European Union (Withdrawal Agreement) Bill — House of Lords, 2020-01-13
Topic: International Affairs
David Anderson (Crossbench, Unknown): My Lords, I will concentrate on the practical effects of this Bill for the sovereignty of Parliament. That principle is recognised in Clause 38 in rather defensive terms. It is said to "subsist notwithstanding" the mass of "directly applicable or directly effective EU law" that, by virtue of earlier clauses in the Bill, will continue to bind us during the transitional period. Yet Clause 38 misstates the threat. Parliamentary sovereignty is not endangered by a short and prudent continuation of the arrangements by which sovereignty was pooled in the interests of international influence—arrangements which Parliament itself endorsed in the European Communities Act 1972 and on many subsequent occasions. It is other features of the Bill, not referred to in Clause 38, that threaten the ability of Parliament to perform its proper role. I will refer to two in particular First, this version of the Bill sees the removal of parliamentary oversight of the negotiating mandate, the negotiations and the future relationship deal. Parliament will have a say only at the stage of ratification, by which time it will be up against a rapidly expiring deadline that will be extendable only if the Government so wish. This might have been fine when trade deals were about nothing more than tariffs and quotas, but the revised political declaration aspires to "an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation." In the previous version of the Bill, a minority Government offered Parliament a voice on how that goal is approached and how far it is achieved—a necessary voice, since not a person in this country will be unaffected by the future relationship, or by the failure to achieve it. Despite their large majority, this Government have chosen to cut Parliament out—a display of their power, but a dismissal of the consent on which that power ultimately depends Parliament is sidelined secondly by the inadequate controls on the numerous delegated powers for which the Bill provides. Some are constrained by the terms of the withdrawal agreement—as the Minister said in opening—but others are not. In the context of Northern Ireland, Clause 21 would allow even this Act to be amended by Ministers, without limitation as to purpose and without the usual exceptions for taxation, new criminal offences and so on. This is Henry VIII on steroids Statutory instruments made over the last 18 months have been associated by the Hansard Society and the Public Law Project with a worryingly large number of errors and procedural irregularities. These problematic results are described in an article of 9 January on the UK CLA blog. Effective parliamentary control of this regulation-making power requires greater use of the affirmative procedure and a sifting process of the type provided for in Schedule 7 to the 2018 Act, for the reasons so persuasively given by the Delegated Powers and Regulatory Reform Committee in its recent report Clause 26, which has been mentioned, presents concerns of a particular kind. Yes, we have decided to take back control of our laws, but this clause is so broad as to suggest that no one has quite decided how to do it, and that all options—including, frankly, some alarming ones—are to be left on the table. Sir Bob Neill, in the other place on 8 January, spelled out the possible consequences of this clause for legal certainty, certainty of policy and the system of binding precedent. Like him, and the noble Lord, Lord Pannick, whose amendment I have signed, I am troubled by a provision that allows Parliament to be bypassed and Ministers trusted with a power that was previously thought appropriate only for the Supreme Court Revolutions are said to devour their own children. The original proponents of Brexit, who rode out under the banner of "Our Parliament and Our Courts", sometimes seem to have little faith in either. But constructive scrutiny, received in a constructive spirit, makes for stronger and more accountable government. I hope that all parts of the House, when looking at this Bill, will not lose sight of that.