European Union (Withdrawal) Bill

Lord Sharkey Excerpts

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

Moved by

[Lord Sharkey]

200: After Clause 9, insert the following new Clause—
“Statutory instruments under other Acts of Parliament for the purposes of withdrawal
(1) The Statutory Instruments Act 1946 is amended as follows.(2) After section 9, insert—“9A Instruments relating to the United Kingdom’s withdrawal from the European Union (1) Any statutory instrument under any Act of Parliament containing regulations to make provisions for the same purposes as set out under section 7, 8 or 9 of the European Union (Withdrawal) Act 2018, is subject to the same parliamentary procedure as an instrument made for the same purposes under a power provided for in those sections.(2) Subsection (1) applies instead of the parliamentary procedure set out in any Act under which the instrument is made.(3) For the purposes of this section—“the same purposes as a power provided for in those sections” means—(a) under section 7, regulations which make such provision as the Minister considers appropriate to prevent, remedy or mitigate—(i) any failure of retained EU law to operate effectively, or(ii) any other deficiency in retained EU law,arising from the withdrawal of the United Kingdom from the EU;(b) under section 8, regulations which make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom; and(c) under section 9, regulations which make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day;“exit day” has the same meaning as in section 14 of the European Union (Withdrawal) Act 2018.””

[Lord Sharkey]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be known to many noble Lords. I will be brief in dealing with what is essentially a simple procedural proposal.

The issue is delegated legislation. This has already been the focus of a lot of debate, much of which has consisted of expressions of anxiety about the likely number of instruments; about the range of the powers that they confer; about timing; and about Parliament’s ability to conduct proper scrutiny. There are varying estimates of the number of SIs that the Bill will produce. The noble Lord, Lord Callanan, said in his letter of 20 February that it will be between 800 and 1,000. Our own EU Justice Sub-Committee thinks it may be 5,000, as the noble Earl, Lord Kinnoull, noted on Monday. What is clear is that the number will be very large. The noble Lord, Lord Callanan, estimates that 20% to 30% of those SIs will trigger the affirmative procedure. That estimate is no doubt based on the rules for categorisation set out in the Bill, and will certainly prove to be an underestimate once the sifting committees get to work.

As has been noted, the SIs will give the Government an extraordinary and quite unprecedented range of powers. They will enable the creation of criminal offences without primary legislation, as the noble and learned Lord, Lord Judge, has explained to us; they will allow law-making by tertiary legislation; and they will allow Ministers and, apparently, 109 others largely unfettered discretion to range across the statute book. All this presents a formidable challenge to Parliament when it comes to effective scrutiny. The Government seem to recognise—a bit—that the situation is unprecedented and requires special care. They have written some constraints into the SI-generating clauses, but not enough and not wide enough. These constraints do not, in any case, address the problem of sufficient and effective scrutiny.

We will come to proposals for dealing with the scrutiny problem when we reach the group beginning with Amendment 237 on Monday. These amendments will enable the House to debate how it might adapt our current SI scrutiny system so that we may deal effectively with the avalanche of SIs coming our way. There are at least three schemes for us to consider. But whatever system of scrutiny the House finally settles on, it should apply to all SIs generated by this Bill. The same system, whatever it turns out to be, should also apply to all other SIs, whatever their parent Act, if they are to be used for the purposes of maintaining a coherent and functioning statute book on withdrawal from the EU. It would be quite wrong, for example, to have a rigorous system of scrutiny of SIs generated by this Bill and a less rigorous system for SIs used for withdrawal purposes generated by existing Acts.

This is not a theoretical concern. We know that the Government intend to use SIs generated by existing Acts when they consider that to be appropriate, or perhaps even necessary. The Solicitor-General made it clear in his speech on day 2 of Committee in the House of Commons that that is what the Government would do. In response to that, Amendment 200 sets out to create a common minimum standard of scrutiny. It simply requires that, no matter their provenance, all SIs with the same withdrawal purposes should be subject to the scrutiny procedures we finally agree on SIs generated by this Bill. It does this by making the appropriate amendment to the Statutory Instruments Act 1946, and by specifying in language taken directly from this Bill what “withdrawal purposes” means.

In a brief conversation about this amendment with the noble Lord, Lord Callanan, and his officials, they reminded me that this amendment could not bind future Acts. That had occurred to us. Any future Act could, of course, write its own rules for withdrawal SI scrutiny, or indeed for anything else. But, if that happened, the Government would have to explain to Parliament why one type of scrutiny was appropriate for SIs generated by the withdrawal Bill, with another for SIs with the same purpose generated by subsequent Bills. We should have one minimum standard of scrutiny for any withdrawal-purposed SI, and this amendment is aimed at doing exactly that. Whatever scrutiny standards we eventually adopt for SIs arising out of this Bill, they should be the minimum standard applying across all similarly purposed SIs, wherever they come from, and whatever their parent Act. I beg to move.

[Lord Hope of Craighead (CB)]

There is a good deal to be said for the amendment moved by the noble Lord, Lord Sharkey, when one bears in mind the power given in each of Clauses 7, 8 and 9 to make any provision that could be made by an Act of Parliament under regulations made under these clauses. Of course, one can look back to an existing Act, which could be amended by the exercise of this power, for a purpose related to the Brexit arrangements. If one takes an existing Act—one can visualise all sorts of situations when that might arise—it would seem right that the same procedure should apply if the amendment is made for the purposes which one sees in Clauses 7, 8 and 9.

For future Acts I can see there is a problem, because one cannot control a future Parliament, but as far as the past is concerned I respectfully suggest that there is a lot to be said for the amendment.

--- Later in debate ---

[Lord Callanan]

My Lords, I first thank the noble Lord, Lord Sharkey, for tabling this amendment so that we can have a discussion about this and for the extremely courteous discussion that he had on this matter with me and my officials.

Many of us here today are opposed, in general, to making sweeping fixes to the whole statute book through one Act. Indeed, that is the cause of many of the concerns about the powers in this Bill, and an issue that the noble Lord, Lord Sharkey, addresses with his amendment. I am therefore wary of inadvertently undermining the delicate and proportionate balances struck within other Acts between haste and scrutiny. The need to deal with the detail of how the Acts differ from one another is, however, what makes these Henry VIII powers necessary.

Nothing in this Bill directly changes the scope or functioning of other delegated powers. The exceptions that this Bill provides are that, within the context of and with the scrutiny attached to the original powers, they can be used to amend retained direct EU law. The Bill also clarifies that it lifts any implied EU-related restrictions from exit day, a necessary consequential step to our leaving the EU’s legal architecture. It is right and proper that, within their context and limits, other powers can be used for the same purposes as Clauses 7, 8 and 9. This amendment, if it is broadly constructed by the courts, could render moot any debate that this House has had or is having on scrutiny provisions in other Bills. This also extends to exit-related Bills and, in this field alone, this could catch the trade, sanctions and customs Bill.

It is I think best to let the sleeping dogs of my noble friend Lord Strathclyde lie, so I shall skate over the very concerning question of how financial privilege would apply under this amendment to the powers to correct deficiencies in the customs Bill.

I call noble Lords’ attention back to the crucial importance of the ability to exercise the powers in the sanctions Bill at speed and the additional information requirements added to that Bill. Even if parallel changes were to be made to this Bill, these would be tailored to the specifics of this Bill.

I stress the Government’s commitment to proper scrutiny of the powers under this Bill; they are a unique, time-limited solution to a unique problem. None of this, however, should be a reason to render irrelevant any specificities of scrutiny that this House has insisted on in other Acts. I therefore urge the noble Lord to withdraw his amendment.

[Lord Sharkey]

As I listened to the noble Lord, I could not help thinking that we were talking entirely at cross purposes. The House has yet to decide on exactly what method of scrutiny we shall use and how we will amend existing methods—if we do at all—when we consider this Bill. That is not the issue for this evening; that is for Monday’s discussions.

This amendment simply says that whatever we decide is the appropriate method of scrutiny, all other SIs, no matter where they come from, should be subject to the same level and procedure of scrutiny. That is all it does. It does not interfere with anything else, or any workings of the parent Act, apart from the scrutiny procedure itself. It leaves the parent Act entirely untouched in every possible sense. The Minister is greatly overcomplicating what the situation will be. I accept that there may be cases with other Acts where the Government prefer not to have more rigorous scrutiny applied to the SIs generated by those Acts, but that is part of the point of tabling the amendment in the first place. I will withdraw it now, especially at this time of night, but I suspect we will return to this subject on Report. I beg leave to withdraw the amendment.

Amendment 200 withdrawn.