European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

Wednesday 14th March 2018 Lords Chamber

[Lord Lisvane]

My Lords, I must convey to the Committee the sincere apologies of my noble and learned friend Lord Judge, who has a long-standing and unbreakable engagement outside the House and who has asked me to move Amendment 153 on his behalf. I will also speak to Amendment 154 in my name.

Both the Constitution Committee, in its ninth report, and the Delegated Powers Committee, in its 12th report, expressed grave doubts about the breadth of the powers contained in Clause 9. They also suggest—as has been touched on by a number of noble Lords in the previous debate—that, as a further Bill is required by the amended Clause 9(1), Clause 9 as a whole is unnecessary, as any regulation-making powers can be included in the Bill that is now contemplated by Clause 9(1). That is a persuasive case, and perhaps it would indeed be better—despite what the Minister said in reply to the previous debate—if Clause 9 were in effect to be deferred to that later Bill.

However, whether it is here or whether it is there, the real mischief at the heart of Clause 9 needs to be cured. Clause 9(2) is a whacking great Henry VIII power, allowing Ministers to make in regulations any provision that could be made by an Act of Parliament—something of which my noble and learned friend Lord Judge has been such a trenchant critic. In a piece of legislative pulling oneself up by one’s own bootstraps, it would also allow Ministers to modify the Act which will result from this Bill itself.

The rather measured phrases—“make any provision” and “modifying”—should not mask the extent of the powers. Clause 9(2) would allow Ministers to make regulations that would amend or repeal any Act of Parliament whenever passed. And the power relating to the Act resulting from this Bill would allow Ministers to amend or even repeal it, setting at naught a number of weary hours that your Lordships have spent on this text.

The Delegated Powers Committee set out some ways in which Ministers would be empowered to use SIs, among other things to,

“alter the scope of ‘retained EU law’ so that … it includes EU legislation passed after exit day”,

to keep the supremacy of EU law for certain purposes, with the supervision of the ECJ, or to change the whole basis of the regulation-making powers elsewhere in the Bill so that “necessary or appropriate”—the subject of our argument last Wednesday—would become irrelevant, and the powers could be used for major policy change without restriction.

The Minister rightly said in reply to the previous debate that these powers would have to be used in the terms in which Clause 9 is framed, so they would be about provision relating to the withdrawal. Of course, a parliamentary vote on the withdrawal deal would, or could, in effect be a constraining factor. But the extent of that constraint is wholly dependent on another factor, which is how much detail is contained in whatever document or test becomes the subject of that meaningful vote.

The power could also be used to remove the Bill’s time limits on the regulation-making power, which at the moment provide at least some reassurance. As with other delegated powers, Ministers have sought to say as the noble Lord, Lord Callanan, did in reply to the previous debate. He gave a number of examples—not frightening or alarming ones—of the way in which the powers could be used. I do not for a moment question the good faith in which Ministers give us these examples, but once again one has to emphasise that what matters is what is in the Act. If current Ministers do not use those powers in the ways authorised by the Act, other Ministers may do so.

The Constitution Committee concluded that giving Ministers the powers in Clause 9(2) would require “the strongest of justifications”. The Delegated Powers Committee went further, calling the power, despite its exercise being subject to the affirmative procedure, “wholly unacceptable”.

I have never felt that Henry VIII is an entirely welcome dinner guest—if I may put it like that. But his presence can be made just about tolerable by observing what I would like to call the rule of the three “S”s. The first “S” is scope: the exercise of such a power must be subject to tight constraints. Merely what might be thought “appropriate”—we are back to that again—for the purposes of implementing the withdrawal agreement does not qualify. The second “S” is scrutiny. Even though the affirmative procedure will apply to Clause 9(2) regulations by virtue of paragraph 7(1) of Schedule 7, the opportunities for effective scrutiny are likely to be limited, and the luxury of time for that scrutiny is unlikely to be available. The third “S” to bear in mind when his majesty comes to dinner is sunset. It would generally be better if Henry VIII powers were not on the statute book, but if they are, they should not linger there. Clause 9 provides that,

“No regulations may be made under this section after exit day”.


But as Ministers would have the power to alter exit day, this does not really give the reassurance it suggests. In my submission, therefore, Clause 9 fails those three tests of scope, scrutiny and sunset. It needs major surgery. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak to Amendment 153, which also stands in my name. Having been away from your Lordships’ House for several days, I do not feel as though very much progress has necessarily been made in my absence. I come back to hear what I consider Second Reading speeches being made all over again. The reason for my absence was that I could not speak. I had not realised that we could ask other noble Lords to read our speeches for us, so I have not sent in my thoughts in advance. I do not propose to detain the Committee very long today because I might still croak, and the noble Lord, Lord Lisvane, has in many ways highlighted the key points.

We have not yet been told why Clause 9 is necessary. In our discussion on the previous group of amendments, my noble friend Lord Beith asked the Minister about that but did not get an answer. The noble Lord, Lord Lisvane, also said that Clause 9 may not be necessary. That is indeed what the Delegated Powers Committee has suggested. Therefore, I would be grateful if the Minister who is to respond to the debate—it may be the noble Baroness, Lady Goldie—would explain in more detail why the Government feel that Clause 9 is necessary. We understand that the noble Lord, Lord Callanan, is willing to listen and consider possible amendments. If the Government still believe that Clause 9 is necessary, do they consider the fact that any Minister of the Crown may make regulations for amendment perhaps goes rather wide? There are usually up to about 200 Ministers. That seems rather a large number of members of the Executive who might want to exercise their droit du seigneur or other Henry VIII powers.

There seem to be some general issues with Clause 9, but subsection (2) raises particular problems, especially the part in parentheses—the subject of Amendment 154—which allows modification of the Act as a whole. As the noble Lord, Lord Lisvane, has just said, that could negate the many hours of scrutiny that have just taken place in your Lordships’ House and which have taken place in the other place. Even if the Government can explain why Clause 9 is necessary, surely subsection (2) goes way beyond the scope that would be desirable.

I turn to the final of the three “S”s mentioned by the noble Lord, Lord Lisvane: the sunset clause. Clause 9(4) seems to suggest that there is a sunset clause as it states:

“No regulations may be made under this section after exit day”.


However, as the noble Lord, Lord Lisvane, has already made very clear, it is entirely possible that if any Minister of the Crown can make such regulations as they deem necessary following the enactment of a piece of legislation envisaged in subsection (1), they could then deem that subsection (4) could be repealed. Is that not the case? If it is, should that provision not disappear as well?

At the outset of Second Reading, the Government suggested that they were listening. The House of Commons has already amended this legislation but it still leaves open a whole set of questions that need serious review. The Delegated Powers Committee has suggested that Clause 9 is not necessary. That is certainly my belief and I think it is in line with Amendments 153 and 154. But, short of taking the whole clause out, please will the Government think about removing subsection (2), which would at least remove some of the greatest dangers to our democracy? If the intention of voting leave to take back control is to be taken seriously and parliamentary sovereignty is to be regained, surely that means that your Lordships’ House and the other place should make decisions and Ministers should not seek to wield unnecessary executive authority.

[Lord Beith]

My Lords, I follow my noble friend on her specific point and reiterate the question. On the specific point, we are in even more of an Alice in Wonderland world than she and the noble Lord, Lord Lisvane, indicated because under subsection (2) it might be possible to make regulations that delete the provisions of Amendment 7—that is, to remove the words,

“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal”.

That might be something that was thought appropriate by Ministers because they felt they had to get on with something before Parliament had got to the stage of considering withdrawal. It is possible under this provision. It seems clear from all those who have looked carefully at it that the way Clause 9 is worded really needs drastic surgery, if I may use the words of the noble Lord, Lord Lisvane.

This brings me back to the question that I have tried, by brief intervention on two occasions so far, to get an answer to: why do the Government want to persist in including in the Bill the first half of Clause 9(1) and the remaining subsections? Following the inclusion of the Amendment 7 provisions, the proper place for whatever powers are needed for statutory instruments arising from the withdrawal agreement is the withdrawal agreement Bill. We would have plenty of time between now and then to make sure that they are expressed in terms not open to the abuses that several of us have pointed out. Why do the Government still want these words in the Bill?