopted, and now form an integral part of the legislative process, such as improvements to explanatory materials and the Government undertaking a review of most Acts within six years of their commencement.

I fear that Governments have shown less enthusiasm for implementing some of our other recommendations, such as pre-legislative scrutiny of draft Bills being the norm and the establishment of a House business committee. Perhaps our most high-profile recommendation —that the Committee stage of each Bill should provide the opportunity for the public to give evidence—has been adopted for Bills that start in the House of Commons but not for those that start in your Lordships’ House. This is a matter to which the committee may return in a subsequent report.

We felt that more than a decade after our first report, it was time to take a step back from individual Bills, to look again at the entirety of the legislative process and examine how laws are developed, drafted, scrutinised and disseminated. Rather than producing one report, we decided to publish four focused reports, targeted at discrete aspects of the legislative process: preparing legislation for Parliament; the delegation of powers; the passage of Bills through Parliament; and after Royal Assent. Two of those have now been published, and are the subject of today’s debate.

The first of these, The Legislative Process: Preparing Legislation for Parliament, was published in October 2017. The purpose of this stage of our inquiry was to look at the policy preparation undertaken by the Government before legislation is introduced to Parliament. In this report, we are broadly positive about how the Government develop policy using embedded mechanisms to gather and evaluate evidence. We also welcome the Prime Minister’s commitment to a greater use of Green and White Papers.

We reiterate the conclusion of our 2004 report—that it should be the norm for Bills to be published in draft, to afford more opportunities for pre-legislative scrutiny. It is regrettable that Governments have generally seen draft Bills as an optional extra, when, in our view,

“pre-legislative scrutiny should be considered an integral part of the wider legislative process”.

Although several Bills have undergone pre-legislative scrutiny in this elongated Session, they constitute the exception, not the rule.

Perhaps the biggest area of our concern is the quality of legislation that the Government introduce to Parliament. This is not a reflection on the standards of the drafting of legislation and the work carried out by parliamentary counsel. Our concern is with the quality control function of the PBL Committee of the Cabinet. That control is not what it could and should be. In our report, we endorse the proposal for the creation of a legislative standards committee, to develop and monitor a set of standards that legislation must meet before it can be introduced. This work would ensure that Bills introduced to Parliament are ready for its scrutiny, and that the essential explanatory materials accompanying Bills are complete and satisfactory.

We also address the important parts of the statute book that have become inaccessible to practitioners and the public alike because of a succession of Bills that have amended previous Acts. One has to think only of the changes in immigration law in recent decades. The challenge of navigating that area of the law is now considerable. We urge the Government to consider the pressing need for greater consolidation of the law. With that in mind, we strongly welcome the introduction of the Sentencing (Pre-consolidation Amendments) Bill, paving the way for the Law Commission’s sentencing code to simplify sentencing legislation. The standard line from the Government on consolidation and Law Commission Bills is that they might happen when parliamentary time allows. Given the current lull in legislative activity, this might be an especially appropriate time to introduce more consolidation measures.

I turn to our second report, The Legislative Process: The Delegation of Powers. Delegated powers are, of course, an important and necessary part of the legislative process. When they are used appropriately, they provide the Government with the flexibility to fill in some of the blanks or update aspects of the policy detail without the need to go through the extensive and rigorous primary legislation process. The Delegated Powers and Regulatory Reform Committee does an outstanding job in policing such matters. If the Government heeded its advice more frequently, the quality of legislation would improve markedly. Regular readers of the Delegated Powers Committee’s reports, as well as our own, will know that the Government’s use of delegated powers is regularly found to be inappropriate. It is constitutionally unacceptable that the Government seek to create criminal offences as well as new public bodies by secondary legislation, to which only limited parliamentary scrutiny applies.

The Government’s response to our report suggested that such uses of delegated powers are,

“likely to be few and far between”.

We do not find this persuasive. Indeed, on Monday we published a report on the Rivers Authorities and Land Drainage Bill—a Private Member’s Bill supported by the Government—which contains a delegated power to create new public bodies in the form of river authorities. It is not clear why the Government acknowledge that these powers,

“must be approached with caution”,

yet they continue to appear in Bills.

Similarly, the committee found that “skeleton Bills”—Bills comprising little more than delegated powers—“inhibit parliamentary scrutiny”. We concluded that it was,

“difficult to envisage any circumstances in which their use is acceptable”.

Perhaps the most egregious recent example of this is the Agriculture Bill. I quote from the report of the Delegated Powers Committee:

“Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.


The Government’s response on skeleton Bills was that the term was sometimes used to describe bills in which the overall policy framework was clearly set out, and states that,

“there have been and will continue to be sound reasons”,

for the use of skeleton Bills in a limited number of cases. It is not clear what the sound reasons are. The response is one of assertion and not justification. I shall return to its inadequacies.

Henry VIII clauses were another area we consider,

“a departure from constitutional principle”,

and we conclude:

“Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility”.


Although, as the Government acknowledge,

“a full and clear explanation and justification”,

is clearly helpful, Henry VIII powers should be sought much less frequently than has been the case in recent years.

This House has shown notable restraint towards the Government’s approach to delegated legislation. Indeed, the House has shown remarkable flexibility in accommodating several hundred EU exit statutory instruments. We pay tribute to the work of the Secondary Legislation Scrutiny Committee for undertaking that task on top of its other important work. However, there are limits. We call on the Government to be more responsive to issues raised about statutory instruments and to use the flexibility of the system to withdraw and re-lay amended instruments when parliamentary scrutiny has identified concerns. We suggest that if the Government do not use their delegated powers appropriately, the restraint shown by this House may become unsustainable.

I turn to the Government’s responses to the reports. The two responses were clearly written by different hands; one, on the delegation of powers, addressing each recommendation, and the other, on the legislative process, being more general and thematic. Both, though, have one thing in common: they seek to defend existing practice and concede nothing. The way in which they are written is not persuasive. Some of our proposals are matters for the House, not the Government, such as the recommendation for a legislative standards committee. I very much hope that this recommendation will be taken up by the Liaison Committee as part of its current review of committees, and likewise with the proposal for a post-legislative scrutiny committee.

On matters that are within the remit of the Government, I have a number of questions for my noble friend Lord Young of Cookham. What do the Government now do that they did not do before because of the committee’s reports? Following my earlier comments, can he confirm that the Government will maintain the practice of publishing Green and White Papers? What is the Government’s strategy for pre-legislative scrutiny: is it integral or an optional extra to the legislative process? Do the Government have plans to introduce any further consolidating measures, and in what circumstances does he think skeleton Bills are appropriate?

I conclude by putting on record our thanks to all those who gave evidence to us, our staff and our two legal advisers, Professor Mark Elliott and Professor Stephen Tierney. Professor Elliott is about to step down from his role to take on enhanced responsibilities in the law faculty at Cambridge, and I place on record the committee’s thanks to him for his outstanding contribution to the work of the committee. I beg to move.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I am grateful to all those who have spoken in the debate, which has been a very good one indeed. The contributions have reinforced the recommendations made in the two reports. I listened carefully to what my noble friend Lord Young of Cookham said. I fear that he appeared to be justifying existing practices rather than explaining what the Government are now doing that they did not do before because of the committee’s reports—other than saying that the Government will listen carefully and, “Oops, we may be scared”—but in concrete terms there has been no significant change. In so far as he commended changes, it was those which have been made by the two Houses, not by the Government.

My noble friend will have noticed that the contributions to this debate have not been confined to those who serve on the Constitution Committee, which reflects the importance of the subject. This is not a discussion about some technical matters of interest only to those who are interested in procedure. We are discussing issues that affect the health of our political system. Law affects everyone and bad law can have devastating effects, so it is crucial that we get it right. It is in the Government’s own interest to ensure that Bills are well drafted so that they achieve their intended purpose. Being defensive about how they treat legislation is not to the benefit of government. I am sure that my noble friend the Minister will take on board all that has been said today and report back to his colleagues to ensure that action does indeed follow. I beg to move.

Motion agreed.

Constitutional Convention

Lord Norton of Louth Excerpts

Thursday 13th December 2018 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I congratulate the noble Lord, Lord Foulkes, on introducing this important and topical subject. I understand why he makes the call he does, but I reach a different conclusion on establishing a convention, as the term is normally understood.

Over the past two decades, we have seen constitutional change on a scale that has not been seen for 300 years. We have seen major constitutional changes over those centuries, but they have tended to be specific measures which have had time to settle in before some other major change has come along. There were several constitutional changes in the period from 1911 to 1918, but that is the closest we have come to change comparable to that of recent years.

As the noble Lord touched upon, several measures of constitutional change were introduced by the Labour Government returned in 1997. Each was justified by its advocates on its individual merits. There was no attempt to locate these measures within an intellectually coherent approach to constitutional change; they were essentially disparate and discrete measures. In 2002, when I introduced a debate on constitutional change in your Lordships’ House, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, conceded that the Government had no overarching theory. The same applies to measures introduced under the coalition Government. That was entirely predictable, given that the coalition was formed of two parties which adopt diametrically opposed views of the constitution. In this Parliament, we have seen further and fundamental change.

Throughout this period, there has been no attempt to look holistically at our constitution, at how these changes affect it and at how they relate to one another. There is no clear view of the type of constitution deemed most appropriate for the United Kingdom. Successive Governments have not been able to identify their constitutional destination.

I appreciate that this analysis leads some to argue the case for a constitutional convention. However, as I shall argue, that is to get ahead of ourselves. As Professor Robert Hazell, to whom reference has already been made, has noted, a convention may be established for one or more reasons. These include—again as has been mentioned—to build a cross-party support for further constitutional reform; to harness expert opinion to chart a way forward; and to develop a more coherent overall reform package. He lists others, but they all have a common thread: namely, to come up with proposals, essentially to generate a package of constitutional reforms.

That omits a necessary stage. We are all familiar with the phrase, “If I was going there, I would not start from here”. A convention would focus on the destination—that is, where to go. My argument is that we need to step back and make sense of where we are. I have argued that we should be engaging in an exercise of constitutional cartography. For that reason, I have made the case not for a constitutional convention but for what I have termed a constitutional convocation.

Having a body to make sense of where we are has a number of advantages over a convention. It avoids—or, at least, does not raise to the same degree—issues of legitimacy that may attach to a body set up to come up with a new constitution for the United Kingdom. One can utilise expertise in a way—or at least to an extent—that may not be possible with a convention. It can also ensure that we understand where we are, rather than be under pressure to come up with some constitutional blueprint that may be either or both overly ambitious or politically contentious. Given what has happened in recent years, there may not be a popular appetite for more fundamental change. Indeed, current events reinforce the case for standing back and making sense of where we are.

If one looks at the period of our membership of the European Community and then the European Union, we regularly agreed changes but, in constitutional terms, we were always playing catch-up. We never stood back to establish clearly how our membership fitted with our constitution. Had we done so, we may not be in the situation we find ourselves in today.

Therefore there are problems with a constitutional convention. It is a problem if it seeks to produce prematurely a constitution for the United Kingdom. It is also a problem if, like the Kilbrandon commission, it ends up addressing only part of the constitution. We need to look at our constitution as a whole. That requires reflection, not rushing ahead of ourselves with a grand scheme. Hence my case for a body to put the change that has occurred within a clear and coherent constitutional framework.

Sir Sidney Low, in his short book, The British Constitution, published in 1928, wrote:

“In England we often do a thing first and then discover that we have done it”.


Let us first of all stand back and make sense of what we have done.

Referendums: Parliamentary Democracy

Lord Norton of Louth Excerpts

Thursday 19th July 2018 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, I too congratulate my noble friend Lord Higgins on initiating this debate. Although we have variously discussed and legislated for referendums, we have little experience of debating the merits of referendums qua referendums. There is a tendency to advocate a referendum as a means of achieving an outcome that may not be achieved through other processes.

Referendums are offered as tools of democratic expression. They are, however, in conflict with responsible government. Government can be held accountable to electors for the decisions that they take and the outcomes, but how can the electorate hold themselves accountable for the outcome of a referendum decision? Decision-making through referendum is, strictly speaking, irresponsible.

The form of a referendum is also problematic. As the right reverend Prelate mentioned, voters are faced usually with a binary choice. The stark choice between A and B leaves out a choice between A-plus and A-minus and between B-plus and B-minus and option C. That relates to another fundamental problem—my noble friend Lord Sherbourne has touched on this. We know how people vote, but not why. Did those voting for A prefer A-plus or A-minus? The 2016 EU referendum appears to have generated a remarkable body of mind readers. We keep hearing from some that the 17.4 million who voted to leave voted for a hard Brexit. We hear from others that, in fact, electors voted for a soft Brexit. We know definitively that a majority voted leave. We do not know definitively why they voted leave. Survey data may suggest the reason or reasons, but polls are a form of political intelligence and are often given a weight that they cannot bear. There is no way authoritatively to resolve that dilemma. Even if one holds a second referendum, it will not reveal why people voted the way they did in the first.

The EU referendum reveals other problems. Referendums are advocated on the basis that they generate debate and a more informed electorate and that they produce a decisive result, perhaps for a generation. I contend that the 2016 referendum debate was not notable for a high level of intellectual discourse. It was a confused debate and indeed an exercise, on both sides, in how not to conduct a referendum debate. It did not clearly resolve the issue. As with other referendums, no sooner does one have a result than those on the losing side start finding reasons why there should be another referendum.

There are thus powerful arguments to be made against referendums. The problem, as several noble Lords have said, is that it is now too late to close the lid on this Pandora’s box. Referendums are part of our constitutional architecture. In my view, they are a rather ugly feature, but we have them. Given that we have them, the challenge is managing them effectively with a clear set of rules that are applied consistently.

To listen to some Members of your Lordships’ House, one would think that this House was not involved in passing the EU referendum Bill. Objections are expressed to implementing Brexit on the basis that the majority for leave was small and that therefore it should not be implemented. That is to apply retrospectively rules that we did not embody in the referendum Bill. The time to argue over supermajorities or turnout thresholds was when we were discussing the details of the Bill. It is now rather too late to discover that one provided for the outcome to be determined by a simple majority.

We could have made the referendum binding, as we did with the 2011 AV referendum. I presume that the Government set their face against doing so because that would be to concede that the leave side might win. We are thus in a position where some argue that we should not implement the result of the referendum as it was advisory. I have always made the point that it would be perverse for Parliament to legislate for a referendum and then ignore the result.

Dicey provided the classic definition of parliamentary sovereignty. What is often overlooked is that he made the point that legal sovereignty rested with Parliament but that political sovereignty rested with the people. He wrote:

“The electors can in the long run always enforce their will”.


Arguing that Parliament can set aside the outcome of the referendum is politically naive and potentially dangerous. If we do not intend to abide by a referendum outcome, we should not legislate for one.

The position that we are in shows the problems with referendums. But we are in the situation we are in. If we are to have referendums, let us anticipate and determine clear and agreed rules. The report of the Independent Commission on Referendums, set up by the UCL Constitution Unit, to which reference has already been made, has just been published. It identifies clear criteria for holding referendums and its proposals merit serious consideration. I hope that the Government will take the proposals seriously so that, in future, we can argue over the merits of a case and not muddy debate with arguments that cannot be resolved over process and motivation.

European Union (Withdrawal) Bill

Lord Norton of Louth Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, it is crucial that we do not make the mistake that we made during the passage of the European Union Referendum Bill—that is, spend time debating the merits or otherwise of withdrawing from the European Union at the expense of focusing on the specifics of the Bill. We took our eye off the ball in dealing with that Bill, and we are in no position to complain about the rules and process of the 2016 referendum.

We need to be clear as to purpose. I endorse what the noble and learned Lord, Lord Hope of Craighead, said this afternoon. We cease to be a member of the European Union on 29 March next year whether or not we pass this measure. This Bill is necessary, although not sufficient. I have no problem with the end; we need to make sure that the means are there to ensure that it delivers what it is designed to do. As it stands, it goes much of the way to achieving it—some provisions are to be welcomed—but more needs to be done.

I serve on the Constitution Committee of your Lordships’ House. As the noble Baroness, Lady Taylor of Bolton, has already explained, our report, to which several noble Lords have already referred, identifies the key problems with the Bill and what can be done—indeed, what needs to be done—to render it constitutionally acceptable.

The Bill creates confusion for the courts and indeed is constitutionally flawed in the breadth given to the novel category of “retained EU law”. The category includes primary legislation that, by virtue of inclusion, becomes subject to the power of amendment in Clause 7. Even if primary legislation is excluded, the powers conferred by Clause 7 privilege Ministers to an unacceptable degree.

The power to make changes as Ministers deem “appropriate” is subjective and inappropriate. It is also inappropriate for the Henry VIII provisions in the Bill to be exercisable by the negative resolution procedure. The limited set of circumstances for which affirmative resolutions are required is too narrowly drawn. The power conferred on Ministers under Clause 17 has, in the context of the Bill, the capacity for broader application than is the case with other measures and, as we note in our report, there are minimal restrictions on the use of that power.

The “supremacy principle” that the Bill seeks to retain is imprecise in terms of scope. As the committee’s report stresses, it constitutes a fundamental flaw at the heart of the Bill and is alien to the UK constitutional system. In the words of the report:

“It has meaning and application only in relation to EU law, and to seek to graft that EU law principle onto a legislative scheme whose explicit purpose is to remove EU law from the UK legal system and replace it with domestic law risks confusion and places legal certainty in jeopardy. It does not make sense, either as a matter of language or as a matter of constitutional principle”.


What, then, do we propose? Retained direct EU law should be designated as domestic primary legislation. That would remove the need for a supremacy principle. We consider that there is merit in drawing on recent amendments made by the Government to the Sanctions and Anti-Money Laundering Bill to ensure that Ministers demonstrate that there are “good reasons” for any change and show that the use of the power is a “reasonable course of action”. We also recommend that the Explanatory Memorandum should include confirmation by the Minister that regulations do no more than make technical changes to retained EU law in order for it to work following our departure from the EU and that no policy decisions are being made. The consequential provisions power in Clause 17 should be removed.

We make other proposals, not least in relation to devolution. In essence, the Bill needs to be amended to strengthen the position of Parliament, to provide certainty for the courts and to meet the concerns of the devolved Administrations. We simply cannot afford to get this wrong. Those who have argued against Brexit today are not necessarily doing their cause or this House any favours. They are diverting us from our core task—the task that alone now falls to us: to scrutinise thoroughly and forensically the provisions of this Bill. We must not allow ourselves to be diverted.

I look forward to my noble friend Lord Callanan indicating willingness on the part of the Government to move forward on the amendments proposed in the report of the Constitution Committee. This time, we must not take our eye off the ball.