European Union (Withdrawal) Bill — House of Lords, 2018-03-07
Topic: Government Operations
Martin Callanan (Conservative, Centre-right): My Lords, I thank noble Lords very much for what has been an excellent debate. I use the word "debate" but only one point of view has been expressed and I have heard the message from all sides. However, I shall address the issues under consideration I say, first, to my noble friend Lord Cormack that he has put an intriguing thought into my mind. I will speak to my officials first thing tomorrow morning to find out where I, as a Minister of State, come in this list of 109—I suspect more towards the bottom than the top but we will find out. The noble Lord, Lord Wilson, asked me about the number of people who will be able to exercise this power without parliamentary scrutiny—a question that I suspect is almost impossible to answer. I think that the main issue is not the number of people but the number of limitations on the exercise of that power. The power is time limited and clearly limited in what it can be used for. It may only prevent, remedy or mitigate deficiencies in EU law, and of course secondary legislation is subject to well-established parliamentary procedures. Where legislative powers are sub-delegated to public authorities, this will always be subject to the affirmative procedure I am pleased to have the opportunity to revisit what is clearly a very important issue in the context of the Bill. The Government will place some additional draft examples of statutory instruments or parts thereof in the Library of the House. That is something that a number of noble Lords have asked for in meetings that I have had with them, so I will ensure that that happens—most likely tomorrow I have listened with interest to the many contributions today, and to the extensive contributions of the Constitution Committee, which I had the pleasure of speaking to this morning along with my colleague in the other place, the Solicitor-General. I have read the reports of that committee and of the Delegated Powers and Regulatory Reform Committee, which have very much helped to frame our thoughts on this issue As a number of noble Lords have said, both those reports go into great detail on the scope of the delegated powers. As many noble Lords will also be aware, they come out with quite different recommendations. As I said at Second Reading, we are approaching this matter in a spirit of collaboration. The Government are looking very closely at how the powers in the Bill are drawn and how they will be exercised, particularly in the light of the committee recommendations and developments in other pieces of legislation As the Constitution Committee notes, comparable arguments were made during the passage of the sanctions Bill through this House and a mutually agreeable position was found in that instance. That has clearly informed the committee’s recommendation and we are receptive to the arguments made in its report. I am confident that a mutually agreeable position will be found As I will explain in a moment, the Government do not see the DPRRC’s recommendation as workable. However, we would very much like to talk to noble Lords following the debate, with an eye to coming back to this issue on Report As noble Lords will appreciate, the situation that this Bill responds to is, quite simply, unprecedented. A vast amount of EU law is being transferred to our statute book, including thousands of EU regulations. As such, the programme of secondary legislation to ensure that this law operates effectively must match that. In the face of such a task, it has always been clear that the Government will need relatively broad delegated powers to deliver a functioning statute book. Indeed, the Constitution Committee outlined in its interim report that "relatively wide" delegated powers were inevitable. I understand that there are noble Lords who have had concerns about delegated powers for some time, and the Government are keen to continue listening to suggestions in order to improve those areas of the Bill. That listening process started during this Bill’s passage through the other place, where a number of changes were introduced to reduce the scope and increase the parliamentary scrutiny of the delegated powers. However, we cannot significantly restrict the scope of these powers, which, it is acknowledged, need to be broad Let me deal directly with the concerns raised by the noble Lord, Lord Wilson. Much of the concern about the delegated powers focuses on the use of "appropriate" to describe the discretion afforded to Ministers when making regulations to correct deficiencies. In case there is some misunderstanding here, let me be clear: "appropriate" in Clause 7 does not give Ministers unrestricted discretion to correct anything that they may wish or like. Corrections must not be appropriate per se; they must be appropriate to correct the particular deficiency they are addressing. The threshold for ministerial decisions is set firmly within the context of those purposes I appreciate that there is a degree of subjectivity to these tests—but that is true of almost all tests, and it is important to acknowledge that there are limitations on the power. Parliament polices the Government’s interpretation of its vires to act through the mechanism of the Joint Committee on Statutory Instruments, which I have no doubt will take a keen interest in instruments under this Bill; and ultimately, as a number of noble Lords have pointed out, these tests are litigable in the courts. So we cannot responsibly remove "appropriate" from the Bill I will now delve into the detail of the various different permutations of amendments seeking to restrict the scope of the delegated powers. The first amendments I would like to discuss are Amendments 201, 243 and 245, tabled by the noble Lord, Lord Bassam, which attempt to ensure that Ministers have considered that exercises of the main powers are made for good reasons and are reasonable courses of action. These match the Constitution Committee’s recommendation, and a smaller group were added to the Sanctions and Anti-Money Laundering Bill Amendments 74, 117 and 139, tabled by my noble friend Lord Hailsham, seek to write into the Bill that Ministers’ consideration of the appropriateness of any exercise of the delegated powers must be made on reasonable grounds. This is the right type of approach in not altering the fundamental scope of the powers.