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European Union (Withdrawal) Bill - Committee (3rd Day)

Part of the debate – in the House of Lords at 6:30 pm on 28th February 2018.

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Photo of Lord Bilimoria Lord Bilimoria Crossbench 6:30 pm, 28th February 2018

If I may, I shall just reference the former Attorney-General, Dominic Grieve, who wrote recently:

“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.

We have not yet touched on this, but we had the Strathclyde review from the noble Lord, Lord Strathclyde. On 26 October 2015, noble Lords withheld agreements to tax credit regulations and the following day a Motion was moved and narrowly defeated and, therefore, the Prime Minister said that we should review this. The House was criticised for flexing its political muscle and the review said that we should,

“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.

We built up lots of experience with secondary legislation and, of course, the House of Commons is meant to be primary and its will should not be blocked. As the noble Lord, Lord Strathclyde said:

“It would be regrettable if the Lords simply became a highly politicised ‘House of Opposition’”.

We are not a House of opposition; when that happened, it was a rare occurrence for all of us present, because since 1968 there has been a convention that we should not reject statutory instruments. It has very rarely happened. The rejection of the tax credits regulation broke new ground.

So it is much more complicated. There are so many different types of statutory instruments, including super-affirmative, subject to affirmative resolution procedure, subject to negative resolution procedure, laid instruments and unlaid instruments. The noble Lord, Lord Faulks, said that there were already 8,000 statutory instruments in place regarding the European Union. If you look at the number of instruments over the years, it runs into thousands. How many thousand statutory instruments does the Minister predict we will need to implement this Bill?

The right honourable David Lidington responded to the Strathclyde report, saying:

“Whilst recognising the valuable role of the House of Lords in scrutinising SIs, the Government remains concerned that there is no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs … We must, therefore, keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened”.

Here we have a threat to this House—that if we dare to challenge the statutory instruments, we are going to get into trouble. I remember that the noble Lord, Lord Strathclyde, when this came up, said the same thing in the debate.

Now the noble Lord, Lord Pannick, has brought to our notice the wide powers tucked away in Schedule 8 and the repealing by secondary legislation of these—