European Union (Withdrawal) Bill — House of Lords, 2018-05-08
Topic: Government Operations
Annabel Goldie (Conservative, Centre-right): My Lords, the statutory instruments to come under this Bill are the means to a unique end—correcting our statute book and properly incorporating an entire new body of law into our domestic legal order. I hope that the group of amendments I now have the pleasure of introducing is a demonstration of the Government’s commitment to transparency before Parliament. This transparency will enable Parliament to subject the Executive to the scrutiny that is only right and proper when we bring before your Lordships proposals for delegated legislation. A key part of this transparency offer is the array of statements which we are committing in statute will accompany each of the SIs and be published alongside them in their explanatory memoranda Before addressing each of the amendments in this group in turn, I wish to put on record the answer to some questions which noble Lords have raised regarding the provision at sub-paragraph (6) of paragraph 22 of Schedule 7. This provision does not circumvent the obligation to make any of the statements in paragraph 22. Rather it is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for their failure, in addition to providing the original statement Amendment 83D in the name of the noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Judge, in common with Amendment 11, accepted two weeks ago by the House, introduces a distinction into the Bill which the Government cannot accept. This is a Bill to make, in common parlance, largely technical changes; substantial policy will be brought forward elsewhere. However, the distinction between technical changes and policy decisions is not one that could ever be defined in statute. Even the most technical of changes could constitute a policy decision, including as to whether to make the change at all. Nor, even if the noble Lords were to accept that point, can any clear line be drawn between technical policy, minor policy or substantial policy changes This amendment would require each Minister making an SI to make a declaration which depends entirely on where one is sitting—the prism through which one would see the amendment. For example, to the fishing community in Lerwick, the rules on the make and size of nets are certainly a matter of policy in which it takes an interest, while packaged retail investment product customer information requirements are most certainly a technical matter. I hazard that the asset manager in Kensington might feel a little differently. This amendment risks saying that either everything is technical, or nothing is technical. I hope all sides of the House will agree that neither of these positions is true. This is a Bill to make largely technical changes: that is our policy choice. As I am afraid that the two cannot be cleft asunder, I must ask the noble Baroness and noble and learned Lord to withdraw their amendment Government Amendment 83C and its consequentials 83H and 83J ensure that, where a Minister makes regulations under Clauses 7(1), 9 or 17(1), a statement must be made as to why there are good reasons for the instrument, and the provision made is a reasonable course of action. This is in line with the Constitution Committee’s recommendation in its ninth report and is, I trust, further evidence of the Government’s willingness to give due consideration to all amendments which do not undermine the fundamental operation of the Bill. I hope noble Lords will indulge me as I once again quote the Constitution Committee in support of the proposal. Such an amendment, it said, would: "require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially" The committee continued: "In this way, the Government can secure the flexible delegated powers it requires, while Parliament will have a proper explanation and justification of their use that it can scrutinise" Of course, I cannot put forward these amendments without making reference to the "appropriate versus necessary" debate, which these government amendments were clearly a response to. This House came to a decision on that question which the Government are disappointed with. Nevertheless, I would still commend these amendments to the House in an effort to increase transparency by some considerable measure Government Amendment 83F is in a similar vein, and would require Ministers to make a statement as to the purpose of an SI before it is laid. The Government have reflected carefully on the concerns raised within this House that the intention behind a modification to retained EU law might not always be clear. Such concerns were particularly focused on how modified retained EU law may be interpreted in light of Clause 5(3), and whether a modification to retained EU law is to be subject to the principle of supremacy of EU law. These concerns have also been raised in relation to Clause 6(6) and whether an item of retained EU law which is modified after exit day is still to be interpreted in accordance with retained case law. As was discussed in Committee, we expect in many, if not most, cases that it will be evident from the modification and the context whether the modification is intended, for example, to continue to benefit from the principle of supremacy, and whether modified retained EU law is intended to be interpreted by reference to retained case law. There is no getting away from the point that, ultimately, where such issues arise, they would need to be resolved by the courts on a case-by-case basis However, to ensure that there is the maximum clarity and transparency as the SIs are scrutinised and made, we have tabled Amendment 83F, which requires a Minister to make an explanatory statement about the purpose of the instrument, alongside the other explanations required in the same paragraph, including about the relevant pre-exit law and the effect of the instrument, if any, on retained EU law. The Government believe that this approach strikes the right balance by requiring Ministers to provide transparency on this point to Parliament and the courts without risking adversely fettering the discretion of our courts in terms of how SIs and modifications to retained EU law are interpreted. I hope, therefore, that this amendment can be supported across this House Noble Lords will all no doubt be aware of Amendment 83G, tabled by the Government, which would require a Minister to make a statement when exercising the powers to create a criminal offence. The statement will need to explain why, in the relevant Minister’s opinion, there are good reasons for creating the offence and for the penalty provided in respect of it. The statement will be made in writing by a Minister before the instrument is laid and will then be published, usually in the Explanatory Memorandum, to inform the deliberations of the committees and the House We previously touched on this amendment during debate on Clause 7, when we said that we would discuss what form this statement would take. This is still ongoing, although we will update the House as and when any decision is made on the matter. This amendment comes following the recognition of growing concerns in the House regarding the use of the powers to create a criminal offence. The Government’s plans for creating an offence will now be even more transparent to Parliament, and our reasoning will have to be clear and justified. This will ensure that the committees will have all the relevant information necessary at their disposal to make sound decisions when considering these important instruments. I hope, and am sure, that the House will welcome this I thank your Lordships for bearing with me. These are important issues and we thought it important that the House should understand the reasoning behind the Government’s approach to these matters. The Government’s amendments here provide for a material increase in the transparency of the exercise of the powers in the Bill. No one should underestimate how seriously these obligations are being taken by Ministers and officials. They have been designed specifically to address the concerns expressed in Parliament, and the Government intend to meet our end of the bargain in enabling effective scrutiny of the legislation we propose. I beg to move.