European Union (Withdrawal) Bill

Lord Wilson of Dinton Excerpts

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

Moved by

[Lord Wilson of Dinton]

71: Clause 7, page 5, line 3, leave out “the Minister considers appropriate” and insert “is necessary”

[Lord Wilson of Dinton (CB)]

My Lords, in moving Amendment 71, I will also speak to Amendments 116, 253 and 257, which are in my name and the names of my noble friend Lord Lisvane and the noble Lord, Lord Tyler, and the noble and learned Lord, Lord Goldsmith. My noble friend Lord Lisvane has asked me to convey his apologies for not being here to move the amendment himself, but he has to be absent to speak at a memorial service in Cardiff for an old friend. I am sure the Committee will understand that reason.

I feel we are now coming to the heart of the Bill. I confess that, while listening to the debates, I have found myself thinking of the Bill as creating a Frankenstein’s monster. It is sewing together 40 years of EU law, snipped around to fit with this country’s law. Clause 7 gives a Minister of the Crown the power to snip away at EU law and British law to try to get them to fit together. It is a task on a huge scale, and I do not believe anyone, wherever they are working, can quite get their mind round it at the moment or round what the consequences will be.

These amendments would tighten, in two ways, the threshold which the Minister of the Crown has to reach in order to be able to exercise the powers. They would tighten it by providing, first, that the powers could be used only where it was “necessary” to use them, not where it was considered “appropriate”. Secondly, they would give an objective test for whether the use of the powers was necessary, rather than the subjective test of whether the Minister considered it appropriate.

I believe that such changes are needed and would be justified by three things. First, there is the sheer scale of the task being undertaken. Of course, there are limits to the power—it can only be used to correct deficiencies in EU retained law which arise from withdrawal from the European Union and do so in areas which are not excluded by Clause 7(7)—which are important. But there are still huge swathes of law which could be amended under the powers. From listening to a sample of the debates that the Committee has had over the last days, those include human rights, the environment, the welfare of animals—there is very little in the legislation we are dealing with that does not affect most aspects of people’s lives in this country.

The power itself is very broad: to make law which has the status of an Act of Parliament. An extraordinary subsection, Clause 7(5), says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament”.


We are talking about the power to make Acts of Parliament without going through the processes of Parliament, which I find breath-taking.

[Viscount Hailsham (Con)]

And in an unamendable sense, because it is to be done by resolution—there can be no amendment to those resolutions.

[Lord Wilson of Dinton]

The noble Viscount reinforces the point which I am trying to make. The Explanatory Notes explain that the power also extends to,

“altering Acts of Parliament where appropriate”.

We are talking about the power to make law and to amend existing law. This is the dream of tyrants through the ages. It is something which is repugnant to the history of this country and the development of our legal system. My argument to the Committee is that the House should lean as hard against it as it can, provided that does not get in the way of achieving the desired result of a functioning legal system. We should not leave leeway which allows Ministers to do things which would be policy changes. I am uneasy about the danger that policy changes could come through the use of the power.

When you try to marry 40 years of legislation with British law, there will be endless choices to be made: you could go this way; you could go that way. Policy is tied up in the interstices of quite small decisions about how the laws should be married together. We should lean against anything which encourages policy change and we should focus the Minister’s power exclusively on achieving a functioning legal system, without going wider. If the law as it emerges needs to be improved, it should be improved by separate legislation that goes through proper processes. We should give only the power that is strictly necessary from the point of view of the objects of this legislation.

Another point I draw to the Committee’s attention is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but I am not now—but if I read the Bill correctly, it gives the power to a Minister of the Crown, as defined in the Ministers of the Crown Act 1975. Section 8 of the Act says that a Minister of the Crown is anyone who holds,

“office in Her Majesty’s Government”.

I have not checked this, but my memory is—it used to be imprinted on me when I was working in the Civil Service—that you can have up to 109 Ministers in the Government, so 109 people are being authorised to make or to amend law. In addition, the Commissioners of Customs and Excise will be given the power to make law and amend law, subject to the restrictions. That is another seven people—a Permanent Secretary and a number of directors-general—being given this power which tyrants dream of.

In addition, I draw the Committee’s attention to where the Explanatory Notes say that the power could include,

“sub-delegating the power to a public authority where they are best placed to deal with the deficiencies”.

So we are talking about giving public authorities the power to make law without going through parliamentary processes and to amend law. What is a public authority? According to Section 14, “public authority” is defined by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that,

“‘public authority’ includes … a court or tribunal”.

I ask the Minister: are we seriously proposing to give the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in that subsection says that “public authority” includes,

“any person certain of whose functions are functions of a public nature”.

The proposal before this Committee is that the power to make and amend law within the conditions set out in the clause could be capable of being given to any person certain of whose functions are of a public nature, which in essence is any public servant. I put it to the Committee: is this necessary or reasonable?

[Lord Cormack (Con)]

Without reference to Parliament.

[Lord Wilson of Dinton]

Is this reasonable without reference to Parliament, or to the lightest sifting procedure where any recommendations can be made?

I ask the Minister whether he has an estimate of how many people may be given the power to amend law and make law. I would be interested just to know the number. If you have so many people, possibly hundreds, given the power, you should restrict it as much as you possibly can, so far as is consistent with the objects of the Bill.

Why do I think that the phrase “the Minister considers appropriate” is inadequate? First of all, “appropriate” is a word which should be avoided as much as it possibly can. In my last jobs in the Civil Service, I was sometimes faced with proposals that the Minister should be able to do something “when appropriate”. I always reached for my red pen and struck it out.

[Viscount Hailsham]

I would always include it.

[Lord Wilson of Dinton]

I think we are making the same point, which is that it either conceals inadequate thought, or it is devious.

Of course, the truth is that, if you are in government, you want to surround the Minister and yourself with plump cushions of legal protection. The legal phrase is “ex abundanti cautela”. It is about excessive caution—you do not want to take risks. I have to say to the Committee that, in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection; it should be the strict discipline of an objective test of what is necessary.

It is interesting that the Government themselves, in their White Paper last March, used the language of necessity. The White Paper twice said that the powers would only be usable “where necessary”. In the cases which it provided where the powers might be used, it used the word “need”: it used the language of necessity; it did not use this language of appropriateness. I think it is only recently, with the sudden alarm that the scale is going to be so great, that the desire for plump cushions has arisen. I think that the Government are backing away from an undertaking only to have the power usable where it is necessary, which they gave in March last year and which they should have stuck to.

There are all sorts of arguments which may be used, such as that the word “appropriate” is used in other legislation. I think that is true, but I do not think that it is justified in this case, where the scale is so extensive. It could be argued that, when faced with a choice, there are different solutions and, therefore, there is no solution which is necessary. That is a flimsy argument—that horse will not run. What we are saying in this amendment is that the power should be used where its use is necessary, not where the solution is necessary.

--- Later in debate ---

[Lord Callanan]

I do not have any additional examples beyond the ones I have already given, but I will certainly write to the noble Lord with alternative information on that.

However, the Government and I believe that a majority of noble Lords in this House will agree that the statute book is not truly effective unless it is tidy. The Bill is designed to provide clarity and certainty on the law; if we cannot remove or correct these redundant provisions this goal will be undermined. However, having said all that, as I have set out, I would be very happy to engage in further discussions with noble Lords. I have very much heard the messages given from all sides of the Committee with a view to returning to this issue on Report. On the basis of those assurances, I hope that noble Lords will feel able not to press their amendments.

[Lord Wilson of Dinton]

My Lords, I thank the 13 noble Lords who spoke on the amendment, all of whom were unanimous in their support of the need to change Clause 7(1). There was a lot of support for the substitution of “necessary” for “appropriate”. I am not going to go through what was said because, first, I agreed with everything; and secondly, it was said so eloquently that it would be otiose for me to add to it at this hour of night.

The Minister has clearly heard the voices of so many noble Lords in favour of some change to Clause 7(1). I say respectfully that he seemed to be speaking with two voices. One was a clear, fierce defence of “appropriate”. I have to confess that I found some of it surprising. I would have thought, faced with EU retained law expressed in the euro, that that would be a deficiency that one needed to correct and that it would be necessary to correct it. However, I will study what the Minister said with interest. On the one hand he spoke with a fierce voice defending the present drafting. On the other, he referred three or four times to the need to discuss before Report. At one point, he said that he was sure that a mutually agreeable position would be found. We need to study exactly what he said. Against that background, I beg leave to withdraw my amendment.

Amendment 71 withdrawn.