European Union (Withdrawal Agreement) Bill

Lord Tyler Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

[Lord Tyler (LD)]

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”


In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]


Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.