Amendment 29

European Union (Withdrawal Agreement) Bill - Report (2nd Day) (Continued) – in the House of Lords at 5:30 pm on 21st January 2020.

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Lord Howarth of Newport:

Moved by Lord Howarth of Newport

29: Schedule 4, page 68, line 9, leave out from “41(1)” to end of line 10 and insert “may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, this is the grand finale of Report stage. If the Chamber is not packed then I am not personally dismayed because we prefer quality to quantity in our debates, do we not?

Subsections (1) and (2) of Clause 41, as the noble Baroness, Lady Jolly, explained just now in the preceding debate, contain “breathtaking” powers, to use her word. The very valuable report of the Delegated Powers and Regulatory Reform Committee says that

“clause 41 … 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.”

That provision for the negative procedure is set out in Schedule 4 on page 68, line 9. It is that point of the Bill that I seek to amend.

Clause 41 and Schedule 4 provide a portmanteau Henry VIII power. It is the ultimate set of Henry VIII powers; you can go no further with such powers than the Government seek to go with these. The Government might seek to defend themselves on the basis that these powers are provided in the context of consequential and transitional provisions, but if the Minister seeks, in the pursuit of the policy set out in the Bill as a whole, to amend primary legislation there is nothing at all in the legislation to inhibit him in any way from doing so.

The Government might also seek to defend themselves on the basis that the courts in practice would construe pretty strictly what powers the Government sought to exercise under these provisions, but we do not want these matters going to the courts. If they do, it takes the courts and judges into political terrain that it would be much better they kept out of.

The Government take powers in Clause 41 to amend or, indeed, repeal any previous enactment up until the end of this year. The noble and learned Lord, Lord Judge, pointed out to us yesterday that a certain provision of Magna Carta was vulnerable under the policy adumbrated in the Bill. I am sure that when he comes to respond, the Minister will explain that he has no intention of repealing Magna Carta. Indeed, we have already been reassured in previous debates that the Government do not intend to use the Henry VIII powers with which they have peppered the Bill to undo the devolution settlements or to pursue other draconian purposes.

However, the Government really have written a constitutional monstrosity into the Bill. As the noble Baroness, Lady Kramer, said just now, this is a bad and improper precedent. Unless the Government can produce a justification, which I find unimaginable, for the taking of these extravagant powers they should not write them into the Bill at all. As the noble Baroness suggested, in an age of populism it is particularly undesirable that extreme powers be taken casually. It is a proper responsibility of your Lordships’ House to keep an eye on what is going on and, where legislative practice becomes unacceptable, to point it out to the other place.

If Members of Parliament perused the Bill and informed themselves in close detail about it, they might consider that they had been rather insulted. We should certainly give them the opportunity to consider that possibility. Members of Parliament on the Conservative side of the House of Commons might be uneasy about what appears to be in conflict with the Conservative Party’s manifesto. I have taken the precaution of looking at it. In the section entitled “Protect our democracy”, it is asserted:

“As Conservatives, we stand for democracy and the rule of law.”

It goes on to say:

“Once we get Brexit done, Britain will take back control of its laws.”

I do not think that, when voters studied the Conservative Party’s manifesto and Conservative parliamentary candidates took it as their oath of prospective office, they actually thought that taking back control of our laws following Brexit would mean a power grab on the part of the Executive, which is potentially happening.

Ministers have already sought to reassure us. In the debates we held on Clauses 21 and 26, it was insisted that there were no such malign intentions as the legislation would make possible. They wanted to reassure us by pointing out that the regulation-making powers so extensively set out in Clauses 21 and 26 could be exercised only under the affirmative resolution procedure. That is a mitigating circumstance, but it by no means undoes the mischief of taking the Henry VIII powers in the first place.

However, in the letter that he wrote to us, the noble Lord, Lord Duncan of Springbank, acknowledged that the regulation-making powers it is proposed that the Government should have under Clause 41 would be exercisable under the negative resolution procedure. He gave no explanation or justification for that. I do not know whether this inconsistency in approach and resort to extensive regulation-making powers under the negative procedure at Clause 41 is the result of a drafting error and a mistake, but if it was there will be an opportunity for the Government to amend it.

Following the amendments made by your Lordships’ House, the Bill will go back to the House of Commons. It would be quite easy for the Government to amend it in this regard, and they could do so with no loss of face or dignity. When Governments are flush with electoral success, they have a tendency to swagger. The bigger the majority and the higher the euphoria of electoral success that they feel, the more important it is that they act soberly when legislating and proceed with humility and magnanimity in their dealings with Parliament. Magnanimity is a Latinate word, which I hope will appeal to the Prime Minister, but if humility and magnanimity are too difficult, the Government should at least conduct themselves in relation to Parliament with respect and courtesy. Macho attitudes to legislation make for bad law.

The manifesto goes on to say that

“we… need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts”.

Indeed, our scrutiny of the Bill thus far has indicated that there is a great deal for the Government—and the commission it proposes—to consider in the relationship between the Government, Parliament and the courts.

The manifesto then goes on to say that the new Government and their commission will want to look at the role of the House of Lords. I hope that Ministers in the other place and Members of Parliament will understand that the traditional constitutional role of your Lordships’ House is to act as an advisory and revising Chamber. The principal way in which the House of Lords offers its advice and proffers its revisions is by way of amendments to legislation. In doing so, your Lordships’ House poses no threat to the Government. There is no lese-majesty. In all the debates we have had on this Bill, it is clear that this House accepts that the Government have a mandate for Brexit. There is no attempt by your Lordships to subvert Brexit and thwart the Government in their purpose of enacting this withdrawal legislation.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

It is probably true that since the election and the outstanding victory of the Prime Minister, this House has finally accepted that a Government are in power who want to deliver Brexit. However, that certainly was not true before the election; a very large number of amendments passed by your Lordships’ House then were intended precisely to stop us leaving the EU. They were wrecking amendments which went completely in the face of the decision taken by the people in the referendum.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

As the noble Lord knows, I shared some of his frustrations about the last Parliament. However, in the last Parliament this House did not subvert the authority of the elected House but sought to be in consonance with its wishes. I therefore do not think that Members of Parliament need to be concerned —nor did they need to be concerned during the last Parliament—that the House of Lords is a threat to the House of Commons. That plainly is not the case in this Parliament.

Amendment 29 is a moderate amendment. There are two issues. One is the Government’s propensity to take excessive Henry VIII powers. The other is procedure—the manner in which Parliament should approve the regulation-making powers that would be brought forward under this legislation. My amendment does not seek to remove the Henry VIII powers. It does not say that Clause 41 should not stand part. I do not know what the consequences would be for the proper functioning of the legislation if I had sought to achieve that. I have sought to amend the aspect of the Bill dealing with the procedure for adopting regulation-making powers. I hope that the Government accept that it would be appropriate to substitute the affirmative resolution procedure for the negative one. Even then the amendment would not be ideal, because if your Lordships’ House rejected regulation-making powers under the affirmative procedure, there would be howls of protest, as my noble friend Lady Hayter observed earlier in our debates. It would be regarded as a constitutional outrage on the part of your Lordships’ House. At any rate, if the Government are willing to accept this amendment, it will enable Parliament as a whole—both Houses—to express its view on the legislation and, if necessary, for either House to reject any attempt that the Government might make, by way of regulations, to alter the principles of law or to rewrite primary legislation. I beg to move.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 5:45 pm, 21st January 2020

My Lords, I have put my name to this amendment. A few days ago, we discussed Clauses 21 and 26, as referred to by the noble Lord, Lord Howarth, which people called a constitutional outrage. This is far, far worse. As a constitutional issue, Clause 41(1) takes the Government into realms which, in the years that I have been in this House, I have never seen before.

The noble Baroness, Lady Kramer, set out most of what I wanted to say, putting it rather better than I would have. There is not a great deal else to say, but if the Government are going to say, as I am sure they will, that they do not propose to use these powers, other than to a very limited extent, the short answer to that, speaking as a lawyer, is, “Why have them here?” Why put something so unbelievably wide, which could apply to any law enacted in the past until the end of this year, into the withdrawal Bill if they do not intend to use it?

As the noble Lord, Lord Howarth, said, it is not his—or my—intention to get rid of this objectionable clause but purely to alleviate it, so that if the Government require to make such provision in consequence of the Bill, at least we can look at it. If the Commons can get over its majority of 80, it could look more critically at the legislation to see whether it is really what is wanted and look, with the affirmative resolution, at what is being offered by the Government. Therefore, I support the amendment. It needs to be brought forward to both this House and the other place, because this Clause 41 really is beyond belief.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

My Lords, we have reached the final amendment. I thank the noble Lord, Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, for their comments and for setting out their positions. I understand the concern of noble Lords about the parliamentary procedure attached to the consequential power in Clause 41. We have already noted these concerns; noble Lords in other debates have raised them and we all read closely the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I addressed many of these points last week, when I spoke to the amendment in the name of the noble Lord, Lord Tope. I hope today to provide similar reassurances to the noble Lord, Lord Howarth. I agree with so many of his points on EU withdrawal, although perhaps not this one.

As noble Lords are aware, consequential powers are standard provisions in legislation, even legislation of great constitutional significance, such as the Scotland Act. If noble Lords look at Schedule 5 to the Bill, they will see that we have already included many of the consequential amendments required as a result of the Act. However, we also believe that we need a power to make further consequential provisions to the statute book.

I am aware that the noble Lord, Lord Howarth, yesterday asked for assurance about why the consequential power in Clause 41 is subject to the negative procedure. I understand the noble Lord’s concern but reiterate that the power is limited to making amendments that are consequential to the contents of the Act. Its scope is very different from the powers discussed over the last 10 days by my noble friends Lady Williams and Lord Duncan, which will be used to implement the withdrawal agreement. It is in everyone’s interest that the statute book functions effectively. Moving the consequential provision to the affirmative procedure would frustrate the ability of departments to make the necessary consequential changes before exit day and could lead to legal uncertainty. I hope noble Lords agree with me that this is not the appropriate course of action.

This procedure is limited to giving Ministers the power to make regulations that are in consequence of the Act, like consequential powers in many other pieces of primary legislation. This power will be construed strictly by the courts. It can be used only to make amendments that are appropriate to legislation in consequence of something that the Act does. I am sure noble Lords agree that the use of the negative procedure does not prevent parliamentary scrutiny taking place. Members of this House will still have the opportunity to pray against regulations, should they consider them inappropriate, as is usual for regulations of this kind. I hope I have provided the necessary reassurances to the noble Lord and that, as a consequence, he is able to withdraw his amendment.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

The noble Lord, Lord Callanan, has not provided me with the reassurance I seek. In my earlier remarks, I anticipated the arguments that he would offer about why we can be relaxed about these powers being taken and believe him when he says that the scope would be minimal. That is not the case. I am extremely grateful to the noble and learned Baroness, Lady Butler-Sloss, for speaking as a most distinguished lawyer. She encourages me, in my legal amateurism, to believe that I am on the right track. I think I am. I hope that, even overnight, the Minister may be willing to reflect further on this, and that the Government will accept the amendment. It would be in earnest to the magnanimity on the part of the Government that I venture to hope might manifest.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

For the avoidance of doubt, this is not a matter that we will reflect on further. Therefore, if the noble Lord wishes to pursue his amendment, he needs to test the opinion of the House.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

I also hoped that the Government might want to demonstrate their good intentions towards their future constitutional behaviour, but there it is; we cannot win every battle. Maybe, in the watches of the night, the Minister will repent and reconsider. On that basis, I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Sitting suspended.