European Union (Withdrawal) Bill — House of Lords, 2018-03-19
Topic: Government Operations
Natalie Evans (Conservative, Centre-right): My Lords, before responding to these amendments in turn, I should like to take this opportunity to expand on the remarks I made at Second Reading. As I said then, I wanted to find a way to build any new sifting procedure into the existing scrutiny structures which this House has developed so successfully over the years. On 5 March, as the noble Baroness has said, the Procedure Committee agreed to my proposal to incorporate the same powers as those of the new Commons sifting committee into the terms of reference of the Secondary Legislation Scrutiny Committee as well as conferring the power to appoint sub-committees. This will allow the sub-committees to recommend within 10 sitting days that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure As the House will expect, the SLSC’s existing role in scrutinising the merits of all instruments will continue as before, with the sub-committees fulfilling this function alongside their new sifting role in relation to the SIs flowing from this Bill. The main committee will have responsibility for determining the allocation of policy areas between the two sub-committees as well as maintaining oversight of the scrutiny process in general terms. If it wishes to do so, this will allow it to meet as a whole to conduct its own inquiries into the overall management of secondary legislation, as it has done in the past. The 10-day period for allowing the sifting committee to make a recommendation was originally suggested by the Delegated Powers and Regulatory Reform Committee of this House and was endorsed by the Procedure Committee in the Commons. The Government are content to agree to this timeframe, and that is why the sub-committee will have the power to report directly to the House, to award it greater agility in conducting its sifting role without unrealistic constraints on the time to report The agreement reached regarding the SLSC’s new role is, I believe, an example of the House coming together on a constructive basis to strengthen our important scrutiny role, and I am grateful to other members of the Procedure Committee, including the noble Baroness, Lady Smith, the noble Lord, Lord Newby, and the noble and learned Lord, Lord Hope of Craighead, for their support in reaching this decision. I am also grateful to the chairman of the SLSC, my noble friend Lord Trefgarne, his clerk and advisers for their constructive engagement in the development of this proposal. I am pleased to confirm that the SLSC will receive additional resources both in terms of expert advice and additional members, including the ability to form two sub-committees, in order to fulfil its new sifting role. I know that noble Lords on all sides will want to ensure that the new arrangements are a success. The House will be invited to agree the proposed arrangement when the Procedure Committee presents its report. That is expected to be when the passage of this Bill is nearing completion, as of course the report may have to reflect any relevant changes to the Bill that are agreed by both Houses In the meantime, and as the Bill progresses, I am clear that both Houses must be treated equally regarding the proposed sifting arrangements under the Bill. In this respect, the Bill, as introduced to this House, only makes reference to the House of Commons in the relevant paragraphs of Schedule 7. The Government will therefore introduce amendments to incorporate equivalent references to the House of Lords where appropriate I hope I have explained to noble Lords the new proposed arrangement, so I will now turn to Amendment 237, tabled by the noble Lords, Lord Tyler and Lord Lisvane. Noble Lords will know that the sifting committees, as currently provided for in the Bill, cover only the main powers in the Bill, rather than any consequential and transitional provisions made under Clause 17 where the negative procedure is stipulated. Making such consequential provisions through SIs is already a standard approach in legislation—even in significant constitutional legislation, such as the Constitutional Reform and Governance Act 2010, the Scotland and Northern Ireland Acts and the Government of Wales Acts. We have already published a draft example of consequential provision that we will need to make under the Bill—the European Communities (Designation Orders) (Revocation) (EU Exit) Regulations 2018—but we intend to publish further such examples before Report. I hope these will reassure noble Lords that the negative procedure is being used appropriately. In relation to the comments of the noble Baroness about draft SIs, we intend to publish them where possible and appropriate. As I have mentioned—I will mention a few more—we have already published some illustrative drafts and will continue to do so to support the debate in this House The proposed powers of the SLSC, as the Bill stands, will not allow it to make the sort of binding decision proposed by noble Lords. We believe that this is consistent with how this House’s committees conduct their scrutiny work in other areas. Ultimately, it is up to both Houses to decide whether a Government are using appropriately the delegated powers Parliament has given them when they come to consider an SI. It is right for this House to consider these instruments in the light of the expert advice of its committees, but we do not believe that it would be right for those committees to make binding decisions about the use of delegated powers independent of the whole House. The amendment, as proposed, would also see the Government bound by a decision of the sifting committee of one House, even when the other disagrees, and only the recommending House would be able to reject the recommendation. Currently, no mechanism for the resolution of such disagreement is provided in the amendment The noble Lord, Lord Lisvane, mentioned the Legislative and Regulatory Reform Act, the Public Bodies Act and the Localism Act. All of those Acts combine a sifting mechanism with the form of the super-affirmative procedure. We do not believe that the super-affirmative procedures are suitable for the instruments to come, particularly given that they can take up to six months, but as I hope I have set out, we have taken steps to create a sifting process in the Bill I understand noble Lords’ concerns that, as Ministers are not bound to accept the committee’s recommendations, they may choose to exercise discretion; however, if both sifting committees were to reach the same—well-considered, no doubt—and persuasive recommendation, I assure your Lordships that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would of course need to be carefully considered on its merits. On the occasions—hopefully, very rare—when the Government did not agree to a recommendation to use the affirmative procedure, we would expect to justify fully our reasons to the committee concerned Furthermore, when the House chooses to delegate a scrutiny role to its committees—as is the case in other important policy areas—it is important for it to have confidence in the committee’s expertise and judgment to make a persuasive recommendation for the House to consider. I fear that making the committee’s recommendation binding, then building in an explicit provision to allow the House to reject such a decision, as the amendment seeks to do, could undermine the well-established confidence that the House has in its committee structure The amendment would also—unnecessarily, in my view—increase the sifting period from 10 to 15 days. As noble Lords have already said, we expect time to be in short supply as we prepare to exit the EU. As I have already stated, the changes to the SLSC’s powers, agreed to by the Procedure Committee, will seek to maximise the sub-committee’s ability to conduct its important scrutiny work within that 10-day period.