European Union (Withdrawal) Bill

Lord Whitty Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I rise to take the place of my noble friend Lord O’Donnell, who unfortunately cannot be here, to make it clear that there are quite a few others on these Benches who share his views. I would not be so unwise as to talk about the collectivity of Cross-Benchers—I have been around long enough to know that that does not exist—but there are quite a few, and for the same reason. I hope that when he comes to reply to this debate, the Minister will not again trot out the “housemaid’s baby” argument that he has been using all evening—that it is a very small one and nothing terrible is going to happen, et cetera. We are talking here about some quite significant decisions which, as the noble Lord, Lord Newby, said, have invariably, and quite correctly, in the past been taken by primary legislation.

I know—this is very welcome—that in her Mansion House speech the Prime Minister rather reduced the number of public bodies that might have to be created following our leaving. She has recognised that we would do much better to stay in a number of the public bodies that already exist in the European Union, and we will see whether that bears fruit in the negotiations. That might reduce the list but it does not remove the problem. Therefore, this amendment deserves wide support from all round the Committee. It would be an extremely unwelcome and dangerous precedent if we started delegating the powers to set up these public bodies to a government Minister with only a resolution available and the nuclear option to stop it. I support the amendment.

[Lord Whitty (Lab)]

My Lords, as the noble Lord, Lord Newby, was kind enough to refer to my amendment, which was probably misgrouped at an earlier stage when we were discussing Euratom, I wish to underline the points that he makes. At that time I asked the Minister to set out for Parliament the approach to the EU agencies that the Government were going to take in the negotiations. Frankly, the noble Lord was far too dismissive of that approach, and it would do him some good now if he were to say that at some point during the course of the Bill the Government will set out the line that they will take. After all, as has been said, the Prime Minister has set out her line in relation to some of those agencies. Unfortunately, within 48 hours, the EU has effectively said, “Sorry, that is not on”—not only for the post-transition period but for the transition period itself. While we were continuing to follow the rules and procedures of those agencies, we would no longer take part in their activities. We have an issue here.

I was a bit diffident about the coalition’s Public Bodies Bill—I did not want to embarrass the noble Lord, Lord Newby, who has been so kind to me—but, as my noble friend said, the achievement of the House of Lords was to knock out an enormous schedule. The Chief Whip, who was the Minister in charge of the Bill at that time—he is now in his place—looks less fraught with this Bill than he did when he was dealing with the Public Bodies Bill. In the end he wisely convinced his colleagues that he had to drop the huge schedule that gave carte blanche powers to the Government to abolish or tweak the responsibilities of a host of public bodies. That Bill was to abolish bodies or alter their remit; this Bill is to set up entirely new bodies. Unless we do that knowing what the overall approach is, this House cannot give the Government that degree of power.

Mention has been made of the new environmental body. Strictly speaking, under this clause as it currently stands, the Government would be able to establish, under secondary legislation, the kind of body that the noble Lord, Lord Krebs, who is no longer in his place, was arguing for earlier—a body so powerful it could sanction other public bodies, including the Government, if it was able to reproduce the powers that presently rest with the European Commission. That is an enormous power, which this House would not allow the Executive arm of government on its own without primary legislation conducted through the two Houses.

I recognise that there is a timescale problem for the Government, but might it be possible to set up some of these bodies in shadow form? If there are 10 bodies, as the noble Lord suggests, there may be a need at least to stop the process before the final passage of this Bill. To have permanent public bodies to regulate large swathes of our public life, industry and personal behaviour—even if there are only a dozen of them—would require primary legislation. This House needs to assert that it does and the Government need to accept that.

[Lord Beith]

My Lords, I support my noble friend Lord Newby on one specific reason why it is primary legislation that we use, and should use, for the creation of public bodies, even in these circumstances. He referred to the somewhat limited procedures in both Houses, but particularly in the Commons, for dealing with statutory instruments, but one abiding characteristic of them is that they do not admit of amendment. When a public body is being created, even in the short timescale we are talking about here, its remit, terms of reference, composition and the powers it can exercise are incapable of amendment. The idea that the Government would produce so perfect a form that it would not benefit from amendment, or even discussion of amendment, is so fanciful that I am sure the Minister will not advance it. Surely primary legislation capable of amendment, even if addressed with greater speed than normal because of the circumstances, is the only defensible way of doing something as extensive as creating a public body.