European Union (Withdrawal) Bill

Lord Kirkwood of Kirkhope Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Bilimoria]

My Lords, briefly, I support the amendment of my noble friend Lord Lisvane who, with his vast experience, has come up with a suggestion that is essential, primarily because I feel that the balance between the Executive and the legislature has been truly tested during these Brexit times. This started with the Government trying to bypass Parliament in implementing Article 50, and then trying to not give Parliament a meaningful vote. At every stage, we have to make sure that the power comes back to Parliament.

The noble Lord, Lord Sharkey, said that the Government estimate that there will be 800 statutory instruments just as a result of the EU withdrawal Bill. How many statutory instruments does the Minister think that there will be in total, as a result of Brexit? I have heard somebody say 2,000, but there may be even more than that. It is therefore all the more important that we have proper scrutiny. We cannot entrust it to the Executive; Parliament has got to have the power, and I support my noble friend Lord Lisvane’s amendment.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I am pleased to support the noble Lord, Lord Lisvane, on Amendment 70. It is a very useful first step and if he presses his amendment I will be pleased to join him in the Lobbies. I shall speak to Amendments 70BA and 70BB, both of which are in this group. I am in a pretty precarious position because I am speaking to amendments to a government amendment which has not yet been moved and is subject to the right of pre-emption. If the noble Lord, Lord Lisvane, wins then I am wasting my time. I do not want to waste the House’s time although I do not mind wasting my own.

I am a member of the Secondary Legislation Scrutiny Committee. I do not speak for that committee but I have been a member of it for some time. These amendments take the last opportunity available to the House to persuade the Leader, who has been attentive to the issue of the extent of the relevant period for consideration, to increase the amount of time available to the Secondary Legislation Scrutiny Committee to 15 days. Amendments would do that in both Houses. It is not often that the House of Lords tells the House of Commons what to do, but it would be inelegant if the two Houses had different sifting periods.

I do not need to explain the role of the Secondary Legislation Scrutiny Committee. Most Members understand that it takes its duties very seriously and is largely trusted to point out matters of concern under the headings available to it to refer statutory instruments to the House. In my experience, it is a much better system than in the House of Commons. The worry of some members of the committee, which I share, is that in dealing with the flow of statutory instruments occasioned by Clauses 7 to 9 of the Bill, we will end up creating precedents which will in the long term dilute the quality of the scrutiny delivered by the Secondary Legislation Scrutiny Committee, and I know the chairman is very concerned about that.

Practical experience of the rhythm of how we deal with the flow of existing regulations shows that 10 days is not enough. It is enough for normal business. If we get the compliance we need from government departments in terms of answers to our queries and dealing with outstanding questions as SIs pass through the process and get expeditious returns, the committee is quite confident that in usual circumstances 10 days would be enough, but it is not enough for exceptional circumstances and there is no provision for exceptional circumstances in the legislation as it stands.

Noble Lords might think that this is a very small point, but if the important amendment moved by the noble Lord, Lord Lisvane, does not find favour with your Lordships’ House, there will be circumstances where Members on the Secondary Legislation Scrutiny Committee will on day 9 in the consideration of some order which is causing them continuing concern be faced with the question of what to do. Do they say they need to take further and better particulars from government departments and take further evidence from witnesses and risk going over the 10-day period, at which point the House’s responsibility for the issue ends as the Government will take the issue back and the SI will become by default a negative instrument, or do they say they are in some doubt about it and so will err on the side of caution? They do not really have the evidence to be sure that the instrument should be upgraded from a sift of a negative to an affirmative, but if I am unsure I will always by default argue within the committee for recommending an upgrade. If that kind of thing happens, it is going to create even more difficulty for business managers. It will not happen every week, or anything like it, but the Government’s wish to get the statute book in good order by exit day is absolutely understood and members of the Secondary Legislation Scrutiny Committee are responsible and diligent and understand the difficulties in doing that, but they are going to be put in a very difficult position.

I do not know where the 10-day limit came from. I think it originally came from the Delegated Powers and Regulatory Reform Committee, but there was no back-up about why it chose 10 days as opposed to 15 days, 13 days or anything else. With the help of the excellent staff of the Secondary Legislation Scrutiny Committee, we have done a grid and have come to the conclusion that it is not possible for the committee to meet twice within 10 days under this new regime, and that will be essential to be sure that exceptional circumstances are dealt with. On the grid we have done, it is clear that 15 days clears us from exceptional circumstances problems. In particular, I am very concerned about consulting devolved legislatures in other parts of the United Kingdom, particularly in relation to Clauses 7 to 9, as this Bill proceeds.

We are taking a big risk. We are going to put at risk the scrutiny process that we rely on day in, day out to keep the quality of the scrutiny process that the House is so rightly concerned about if we do not either make an exception or give some powers for someone to make a case on cause shown for getting an extra couple of days, or an extra five days, on instruments that can be shown to be exceptional. Although the scrutiny committee is doubling its numbers, making provisions and getting support from the Government for doing that, if we do not increase the relevant period for the consideration of sifting, we risk prejudicing the quality of the work that the scrutiny committee can do on behalf of the House in future.

European Union (Withdrawal) Bill

Lord Kirkwood of Kirkhope Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Kirkwood of Kirkhope (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Grocott. He is an accomplished parliamentarian who has the benefit of consistency. The line that he has just been peddling, with which I profoundly disagree politically, has been held by him consistently since 1972, which is quite a claim to fame.

However, there was a glimmer of hope in the remarks he made, as he said that he agreed with some of the things that my noble friend Lord Beith said. I think that the House will look to him and all his political stagecraft and experience to make sure that scrutiny procedures are maintained, because we will need all the help we can get to make sure that the Government do not just give Ministers blank cheques.

The standout moment for me yesterday was when the noble Lord, Lord Bridges, said, tellingly, that keeping every option open was no option at all. That is the message that I hope this debate will carry to the Government, because it crystallises the problem politically as I see it. The standout moment for today, which the noble and learned Lord, Lord Goldsmith, referred to, is the graphic image from the noble Lord, Lord Cormack, of two noble Lords in a bath singing “Je ne regrette rien”. I apologise to the noble Lord, but I have to say this, because it is true. A mental image appeared in my brain of the noble Lords, Lord Lamont and Lord Cormack, in a hot tub singing it. That is an Instagram image to kill for. This is meant with due respect to both noble Lords.

This has been a very constructive debate—and worth listening to, because the points have all been apposite. It is not yet boring, although that might be different by 9.30 pm. I hope the Government have clearly understood that there is no attempt on anybody’s part to wreck the Bill. There was never any attempt to do that, and no appetite for it on any side. If there was, I would know about it—and there is not. I can tell the Minister with some authority that he need have no fears about the Bill not getting a Second Reading. However, in a political context, the Government are clearly the author of their own misfortune. As the noble Lord, Lord Radice, and some other colleagues have said, self-imposed red lines and deadlines with no end game in sight are a recipe for incoherence and incompetence—which is the position that we are in at the moment.

We are all anxious to burnish our credentials. I arrived in the precincts of the Palace of Westminster in 1971, and one of the first acts I witnessed was the Liberal parliamentary party of its day assisting the then Prime Minister, Edward Heath, as he took the country into the EEC. Among other things, that means that I am actually older than I look, which is a cross I have to bear. I have been here for 47 years one way or another, in different roles. I was my party’s Chief Whip in the Maastricht debate. Then there was a defined treaty, in plain sight and in hard copy. People knew what they were arguing about, and it was still difficult. There were no deadlines—but, again, the Liberal Democrats came to the rescue. I learned more new bad language in the Conservative Whips’ Office during the Maastricht debate than I ever had in any earlier parts of my life. It was all quite tense, but John Major won because we helped him.

Recently during the coalition we helped David Cameron by co-authoring a Bill which put a lock on the ceding of any further powers to Brussels, subject to a referendum. I do not usually say this, but the Liberal Democrat parliamentary group in the House of Lords deserves some credit for 47 years of solid, unwavering support—some might even say strong and stable support—for the position that the United Kingdom should stay at the heart of Europe.

I am a member of the Secondary Legislation Scrutiny Committee and, for me, the battle lines will be drawn on the content of Clause 7, Schedule 7 and, to a lesser extent, Clause 11. I pay tribute to yesterday’s magnificent short speech from the noble and learned Lord, Lord Hope of Craighead on Clause 11, and I, too, will be speaking about it, for obvious reasons.

Cross-Bench votes—not just voices—are very important. I know that there are sometimes challenges among our Cross-Bench colleagues, but they are non-aligned and have a special value in this debate. They are excellent contributors to the scrutiny process and if they do not hold their end up and give their support we may lose votes—so I hope they will think about that really carefully.

The Leader of the House made some helpful comments at the beginning of the debate about how she was going to bring forward some new proposals in March. The new system has to be operational by April or May and that is too tight a timetable for this to be done sensibly. The Constitution Committee’s ninth report has done the House a signal service, and the battleground it maps out is the one on which I will seek to attack Clause 7 and Schedule 7. The Secondary Legislation Scrutiny Committee needs further and better particulars and basic things like early access to drafts—if that is possible, it would help. We also need to smooth out the peaks and the troughs in the flow of the delegated legislation we consider, and resources to staff up the committees. I hope that these will be put in place meaningfully, otherwise the quality of the scrutiny—because of the volume of legislation—is bound to suffer, and that is not in our interests.

I also hope that the usual channels will start to look again at the Cunningham doctrine, which colleagues may remember suggests that in very limited circumstances the possibility exists for this House to reject statutory instruments. If the Government do not get this Bill right, Members such as I will be driven to thinking in these terms. We do not want that, so I hope that the Government will get on with this and make sure that the Bill is amended—particularly Clause 7 and Schedule 7 —in a way that guarantees a scrutiny role for this House, because that is what we are here to do.