Lord Blencathra:

Tabled by Lord Blencathra

At the end to insert “but the House shall not resolve itself into a Committee on the bill until at least 24 hours after a report from the Delegated Powers and Regulatory Reform Committee on the bill has been laid before the House.”

My Lords, first I assure the House that I have been present for every minute of the debate, although not in this place, in my wheelchair at the Bar of the House. Secondly, I inform your Lordships that the last time I spoke in this House on Brexit or Brexit-related matters was 26 February 2018. That was 14 months ago, and I have not said a cheep since. So I am not one of those who has been participating in what has seemed like weekly debates on Brexit in this House, and I will not speak on Brexit now, nor later this evening. If the House will bear with me and in light of the new information I have just received, I hope not to force my Amendment to a vote.

However, I shall speak about the bypassing of the Delegated Powers and Regulatory Reform Committee, which I have the privilege of chairing. I am speaking in a personal capacity, because I have not had the time to consult my committee on this speech.

That is my concern: the DPRRC has not been properly consulted, which it ought to be according to our rules and procedures. Every Bill before this House comes before the Delegated Powers Committee, usually after Second Reading, and we then report to the House before Committee. Although I have not spoken for some time, my name has been mentioned favourably by many noble Lords over the last few months, as I bask in the reflected glory of the work done by the committee, its excellent clerk and our superb counsel. For the benefit of the House, the membership of the committee is: the noble Baroness, Lady Andrews, and the noble Lords, Lord Flight, Lord Jones, Lord Lisvane, Lord Moynihan, Lord Rowlands, Lord Thomas of Gresford, Lord Thurlow and Lord Tyler. That list includes some very experienced parliamentarians and lawyers and, of course, a former Clerk of the House of Commons. However, I think that all my colleagues on the committee would agree that the real work is done by our parliamentary counsel, who collectively have more than 100 years of experience as barristers.

More importantly, since the DPRRC was constituted in 1992 it has examined thousands of Bills to see whether or not the delegated powers contained therein are appropriate. Our official remit from this House is,

“to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny”.

In every case we examine Bills when they are introduced into the Lords and report before Committee. The Government, or sponsor of the Bill, provide an Explanatory Memorandum for each Bill, identifying each of the delegations, its purpose and the justification for leaving the matter to Delegated legislation, and explaining why the proposed level of parliamentary scrutiny, such as negative or affirmative, is appropriate.

My committee examines whether the delegations in each Bill are appropriate. We are very careful to restrict our consideration to the delegation in question and we do not concern ourselves with the merits of the overall policy. To me, the crucial thing provided by the Delegated Powers and Regulatory Reform Committee is a consistency of approach in determining whether or not the powers are appropriate. For example, when we looked at the EU withdrawal Bill we decided that we would treat it exactly the same as all the others that the committee had considered over the previous 25 years. We did not say that it was exceptional and we should therefore change our criteria on the use of Henry VIII powers.

Similarly, noble Lords will recall that the Private Member’s Bill on deemed consent in the name of the noble Lord, Lord Hunt of Kings Heath, sailed through Second Reading. Then my committee looked at it; we had a small concern about one aspect and we reported. The noble Lord was very concerned—though not in a panic—that our Intervention would scupper his Bill, but of course it did not. The issue we reported on was addressed, the Bill proceeded and we were all satisfied that adhering to the procedures of this noble House had made for a better Bill at the end of the day. From the mega issues of government Bills to simple Private Members’ Bills, the DPRRC has a vital role to play.

Looking at the Bill before the House today, there will be noble and learned Lords who may say that the provisions in Clause 1(4) and (5) are not delegated powers. Others may say that they are, or are not, appropriate; some may think they are grossly inappropriate. Others, such as my committee and I, may be concerned about the powers in Clause 2. I simply do not know but I am certain of this: if the counsel advising my committee get to look at it and then the members study it, we will have an authoritative report which will be accepted by all sides, as is always the case with every report that the Delegated Powers Committee produces. In my seven years in this House I have never heard any Peer criticise a Delegated Powers Committee report for coming to the wrong conclusions. Of course the Government often disagree—maybe that is why they will not whip to support my amendment today—and say that the negative is still preferred to the affirmative or that in their view the delegation is appropriate. That is the Government’s prerogative but at least the House has had the chance to read our report and then press the Government or table amendments based on what we reported. If my committee is to be frozen out of considering this Bill, what is the point of us considering any other Bills? There is nothing exceptional about this Bill which means that the DPRRC should not see it before it goes into Committee.

There may be those who say that this is a straightforward little Bill and the powers being granted to the Prime Minister to seek an extension look reasonably straightforward. To them I say: a few months ago we looked at a simple little Bill called the Healthcare (International Arrangements) Bill. According to the Government and the Explanatory Memorandum, it was an innocuous little measure to ensure that when we left the EU the British Government could pay for the healthcare of Brits in the EU and, conversely, would pay for the healthcare of EU citizens in Europe when the green card system was scrapped. Everyone agreed that that was a sensible little measure. However when the counsel working for my committee looked at it, we discovered that it contained extraordinary powers going way beyond what the Bill purported to be about and what the Government said it did. As we pointed out in our report, the powers were such that it could permit the UK Government to pay for open-heart surgery for Australians in Sydney or hip replacements for Americans in Texas and, of course, everyone else anywhere in the world. Of course the government response was: “Don’t be silly; of course we are not going to do that”, but my committee has consistently made the point, and we repeated it recently, that we judge legislation not by what the Government say they will do with it but what the legislation permits a Government to do if they were so minded.

I will not ask for a show of hands but how many noble Lords quoted the Delegated Powers Committee in amending that Bill? One noble Baroness from the Lib Dem Benches said that my committee, which was regarded as a bit staid, had thrown a “chair through the window” with our comments on the Bill. I cannot imagine the noble Lord, Lord Lisvane, the noble Baroness, Lady Andrews, nor the noble Lord, Lord Thomas of Gresford, as the chair-throwing type. While I might be, my chair is a bit heavy for that. If the reports of my committee are so good that noble Lords wax lyrical about them and use them as the basis for dozens of amendments, why were we shut out of the process on this Bill? We do not wreck Bills—we cannot block them and do not want to—but it is our duty, under our rules, to report on them before Committee. I therefore make this solemn commitment to the House and the sponsor of this Bill: you will have an authoritative report later this afternoon. I can in fact give more up-to-date information: we printed it about 20 minutes ago. That report will be in the hands of noble Lords to study, and they can table amendments in due course, which will be given due consideration in Committee.

I thank our distinguished counsel, clerk and committee colleagues who have pulled out all the stops today to write and agree that report. It has been circulated round our committee and has received Majority support. No one has opposed it. About 20 minutes ago, I was handed a draft copy—

Does my noble friend agree that the failure to consult his committee provides further evidence—if any were needed—that those who most protest their allegiance to parliamentary democracy are actually doing the most to undermine it by ramming this Bill through your Lordships’ House in one day?

My noble friend makes a fair point; I will leave him to make his own point in his own way later in today’s proceedings.

I do not wish to read the whole report, although it is very short and I will cut out the introductory paragraphs. The House might be interested if I cut to the chase. If I can do that, then I propose to not press my Amendment to a vote.

We say in our report:

“In the Government’s original European Union (Withdrawal) Bill, which became the European Union (Withdrawal) Act 2018 … exit day was wholly a matter for regulations without any named date on the face of the Bill. The regulations were subject to no parliamentary procedure at all, whether of the negative or affirmative type. The Bill allowed Ministers to decide on exit day and set it out in law without recourse to Parliament. We objected to this, arguing for the affirmative procedure, meaning that both Houses were required to debate the regulations before they could be made. The principal reasons were the political and legal significance of the date that the UK left the EU, and the allied public interest in the matter. The Government accepted our recommendation.

The principal justification for Clause 2 of this Bill is that it might be necessary to legislate at speed next week to change exit day. The affirmative procedure might cause delays, with the risk that exit day in domestic law might not be aligned with exit day agreed under EU law.

There is some force in this argument, but we are not convinced by it on grounds either of principle or pragmatism. The date of the UK’s exit from the EU remains a matter of the greatest political and legal significance. It is right that the matter be debated in Parliament before the current date of 12 April is changed in our domestic law. The Government have previously changed exit day from 29 March to 12 April, and they did so by a statutory instrument subject to the affirmative procedure. The Government have the time to do the same again, having afforded Parliament the scrutiny required by the 2018 Act. Negative resolution scrutiny is necessarily scrutiny after the event (that is, after exit day has already been changed in law). Scrutiny after the event is best avoided in a matter as significant as this, not least because the consequences of a successful prayer against the instrument would lead to the new exit day being legally invalidated (albeit with prospective effect only) perhaps some weeks after it has taken effect.

Clause 1 of the Bill would, in certain circumstances, give the House of Commons a vote on a proposed exit day at EU level, making it perhaps less pressing for them to have one on the consequential change to UK domestic law made by the relevant statutory instrument. But clause 1 does not apply to the House of Lords, meaning that the House of Lords would be prevented from participating in the process of approving a new exit day at EU level. It is correspondingly more important, therefore, that the House of Lords can scrutinise the relevant statutory instrument before it is made, rather than after the event, again arguing for the affirmative procedure (which is the current position). For the reasons set out above, we recommend that clause 2 should be removed from the Bill, thereby restoring the affirmative procedure to statutory instruments amending exit day”.

There you have it. I therefore urge the House to have Second Reading today, let us all—those in favour of it and those who disagree—study my committee’s report and come back to Committee, or a later stage, no later than Monday. That will give us a chance to table amendments implementing, if the House wishes, what my committee recommends. There is nothing in the Bill that justifies us casting aside the procedures we have followed for 27 years and ignoring the Delegated Powers Committee, which every Member of this House says does an excellent job.

I inherited a committee with an outstanding reputation and, not through any skill of mine, it still has an outstanding reputation. We are on a slippery slope if we decide to cast aside our procedures when we do not have to. Whenever we use the excuse of national emergency or crisis, we inevitably get bad legislation. The Bill may be perfectly okay or it could have unexpected consequences. It gives considerable power to the Prime Minister—in view of her work and behaviour over the last few weeks and months, is the House willing to give her that unfettered power? That is a decision only the House can make. Again, it is not what the Prime Minister says she will do but what the law would permit her to do that worries me and my committee.

Last night in Another place, the Secretary of State for Exiting the EU said of the Bill:

“There are problems with the speed of its passage, the constitutional principle of it and the way it will interact with any decision reached by the Council that differs from the earlier decision taken by the House. I hope that the constitutional experts in the other place will address some of the Bill’s flaws”.—[Official Report, Commons, 3/4/19; col. 1146.]

I leave it to others to address the Bill’s flaws, whatever they may or may not be. My concern today is that we follow our normal procedures and give due consideration to my committee’s report and meet tomorrow if necessary, as the noble Lord, Lord Cormack, says. Give us time to study the report; let us table amendments, if that is what we wish to do, to correct the serious flaws in the Bill. I urge the House: let us do our job; let us report in ample time so that the Bill can get Royal Assent next week in ample time for the Prime Minister to go to Brussels on Wednesday.

Lord Blencathra’s amendment to the Motion not moved.

My Lords, for the convenience of the House, I would like to make a short Statement that may be of benefit following an agreement within the usual channels regarding the stages of the European Union (Withdrawal) (No. 5) Bill. We have agreed that Second Reading will take place today after the Motions in the name of my noble friend Lord Forsyth of Drumlean. Committee, Report and Third Reading will take place on Monday 8 April. Proceedings on Monday should be concluded in a timely fashion to allow the House of Commons to consider any amendments made by this House. The Public Bill Office will therefore be accepting amendments between 10 am and 4 pm tomorrow, Friday 5 April. A Marshalled List will be produced tomorrow evening and the Government Whips’ Office will group amendments in the usual way ahead of Monday’s consideration of the Bill. After consideration of the Motion, it may be advisable to adjourn during pleasure for 20 minutes to allow noble Lords to receive a speakers’ list for Second Reading.

My Lords, I appreciate that the hour is late and the House is anxious to get on with Second Reading. This is the first, and I suspect the last, time that I shall say, “God bless the usual channels”. I think that this is a sensible arrangement in the circumstances, since the debates on my committee reports would certainly run to two hours; with apologies to those who put their names down to speak in them, the Chief Whip, in a moment of weakness, promised me a decent slot as a replacement in the future. I therefore withdraw my Motions so that we will have time for Second Reading.

My Lords, I thank the noble Lord, Lord Blencathra, and my noble friend Lady Taylor for their reports. We may feel that we have worked hard in this Chamber today, but a lot of work went into those and into making them available to the House. I also thank the 250 Members of this House who have, again and again, turned up to support this Bill and give it what we should give it, which is a Second Reading. Also, for reasons that a lot of people behind me will know, I record particular thanks to my noble friend Lady Smith, who is here today and has just voted for us. We can explain that to others afterwards, but it is particularly good that she is here today. With that, I beg to move my Motion.

My Lords, in the Statement that the Chief Whip just made, he said that he expects subsequent stages to be concluded on Monday. Given the proceedings we have seen all day today, is he giving a guarantee on behalf of the Government that they will be concluded on Monday?

My Lords, if I intervene perhaps I might help the noble Lord, Lord Foulkes. My interventions in this debate, as they were last week, were simply on procedural grounds. I hope that the noble Baroness will withdraw her Motion so that we do not have a precedent for such a Motion on the Order Paper. We have an agreement in the usual channels. We have an undertaking that we will complete Second Reading today and all other stages on Monday. I can speak only for myself, but I welcome the agreement in the usual channels. It is how we should have proceeded from the start. I will not table any amendments on the Order Paper for Committee or Report, in the spirit of co-operation that there is in the House. I ask the noble Baroness to consider, in these circumstances, whether she should not withdraw her Motion so as not to create the precedent of a Motion being forced, because I would feel obliged to divide the House on principle against it. I thank the usual channels and those wise heads on all sides of this House who have come to this agreement. Let us get on with Second Reading and, as we have just heard, consider the Bill properly on Monday. Everybody will want to get this Bill considered with dispatch. Looking around the House, I do not see any noble Lord dissenting from that. So I ask the noble Baroness to withdraw the Motion.

I think the noble Lord was trying to be helpful. Unfortunately, without my Motion we would remain unable to deal with more than one stage; we would have to use the normal intervals between them. Therefore I am afraid that we do need my Amendment to the Standing Orders to do that. Therefore I wish this Motion to be put to the House.

My Lords, Back-Benchers have a right to speak as well on this matter. I have sat through every minute of today’s debate and have seen the filibustering tactics of some of the Members opposite. The Government Chief Whip said that he expects the subsequent stages of the Bill to be concluded on Monday. As he knows, they have to be concluded by a certain time. Is he giving a guarantee that they will be concluded by that time? Otherwise, we will be double-crossed again.

I have had the word of my companions in the usual channels on conduct. I have also had the word of a number of my colleagues behind me. I assure the noble Lord that business will be conducted in a proper manner that is fitting to this House, which is trying to do its best to deal with an important piece of legislation. I must also advise—as the noble Baroness probably recognises—that it is necessary for us to move the Business of the House Motion. It will not be opposed by us.

The House of Commons will remain open until it receives a message from this House on Monday. There is no time limit, but there is obviously a moment of convenience for the House. I suggest that we would look to finish around 8 pm, because I am fairly certain that amendments will be made to the Bill during Committee, after which we have Report and Third Reading. So this agreement has not been made out of the air; it has been made in consultation with all aspects of the usual channels here and in the House of Commons, and so I spoke with authority when I gave my statement. I confirm that it is necessary for us to proceed, to have the Business of the House Motion pressed by the noble Baroness in whose name it stands.

I am grateful to the Government Chief Whip. He has again been very helpful, and we now have that on the record.

Can we settle this, please? The Question is that the original Motion in the name of the noble Baroness, Lady Hayter, be agreed to.

Motion agreed.