European Union (Withdrawal) Bill

Lord Tyler Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Tyler (LD)]

My Lords, as a co-signatory to the amendment, I want to make a short contribution in support of the reference by the noble Lord, Lord Lisvane, to the work of the Delegated Powers and Regulatory Reform Committee and to pay tribute to our legal advisers, who are not only expert and experienced but amazingly diligent. The noble Lord referred to the committee’s work on the Bill, but he did not make direct reference to paragraph 93 of our third report to the House, the last sentence of which reads:

“The Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term ‘Henry VIII power’, was repealed in 1547 (after the King’s death earlier that year)”.


I have not been able to do the necessary follow-up research but, as I understand it, our 16th-century predecessors put around the statute of limitations some additional restrictions that are not in this Bill. As a former Member of the other House, I think that it would be extraordinary if the two Houses of Parliament allowed this to go through. It may seem a minor matter, but in terms of precedent it is extremely important. If we let it through, it seems that we will not have done our job as well as our 16th-century predecessors.

The work that is done by the Delegated Powers Committee is well respected in your Lordships’ House and I am delighted that that is the case. In saying that, I want to make sure that Members of the House know that we have the advice of some extremely assiduous lawyers. I think that the advice that we give the House usually benefits from that. I am not always a huge fan of lawyers, but in this respect I think that we are very well served.

[Lord Judge (CB)]

My Lords, we come to the next stage of the slow journey of this Bill through the House. I shall look at Clause 9 again and address the issue of what the Act of proclamations provided, but just as a footnote I remind the House that the statute provided in categoric terms that a proclamation could not overrule a statute. One tends to overlook that. Everyone is absolutely riveted, are they not? Schedule 5—what an exciting topic to come to first thing in the morning. The problem, though, is that tucked away in this schedule, as frequently happens, is an issue of principle. That issue is, simply, and I support what the noble Lord, Lord Lisvane, says, that we are giving an unnecessary, or inappropriate—I do not mind which word we use for these purposes—surrender of power to the Executive. We really must break that habit.

--- Later in debate ---

[Baroness Goldie]

If we can set to one side any concept of malevolence or malign intent on the part of the Government or a Minister, perhaps we can accept that this is a genuine attempt to provide simplicity. If a Minister in a department perceives that an instrument or one of the elements of EU retained law is no longer applicable and is not going to fit in with the new body of law, it is desirable that clarification can be provided in the swiftest possible way and that it should not make its way to the Queen’s printer. I appreciate that there are deeply felt views about this, and I am certain that we will come to this again on Report. I am merely trying to indicate to the Committee what the Government think is not just a sustainable position—

[Lord Tyler]

I am full of admiration for the way in which the noble Baroness appears to be trying to avoid the suggestion that it is executive expediency that is going to determine how this issue is going to be addressed. I think she knows that if she had used that phrase, people all over the House would have said: “We are not into that business”. Perhaps she could be a bit clearer about what considerations she thinks would be in the Minister’s mind to take this particular action.

[Baroness Goldie]

It is a little difficult to predict specific examples. Many of your Lordships have had experience of ministerial positions. I imagine that if an anomaly were brought to the attention of the Minister that something was not going to apply; it was no longer relevant; it did not fit in the new framework of what will be a body of UK law, the Minister would be reasonable in trying to ensure that that element, whatever it was, did not appear to make its way via the Queen’s printer on to what is perceived to be the body of law for the UK.

Some may argue that that is inherently flawed and a deeply suspect way for any Government to behave. In the extraordinary situation in which we find ourselves— I suggest that outside of wartime this situation is unprecedented—common sense has to be applied. There has to be a proportionate way of balancing legitimate interests in the constitution with the practical need to make sure that we do not create nonsense in the statute book.