Electric Scooter Trials and Traffic Signs (Coronavirus) Regulations and General Directions 2020

Lord Blencathra Excerpts

Tuesday 29th September 2020 Lords Chamber

[Lord Blencathra (Con)]

My Lords, we come to the second debate this afternoon on dangerous goods. It is unusual for me to find myself in complete agreement with the noble Lord, Lord Rosser. I have already apologised to my noble friend the Minister for being thoroughly unhelpful to her on this subject.

After four months of staying inside and on my first afternoon back in London two weeks ago, in the short journey from my flat to this House, I was nearly hit by a big e-scooter on the pavement outside the Department for Transport in Marsham Street. A few minutes later, another thug on one of these almost ran me down on Millbank, on the pavement just by Black Rod’s Garden.

When I used to go to Paris last year with the Council of Europe, I had first-hand experience of these things. Most Parisians do not ride them on the pavement but a large minority do, and everyone abandons them all over the pavements in their tens of thousands. Some 20,000 of these things are now causing what the Mayor of Paris described as “complete anarchy”. Even the French Financial Times said:

“An electric scooter scourge is stalking Paris”


and the French Transport Minister said that Paris was experiencing the “law of the jungle”, although that is unfair on nature behaving properly in its habitat.

That is what is coming to every city in this country. These scooters weigh up to 55 kilograms, and with an average male of another 83 kilograms, that is 28 stone of solid mass hitting pedestrians at 15 miles an hour. The Department for Transport’s road death research shows that a pedestrian hit at 15 miles per hour stands a 3% risk of death and a much larger chance of serious injury.

To those who say, “That’s all overseas; it’s the French and it won’t happen here”: it already has. Just five days after starting a trial in Coventry, the company Voi had to stop all operations because its managing director said:

“I think we have a British antisocial behaviour issue across the country … We haven’t seen this level of antisocial behaviour in any other market. We have had great experience of it but the volume of it in the UK was quite surprising.”


He said that people were riding the scooters on the pavement and had a disregard for the law. If the company trying to get us to use these killing machines says that, we should stop this experiment until we have proper control of them.

If the Government are determined to push ahead, these regulations must be changed to reduce the weight to no more than 25 kilos and the speed limited to 10 miles per hour. Even then, these scooters are still silent killing machines when driven on the pavement. Therefore, the Government must copy Voi and insist on number plates, or some sort of numbering system, so that cameras can identify them. There is then a slight chance of enforcement.

We see cyclists blatantly riding over zebra crossings with pedestrians on them and through red lights, and there is no enforcement. There must be strict enforcement for these e-scooters. People will dump hired machines anywhere but will safely park their own dearly bought scooter. The policy there is wrong, too.

I do not know how Paris has got it so wrong with scooters, given that it and Strasbourg—which I also visit regularly—are so civilised about cycling. There is not a single helmet or bit of Lycra in sight. People ride upright with the handlebars higher than the seats. They can ride on the pavements and I feel perfectly safe among them. What a contrast with London, where you can see nothing but Lycra-clad bums in the air as wannabe Bradley Wigginses mow you down on the crossing at 1 Millbank.

If the Government persist with introducing this measure, I hope that an instruction is given to every police force in this country to enforce the law. There should be none of this nonsense of engage, explain, encourage, pat on the head, sympathise or bend the knee. If the police turn a blind eye to enforcement, I hope that they will ignore me when I use my stick to get one of the scooters off the pavement or when I chuck an abandoned one from the pavement under the wheels of a 30-tonne lorry. I say to the police: do your duty and enforce the law, or the law will be brought into disrepute with every other law. They should do their duty or we will see the same anarchy as in Paris.

Brexit: Road, Rail and Maritime Transport (EUC Report)

Lord Blencathra Excerpts

Monday 21st September 2020 Grand Committee

[Lord Blencathra (Con)]

My Lords, as one would expect from the EU Committee, containing so many distinguished members with considerable experience of these matters, this is an authoritative report. Of course, as has been pointed out, it is now two years old and a great deal has happened since then.

I will speak relatively briefly on road and maritime matters. On road haulage, it seems that there are two outstanding problems that I read about. I read that a group of eight logistics organisations wrote to the Government recently expressing concerns about IT systems and paperwork, as well as about keeping the supply chain going. Personally, I think that they exaggerated the concerns about food shortages. That is nonsense. Do your Lordships remember about two years ago, when the Opposition demanded a statement about the food catastrophe that we would not be able to get iceberg lettuces from Spain? “So what?” I thought, “They are tasteless rubbish in any case”. The supermarkets brought them from California instead. There will not be shortages of food, but we may not get strawberries from Morocco in December as easily as before.

The media and too many politicians believe that trade happens because politicians and Governments make it happen. Not so; trade happens because there are people wanting to buy things and people wanting to sell them those things. We have seen how Covid-19 has changed the way businesses have managed to get round obstacles to acquire and sell goods. Do we seriously expect French cheese sellers not to find a way to get their products to the UK as speedily as possible, or for our retailers not to similarly find new suppliers and new delivery routes? The same goes for all EU food manufacturers and suppliers, so let us not exaggerate the dangers of food shortages.

As for new routes, can the Minister update us on the progress being made on enhancing alternative ports for import and export in addition to Dover? As for the IT problem, I simply do not know—I suspect that most of us do not—but I look forward to the Minister reassuring us on that point.

Finally on road haulage, I turn to the question of Brussels’s refusal to grant British truckers wide-ranging access to the EU. Britain wants truckers to be able to continue picking up and dropping off goods inside and between EU countries. I understand that we also want transit rights for drivers crossing to places such as Turkey. In return, I understand that we have offered the right for EU trucks to travel to Ireland via the UK. I would like the Minister to update us on those discussions as well.

Surely we have a very strong hand to demand reciprocal rights. The vast majority of Irish/EU trade goes through Holyhead, with only a small amount directly moved between the Republic and EU countries. Quite simply, if the EU does not permit our truckers to pick up return loads in EU countries, it will suffer more if we refuse to let its truckers do the same on journeys to Ireland. I hope that the new Minister, my noble friend Lord Frost, will make that threat abundantly clear, in the nicest possible way, and that he will also point out that we have no intention of doing it unilaterally, so the EU should sensibly play ball here.

Turning to maritime, it was refreshing to read the committee’s report showing that the UK is in an excellent position and that maritime transport is largely regulated by international rules, not the dead, bureaucratic hand of the EU. Every day in coming to this House I see the wonderful International Maritime Organization building on the other side of Lambeth Bridge, which is a symbol of the UK’s leading role in maritime matters and rule-making.

The report of the noble Lord, Lord Whitty, quotes the Government’s White Paper:

“The maritime sector is liberalised at a global level. On that basis, UK ship operators will be able to serve EU ports largely as now, following the UK’s withdrawal from the EU.”


The report goes on to say:

“Maritime transport is generally liberalised and underpinned by an extensive body of international law. Post-Brexit, UK and EU ship operators will in most respects be able to access each other’s ports as at present.”


However, the report raises concerns about cabotage—mentioned by the noble Lord, Lord Whitty—which is regulated at EU level, and says that some companies could be affected. Can the Minister confirm how much that would be on a worst-case scenario and how many companies would be affected? I read somewhere that it would be very few, as it is a small part of our business.

Surely any losses in that area can be more than compensated for if we push ahead with free ports. I am a huge supporter of free ports, and I quote the International Trade Secretary Liz Truss, who said:

“Freedoms transformed London’s Docklands in the 1980s, and freeports will do the same for towns and cities across the UK. They will onshore enterprise and manufacturing as the gateway to our future prosperity, creating thousands of jobs.”


Supporting this claim, the construction group Mace says that free ports could help create 150,000 new jobs, while annually contributing £9 billion to the UK economy. I understand that the British Ports Association has joined forces with a number of organisations—the Port of Milford Haven, the Port of Tyne and the Institute of Export and International Trade—to create a new trade campaign called Port Zones UK. In September, the alliance published a report outlining a number of areas of intervention the Government should look into if they want to attract international investment as part of their free port programme. The study also promotes

“regional growth centred on key UK transport hubs, through the designation of enhanced ‘Enterprise, Development and Free Trade Zones’.”

In conclusion, can the Minister comment on the progress we are making in pushing ahead with free ports, and does she agree that the jobs created and money invested would far outweigh any losses caused by cabotage?

I commend the Government on the robust stance we are taking on negotiations with the EU and all the excellent preparations being made for a no deal, and I look forward to hearing from the Minister.

Public Service Vehicles (Open Data) (England) Regulations 2020

Lord Blencathra Excerpts

Thursday 2nd July 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, I join my noble friend Lord Holmes in paying tribute to those unsung heroes: the bus drivers, taxi drivers, lorry drivers and shelf-fillers who have kept the country going during Covid-19.

I totally support these regulations—they seem like a jolly good idea, creating a sort of Trainline.com for buses. My interest today is in what the Government will do with the information they collect. It seems that they will put all the information on a website, but will they develop any apps for users? According to my understanding of the regulations, anyone else can take that information and invent an app, so long as they credit the Government as the source of the data. Is that correct? Are there any circumstances in which the department might wish to develop its own app, albeit that that seems a risky policy these days? When does my noble friend the Minister expect the Government’s website service to start? Will the Government wait until they have every bit of information from every operator, or will they kick off when they have, say, 50%?

One can buy train tickets from the train company or from Trainline. Would there be any bar to an app provider selling bus tickets? With regard to the Secretary of State’s liability, I know that the app developer has to state that he accepts that the Secretary of State cannot guarantee the integrity and quality of the information, but will that hold up in court? We know that lawyers are now piling in by their thousands to sue over Covid-19, and to sue for any excuse. Could an app developer sue by alleging that the department was, say, too slow in putting timetable changes on to the website? Suppose an app provider breaches some of the conditions in Clause 16: what can the department do to stop him or strike down his app? I cannot see any provisions for that.

The review period is every five years. I suggest that the first review should be after two years, with subsequent reviews at five-yearly intervals.

Finally, I have a couple of asides, prompted by what the Minister has said. She said that missing a bus may result in a delay of 20 minutes, or two hours in Yorkshire. Up here in Cumbria, if you miss the bus you wait another seven days until the next one comes along. I am not surprised that 51% of UK buses are in London. Every day when I was in London, I would see hundreds of empty, diesel-polluting buses clogging the streets. The boast that there is a London bus every 12 minutes reminds us just how mollycoddled Londoners are and how much the rest of the country needs to be levelled up. That said, from what I saw of the carnage in Paris the last time I was there, I suppose that diesel buses will kill fewer people than the e-scooters when they start this weekend.

Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2020

Lord Blencathra Excerpts

Thursday 18th June 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, I thank my noble friend the Minister for setting out the scope of these regulations, which, if I understand correctly, are a technicality to ensure that the UK rather than the EU is now the legislator. My concerns go wider than that and relate to the compensation levels for disabled passengers and wheelchairs. I endorse absolutely everything the noble Lord, Lord Blunkett, has just said.

Can my noble friend confirm that the EU regs and these UK regs exactly replicate the 1999 Montreal Convention latest compensation levels of 113,100 SDRs, about £90,000, for death and 1,131 SDRs, about £900, for loss of baggage? The EU regs go further and compensate for delay.

However, my noble friend will have been briefed on the scandal in 2016, championed by our noble friend Lord Holmes of Richmond, when Athena Stevens had her £25,000 wheelchair irreparably damaged on a BA flight from London to Glasgow and was offered compensation based on its weight. The Montreal Convention deems wheelchairs to be hold baggage, where the compensation is payable on the weight of the articles, not their value.

I have my battery-operated wheelchairs insured for everything, but the one thing you cannot insure for is air travel, so when the delightful Miami baggage handlers dropped my lightweight aluminium wheelchair costing £2,500, the most I would get—after enormous hassle—would be $300. Air carriers are hiding behind an international convention to avoid paying for damaged mobility equipment vital for disabled people to live their lives independently. As our noble friend Lord Holmes of Richmond said in the Athena Stevens case:

“This unfair policy is trapping disabled people in a cycle of disadvantage, and British air carriers have the moral responsibility to stop applying it to disabled customers’ mobility equipment, as it’s clearly unfit for purpose.”


The United States has passed the Air Carrier Access Act, applying to all internal flights, which states:

“The basis for calculating the compensation for a lost, damaged, or destroyed wheelchair or other assistive device shall be the original purchase price of the device.”


Canada has said that the levels in the Montreal Convention will not apply, and in Europe only Lufthansa has said the same thing. I wish I knew that when I watched my late departed previous wheelchair dropped six feet from a baggage elevator at Frankfurt.

I ask my noble friend the Minister ideally to introduce US-style legislation for all flights departing or landing in the UK, in which damage to wheelchairs will be compensated at the full replacement cost. There is nothing to stop us from 1 January next year; we will be out of the bureaucratic dead embrace of the EU empire. This country was always ahead of every other country in the EU on disabled rights, so let us be in the forefront once again.

There is no downside to bringing in this legislation; the cost to airlines will be minimal. To be fair, my current electric wheelchair has been to Belarus, Azerbaijan, Ankara, Istanbul, Athens, Strasbourg, Paris, Basle, St Petersburg, Bosnia, Georgia and even Aberdeen, and has not been damaged by airlines or airports—not yet, at any rate, but I am tempting fate by boasting about it. The airlines would have to pay for a small number of cases, but cases absolutely crucial to the disabled passengers affected.

If legislation cannot be brought forward in the short term, which I understand, will my noble friend make it clear to all UK-operating airlines that the Government expect them to implement this voluntarily, the same way that Lufthansa has? Of course, we know that there are nasty little operators—we could all name them, but I will not do so—but if the more reputable carriers make this undertaking, wheelchair users will know who to trust and who to travel with.

Air Traffic Management (Amendment etc.) (EU Exit) Regulations 2020

Lord Blencathra Excerpts

Wednesday 17th June 2020 Lords Chamber

[Lord Blencathra (Con) [V]]

My Lords, I thank my noble friend the Minister for setting out simply what are extraordinarily long and complicated regulations. I tried to understand them and the draft Explanatory Memorandum and even went back to look at the Transport Act 2000, but the regulations seemed to largely implement the status quo. I pay tribute to what the noble Lord, Lord Mann, has just said; I share his views on drones.

I would really like to know from the Minister today the state of CAA readiness when we leave the EU without an agreement on 31 December, which looks increasingly likely in view of the intransigent behaviour of the EU negotiators. The CAA will have to develop new capabilities, some currently done by the EASA. How well advanced is the CAA in developing those capabilities?

For example, will the UK do our own evaluation of that dodgy Boeing 737 MAX and decide whether it is safe to fly—or, if not this aeroplane, any other aeroplanes in future? Will the CAA be able to fulfil all the regulatory functions without having the EASA as a technical agent and without access to EASA and EU-level capabilities? What is the plan if there is no mutual recognition agreement between the EU and the UK for aviation licences, approvals and certificates and if the EU treats UK airlines as third-country operators?

I understand that the CAA has no direct role in the negotiation of air transport agreements, which govern the rights to fly between two countries. These are formal treaties negotiated directly between Governments, but does the CAA advise or have a view? Who advises the Government on this?

I have always admired the CAA. I do not really know why, but I have always thought of it as one of our best British assets and I am so looking forward to it being exclusively in charge of our air navigation systems once again and negotiating for us in international agreements.

I conclude with this warning—I warn the Minister’s civil servants too: have you any idea how dirty the EU will play over this if there is no agreement? There will be none of this “we are all European partners” lovey-dovey stuff. The EU has to punish the UK for leaving. We can see that in its attempt to keep taking 80% of our fish, keep us tied to the EU political court and not give us a Canada-style trade deal. The CAA needs to plan now for the EU doing everything in its power to make life difficult or near impossible for UK airlines to operate in Europe. Let us go into negotiations with a clear objective and a nice smile, but with an iron fist and ready to take all emergency action when we do not get a deal.

Covid-19: Transport

Lord Blencathra Excerpts

Thursday 14th May 2020 Lords Chamber

[Baroness Vere of Norbiton]

The noble Baroness is right, in that there have been some really unpleasant examples of people speeding—sometimes vastly over the speed limit—and it is entirely and utterly unacceptable. However, I am pleased that the police have been continuing to do their speeding enforcement; a number of those people have been caught and have received some pretty severe fines and other penalties. Making cyclists feel safe is extremely important, and this money—the £250 million—is a very good start in ensuring that there are dedicated lanes for cyclists, such that they can be protected from cars. Even cars travelling at normal speeds can sometimes feel very fast to a cyclist. Having that enforcement is really important, as is towns and cities thinking more about the needs of the cyclist alongside those of the car driver.

[Lord Blencathra (Con)]

Will my noble friend the Minister acknowledge that London is not the UK? Will she ensure that plans to open up rail travel are based on the needs of the whole country, and look not just at London’s Tube and the cities? If we opt for a 14-day quarantine for everyone coming into this country then it must apply to every country, including France and Ireland. And will our Lords authorities please use the mute button for any Peer who rabbits on with a two-minute supplementary?

[Baroness Vere of Norbiton]

It is not within my remit to answer that last question. However, my noble friend is right that London is not the UK. That is why Sir Peter Hendy has been working with the TOCs to open up rail services across the country. We are of course opening up all transport services across the country; that is incredibly important. On the point that he raises about 14-day quarantine and who that will apply to, as I have said previously, the scheme is still being finalised. The final details have not yet been announced, including whether there will be any exemptions.

Motor Vehicles (Tests) (Amendment) (Coronavirus) Regulations 2020

Lord Blencathra Excerpts

Wednesday 13th May 2020 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I congratulate my noble friend the Minister and the Department for Transport on bringing forward these regulations. It is a very sensible thing to do. I should declare a personal interest in that my MoT is due to run out at the end of May; or rather, my car’s MoT is due to run out then. According to the NHS, my personal MoT ran out years ago.

I am one of those who would not be able to go out to get an MoT without these regulations, so the six-month extension is sensible and it should give enough time to get an MoT. Let us face it, if we are still in lockdown in six months’ time then God help us; we will not need MoTs since we will be back to the era of the horse and cart. However, will my noble friend keep this under review and, if necessary, speak to the Communities and Local Government department with a view to extending garage opening hours, possibly with Sunday working? I suspect that, as most noble Lords have said, most garages and MoT centres will go flat out to clear any backlog but if a bottleneck occurs, extending garage opening hours might be a solution.

The other point I wish to raise is more concerning. We all know that insurance companies will use any excuse not to pay up. I worry that if a vehicle is involved in an accident, the insurance company will refuse to pay because the car did not have an MoT even though there is the six-month extension. I can imagine a scenario where a vehicle is involved in a collision—from a minor one to one involving loss of life—and the reason for that accident is traced to something such as a faulty or worn steering wheel rod. The insurance company could argue that if the car had had an MoT after 12 months, this fault would have been found and that the accident occurred only because the 12-month period had been exceeded. That is a hypothetical example; no doubt motoring experts could find better ones. Will my noble friend assure me, and all other motorists, that insurance will cover completely all possible accidents occurring after the 12-month period and be valid over the 18-month period?

Aviation and Tourism: Cancellations

Lord Blencathra Excerpts

Tuesday 5th May 2020 Lords Chamber

Asked by

[Lord Blencathra]

To ask Her Majesty’s Government what steps they plan to take to ensure airlines and tour companies refund people for costs incurred following the cancellation of flights and holidays.

The Question was considered in a Virtual Proceeding via video call.

--- Later in debate ---

[Lord Blencathra (Con)]

My Lords, I thank my noble friend for the clarity of that reply. Will she make it clear to all airlines and travel providers that sitting on £7 billion of customers’ money and inventing scams such as telling people to claim online or by telephone and then not answering those calls is a breach of the 2018 regulations, which require a full refund within 14 days? They must do that. Will they also stop their pyramid selling of phantom flights which will never happen, taking customers’ money and not refunding it? Is this not simply fraudulent?

[Baroness Vere of Norbiton]

My Lords, the Government appreciate the frustration that consumers are feeling. We have made it absolutely clear that the customer should get a refund if they ask for one. However, we also recognise the enormous challenges that businesses face. They have very large volumes of such requests, and staff may not be available—they may have been furloughed. There may be capacity constraints because of social distancing, or an increase in staff absence due to illness. The regulators are working very closely with the industry to find out what the problems are and to ensure that customers get their money back.

Passenger Train Services

Lord Blencathra Excerpts

Wednesday 29th April 2020 Lords Chamber

[Baroness Vere of Norbiton]

I thank the noble Lord for his Question; he is completely and utterly right, and that is precisely what we are doing.

[Lord Blencathra (Con)]

My Lords, I agree that getting train services back to near full operation is absolutely essential. We have all seen reports recently of plans for physical distancing on platforms and seating on the trains, but can my noble friend the Minister explain how to distance oneself from other passengers on a train when using the narrow aisles or going to the toilet? Would compulsory face masks for everyone on a train be a potential solution?

Haulage Permits and Trailer Registration Bill [HL]

Lord Blencathra Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 22nd March 2018 Grand Committee

[Lord Campbell-Savours]

Perhaps I could speak again, because I have been reflecting on what was said. There is another way to deal with this, which is why I intervene: we have gross weight figures. If we had a few more court cases about people using trailers that exceeded the gross weight, that might send out a message “pour encourager les autres” to comply with the law. That is one way to deal with it, along with the lock and chain. I am talking about the smaller trailers, which are worrying me, and which comprise the great volume of trailers.

I come to my second point. I do not have a trailer at the moment but until a few years ago I did. It was a small trailer, probably half the size of one of these desk tops here. We used it once or twice a year. If you are registering it, MoT-ing and all that, that is quite an expense if you use your trailer very rarely. As I say, unless they are in business, people do not drive around with their trailers all the time. They are for occasional use.

There are circumstances in which an MoT could be applied, and that is when a trailer has a brake. If it has a brake, it really is a different piece of machinery. All that most trailers have is a wire that connects the vehicle to the trailer to feed the lights—nothing more. However, where you have a trailer with a brake, my noble friend’s case holds water that there might well need to be some sort of system. I imagine that the two-tonne trailer that my noble friend referred to had a brake; I do not know.

[Lord Blencathra (Con)]

Since we are in declaring-interest mode, I, too, used to have a trailer a few years ago. It is the point about the brakes that interests me, because it seemed to have an automatic brake on the driveshaft when it connected to the car, so when the car was accelerating or driving normally the trailer was dragged, but when one put on the car brakes, the momentum of the trailer pushed forward on a hydraulic ram that automatically activated the rear brake. I have no idea what it was called, and I am sorry that I cannot describe the technology more accurately, but many trailers have these automatic brakes that come on when the vehicle brakes.

[Lord Campbell-Savours]

I did not know about that; I did not know it existed. Knowing the noble Lord’s former constituency well, he probably had a fairly substantial trailer. It was probably pretty large because he represented a very rugged area.

--- Later in debate ---

[Lord Tunnicliffe]

My Lords, in moving Amendment 21, I will speak also to Amendments 24, 25 and 27. This group and the next group of amendments are vehicles to effect the recommendations of the Select Committee on the Constitution and the Delegated Powers and Regulatory Reform Committee. I hope the Minister will agree with everything I have to say because traditionally the Government respect those committees for the very careful work they do. It is good to see the noble Lord, Lord Blencathra, here. I am sure he will speak to these amendments. The work of these committees is essential to keep our law sensible, balanced and correctly scrutinised.

The 11th report of the Select Committee on the Constitution, published on 8 March, says at paragraph 7:

“If there are exceptional circumstances which require the creation of criminal offences by regulations, they should normally be subject to the affirmative procedure”.


It then goes on to talk about sifting. Clause 17(7) of the Bill says:

“Regulations under this section may not provide for an offence to be punishable with imprisonment or with a fine exceeding level 3 on the standard scale”.


But clearly there is a criminal offence and as a general rule we do not believe that any criminal offence should be introduced with a negative instrument. I hope the Minister will agree.

Turning to the subject of Amendment 27, the Delegated Powers and Regulatory Reform Committee says:

“Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply to such regulations. For the reasons given at paragraph 9 above, we recommend that there should be a sifting procedure”—


I will come on to that—

“allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.

Paragraph 9 says:

“We also recommend that there should be a sifting procedure for regulations under clause 1—akin to the one we recommended for the European Union (Withdrawal) Bill—allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.


The Select Committee on the Constitution also made some references to Clauses 8 and 17. Therefore, for simplicity’s sake, we recommend that all the regulations under Clauses 1, 2, 8 and 17 should be subject to a sifting procedure which can decide whether any should be subject to the affirmative resolution procedure. I beg to move.

[Lord Blencathra]

My Lords, as the chairman of the Delegated Powers and Regulatory Reform Committee, I am delighted to say a few words on Amendment 27. No doubt my noble friend the Minister swotted up on all the briefs and the grand issues relating to Brexit and European trailers; little did she know that she would have to hear confessions from Members on all sides of the Committee about their experiences driving good trailers, big trailers and dodgy little trailers—and wheels falling off.

I am not sure whether I can trump the noble Lord, Lord Tunnicliffe, but as a boy up on the farm in the Highlands I was able to drive a tractor by the age of 10 and drive it on the highway by the age of 12. When I was allowed legally to drive a car on the highway, my first car was a three-gear Ford Prefect which, on a long downhill slope, I once got up to 62 miles an hour—I could drive the tractors a bit faster.

The Delegated Powers Committee has recommended the sifting committee procedure for Clauses 1 and 2. We recommend it for Clause 1 because, as we say in our report,

“the content of any regulations made under clause 1 will depend on future international agreements … there is no current indication as to what regulations under clause 1 might say or how important they might be, if they are needed at all … it cannot be known in advance that the negative procedure will always be suitable for regulations made under clause 1 … it might transpire that some regulations made under clause 1 might require the affirmative procedure”.

On Clause 2, to shorten our report to the basics, we cite the Explanatory Memorandum which states that,

“it is not yet clear what sort of a regime or regimes will need to be introduced and, in the interest of ensuring that the provisions cater for agreed scenarios and are not too wide, it is necessary to legislate by way of secondary legislation once negotiations have been concluded and the nature of any permit scheme that needs to be introduced is clear”.

We say:

“Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply”.


For that reason, we think that there should be a sifting mechanism where colleagues in the House can decide which ones are tiddly statutory instruments and the negative procedure is okay and which ones require the affirmative procedure.

We stress in paragraph 10:

“We are not seeking to make a sifting mechanism a general feature of our legislative landscape”—


we are not seeking to attach it to every Brexit Bill.

“However, the circumstances of the United Kingdom’s exit from the European Union have given rise to unique legislative challenges”.


We know that next year we may have 800 to 1,000 statutory instruments to get through, perhaps in a short period of time. In those circumstances we have recommended the sifting procedure to the House. I know that the Leader of the House, the Lord Privy Seal, has rejected that already, but we recommend it for the Bill because the first five clauses begin with the words, “Regulations may”. That is almost unique. Because there will be so many regulations and some will be routine, trivial and therefore not crucial, some will be mega important and may require the affirmative procedure, we commend the sifting mechanism—exactly the same procedure as we identified in the European Union (Withdrawal) Bill, using the same secondary legislation scrutiny procedure, not creating any new all-singing all-dancing committee—to the Committee, and I commend it to my noble friend.

[Baroness Randerson]

My Lords, my Amendment 23 is an attempt to tackle the issue in a parallel manner. It takes on board the Delegated Powers Committee report which I think we can say was not entirely favourable. Last week, I quoted the committee as saying that the Bill is,

“more of a mission statement than legislation”.

As the noble Lord just said, the committee specifically referred to Clauses 1 to 5 all beginning with the words, “Regulations may”. It also chastised the Department for Transport for not producing some illustrative regulations alongside the Bill and urged us to probe the Government in Committee. I am trying to follow its advice.

As the committee report highlights, 16 of the 24 clauses contain delegated powers, all of them subject only to the negative procedure. Amendment 23 attempts to rectify this, ensuring that the substantive clauses of the Bill are subject to the affirmative procedure.

I also want to note that the Constitution Committee said specifically that Bills like this are difficult for Parliament to scrutinise and—this is the key phrase—present a fundamental challenge to the balance of power between Parliament and the Executive. Given the reference just now by the noble Lord to the number of statutory instruments that we have coming through, it is important that we continue to maintain a more stringent attitude to SIs than is indicated by the Bill as currently written.

Amendment 21 particularly highlights Clause 17, which would give the Secretary of State the power to create offences by statutory instrument. Labour’s Amendments 24, 25 and 27 relate to the sifting committee for statutory instruments, which was recommended in the report of the Delegated Powers Committee. I believe that these are very sound suggestions and I support them. There are good reasons for adopting a more rigorous attitude towards this and I am sure that the Minister would be the first to admit that at this stage the Government do not have absolute clarity as to how they are going forward. To my mind, that is an even stronger argument for why we should have some form of sunset clause and sifting to ensure that the important elements of this Bill are properly scrutinised in the future.

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[Earl Attlee]

On the precautionary principle, the problem I have is that we are using precious time to debate things that we do not need to. When I was an Opposition Front-Bench spokesman, I dealt with affirmative orders while thinking, “Why in God’s name are we debating this?” One day, the noble Baroness, Lady Symons, came in with a defence order—a Foreign Office order or something. She made a big speech, and I just smiled at her and then the order went through.

The other point that the noble Baroness raised was about the difference between an affirmative order and a negative one. The ability to debate it and to change it is no different whether the order is affirmative or negative. The only difference is whether it has to be debated or whether it gets debated only if we can flag it up: our ability to amend it is no different. I am going to get killed now.

[Lord Blencathra]

I will try smiling at my noble friend to see if he may back down slightly. I admit that there are times when my committee says, “The negative procedure here is wholly unacceptable and this should be affirmative”—but not in this report. Here, we say, “The Government don’t know, the Explanatory Memorandum doesn’t know and we don’t know how many regulations there will be, which ones will be important and which will be less important”. They might all end up being negative or they might all be so crucial that they are affirmative, but I trust my noble friend Lord Trefgarne to make a sensible judgment on this—

[Noble Lords]

Oh!

[Lord Blencathra]

I know some Members of this Committee will be reassured by that.

All we are saying is: let the Secondary Legislation Scrutiny Committee look at the proposed regulations, as we suggest for the European Union (Withdrawal) Bill. Let the committee sift them and conclude, as I think it probably would, that 80% of the regulations in the main will be suitable for the negative procedure and the remaining 20% should be affirmative, and then it can recommend that to the House. That does not stop the House, the Opposition or others ensuring that other negative regulations are prayed against, but suggesting a sifting mechanism is not a demand that everything be made affirmative. On this occasion I am not banging on that everything should be affirmative; I am banging on about giving the sifting committee a chance to make a decision that the House can accept or reject.

[Earl Attlee]

My Lords, my noble friend is the expert. When I made observations about procedure and so on, was I incorrect in any respect?

[Lord Blencathra]

Sorry, I do not follow my noble friend.

[Earl Attlee]

My Lords, I suggested that the only difference between a negative order and an affirmative one was our ability to flag it up for debate. We cannot actually change a negative order or an affirmative one; we just accept or reject them. My point is that we are actually no better off in holding the Government to account whether an order is affirmative or negative. If the industry flags it up as a problem, we have all the tools that we need to hold the Government to account.

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[Lord Snape]

Before the noble Lord answers that, I have a question. I know he was never the noble Earl’s Chief Whip but, in the days when he was a Chief Whip, would he have felt that a smile would have made a difference?

[Lord Blencathra]

In my time as Chief Whip in the other place, I tried to model myself on Lord Dixon, whose style I rather liked as Chief Whip of the Labour Party.

I think what my noble friend means by “flag it up”—I stand to be corrected because I am not an expert on procedure—would require praying against it, and that would take some time. The sifting procedure that we propose is a 10-day system where, when the statutory instruments went before the sifting committee, the SSLC, they would be flagged up within 10 days to go to the affirmative procedure. That satisfies the Government’s requirements that it be done expeditiously.

We accept that next year we will possibly have hundreds of regulations coming through. I know that we want to get some though in advance—we may get many through—but we could have a period next year where we have a huge batch of regulations to get through because we are leaving the EU. Some may need to be done by 29 March while others may be done later, but we will not be able to have a 40-day praying period: we cannot take all that time to decide whether a regulation being passed by the negative procedure might need to go up to the affirmative procedure. The sifting procedure we have proposed is not like the super-affirmative procedure, which is far too slow. The special procedure we have proposed in this amendment, as well as in the EU withdrawal Bill, will allow for a rapid sifting so that recommendations can be made for a regulation to be upgraded to the affirmative procedure.

[Earl Attlee]

My Lords, my noble friend is very helpful. I cannot conceive how any regulation under this Bill would need the affirmative procedure, but we will see what the Minister says.