European Union (Withdrawal Agreement) Bill — House of Lords, 2020-01-15
Topic: International Affairs
Sarah Ludford (Liberal Democrats, Centre to centre-left): My Lords, at the request of the noble Baroness, Lady Hayter, I will move Amendment 24, to which I am a co-signatory. I will also speak to Amendment 26 When the European Union (Withdrawal) Act 2018 was a Bill, our Constitution Committee—in an earlier report in September 2017—expressed great reservations about the exceptionally wide delegated powers in that Bill. In respect of what became Section 8, the Committee was not at all happy with the extensive powers to make such regulations as Ministers considered appropriate to deal with "any failure of retained EU law to operate effectively, or … any other deficiency in retained EU law" arising from withdrawal. The Committee was unhappy that this application of a subjective test to a broad term like "deficiency" made the reach of the provision potentially open-ended In the Explanatory Notes, the Government had said that "a failure means the law doesn’t operate effectively whereas deficiency covers a wider range of cases where it does not function appropriately or sensibly." That was why our Committee was worried about subjectivity. It was also concerned that it was going to be difficult to distinguish between powers necessary to make more technical changes to the existing body of EU law and anything that would creep into the area of new policies on matters that previously lay within the EU’s competence. It was afraid that, whatever assurances there were from the Government about intentions to limit their powers to technical matters, the Bill as drafted did not impose such a constraint. That was all to express the worry at the time of the Bill that became the European Union (Withdrawal) Act 2018 Now that we are two-and-a-bit years further on, our Constitution Committee—in the report it issued yesterday—has expressed further unhappiness at the Government’s wish in Clause 27 to amend Section 8 of the 2018 Act in order to expand the remit of correcting deficiencies. It is worried that "clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required." It reminds us that "Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill", as I earlier cited. It concludes: "Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill." That is the challenge to the Government: to explain why they need this further widening of the powers under Section 8 to correct so-called deficiencies The delegated powers memorandum says about the justification for taking the power: "These amendments are necessary to allow the power to function in the revised context of the implementation period." We were always going to have an implementation period. I simply do not understand this next sentence: "It was not possible to draft the power in this manner when the EU (Withdrawal) Act 2018 was passed, because that Act was drafted without prejudice to the outcome of the negotiations, and so could not take into account the prospect of a withdrawal agreement." We knew that there had to be a withdrawal agreement; Theresa May had reached a draft withdrawal agreement. I cannot now remember the date on which the 2018 Act became law—I have it here somewhere, but someone will remind me—but of course we knew there was going to be a withdrawal Act, so I do not understand that bit in the explanatory documents at all I remind noble Lords that Amendment 24 concerns the insertion proposed by Clause 27(2)(c) of the present Bill, where the Government would have power to correct deficiencies where the retained EU law is not clear in its effect as a result of the operation of any provision of Section 8 of the 2018 Act. The phrase "not clear in its effect as a result of the operation" gives the Government quite a wide scope for making regulations. As I say, that is on top of the already pretty wide powers under Section 8 of the 2018 Act. Amendment 26—I need to remind myself of its exact wording as I have too many papers in my hands—also addresses provisions to widen the scope for correcting deficiencies in a way that certainly worried the Constitution Committee and therefore worries me and colleagues, including the noble Baroness, Lady Hayter, if I may speak for her on this, who have signed the amendment. I would be grateful if the Minister could explain very clearly why this power is justified.