European Union (Withdrawal) Bill

Debate between Lord Sharkey and Lord Hope of Craighead

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Sharkey]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be known to many noble Lords. I will be brief in dealing with what is essentially a simple procedural proposal.

The issue is delegated legislation. This has already been the focus of a lot of debate, much of which has consisted of expressions of anxiety about the likely number of instruments; about the range of the powers that they confer; about timing; and about Parliament’s ability to conduct proper scrutiny. There are varying estimates of the number of SIs that the Bill will produce. The noble Lord, Lord Callanan, said in his letter of 20 February that it will be between 800 and 1,000. Our own EU Justice Sub-Committee thinks it may be 5,000, as the noble Earl, Lord Kinnoull, noted on Monday. What is clear is that the number will be very large. The noble Lord, Lord Callanan, estimates that 20% to 30% of those SIs will trigger the affirmative procedure. That estimate is no doubt based on the rules for categorisation set out in the Bill, and will certainly prove to be an underestimate once the sifting committees get to work.

As has been noted, the SIs will give the Government an extraordinary and quite unprecedented range of powers. They will enable the creation of criminal offences without primary legislation, as the noble and learned Lord, Lord Judge, has explained to us; they will allow law-making by tertiary legislation; and they will allow Ministers and, apparently, 109 others largely unfettered discretion to range across the statute book. All this presents a formidable challenge to Parliament when it comes to effective scrutiny. The Government seem to recognise—a bit—that the situation is unprecedented and requires special care. They have written some constraints into the SI-generating clauses, but not enough and not wide enough. These constraints do not, in any case, address the problem of sufficient and effective scrutiny.

We will come to proposals for dealing with the scrutiny problem when we reach the group beginning with Amendment 237 on Monday. These amendments will enable the House to debate how it might adapt our current SI scrutiny system so that we may deal effectively with the avalanche of SIs coming our way. There are at least three schemes for us to consider. But whatever system of scrutiny the House finally settles on, it should apply to all SIs generated by this Bill. The same system, whatever it turns out to be, should also apply to all other SIs, whatever their parent Act, if they are to be used for the purposes of maintaining a coherent and functioning statute book on withdrawal from the EU. It would be quite wrong, for example, to have a rigorous system of scrutiny of SIs generated by this Bill and a less rigorous system for SIs used for withdrawal purposes generated by existing Acts.

This is not a theoretical concern. We know that the Government intend to use SIs generated by existing Acts when they consider that to be appropriate, or perhaps even necessary. The Solicitor-General made it clear in his speech on day 2 of Committee in the House of Commons that that is what the Government would do. In response to that, Amendment 200 sets out to create a common minimum standard of scrutiny. It simply requires that, no matter their provenance, all SIs with the same withdrawal purposes should be subject to the scrutiny procedures we finally agree on SIs generated by this Bill. It does this by making the appropriate amendment to the Statutory Instruments Act 1946, and by specifying in language taken directly from this Bill what “withdrawal purposes” means.

In a brief conversation about this amendment with the noble Lord, Lord Callanan, and his officials, they reminded me that this amendment could not bind future Acts. That had occurred to us. Any future Act could, of course, write its own rules for withdrawal SI scrutiny, or indeed for anything else. But, if that happened, the Government would have to explain to Parliament why one type of scrutiny was appropriate for SIs generated by the withdrawal Bill, with another for SIs with the same purpose generated by subsequent Bills. We should have one minimum standard of scrutiny for any withdrawal-purposed SI, and this amendment is aimed at doing exactly that. Whatever scrutiny standards we eventually adopt for SIs arising out of this Bill, they should be the minimum standard applying across all similarly purposed SIs, wherever they come from, and whatever their parent Act. I beg to move.

[Lord Hope of Craighead (CB)]

There is a good deal to be said for the amendment moved by the noble Lord, Lord Sharkey, when one bears in mind the power given in each of Clauses 7, 8 and 9 to make any provision that could be made by an Act of Parliament under regulations made under these clauses. Of course, one can look back to an existing Act, which could be amended by the exercise of this power, for a purpose related to the Brexit arrangements. If one takes an existing Act—one can visualise all sorts of situations when that might arise—it would seem right that the same procedure should apply if the amendment is made for the purposes which one sees in Clauses 7, 8 and 9.

For future Acts I can see there is a problem, because one cannot control a future Parliament, but as far as the past is concerned I respectfully suggest that there is a lot to be said for the amendment.