Amendment 46

Part of European Union (Withdrawal Agreement) Bill - Committee (3rd Day) (Continued) – in the House of Lords at 4:45 pm on 16th January 2020.

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Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform) 4:45 pm, 16th January 2020

My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.

I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.

I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—

“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”— was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.

I turn specifically to Amendment 66A in my name. It might seem a comparatively minor change, but it is indicative of the Government’s whole attitude to Parliament in the Bill, hence the significance of what I have just been saying. The proposal at page 68, line 9, is really quite extraordinary:

“A statutory instrument containing regulations under section 41(1) is subject to annulment in pursuance of a resolution of either House of Parliament.”

That sounds innocuous, but it actually means that the Government think that this is so unimportant that it can be pushed through at top speed. It is, if you like, the shortcut of all shortcuts.

That is why it has been picked out by the Delegated Powers Committee as a classic example of a Henry VIII power. I remind your Lordships that that committee is not in any sense a party committee; it is a cross-party committee led by a very distinguished former Conservative Minister. It speaks to us all about our role in this House. The committee says that

“clause 41 (consequential and transitional provision etc.) contains a Henry VIII power for a Minister of the Crown by regulations to repeal or amend any Act of Parliament passed from time immemorial until the end of the transitional period (the end of 2020) as part of such provision as the Minister considers appropriate in consequence of the Act. Such regulations are made pursuant to the negative procedure.

In seeking to justify this departure from the norm, the Government mention that primary legislation passed or made after December 2020 is not amendable under this provision. This offers limited comfort, given that every Act of Parliament passed before the end of December 2020 is amendable by Ministerial regulations made under the negative procedure. The Government also seek to justify the negative procedure on the ground that consequential powers are construed strictly by the courts. This is not relevant to the question whether Parliament should be able to scrutinize the legislation under the affirmative procedure.

Where regulations under clause 41(1) modify primary legislation or retained direct principal EU legislation, the affirmative procedure should apply in accordance with established practice and be consistent with the general approach in the Bill.”

That is why this relates back to our previous debate. Incidentally, the Constitution Committee made a very strong recommendation to agree with that recommendation.

It is quite possible that the Bill will be amended by this House next week. I know not on what issue, but it is quite likely that it will go back to the other place for Members of Parliament to look at again. I wonder whether the proposal tucked away at page 68 is actually a simple mistake, because it is so silly. What is the point of doing it? All it does is undermine the proper way the Bill should be considered and the proper way your Lordships’ House should take on its responsibilities in scrutinising the Government’s proposals. If it is a simple mistake, let the Minister simply say to us, “Look, come on. Let’s get this right.” Let us, for once, make some reasonably sensible change to the Bill. If it goes back to the other place, we will simply make sure that this matter is very firmly taken under the affirmative procedure, so that Members in both Houses can look at the issue in precisely the terms that they are advised to do by our delegated powers and constitution committees.

I hope the Minister will say, “Actually, we could look at this again.” We have not heard that phrase often in the last few days, but I plead with the Government. This is such a silly thing to do and flies in the face of all protestations of the importance of the role of Parliament in this regard.