Northern Ireland Protocol Bill

Lord Judge Excerpts

Committee stage
Monday 7th November 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I just wonder what Clause 18 is supposed to mean. Does it really mean that the Minister of the Crown may do whatever he likes? Yes, it does; that was what we were discussing on Wednesday, when noble Lords and the Government listened to me. I had a dream over the weekend that the Minister today is going to get up and say, “Lord Judge, you were entirely right on Wednesday. We have changed our minds: we are going to put this Bill into proper shape”.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to ask my noble friend the Minister what discussions there have been with the devolved Assemblies and Parliaments as to the process that will be used if these regulations are brought forward.

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This brings us back to the prospect of removing entire clauses from the Bill on Report, should we even be in a position to proceed at the appropriate time. So, these amendments in a sense restate some of the arguments we had at earlier stages and I look forward to the Minister’s response.

[Lord Judge (CB)]

My Lords, I keep hearing the words “democratic accountability” and then I look at the Bill and I cannot find any. We have listened as Clauses 4 to 21 have been debated in this Chamber. If we add those clauses together, we have a lamentable lack of democratic accountability. I expect it will be said, “Ah well, as always, the House of Commons can reject any regulations” and so on; and, “We have a long history of how there are 16 different ways in which the regulation-making powers can be exercised.” To that, I will say: but they have not exercised that power since 1979. This is not democratic accountability; this is quite extraordinary legislation, passing huge amounts of power into the hands of the Executive. Others have spoken. Clause 18 creates tertiary power—guidance—which is not quite a regulation of the sort we are talking about but can create matters that require compelling attention from those who have to abide by the guidance.

Let me just look at Clause 22(1), because it makes what has gone so far rather trivial. It states:

“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”


I then add the words “and any regulations made under it”, because that follows. What it means is that the Bill, having been successfully enacted, could be dismantled by the Government two weeks later. It could be dismantled by a Government three years from now or by a Government 10 years from now. It could restore the very thing that the Bill says it is trying to get rid of—all in the hands of a Minister making regulations under the Act. That is not Henry VIII. I have lost count; I have tried to add it up in different ways. Is it Henry VIII plus Henry VIII for Clauses 4 and 5? That comes to about Clause 79. It cannot be. Is it Henry LXIV, because it is Henry VIII squared? This is an extraordinary power when the Bill is already riddled with Henry VIII powers. I am not jesting about this. The Bill provides for its restoration at any time that the Government of the day choose, or any part of it, or some of it along with other legislation. That is not how we should legislate. Should we not be ashamed of ourselves?

Parliament gave Henry VIII the power to bastardise his first and second children, to say that he was the Pope in England and that he was God’s messenger on earth, to decide the succession, and to say that the monasteries should all come down—the widest act of criminal damage this country has ever seen. Then he produced a Bill giving him the power, by proclamations, to create new laws. I shall not read it all out. What did the successor to that Parliament do? It said no. There was a battle, but in the end that power had this proviso to it put in by the Commons:

“nor that, by any proclamation … any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’s time”.

He was not allowed to modify an Act of Parliament by proclamation.

We do not have proclamations anymore; we have statutory instruments. We have regulation-making powers that amount to a modern form of proclamation. We must not agree to clauses of this kind in any Bill. Those that we have agreed to—shame on us. We must not agree to this one. We must insist on the determination and, in its case, the courage shown by the 1539 Parliament not to give the King the powers he wanted. We must not give the Government the power they want in this clause.

[Lord Pannick (CB)]

My Lords, as we go through this Committee, we are discussing clauses that confound constitutional principle in ever more astonishing ways. I entirely agree with what was just said by the noble and learned Lord, Lord Judge. It is quite extraordinary that we should be asked to approve a clause that would confer power on a Minister to make by regulations

“any provision … including provision modifying this Act”.

The Committee has heard a number of powerful speeches over its four days explaining why it is wasting parliamentary time in analysing the Bill when it is a sideshow to the need to resolve the dispute with the EU. Whatever view you take about that issue, what is a manifest waste of time is for this Committee, and for Parliament on Report, at Third Reading and in the House of Commons on ping-pong if it comes to that, to debate, amend and approve legislation after lengthy debate, only for Ministers to have the power to say, “I don’t care about that. Parliament might have agreed it, but I’m going to set it aside. I’m going to substitute something else.” What is the point of parliamentary debate if that is what a Minister can do?

Indeed, such is the breadth of this provision that a Minister would have a power to substitute in the Bill something that he or she approves of that has been specifically rejected by Parliament. Parliament might have passed an amendment against the views of the Government, yet, under this clause, as the noble and learned Lord, Lord Judge, said, two weeks or three years later the Minister can say, “That may be what Parliament has done, but I’m going to insert something different”. As the noble and learned Lord said, we really have to take a stand. This cannot be right in principle and it cannot be acceptable to Parliament.

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[Lord Ahmad of Wimbledon (Con)]

My Lords, I was merely emphasising. I did refer to earlier clauses as well when I was giving one specific example in this particular group. But I hear what the noble Lord says, and, of course, I recognise that there are issues, particularly in this clause, about the powers that are being proposed. In coming on to that particular point, in relation to the concerns raised by the breadth of powers, each individual power that is being proposed in the Bill is being constrained by its purpose. None of them is a “do anything” power, and Clause 22(1) does not make them so: it merely ensures they can fully fulfil their purposes.

[Lord Judge (CB)]

The clause says that regulations under this Act may make

“any provision that could be made by an Act of Parliament (including provisions modifying this Act.)”

The words are completely expressed.

[Lord Ahmad of Wimbledon (Con)]

As I said, we are seeking to put a power in the Bill, and I will provide clarification on that. Each individual power that we are seeking to take in this respect is being constrained by its purpose—but, if I may, on that point, I will write to the noble Lord once I have talked to officials specifically about this aspect of the debate.