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

Part of the debate – in the House of Lords at 6:45 pm on 28th February 2018.

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Photo of Lord Bilimoria Lord Bilimoria Crossbench 6:45 pm, 28th February 2018

I am coming to the noble Lord, Lord Forsyth—will he please have some patience? Specifically, Section 2(2) of that Act deals with the type of EU legislation and rulings that need to be transposed into UK law. Typically, these involve EU directives where the intended outcome of the law is made clear, but it is up to the individual member states how to implement them. After Brexit, if Brexit happens, the Government want to use a Henry VIII clause in reverse—to adapt EU laws to make them British. For example, disputes that are currently referred to EU regulators or courts will be amended to refer to their British equivalents. The logic of the noble Lord, Lord Forsyth, is that, if you are going to have a swathe of amendments to undo primary legislation that has already been made using secondary legislation, you should make those replacements in the same way. It is not as simple as that; because of the “deficiencies arising from withdrawal”, the references to the EU regulators, the European Court of Justice and other entities will no longer have any sway if there is Brexit. It is not as simple as saying, “Because they are simple things, we just can’t do this”, and the Government saying, “We will just use these Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but also the substantive effect of the law. These amendments are trying to protect really important issues.

The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined. Does the Minister accept that?

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.