European Union (Withdrawal) Bill

Viscount Hailsham Excerpts

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

[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 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.

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The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Does the Minister appreciate that? Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined.

[Viscount Hailsham]

Not only that, but the more tightly constrained the language of the Bill, the more readily the courts will intervene.

[Lord Bilimoria]

I thank the noble Viscount for that intervention. At the moment, the courts very rarely intervene. They had to intervene with Article 50 being put through Parliament; that was fundamental. This House defeated the Government twice by almost 100 votes each time in two of the biggest votes in the history of our Parliament—614 of us voted in one and 634 in the other. Do we want a situation where this Parliament or the Government are continually challenged by the courts? We do not want to go there, and this is why these amendments are important.

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

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[Lord Dykes (CB)]

My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.

It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.

I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:

“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.


It went on to say in paragraph 61:

“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,


which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:

“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.


I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.

[Viscount Hailsham]

My Lords, I rise to speak primarily —subject to pre-emption, whatever that means—to Amendments 73 to 79 and Amendments 117 to 119, which are in my name.

I think we ought to start the debate—although we have started it already—by reflecting on how very wide the powers contained in Clauses 7 to 9 are. They are powers exercised by regulation: mostly by the negative procedure, but some by the affirmative procedure. However—this is the critical point—in both instances, the regulations when laid cannot be amended. That raises an issue that I hope this House will come to on some subsequent occasion, because I have a number of amendments in my name on that very subject.

These powers are very wide-reaching. One way of ascertaining how significant they are—I hope the right reverend Prelate will forgive me if I use the word “significant” in this context—is to look at paragraph 2 of Schedule 7, which lists the provisions that can be made only by the affirmative procedure. I cite a few examples: the creation of a public authority and presumably the powers to be given to it; the transfer of legislative powers from an EU entity to a UK-based public authority; the levying of fees without specific limit, which I am sure noble Lords know we will come to later in Committee; the creation of criminal offences that attract a custodial sentence of up to two years, which, again, we will come to later in our debate; and the creation of powers to legislate or amend existing powers. These powers are not trivial in character. I have not sought to identify the various powers that could be exercised by way of the negative procedure, because their name is legion.

There is one fundamental rule in politics, which I have learned from 31 years in the House of Commons: if you give powers to Ministers and officials, those powers will be abused—sometimes by design and sometimes by inadvertence, but the abuse will happen and that is certain. It is especially so when the powers are created by secondary legislation because the parliamentary oversight is slight and ministerial oversight is often non-existent. So the question your Lordships should be asking—I agree with my noble friend Lord Lang that it is a pity more noble Lords are not asking themselves this question tonight—is whether the language in the Bill is sufficiently tightly drawn to prevent abuse. The answer to that question is manifest to all of us and all noble Lords who have spoken: no. The Bill does not prevent abuse; it enables abuse.

The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean. The noble Lord, Lord Campbell, is quite right about that. Might I suggest the Corbyn/Johnson test to your Lordships? It is very useful. I look to my side of the House and ask, “How many of your Lordships want to see Mr Corbyn possessed of these powers?” I now turn to the other side of the House, lest noble Lords think I am being partisan, and ask, “How many of your Lordships want to see Mr Johnson possessed of these powers?” The joke is that you can reverse the question and get the same answer.

We should not allow the draft as it is. I accept that the distinction between “necessary” and “essential” is pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” has been hallowed by legislation in the past. I encounter that word frequently in regulatory law, and the noble Lord, Lord Campbell, was absolutely right to touch on the point of judicial review. If you use the word “necessary”, it makes things easier to challenge. There have been many appeals in the regulatory framework where the courts have held that the test has not been laid out.

I want to comment on two other amendments I have ventured to propose. Amendments 74 and 117 require the Minister to have “reasonable grounds” for his or her decision on the need to trigger the regulation-making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit the discretion. I would very much like to know from the Minister why he objects to the use of reasonable grounds as the criterion for exercising the power. I am sure he is not going to say that he wants to rely on unreasonable grounds; that is not, I think, an argument he would like to put forward. We are entitled to know the justification.

I have one very small point on Amendment 75, which includes a reference to redundancy. What does that reference add to what is already covered by the retained part of Clause 7(2)(a)? It comes to this: the main issue for this House is to require a test of necessity to be imported into these three clauses and elsewhere in the Bill where the Government want us to accept a lower threshold of need—or, more precisely, put no threshold at all. I regard this as matter of considerable importance and I want to know—as I am sure the Committee does—why the Government want us to prefer a word that gives the maximum discretion to Ministers, but the minimum control and influence to Parliament and the courts.

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[Lord Goldsmith (Lab)]

My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.

Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.

I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.

Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.

I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.

One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.

[Viscount Hailsham]

I am grateful to the noble and learned Lord. Taking his point, if you were to combine the certification together with the requirement that the Minister had to have reasonable grounds for triggering regulatory power, then one has a very high degree of protection, does one not?

[Lord Goldsmith]

I am grateful to the noble Viscount. I would go further. First, I would say that the amendment needs to change the test so that it is “necessary”, not “considers necessary”, not “considered on reasonable grounds”. Secondly, the way the Human Rights Act certification works is that it is not enough for the Minister to have “reasonable grounds” that it may be compatible. What is required—at least when I was in government, and as a result of the diktat that was given to the Civil Service—is that the Minister must have legal advice that, more likely than not, the court would agree. I am glad to see the Minister nodding because that means that the same principle is being applied under this Administration as under the Administration in which I was privileged to serve.

Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an actuality based not on reasonable grounds but on fact. Obviously there is some judgment to be made about “fact” but it needs to be clear and there might, in addition, be a role for something like Amendment 244A.

This is the second time today that this Committee has considered the use of the word “appropriate”. Those who were not able to be present may wish to read the report of the earlier debate when we considered the use of the word “appropriate” in rather different circumstances—whether judges could and should rely on European case law in reaching decisions and whether it was enough that they should find it relevant or appropriate. One noble Lord who is not in his place suggested that the judges could use the law if they found it “helpful”. My worry is that that is exactly what the Government think “appropriate” means here. If this power means that Ministers can make regulations and changes because they think it helpful to do so, that is not what this House should allow them to do.

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[Lord Callanan]

If the noble Lord will have a little patience I will get on to that in a second.

If regulations could only make “necessary” provisions, the powers would be heavily restricted to a much smaller set of essential changes. For example, if the Government wanted to change references in legislation from euros to sterling, we would expect such a change to be considered “appropriate” both by the courts and, I hope, by this House, but it might not be considered “necessary”.

We might manage to ensure that our statute book is in a legally operable state, but it would not be in its most coherent form, or arranged in a way that best promotes our national interest. I am sure that this Committee does not intend to restrict the Government from legislating coherently or in the national interest, but that may be the unintended consequence of amendments which swap “appropriate” for “necessary”.

I note that some of the amendments in this group contain wording suggested by the DPRRC in its report on the powers in this Bill. In particular, I was interested in the assertion that:

“The operative test in Clause 7 should be whether it is necessary to deal with the problem, not whether only one solution follows inexorably”.


I first highlight that I do not believe that these amendments break up the necessity process in the way that the committee intends. I also question the merits of breaking up the necessity test in the way that the committee suggests. In its report, the committee cites the example of a deficiency in which there is:

“A requirement to collect and send information that will no longer be accepted by the EU”.


The committee states that it,

“is clearly a deficiency that it is necessary to remove from the statute book: it cannot be right to retain a redundant legal duty that amounts to a waste of time, effort and public money”.

However, I question whether this change is strictly necessary, or whether it is merely appropriate. The committee asserts that it cannot be “right” for this arrangement to continue—and I agree with it—but is it strictly “necessary” that it be removed? What great harm, after all, would be done if the information were still sent? The statute book would continue to function, albeit illogically and not in the public interest. But is it necessary, in a strict legalistic sense, to have the statute book working logically and in the public interest, or are all our changes merely appropriate? In these sorts of instance we cannot with any certainty predict the way in which a court might rule. It is precisely to guard against such a decision that the Government cannot support the suggestion made by the committee.

[Viscount Hailsham]

Is the Minister saying that he will not accept these amendments because he might be defeated in court? If so, that is a thoroughly bad reason.

[Lord Callanan]

I think I have made my position clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of noble Lords.

Amendments 73, 119 and 141 tabled by the noble Viscount, Lord Hailsham, and also spoken to by my noble friend Lord Lang, meanwhile used “essential” rather than “appropriate” to limit the discretion of Ministers in exercising the delegated powers. This really is very similar to the amendments which propose the use of “necessary”. I think that a court would likely interpret the meaning of “necessary” and “essential”—in this context—in much the same way and, therefore, I will not repeat the arguments that I have already made.