Amendment 252

European Union (Withdrawal) Bill - Committee (9th Day) – in the House of Lords at 11:45 am on 21st March 2018.

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Lord Liddle:

Moved by Lord Liddle

252: Clause 17, page 14, line 14, leave out subsections (1) to (3)

Photo of Lord Liddle Lord Liddle Labour

My Lords, I move this amendment on behalf of my noble friend Lord Adonis. He apologises for his absence this morning. I assure noble Lords that he is not having the well-deserved lie-in that many of us feel that we are entitled to; he is on a trip to Dublin with the noble Lord, Lord Heseltine, and Sir Nick Clegg to see what can be done about the question of the Irish border and how to resolve that particular trilemma.

The purpose of the amendment is to draw the Committee’s attention to what is written in Clause 17. We hear lots of soporific, mellifluous legalese in these discussions, but I draw the Committee’s attention to what Clause 17(1) of the Bill actually says. The Minister can perhaps then give me a little tutorial on why it is necessary and not as dangerous as it appears to be to my eye. The clause states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”.

That is a sweeping enabling power for the Executive. The aim of the amendment is to establish from the Government the purpose of their having this sweeping power. This Bill is about Britain’s withdrawal from the European Union. It covers, as we have seen in the debate about Brexit since the referendum, many different aspects of our national life, so what is meant by this clause?

To the extent that we have any bedtime these days, for my bedtime reading I am trying to read books that explain the rise of populism in Europe. In a way, Brexit is a general phenomenon of a rise of populism in Europe and the United States. One book that I am reading at the moment is Professor Richard J Evans’s first volume on the rise of the Third Reich. One moment that makes me proud to be a social democrat is that it was the Social Democrats alone who voted against the enabling Act that set up Hitler’s dictatorship. I am not for one moment of course suggesting that there is a parallel, but why do we as a House have to grant the Government this sweeping legislative power? Can the Minister please explain? I beg to move.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:

“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.

The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.

I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:

“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.

Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.

I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, with apologies to the Committee, I should have made it clear when the noble Lord, Lord Liddle, moved his amendment that, if it is agreed to, I cannot call Amendments 253 to 256, by reasons of pre-emption.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I support strongly what the noble Lords, Lord Liddle and Lord Pannick, said. This is the underlying theme of the Committee stage of this Bill: what we are seeing is a proposed accretion of power to the Executive at the expense of Parliament. We have made this point numerous times over the past several days—it seems like years. It is crucial not only that my noble and learned friend the Minister gives some recognition and assurances today—we can ask for no less—but that the Bill is amended, preferably by government amendment, before Report. I have said this many times, but if taking back control means anything, it means taking back control for Parliament and not for the Executive. The Government have to recognise, in a way that, sadly, my noble friend Lord Callanan, seemed incapable of recognising the other day, that Parliament is supreme and that, in particular, the other place is where the ultimate decision should be made.

I do not want us to be on a collision course with government. I hope that the Government, recognising the fundamental constitutional importance of these issues, will agree to accede to your Lordships’ Constitution Committee and delete this provision in Clause 17. It is incumbent on a Government who are concerned about the supremacy of Parliament to do precisely that and not to leave within the Bill a clause that gives, theoretically, untrammelled powers in many circumstances to Ministers. I hope that my noble and learned friend will be able to give us some comforting words today but, however comforting the words may be, they will not be enough until this provision is removed from the Bill.

Photo of Lord Lisvane Lord Lisvane Crossbench 12:00 pm, 21st March 2018

My Lords, I shall add to the compelling citation by my noble friend Lord Pannick of the Constitution Committee’s report on what the Delegated Powers and Regulatory Reform Committee said about Clause 17. It pointed out that, unlike the regulation-making powers in Clauses 7 to 9, there is,

“no time-limit on the making of regulations under clause 17”.

It also said that the powers to make consequential provision,

“should be restricted by an objective test of necessity”.

That is the golden thread of appropriateness and necessity that has been running through a number of debates and I hope that a constructive way forward can be found on that before Report.

The Delegated Powers Committee also points out that, although paragraph 100 of the delegated powers memorandum says that the Henry VIII powers are appropriately conferred, and that,

“a large number of ‘fairly straightforward’ changes, including to primary legislation, will be needed in consequence of this Bill … that does not explain why it is appropriate for the negative procedure to apply in all cases including those which are not ‘fairly straightforward’”.

The committee concluded:

“Where regulations under clause 17(1) amend or repeal primary legislation, the affirmative procedure should … apply in accordance with established practice”.

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords

It is a pleasure to follow the noble Lord, Lord Liddle, and others who have spoken. Normally, when something is about consequential and transitional provisions, your eyes glaze over, because what you are talking about is the sort of sweepings from the floor, in the legislative sense. But this is the most extraordinarily broad provision. It basically says that a Minister of the Crown can, by regulations, change virtually any provision in any Act.

As the noble Lord, Lord Liddle, pointed out, and as we have discussed, the effect of our membership of the EU has been like the tide rising across the legislative framework. It has gone into virtually every part of our legislative life. This provision, untrammelled as it is with any qualification at all, enables Ministers to amend by secondary legislation a whole swathe of legislation that is not directly covered by the earlier clauses of the Bill. No doubt the drafters of the Bill thought that this was a sort of belt and braces provision, because it covers everything else that might not have been covered by earlier clauses. However, as other noble Lords have said, it is surely far too broad.

The key definitional question is what the word “consequential” means. On a broad interpretation of it, any legislation that is consequential on our membership of the EU is covered by this provision, which is surely far wider than anybody in your Lordships’ House would wish to see. I hope that the noble Lord will be able to reassure us that, first, that was not the Government’s intention and, secondly, that they are willing to accept the recommendations of the two committees of your Lordships’ House. As this stands, of virtually all the provisions in the Bill, this is the one that gives Ministers the broadest unfettered powers to change primary legislation by secondary legislation and it clearly is not the will of the House that that should be allowable.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Deputy Chairman of Committees, Deputy Speaker (Lords)

I was sort of reassured by some of the Minister’s words when we were dealing with the last group. I had the feeling that at last we have found a Minister on the Front Bench who is actually listening to what noble Lords are saying about some of the delegated powers provisions in the legislation. I hope that he can offer us some reassurance, but I share the concerns of the noble Lords, Lord Newby, Lord Pannick and Lord Lisvane, and my noble friend Lord Liddle.

Ministers are seeking to take an astonishingly wide power. If we start to apply it practically to some of the legislation being carried over from EU to UK law and think of some of the fundamental rights that that involves, and if Ministers then have the sweeping ability to bring forward anything that they think is relevant to change one of those provisions, we are getting into the territory of a statutory instrument that goes far beyond its original intention. The Constitution Committee was absolutely right to raise concerns about this and we need rather more than reassurance this morning on it. I rather share the view of the noble Lord, Lord Cormack: this is one clause that is probably fit to be withdrawn. I think that that would satisfy your Lordships’ House. We obviously have to listen to what the Minister has to say, but this is pretty profound, as I think he and the Government know. I hope that this is a try-on that we have seen off.

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, I had not intended to intervene in this debate—the devolution aspects will come later today—but if one looks at paragraph 17 of Schedule 7, on page 51, and the interplay that it has with Clause 17, on page 14, I read it that the powers exercisable by the Welsh or Scottish Ministers under Schedule 7 are subject to the orders that they can make but that, if they do not make them, they can be over- ruled by the provisions of Clause 17—paragraph 17 on page 51 gives a Minister the right to do that. Am I interpreting this rightly?

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, the provision indeed looks a bit innocuous when one first looks at it. The noble Lord, Lord Newby, is absolutely right. But the more one examines it, as has been demonstrated by speeches from noble Lords in this short debate so far, it is much more than that.

Two ways have been proposed for dealing with this clause. One had been to follow the golden thread of “appropriate” and “necessity” that the noble Lord, Lord Lisvane, referred to. Amendments 253 and 254, which have already been debated, touched on that and we will have to come back to those important proposals in due course. But this amendment goes even further in proposing that the power should be removed. As it stands, the idea that the Minister can, by regulation, make any change that he or she considers appropriate under this Act is extraordinarily wide. I therefore share the hope of other noble Lords that we hear from the Minister—having seen, as I am sure he has, how wide this provision is—that something needs to be done: probably something more radical than simply changing the words “considers” and “appropriate”.

We will listen to what he says. However, the powerful speeches by the noble Lords, Lord Pannick, Lord Cormack and Lord Wigley, and by my noble friends Lord Liddle and Lord Bassam, demonstrate that there is a real risk—as the noble Lord, Lord Cormack, put it—that this is another example of the accretion of power to the Executive at the expense of Parliament. It is our duty to put the brakes on when that sort of provision is put before us. Again, I look forward to what the noble and learned Lord will say; I am sure he has seen the point—in all languages. We need a clear commitment, not just to comfort, but to a change that will satisfy this House that it is not being asked to sanction untrammelled power to the Executive in such an important area.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, the Government are always listening. The Government are concerned to ensure that we have appropriate powers to deal with the consequences of this Bill: to bring the statute book into line with the consequences of the repeals brought about—or intended to be brought about—by it.

The context is that the European Communities Act has been a central piece of legislation for the past 46 years and is spread throughout our statute book. So much current legislation stems from the ECA. Repealing the 1972 Act, and the other key EU-related Acts listed in Schedule 9, will leave many loose ends that need to be addressed.

The purpose of the consequential power is to deal with the consequences of the widespread changes to the statute book that may arise from the provisions in the Bill itself. I stress “in the Bill itself” in the light of the suggestion by my noble friend Lord Cormack that we are dealing here with “untrammelled powers”. In that context, I understand the expressions of concern about particular provisions—which can sometimes be read out of context—but I stress again that these consequential powers can be used only in consequence of the provisions of the Bill itself, rather than in consequence of our withdrawal from the EU more generally. I see the noble and learned Lord, Lord Goldsmith, frowning, but if he feels that a different interpretation can be placed on this provision I would welcome discussion on it, because that is clearly its intention. If, in his view, it goes further, I would be happy to listen to him on that.

Photo of Lord Goldsmith Lord Goldsmith Labour

In the light of his invitation, I ask the noble and learned Lord to consider this question. I take his point that the words are “in consequence of the Act”, but the Act includes the repeal of the European Communities Act and all that it has brought with it. He may not want to reply to this question now and I am very happy to have further discussions with him, as they are always useful and constructive, but does he not see that the repeal of the Act and the instruments under it may indeed give rise to very wide opportunities if all that is required is for the Minister to consider it “appropriate” to do something in consequence of that?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Deputy Chairman of Committees, Deputy Speaker (Lords) 12:15 pm, 21st March 2018

May I ask the Minister a further point? I am trying to help him. He seems to be suggesting that this provision is a mere tidying up facility that is available to a Minister as a consequence of this Bill. I understand that point, but will he describe the sort of tidying up that he envisages this power being used for? I think that is what acts as a driver of our concerns. I can understand if it is a practical measure to do with something that is clearly a defect, but I want some reassurance, which perhaps should be placed in the legislation. I want to understand what the provision will be used for and its consequences.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am obliged to the noble Lord for his assistance, which is always welcome. I do not agree with the point made by the noble and learned Lord, Lord Goldsmith, regarding the breadth of the provision. This is a standard type of power contained in many Acts of Parliament to deal with consequential issues, such as those alluded to by the noble Lord, Lord Bassam. A very similar power can be found in the Scotland Act 1998, in the Northern Ireland Act 1998, in the Government of Wales Act 1998, and in the Legal Aid, Sentencing and Punishment of Offenders Act 2012LASPO. All these statutory provisions have a similar consequential power for the same purpose, so this is not unique, exceptional or unusual.

However, I understand concerns being expressed about the scope of the power and the way it will be used. I notice the reference by the noble Lord, Lord Lisvane, to the use of the term “appropriate”, which some, of course, often consider to be inappropriate in a statutory context. I hear what is said about making clear that this is a consequential power that will be needed to repeal provisions.

The noble Lord, Lord Bassam, asked for examples. If we look at the various statutory provisions for accession of other countries to the EU—the Croatian accession is the most recent—which amend the ECA, it is necessary to address that sort of primary legislation. If we look at the provisions of the European Union (Approvals) Act 2017—

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

I thank the Minister for giving way. He cited some other examples. I admit that I am not familiar with devolution statutes and the consequential powers in them, but we have to take account of the context in which this legislation is being made and the considerable worries about the potential use to which they could be put, which is surely more than the Croatian accession. The Government cannot ignore the worries that these powers—in the context of the Brexit negotiations, future relationships, trade deals and whatever—could be used in a way which could significantly affect existing rights and remedies.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

With respect, it appears to me that some of the fears being expressed are not about the use of these powers, but about their misuse. As the noble Baroness, Lady Ludford, observed, we have to see this provision in context. It is to be applied to the consequences of the Bill becoming law.

The noble Lord, Lord Bassam, asked for further examples. There are many examples in primary legislation of where consequential amendment will be required. I will not elaborate on them at this stage. For example, there are provisions in all the accession Acts that would have to be regarded as necessary to clear up in the context of the statute book. There are provisions in such things as the Legislative and Regulatory Reform Act 2006, which would again have to be addressed in this context as a consequence of our removal when the Bill becomes law.

What will be required is a meaningful indication of the type of change that is needed to keep the statute book in reasonable order after our departure from the EU. In my respectful submission, where there may be concern about the misuse of this consequential power we are of course alive to concerns that are expressed. It may be that it turns largely not on the way Clause 17(1) is presently framed, but on the use of a term such as “appropriate”. We will give further consideration to the use of that language and whether that is the way this consequential—I stress “consequential”—power should be employed in this context.

I hope that gives noble Lords some degree of reassurance about the intention here. I suggest that the removal entirely of the consequential power contained in Clause 17 would have a materially adverse effect on the way the Bill can be properly implemented to bring the statute book into proper order following our exit from the EU. I hope at this stage that the noble Lord will see fit to withdraw the amendment.

Photo of Baroness Taylor of Bolton Baroness Taylor of Bolton Chair, Constitution Committee

The Minister has just used the phrase that it is “not our intention” to use these powers. That is one of the difficulties that the Committee has on many of the issues that we have raised. The Government repeatedly say that it is not their intention to abuse these powers, yet they are taking powers which clearly can be abused in the future.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

With respect to the noble Baroness, I do not believe that any responsible Government would contemplate abusing powers given to them by Parliament. Indeed, if they did, they would be brought up very short by a sovereign Parliament.

Photo of Lord Wigley Lord Wigley Plaid Cymru

Could I press the Minister further on the point that I raised? Will he clarify whether the powers that are being accorded in this clause will enable a Minister at Westminster to overrule powers normally exercisable by Ministers in Cardiff or Edinburgh?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I do not believe that they would be employed to overrule powers that are legitimately being exercised under the devolved arrangements. That is not their purpose. Their purpose is to make consequential amendments that will bring the statute book into line with our departure from the EU.

Photo of Lord Wigley Lord Wigley Plaid Cymru

I am sorry, but those consequential amendments may well include the need to change an instrument that is being exercised in Scotland or Wales. If that does not happen, does it give the power for a Minister in London to exercise those powers?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Ultimately, the UK Parliament would have the power to ensure that the statute book in the devolved Administrations also reflects our departure from the EU.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat

When responding to amendments, the Minister has, on a number of occasions, said that the Government will give further consideration to the points made. We are now coming towards the end of Committee and will then be preparing for Report. Could the Minister give us more of an explanation of what further consideration will mean on the very many points that have been made? When we come to Report we will have six days, and, as we all know, a large number of issues have been raised. Will the Government be consulting on these? Will they be able to tell us before we start Report what changes they wish to make or the date by which government amendments might be published? Otherwise, Report stage will be as lengthy and as difficult as Committee stage has proved to be.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Clearly, when I say that we will give consideration to these matters, I mean that I am making more work for myself in that context. Of course we are going to discuss with officials how best to structure this legislation to meet the concerns that have been expressed. That may lead to amendments, in which case they will be available before Report, and it may not, in which case I will be happy to indicate at Report why such amendments have not been brought forward.

Photo of Lord Pannick Lord Pannick Crossbench

Will the Minister address the concern I expressed that the breadth of Clause 17(1) is such that it could be used by Ministers to evade the restrictions that will be contained in the other powers that Ministers enjoy under Clauses 7 to 9, particularly in the light of paragraph 17 of Schedule 7? Will he consider that point?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I will certainly give consideration to that point, but it is not immediately clear to me that the clause could be used to evade those limitations. I will address it in due course.

Photo of Lord Judd Lord Judd Labour

Before we conclude this part of our deliberations, I refer back to what my noble friend said. I have every respect for the Minister—I mean that. I am quite sure that he would never, with ministerial responsibility, go against the clear intention of Parliament with these residual powers. But are we absolutely certain, with all the unpredictability and turbulence of politics across the world today, that every possible Administration would act as responsibly as he would?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am not sure that I am in a position to answer that question. Nevertheless, when we legislate, we must also legislate as to what a future Administration would do with that legislation. I quite accept that point.

Photo of Lord Goldsmith Lord Goldsmith Labour

The Minister’s self-effacing remark draws attention to the other aspect of this clause. It was helpful when he said—and I hope that we will see some concrete results from this—that the Government will look at the word “appropriate” and, I hope, change it to “necessary”, but that is only part of the problem in this and other clauses. There are two elements. One is that the Minister “considers” and the second is what it is that the Minister considers. In this clause, it is “the Minister considers appropriate”. Many of the amendments before the Committee want to see that it is changed to “is necessary”—an objective rather than a subjective test. Sharing, as I do, views as to the good will and intentions of the Minister who sits here at the moment, we need to have, as he says himself, more conviction about what might happen in the future. So will the Minister also consider in those circumstances not just changing the word “appropriate” to “necessary”, but removing the subjective element so that we are satisfied that there has to be a clear objective statement before the Minister can actually exercise these powers?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am not going to draft at the Dispatch Box and I will not give undertakings about any part of this clause at this stage. I am saying that we will look at it in the context of the observations that have been made in Committee, and we will do that responsibly.

Photo of Lord Liddle Lord Liddle Labour

My Lords, I welcome that assurance from the Minister. I have been surprised by the passion that this short debate has aroused. It raises many serious issues about what powers the Government are giving themselves as a result of this Bill. The Minister is aware of the concerns of the noble Lord, Lord Pannick, and my noble and learned friend Lord Goldsmith about this power. To my non-legal mind, when my noble and learned friend talks about the power that is in consequence of this Act because it repeals the European Communities Act 1972, the potential scope of what could be done is extremely large. When we come back to this on Report I hope that the Government will be able to provide us with some assurance that the scope will not be impossibly big. On that basis, I beg leave to withdraw the amendment.

Amendment 252 withdrawn.

Amendments 253 and 254 not moved.