Moved by Lord Ponsonby of Shulbrede
44: Clause 22, page 11, line 15, leave out subsection (1)Member’s explanatory statementThis amendment removes the ability for regulations under the Bill to make changes that could normally only be made by an Act of Parliament (including modifying this Bill).
My Lords, Amendment 44, in the name of my noble friend Lady Chapman of Darlington, concerns Henry VIII powers and general rules regarding regulations. This amendment removes the ability for regulations under the Bill to make changes that could normally be made only by an Act of Parliament, including modifying this Bill. I also support the clause stand part notice in the name of the noble Lord, Lord Purvis, which seeks to oppose the inclusion of Clause 22, which sets out the general scope and nature of the powers contained in this Bill.
Clause 22(1) has the effect of making every regulation-making power in the Bill what the DPRRC has referred to as
“a super Henry VIII power.”
Ministers would be able to make any provision that would normally be made by an Act of Parliament, as well as modifying the Bill once enacted. The DPRRC’s report included a helpful comparison with the powers afforded by the European Union (Withdrawal) Act. It felt those powers were too broad, yet Section 8 of that Act was subject to a sunset clause and a number of clear and important restrictions.
As has been discussed in previous groups, the Bill would allow Ministers to conduct themselves in a manner that may otherwise be deemed unlawful, while at the same time allowing the Treasury to introduce or amend taxes with only a minimal parliamentary role. In some senses, the removal of Clause 22(1) would constrain the powers exercisable under other parts of the Act, but that constraint is nowhere near sufficient in and of itself.
This brings us back to the prospect of removing entire clauses from the Bill on Report, should we even be in a position to proceed at the appropriate time. So, these amendments in a sense restate some of the arguments we had at earlier stages and I look forward to the Minister’s response.
My Lords, I keep hearing the words “democratic accountability” and then I look at the Bill and I cannot find any. We have listened as Clauses 4 to 21 have been debated in this Chamber. If we add those clauses together, we have a lamentable lack of democratic accountability. I expect it will be said, “Ah well, as always, the House of Commons can reject any regulations” and so on; and, “We have a long history of how there are 16 different ways in which the regulation-making powers can be exercised.” To that, I will say: but they have not exercised that power since 1979. This is not democratic accountability; this is quite extraordinary legislation, passing huge amounts of power into the hands of the Executive. Others have spoken. Clause 18 creates tertiary power—guidance—which is not quite a regulation of the sort we are talking about but can create matters that require compelling attention from those who have to abide by the guidance.
Let me just look at Clause 22(1), because it makes what has gone so far rather trivial. It states:
“Regulations under this Act may make any provision that could be made by an Act of Parliament (including provision modifying this Act).”
I then add the words “and any regulations made under it”, because that follows. What it means is that the Bill, having been successfully enacted, could be dismantled by the Government two weeks later. It could be dismantled by a Government three years from now or by a Government 10 years from now. It could restore the very thing that the Bill says it is trying to get rid of—all in the hands of a Minister making regulations under the Act. That is not Henry VIII. I have lost count; I have tried to add it up in different ways. Is it Henry VIII plus Henry VIII for Clauses 4 and 5? That comes to about Clause 79. It cannot be. Is it Henry LXIV, because it is Henry VIII squared? This is an extraordinary power when the Bill is already riddled with Henry VIII powers. I am not jesting about this. The Bill provides for its restoration at any time that the Government of the day choose, or any part of it, or some of it along with other legislation. That is not how we should legislate. Should we not be ashamed of ourselves?
Parliament gave Henry VIII the power to bastardise his first and second children, to say that he was the Pope in England and that he was God’s messenger on earth, to decide the succession, and to say that the monasteries should all come down—the widest act of criminal damage this country has ever seen. Then he produced a Bill giving him the power, by proclamations, to create new laws. I shall not read it all out. What did the successor to that Parliament do? It said no. There was a battle, but in the end that power had this proviso to it put in by the Commons:
“nor that, by any proclamation … any acts, common laws (standing at this present time in strength and force) nor yet any lawful or laudable customs of this realm … shall be infringed, broken or subverted, and specially all those acts standing this hour in force which have been made in the King’s Highness’s time”.
He was not allowed to modify an Act of Parliament by proclamation.
We do not have proclamations anymore; we have statutory instruments. We have regulation-making powers that amount to a modern form of proclamation. We must not agree to clauses of this kind in any Bill. Those that we have agreed to—shame on us. We must not agree to this one. We must insist on the determination and, in its case, the courage shown by the 1539 Parliament not to give the King the powers he wanted. We must not give the Government the power they want in this clause.
My Lords, as we go through this Committee, we are discussing clauses that confound constitutional principle in ever more astonishing ways. I entirely agree with what was just said by the noble and learned Lord, Lord Judge. It is quite extraordinary that we should be asked to approve a clause that would confer power on a Minister to make by regulations
“any provision … including provision modifying this Act”.
The Committee has heard a number of powerful speeches over its four days explaining why it is wasting parliamentary time in analysing the Bill when it is a sideshow to the need to resolve the dispute with the EU. Whatever view you take about that issue, what is a manifest waste of time is for this Committee, and for Parliament on Report, at Third Reading and in the House of Commons on ping-pong if it comes to that, to debate, amend and approve legislation after lengthy debate, only for Ministers to have the power to say, “I don’t care about that. Parliament might have agreed it, but I’m going to set it aside. I’m going to substitute something else.” What is the point of parliamentary debate if that is what a Minister can do?
Indeed, such is the breadth of this provision that a Minister would have a power to substitute in the Bill something that he or she approves of that has been specifically rejected by Parliament. Parliament might have passed an amendment against the views of the Government, yet, under this clause, as the noble and learned Lord, Lord Judge, said, two weeks or three years later the Minister can say, “That may be what Parliament has done, but I’m going to insert something different”. As the noble and learned Lord said, we really have to take a stand. This cannot be right in principle and it cannot be acceptable to Parliament.
I want to add to the two speeches that have just been given, with every word of which I agree. The Minister may say that we are being hypocritical, as was said earlier, because there have been earlier Bills where we have allowed Henry VIII clauses; but I have been in this House since 2006 and in my time I have never seen a Bill anything like this one, with enhanced Henry VIII powers—or Henry LXIV powers. To my knowledge, in my time we have never had a Bill that has gone so far beyond what one might almost call the “normal” Henry VIII clauses. I entirely agree with what the noble and learned Lord and the noble Lord, Lord Pannick, said. It really is time that the Government stand back and ask, “Is this actually reasonable? What is it that we are trying to do?” It is utterly unacceptable.
My Lords, it is very hard to follow those three eminent contributions. The egregious nature of this clause and its subsections goes beyond parliamentary affrontery because they impinge on the devolved Administrations as well. Not content with abusing this Parliament, Clause 22(6) will abuse the other Parliaments in the UK as well by creating new powers for Ministers of the Crown over those of devolved authorities. As the delegated powers memorandum blithely puts it:
“Where a matter would normally fall within the legislative competence of the devolved administrations and the passage of devolved primary legislation would not be appropriate”, as the Minister of the Crown would say, “or timely”, on a timetable that the Minister of the Crown would set,
“it may be appropriate to create a new devolved delegated power by exercise of this power.”
It is a Trojan horse for abusing not only Parliament but Parliaments.
I have not been a Member of your Lordships’ House for as long as the noble and learned Baroness but I have been here nine years and I was a member of a devolved authority. This is not how we should be making legislation at all. This is the clause about which Sir Robert Neill said at Committee stage in the Commons,
The serious issue is that I do not know what limits the Government expect there will be on these powers. Could there be new criminal penalties? If not, they should not be within this. How about new tax powers? If that is not the intent, it should not be made possible by this Bill. Could it affect any part of the withdrawal agreement on other rights and freedoms? If that is not the Government’s intent, they should say so, but there are no such restrictions.
This is a Trojan horse, and in looking at some of the clauses a side of me wonders whether I should oppose it. It is so broad that we could rejoin many of the EU institutions we have left—just from this wee clause in this wee Bill. That might suit our Benches, so perhaps we had better not complain too much. Through Clause 22(6) and other sweeping regulation-making powers, we could rejoin the customs union and many of the institutions. If that is not the Government’s intention, the Minister should say so at the Dispatch Box. If he does not, we could use it for that purpose.
More seriously, and I will close on this, the noble Lord, Lord Kerr, has been consistent since the outset in using a phrase that has struck me: this is not what we do when it comes to international law. The noble and learned Lord, Lord Judge, hoped over the weekend that this was all a dream and that he would arrive here on Monday to find that, like Bobby Ewing in “Dallas”, these three days in Committee never really happened. I arrived back in the country this morning from speaking at a parliamentary gathering in Buenos Aires—a network of parliamentarians supporting the International Criminal Court—in the presence of the president of the ICC. I have to say to the Minister that there have been very few times that I have been embarrassed to say that I am a British parliamentarian, but the knowledge of parliamentarians from across the world about what we are doing with this legislation shocked me. They know what we are doing. There are international gatherings about how Parliaments can support the international rules-based system, the ICC and international standards in law. This is not what we do. But it is even worse than that because our Government tell other countries what they should not do, but we are doing it at home. This is an opportunity to stop it. I hope that, even at this stage, the Government will listen to the noble and learned Lord, Lord Judge, and just stop it.
My Lords, I wish to add for a moment or two to what has been some pretty powerful gunfire from those who are eminently qualified in making the serious submissions they have made.
My attention has been caught by Clause 22(6), which seeks to interfere, one might say, with devolved authorities. Looking at my friend, the noble Lord, Lord Dodds, it occurred to me that, were he part of a devolved authority in Northern Ireland and there was the exercise of a power under subsection (6), he would take pretty short shrift with it, I am sure.
To introduce perhaps a rather vulgar political point, we in Scotland are concerned constantly with the movement towards independence. Part of that movement is, often by fiction, offered to the potential electors in a referendum on the basis that Westminster wants to interfere with Scotland. It seems to me that subsection (6) might provide rather more substantial evidence of an intention of that kind.
I know that there are honourable men sitting on the Government Front Bench, but do they really believe in their hearts that it is right to urge upon this Committee the contents of this particular subsection? Surely they must realise that it is inimical to every principle upon which Parliament is founded and this House operates. If I may be forgiven for my impropriety, it is time for the Front Bench to fess up.
My Lords, it is a pleasure to follow the noble Lord. I take the point that he made about Clause 22(6). As a Member of the Northern Ireland Assembly for many years, I know how much Members of the Assembly value their right to make laws in the areas that are devolved to it. However, I must say gently to your Lordships that, in recent times, there have been a number of examples of this House and the other place interfering in the devolved settlement in Northern Ireland. Although some of us have pointed that out, it has been with your Lordships’ positive assent and approval that the overriding of the devolved settlement in Northern Ireland has taken place in a number of areas. I would like to see a consistent approach to the devolved settlement in Northern Ireland, not this pick-and-choose approach where something being okay appears to depend on the issue of the day but, if you do not like what the Assembly has done, you can interfere—as seems to have happened on a number of recent occasions in this Parliament.
I want to highlight Clause 22(3). On the face of it, it appears—I am open to correction by those who are much more learned and have more legal expertise in these matters than me—to put some kind of restriction on the wide Henry VIII powers that are given under this particular clause. The one thing that it is apparently not possible for regulations under the Bill to do is
“create or facilitate border arrangements between Northern Ireland and the Republic of Ireland which feature at the border … physical infrastructure (including border posts), or … checks and controls, which did not exist before exit day.”
Having listened to the debate, I think that may well be able to be swept aside at any point. However, why is emphasis put on the one thing that is mentioned? I look to the Government Front Bench as to why it is mentioned, given that it really has no effect. Of course, we do not want any extra infrastructure at the border between Northern Ireland and the Irish Republic and it has never been the desire or wish of anyone in the Northern Ireland political parties, or the Irish Government, the British Government or the EU, to have such infrastructure. But it would be quite helpful and an acknowledgement of unionist concerns if there were a similar provision which acknowledged—under strand 2, the north-south approach in the Belfast agreement and the importance of that relationship, but also strand 3, the east-west dimension—that regulations may not create or facilitate border arrangements between Northern Ireland and the rest of the United Kingdom.
I am following the noble Lord closely on this point. Does he realise that today Maroš Šefčovič talked about the need for fewer border checks and, in fact, that they could be invisible on the Irish Sea border. Does the noble Lord agree that if they can be invisible on the Irish Sea border, they can be invisible at the frontier, where of course checks should happen between one country and another independent country?
Of course. It appears that things may have moved on, because once all these ideas were dismissed as completely fanciful. Indeed, “unicorns” were brought into play and all sorts of dismissive language was used. I am glad that now there is at least an acknowledgement that some of these checks can be done in the way that the noble Baroness has described Maroš Šefčovič as talking about.
The important point here is that we have been told throughout the Brexit process that there cannot be a single check or single piece of infrastructure on the Irish border because otherwise that will lead to violence—it will be attacked and that will undermine the Belfast agreement—without anyone, hardly, making the obvious point that, if that is unacceptable north-south, then it is doubly unacceptable between Northern Ireland and the rest of the United Kingdom. What does that say to the unionist population?
One of the reasons we have the alienation of people in Northern Ireland is the one-sided approach and interpretation of the Belfast agreement. I would just like an explanation. Whatever its actual import or ability to be enforced, or the fact that it can be superseded by a ministerial direction, why do the Government highlight that issue and not the fact that the reason why we have such a problem in Northern Ireland with the political institutions is that we have this similar kind of infrastructure and checks between one part of the United Kingdom and the other?
On the point that has been raised very powerfully by noble Lords on the legal issue, I fully understand why they take the position they do and, as has been said, it has been raised in relation to other Bills and Acts. I would love to see the same outrage and anger expressed more widely; it may well have been during the passage of the then Bill, before my time in your Lordships’ House.
You can imagine therefore that if there is such outrage about powers being given by Parliament to the Executive and UK Ministers, how citizens of Northern Ireland—British citizens, fully part of the United Kingdom—feel about powers being not just taken from Parliament and given to Ministers but given to foreign officials of the European Commission to propose law. They are totally unaccountable to anyone in the United Kingdom. They do not have to answer to anyone or answer any questions. There is no parliamentary process whatever within the United Kingdom that can even challenge the directives and regulations that cover 300 areas of law affecting the economy of Northern Ireland. Therefore, while accepting entirely the points made about delegated legislation and Henry VIII powers, I would like to see reflected some of the same concerns about how we in Northern Ireland feel about the way that laws are now made by a foreign polity in its own interest. It is not in our interest; it is made in its own interest.
The Bill is part of an effort to try to remedy that problem. People have said we will have negotiations. But given that we have already had communicated to us that the EU is not open at this stage to changing the mandate of its main negotiator, certainly, how else are we going to get to a situation where that outrageous situation in Northern Ireland is remedied?
My Lords, I thank—I think—all noble Lords for their contributions to this debate. There were some highlights. I have to go home and explain to Lady Ahmad that the noble and learned Lord, Lord Judge, dreamt about me over the weekend. That is a moment to ponder and reflect on, as any good Minister would, from the Dispatch Box.
Like the noble Lord, Lord Purvis, I have the opportunity to travel, although I was asked today as I came into your Lordships’ House, “Tariq, why aren’t you in Sharm el-Sheikh?”. I said three words—“Northern Ireland protocol”—which put that colleague in their place. I heard what the noble Lord said about international law and the rule of law. Notwithstanding the challenges, it is right that we have this level of scrutiny. I listened very carefully to the noble and learned Baroness, Lady Butler-Sloss, and I agree with her. We are all talking about time in Parliament, et cetera. The other day, I was informed that I am now second only to the noble Earl, Lord Howe, in term of my time on the Front Bench. Let us watch that space as well. With the nature of reshuffles, you never know what will happen when.
In all seriousness, we have a lot of respect internationally. That is why, in successive elections in the ICC, three major positions have been held by the UK. Again, in the ILC, a successful campaign was run. I feel very strongly that, irrespective of the nature of the discussions we are having, the United Kingdom has a very strong reputation internationally and I, for one, am very proud to be not just a British parliamentarian but a British Minister representing these interests abroad.
I come to the specifics now, the nitty-gritty of the amendments themselves. I first say again that on the issue of the Henry VIII clause—specifically on this clause, but more generally across the Bill—of course the Government are listening very carefully to the contributions being made. We have had legislation in the past where we have equally had this level of scrutiny. It is a reflection of our democracy that it allows us to have these challenges to the Government.
I turn to Amendment 44. The Bill provides specific powers to make new law in certain areas, as noble Lords have pointed out, including where we are disapplying the EU regime in domestic law and where such laws are required to make our new regime work. To give effect to the new regime set out in the Bill, amendments to domestic legislation may be required, including Acts of Parliament where appropriate.
Moreover, certain sectors in Great Britain are currently also regulated by retained EU regulations which have protected status under Section 7 of the European Union (Withdrawal) Act 2018 and cannot be modified except by an Act of Parliament or certain specified subordinate legislation. An example is retained EU regulation 2016/425, which currently regulates personal protective equipment in Great Britain. It may be appropriate to amend such legislation for the purposes of the dual regulatory regime to ensure that the UK regime applies appropriately also to all of the UK and appropriately to Northern Ireland.
We recognise, of course—and I have heard it again today—the seriousness of amending legislation, and also proposing new legislation. The noble and learned Baroness pointed to legislation already passed, where Henry VIII clauses have been included. I will not challenge the fact we have had quite challenging discussions in this respect as well, but Parliament has already considered and put on the statute book these particular issues of amending legislation. While it might be somewhat of a small recognition of the powers, these particular powers to amend Acts of Parliament will be subject to the affirmative procedure, allowing Parliament to scrutinise and review any changes to existing legislation, even where these changes are consequential, or technical. I recognise, of course, the depth of the challenge that has been put to the Government and, in all respects, respect the seriousness of the contributions that have been made.
I am grateful to the Minister for giving way. The example he cited with regard to the operability of the red lanes is covered earlier in the Bill, so the regulation powers were debated. So I do not understand why they are needed in such a broad manner under this clause, which does not even have any of the restrictions of the previous ones. If they need powers for the operation of any of the new red lanes, they are there in Clauses 4, 5 and 6. We have debated these; they exist.
My Lords, I was merely emphasising. I did refer to earlier clauses as well when I was giving one specific example in this particular group. But I hear what the noble Lord says, and, of course, I recognise that there are issues, particularly in this clause, about the powers that are being proposed. In coming on to that particular point, in relation to the concerns raised by the breadth of powers, each individual power that is being proposed in the Bill is being constrained by its purpose. None of them is a “do anything” power, and Clause 22(1) does not make them so: it merely ensures they can fully fulfil their purposes.
As I said, we are seeking to put a power in the Bill, and I will provide clarification on that. Each individual power that we are seeking to take in this respect is being constrained by its purpose—but, if I may, on that point, I will write to the noble Lord once I have talked to officials specifically about this aspect of the debate.
Perhaps I could invite the noble Lord, when he writes to the noble and learned Lord, Lord Judge, to explain why it is appropriate for Ministers to have the power to make regulations to modify this very Act. Can he specifically address how Clause 22(1) fits with the clause mentioned by the noble Lord, Lord Dodds, Clause 22(3), which contains the express exception:
“Regulations … may not create or facilitate border arrangements”?
Yet, as I understand this Bill, Ministers under Clause 22(1) could simply disapply Clause 22(3). It would be completely otiose. What is the point of having a restriction in the Bill that a Minister, by regulation, could simply disapply?
I shall of course cover the specific point the noble Lord has highlighted, as well. I appreciate that it is for the Government to make the case on the specific provision contained in the Bill to ensure that we can, as far as possible, satisfy the issues and the questions being raised.
Clause 22 sets out the general scope and nature of the powers contained in the Bill. This will ensure the powers have the appropriate scope to implement the aims of the Bill. The clause sets out that regulations made under the defined purpose of the powers in this Bill can make any provision—this was a point noble Lords made—for that purpose that could be made by an Act of Parliament. This includes amending the Bill, as the noble Lord has just pointed out, or making retrospective provision.
As the noble Lord, Lord Dodds, said, the clause confirms that regulations under this Bill may not create or facilitate border arrangements between Northern Ireland and the Republic of Ireland that feature, at the border, either physical infrastructure or checks and controls that did not exist before exit day.
Subsection (6) provides that a Minister can facilitate other powers under this Bill to be exercisable exclusively, concurrently or jointly with devolved Administrations. The noble Lord, Lord Pannick, raised a specific point just now, which does require clarification on two elements within the clause. I will make sure that they are covered.
A concern was raised about the ability of the Government to work with the devolved Administrations. As I said on an earlier group, the former Foreign Secretary wrote to the devolved Administrations and we are engaging with them on the implementation and provisions of this Bill. It is the Government’s view that these new powers are necessary to make the regime work smoothly and to provide certainty to businesses.
While recommending in Committee that this clause stand part of the Bill, I recognise that, while we share moments of humour in Committee, it is right that these detailed concerns were tabled in the way they were. This allows the Government—
I am very grateful to the Minister before he sits down. He sort of glossed over Clause 22(3) by, in effect, reading out what it says. But I respectfully seek an explanation of why that subsection has been inserted when there is no similar provision on checks and infrastructure between Northern Ireland and the rest of the United Kingdom.
On that point and the earlier issue of why this is specific, we want to avoid a border between the Republic of Ireland and Northern Ireland in any shape or form. That is the specific nature of this and we have all desired that in our discussions, but I take on board and understand the noble Lord’s point. Indeed, the noble Baroness, Lady Hoey, also pointed to this and how the operability of the border is causing challenges. This is inherent in the protocol, which provides this de facto border between two different parts of the same sovereign nation. That is the problem that we are wrestling with and seeking to resolve—so I acknowledge the noble Lord’s point.
My Lords, I will not go into the speculative nature of what each devolved Administration will say, but we have great resilience and passion within our devolved Administrations and I am sure that, as discussions and negotiations progress, both the Government and your Lordships’ House will be very clear about what the Administrations think.
The constitutional point is clearly the huge point here; mine is a minor addition. Would the noble Lord look at Clause 22(2)(a) and (b) and put himself in the position of an EU negotiator? Would he willingly come to an agreement with the British if they had just given their Ministers the power, without any parliamentary oversight, to make any provision they wish, notwithstanding that it is not compatible with the protocol or any other part of the EU withdrawal agreement?
As the negotiator contemplates trying to find practical solutions to make the protocol less burdensome, the negotiator is confronted on the other side of the table by a Government who are taking to themselves the right to change anything in the withdrawal agreement without consulting Parliament. I think as a minimum—and I put this very mildly—that does not improve the chances of the negotiations succeeding, which is why I think so many in Brussels believe that if we proceed with this Bill, the talks, the negotiations and the consultations will not succeed.
That was almost a rhetorical question being posed to me. What I can say in response is that the engagement we are having with the European Union is—as I have said before, and I would be very up front and honest if this was not the case—being done constructively. The EU understands and appreciates the basis of why we are seeking to do this. It also understands that this Bill is being scrutinised, as is happening this evening, and that we are continuing to work in terms of constructive engagement.
As I have said before, with the Commissioner visiting the UK, the engagement between my right honourable friend and Commissioner Šefčovič is in a good place in terms of the level of engagement, in both tone and substance. I cannot go further than that. The noble Lord is very experienced in all things diplomatic and, indeed, is a veteran of the EU Commission. I am not going to speculate on what an EU Commissioner or an EU negotiator will say because I have never been one.
The Minister is being patient with us and I know everybody is hungry. As the Minister has generously said he is going to write to Members taking part in the Committee, will he add something for my benefit, which is giving examples of other legislation that we have passed in which any and all parts of it can be amended by regulation immediately on commencement?
This is turning into a very long letter. I think I am going to get something from the Box which says, “Minister, do not commit to writing anything ever again.” But I know what the noble Lord has asked of me.
My Lords, the Minister has been put in an impossible situation. I thank all noble Lord who have spoken in this debate. It is a hard act to follow. We have had the noble and learned Lord, Lord Judge, talking about extraordinary legislation and quoting from the Proclamation by the Crown Act 1539, the noble Lord, Lord Pannick, talking about wasting the Committee’s time and then using that very legal words “otiose” when comparing Clause 22(1) and Clause 22(3). We have had the noble and learned Baroness, Lady Butler-Sloss, talking about never seeing so many Henry VIII powers in her time in Parliament. The noble Lord, Lord Purvis, asked a number of questions, including one we have heard just now, and the noble Lord, Lord Dodds, very relevantly asked about the reason that there is an exception in Clause 22(3) about border infrastructure on the north-south border, so I look forward to seeing this letter as well. I beg leave to withdraw the amendment.
Amendment 44 withdrawn.
Sitting suspended. Committee to begin again not before 8.15 pm.