European Union (Withdrawal) Bill

Lord Sharkey Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

Moved by

[Lord Sharkey]

237A: Schedule 7, in subsection (4)(b), at end insert “, 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.”

[Lord Sharkey (LD)]

I declare my interest as chair of the Hansard Society, whose work on delegated legislation will be familiar to many noble Lords. I have three amendments in this group, to which the noble Lords, Lord Lisvane, Lord Norton, and Lord Lexden, my noble friend Lord Tyler and the noble Baroness, Lady Jay, have variously added their names, and I am very grateful for their support. Amendment 237A is an amendment to the sifting Amendment 237, which I wholeheartedly support. In particular, I support the fact that Amendment 237 removes ministerial discretion over whether to take any notice of the sifting committee’s recommendation to upgrade an SI to the affirmative procedure. Amendment 237A proposes a simple addition to Amendment 237. It gives the House the power to upgrade to the affirmative procedure even if the sifting committees have not. I do not imagine that this provision will be used frequently, but it would be wise to reserve the power for the House to take action if it felt that the sifting committees were making an error or if there was an uncertainty over their decision sufficient to warrant a full debate.

Amendment 239A proposes a more significant change to the currently available methods of dealing with affirmative SIs. In fact, the next group of amendments, Amendments 238, 239 and 248, also put forward new proposals for dealing with SIs generated by this Bill. Between the current group and the next, there are three SI procedure proposals for the House to consider. They are: a mechanism for sending back SIs to the Commons for reconsideration; an option to upgrade to super-affirmative; and an option to make affirmative SIs amendable. Here I will deal only with Amendment 239A, which is the reconsideration proposal. I will spend a few moments saying why I believe the change to our procedures is necessary for SIs used for withdrawal purposes.

The Government estimate that the Bill will generate between 800 and 1,000 SIs, and there are rival and much higher estimates. Of these 800 to 1,000 SIs foreseen by the Government, they estimate that 20% to 30% will fall into the affirmative resolution category as determined by the tests set out in the Bill. This is certainly an underestimate. It cannot take account of the sifting committee’s powers to upgrade negative procedure SIs to the affirmative procedure. This means that we will be presented with probably around 300 to 400 affirmative SI procedures from this Bill alone—all to be dealt with as rapidly as possible. This is an unprecedented situation, both in volume and timing. However, there is ample precedent for Parliament’s dealing with very wide delegated powers. Parliament has frequently insisted that a strengthened scrutiny procedure be inserted into Bills to control the use of such wide powers. There are currently 13 Acts of Parliament that contain such strengthened procedures, all of them inevitably slightly different.

The nature of the Bill before us and the unprecedented powers it delegates to Ministers and to others calls for a strengthened procedure to be incorporated into the Bill too. The question is: what kind? We have to balance the need for thorough scrutiny with the need to have a working statute book on exit day. The noble Lord, Lord Hodgson, and the noble Viscount, Lord Hailsham, will in a moment press the merits of the super-affirmative and amendable-affirmative routes. Amendment 239A proposes a power to send an affirmative procedure SI back, once only, to the Commons for reconsideration, with reasons if we so wish. The Commons will have 10 sitting days to confirm its approval. If it does, the SI is approved; if it does not, it is rejected. This is a classic “think again” procedure entirely in keeping with the normal relationship between the two Houses. Its one-time-only nature gives the Commons the final say.

At the moment, of course, we have the option of either accepting or rejecting an affirmative SI—a regret Motion has no practical effect—and there is a view that, under the current system, a consideration without explicit rejection can be read as equivalent to approval. That means that we either say yes or we use what has been described as the “nuclear option” of rejection. We have been very cautious about doing this. In fact, we have rejected affirmative SIs only on six occasions since 1950 and noble Lords will remember the constitutional tensions on the last occasion we did that: the rejection, or at least the non-approval, of the tax credit orders of 2015.

Given the number of affirmative SIs that will come before us, and the delicate and sensitive areas they will inevitably deal with, it would be very difficult for us, and probably very unwise, to resort to the nuclear option with any frequency. In fact, with only two options open to us, our proper reluctance to reject SIs outright will almost certainly lead us to approve marginal cases, or cases about which we still retain serious reservations. That would be entirely unsatisfactory as to the quality of created law, and potentially damaging as to the balance of power between the Executive and Parliament. Better to do what we often do where doubt exists: ask the Commons to think again. That is what Amendment 239A proposes. The mechanism will not frustrate the will of the Commons—and, importantly, it will not act significantly to delay the progress of the necessary secondary legislation, as other proposals might. There is not a lot of time, as the Minister said, between Royal Assent and exit day, and I think that we all acknowledge the need to have a coherent and consistent statute book on that day.

Noble Lords may recall that in his report, commissioned by the Government after the House had declined to approve the tax credits order, the noble Lord, Lord Strathclyde, also recommended a reconsideration mechanism for SIs. He said:

“I recommend the third option of creating a new process set out in statute, for the Lords to ask the Commons to think again about a statutory instrument. This would provide the government of the day with a degree of certainty, while maintaining for the House of Lords a simplicity of procedure in keeping with already established procedures for other forms of legislation. It would preserve and enhance the role of the House of Lords to scrutinise secondary legislation by providing for such legislation to be returned to the Commons. In the event of a further Commons vote to approve a statutory instrument, it would enable the Commons to play a decisive role”.


You had to read on into the small print to realise that the noble Lord, Lord Strathclyde, was proposing to substitute this reconsideration mechanism for our veto power to reject—and, of course, we rejected his package of proposals. Our amendment does the first part of what the noble Lord proposes, and for the reasons he sets out. It does not touch our power to reject at all. It simply creates for us an additional mechanism alongside acceptance and rejection, and I commend it to your Lordships.

--- Later in debate ---

[Baroness Smith of Basildon (Lab)]

My Lords, I confess that when I first came to your Lordships’ House I never imagined that I would be speaking at 12:15 am on the exciting subject of statutory instruments. That is partly because this House has always taken a greater interest in statutory instruments than the other place.

Looking at the amendments before us this evening, it seems to me that what we are all trying to do is grasp the problem mentioned by my noble friend Lord Adonis. He hit the nail on the head when he said that it is the volume and scale of the statutory instruments that will come before Parliament and how we can deal with them, understanding and recognising the Government’s commitment that EU law should be transposed into UK law while at the same time ensuring the accuracy of those statutory instruments—so many issues, so little time. It is finding the balance that meets the objectives of the legislation without creating serious problems that the lack of scrutiny will bring. The accuracy of these SIs and orders is vitally important.

We started this debate last week when the noble Baroness, Lady Goldie, responded about publishing the draft instruments. I have brought forward two issues time and again. First, we need the resources to do this job properly and, secondly, we need wider consultation on draft amendments prior to them being laid before your Lordships’ House or the other place. When we had the debate last week, the noble Baroness said that it was not possible, and I am still struggling to understand. I hope at some point that things will become clear because her point was that to publish all SIs in a draft form,

“could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues”,—[Official Report, 12/3/18; col. 1467.]

in negotiations. I struggle to understand how discussing a statutory instrument can possibly impact on negotiations, given the Government’s commitment to bringing all issues into UK law. That aside, the crucial issue is the volume.

I hope that the Leader of the House will say something today about how the Procedure Committee has already looked at this. We are taking things slightly out of sync but it is helpful to the House. I am grateful to her for discussions that we have had in the Procedure Committee and through the usual channels about how we can best give effect to what is currently in the Bill. I hope that she will say something today about how that will be addressed when appropriate to do so. I am grateful to her for suggesting that. We are trying to look at the fine-tuning of that process and make sure that we get it right.

On the specific amendments, I thought that the noble Lord, Lord Lisvane, did a fine job of trying to bring order and I am grateful to him for that. It would be helpful if it were not the subjective decisions of Ministers alone. The involvement of Parliament would be greatly welcomed.

I am surprised that some noble Lords on the Liberal Democrat Benches invoked the Strathclyde report. If noble Lords recall, I take the view, as I think does the majority of this House, that when we declined to accept the tax credits amendment and suggested transitional measures to the Government, it was not a rejection of that SI but an opportunity for the Government to reconsider and think again, which the Government gratefully took and accepted. The Strathclyde report was then a response to that, but it also tried to clip the wings of your Lordships’ House in how we deal with SIs, so I am not sure that I would rely on the Strathclyde report as a good way forward.

I understand what noble Lords are seeking in Amendment 237A, and the noble Lord, Lord Lisvane, has tried to bring some order to that because of course we cannot send something back to the other place if it was not sent to us from the House of Commons. I would be interested in the Government’s response to that.

[Lord Sharkey]

Perhaps I can help on the point about whether the Commons can reconsider something that it has not actually considered. I hate to have to refer to the Strathclyde report again, given what has been said, but there is a suggestion in the report of exactly how that is taken account of. The two committees could easily agree a sequence for consideration so that it was already possible for the Commons to reconsider something. We simply have to introduce a slight delay to make that happen.

[Baroness Smith of Basildon]

I understand the point the noble Lord makes, but if we remember the reasons it was brought forward, this is not the process we have at present.

The other point about stating the reasons, as set out in Amendment 239B, for why an SI is urgent is very helpful in this regard. All of these amendments are trying to bring some order to the process which at the moment seems to be complicated and difficult and raises concerns about accuracy.

I hope that the noble Baroness can respond positively to these amendments. I will not go into further detail because that has been provided by the noble Lords who have spoken to these amendments, but this is a serious issue and I suspect that if we do not receive an appropriate response from the Minister, we will return to it as the Bill proceeds.

--- Later in debate ---

[Baroness Evans of Bowes Park]

I did say that it would indeed be for the Government to justify their position in that situation, although I also hope that I have made it clear that where both committees agree and both Houses put forward—I have no doubt—strongly argued reasons for a change in the procedure to be used, our expectation is that the Government would accept such a recommendation. The noble Lord is absolutely right: it would be for the Government to have to justify their position if that is not the case.

Moving on to Amendment 237A in the name of the noble Lord, Lord Sharkey, I believe that, despite its well-intentioned deference to this House, it is unnecessary. If either House were to feel especially strongly that a particular instrument should use the affirmative procedure, they could choose to table a Motion to that effect and make a recommendation to the Minister regardless. As with the sifting committees’ recommendations, I am sure that the Government would respond to such a resolution with the weight it deserved.

For similar reasons, I believe that Amendment 239A in the names of the noble Lords, Lord Sharkey and Lord Lisvane, is also unnecessary. The Bill adheres to the House’s established procedures for the scrutiny of statutory instruments and the proposed change would mark a significant departure from the standard SI procedure. The noble Lord, Lord Sharkey, and indeed the noble Lord, Lord Tyler, pointed out the similarity of the system proposed in the amendment to that proposed for all SIs by my noble friend Lord Strathclyde. We believe that making such a change would represent a significant change to the balance of the relationship on SIs between the two Houses.

We also feel this would be insufficiently sensitive about the time constraints that I have already articulated. As noble Lords know, the task at hand of correcting the statute book must largely be completed before exit day. The majority of SIs that will be made to address deficiencies and make corrections, barring potentially some relating to provisions which have no practical application and can be addressed in the period after exit day, must be passed and ready to come into force on exit day to ensure the continuity of the UK’s legal system.

The Government therefore expect to be laying and ensuring a steady flow of statutory instruments before Parliament for scrutiny by this House from when the Bill receives Royal Assent until shortly before exit day. As noble Lords have rightly alluded to, we estimate that between 800 and 1,000 SIs will be introduced during that period relating to our exit from the EU. As I explained in my evidence to the Constitution Committee in December, and, indeed, as my noble friend Lady Goldie outlined in the last debate, the Parliamentary Business and Legislation Committee is now overseeing secondary legislation in much the same way as it manages primary legislation. This is partly because we want to improve the quality of SIs—indeed, the noble Baronesses highlighted the importance of that—but we also want to ensure that the flow of SIs is steady, rather than in peaks and troughs, to allow Parliament to do its job more effectively by allowing adequate time for scrutiny.

I can reassure noble Lords that we absolutely understand what is coming before us. We as a Government are making every effort to ensure we are working effectively to try to make sure this House and the other place have the time to deal with the SIs that will come before us effectively. I will continue to work with my parliamentary colleagues to make sure we do our very best on this.

Finally, I turn to Amendment 239B from the noble Lord, Lord Sharkey, which seeks to require the Minister to make a statement of the grounds for urgency in the case of urgent SIs made under the “made affirmative” procedure. “Urgent” is a term without definition in the Bill, but I hope that the requirement for each “urgent” SI to contain a declaration of urgency in the body of the instrument will reassure noble Lords on that point. The Government have already promised that Explanatory Memoranda will contain an explanation by the Minister as to why they considered the SI to merit the urgent procedure. Nevertheless, I promise that the Government will consider this issue further before Report to see whether we can provide further assurances to your Lordships on it.

I hope my response to these amendments demonstrates that the Government continue to take this House’s scrutiny role seriously and that we do not consider it—

[Lord Sharkey]

On the urgent procedures, why in the Taxation (Cross-border Trade) Bill is there a 60-day period, whereas for SIs generated urgently by this Bill there is a 28-day period? The Minister has talked about the necessity for speed. I do not understand why one Bill has 60 days and the other has 28.

[Baroness Evans of Bowes Park]

The procedure, including in EU exit-related legislation such as the customs Bill, must reflect the specificities of the Act. Where certainty and the nature of tax legislation require provisions to come into force rapidly, it is important that there is time to arrange for debate and scrutiny, so there will be different timings relating to different legislation. I am happy to seek further information and write to the noble Lord if that would be helpful.

I hope that I have managed to allay some of your Lordships’ concerns and that I have explained the process that we are setting out. I hope, too, that noble Lords will understand that we are taking this matter seriously. We will obviously reflect on the debate; there are a couple of issues in particular that I have said we will take back, but I hope that, at this point, noble Lords will feel able to withdraw their amendments.

[Lord Sharkey]

Yes, I feel able to withdraw my amendment, but want to make one comment before I do so. The Minister has pointed out that the proposal for a reconsideration period marks a major change. She is quite right about that, because the circumstances seem to require exactly that change. I think that we will come to discuss this matter again, but, in the meantime, I beg leave to withdraw the amendment.

Amendment 237A (to Amendment 237) withdrawn.