European Union (Withdrawal) Bill — House of Lords, 2018-01-31
Topic: Government Operations
Francis Thomas Baring (Conservative, Centre-right): My Lords, I respect and support the principle of the Bill as a key piece of legislation which will repeal the European Communities Act 1972 but, at the same time, copy EU laws on to the UK statute book to ensure a smooth transition. At this stage, I am not going to rehearse the problems that many other noble Lords have identified with the Henry VIII powers, which are equivalent to the Statute of Proclamations of 1539, contained in Clauses 7 to 9 and Clause 17. Nor am I going to go into detail about my concerns with Clause 11 and the effect of the Bill on the devolved Administrations. I will only point out—as many other noble Lords have done—the criticism in the cross-party Constitution Committee’s recent report on these clauses, as well as the Hansard Society’s concerns I will instead focus on the Bill’s proposed use of legislation via statutory instruments, as has already been analysed by the noble and learned Lord, Lord Judge. As many noble Lords have stated, between 800 and 1,200 separate items will be made in this way, according to MPs in the other place. I welcome the sifting committee that has been proposed by the other place, but it needs to go further. At the moment, the Bill’s proposed way for parliamentary discussion of these items will be the automatic negative procedure. In this House, such items are put on the Order Paper and there are 40 days to pray against them—if this happens, they are then discussed on the Floor of the House. Of course, if noble Lords do not read the House’s business papers in detail every day, they will be blissfully unaware that secondary legislation is sailing through by default—especially on an Order Paper such as today’s, on which noble Lords may not have got as far as page 18. No negative procedure statutory instruments have been turned down in the other place for 38 years, and only 17 have been turned down since 1950 according to the noble and learned Lord, Lord Judge If, on the other hand, the proposed statutory instruments are to be discussed by way of an affirmative procedure, they will automatically be taken on the Floor of the House. This is much more satisfactory. To support my argument, I pray in aid the recent report of our Delegated Powers and Regulatory Reform Committee. Summary point 5 states: "In the absence of a convincing explanation to the contrary, the affirmative procedure should apply to Henry VIII powers under clauses 7 to 9 and 17 that allow Acts of Parliament to be amended or repealed" In summary point 6, the report continues: "Ministers should not have an unfettered choice to apply the negative or the affirmative procedure for statutory instruments under those clauses" As an alternative, the committee proposed a sifting mechanism and that all instruments should be laid in draft before Parliament, and that either the affirmative or negative procedure should be proposed. It recommends that where the Minister proposes an affirmative procedure it should apply, but suggests a different process where the Minister proposes a negative procedure. It states: "a parliamentary committee has 10 sitting days in which to recommend the affirmative procedure instead. If no such recommendation is made, the negative procedure applies" Finally, the committee believes: "Where the committee recommends the affirmative procedure, it applies unless the relevant House rejects the committee’s recommendation within a further period of five sitting days" Continuing in the same area, I highlight two more changes recommended by our Delegated Powers Committee. Summary point 3 says: "Regulations under clause 14 stipulating exit day(s) should be subject to the affirmative procedure" At the moment, exit days means such days as a Minister of the Crown shall appoint. This would be solely in the power of the Minister. Thus anyone passing this Bill must be prepared to be a spectator to what the transitional measures will be and how they will operate. This is not satisfactory. As an aside, my personal preference would be to stay in the single market and customs union at least for the transitional period The committee also criticises Schedule 4 with regard to taxation. The report says: "All regulations made under Schedule 4 which introduce or increase fees should be subject to the affirmative procedure" I agree I do not have the time to go into the Delegated Powers Committee’s concerns on sub-delegation powers leading to tertiary legislation, as set out in the UCL and Bingham Centre briefing on the Bill Like others, I ask the Minister whether he will put down amendments to satisfy the concerns of our Constitution and Delegated Powers committees. I feel that these are really necessary to make this a better Bill. Could he also answer my and many other noble Lords’ concerns on the devolved Administrations issue?