European Union (Withdrawal) Bill — House of Lords, 2018-03-07
Topic: Government Operations
Ian Bruce Lang (Conservative, Centre-right): My Lords, I welcome the opportunity to speak to this group of amendments and support those spoken to by the noble Lord, Lord Wilson of Dinton. I congratulate him on how he exposed the ramifications that reach so far into our constitution. It saves me the task of trying to tackle it It is a shame that the House is not more fully attended tonight. That is nothing to do with my personal egotism—quite the reverse—but this is such an important subject; I am very glad that we have reached it in the Bill, and it deserves the closest of attention. I speak in support of Amendments 71 and 72, as well as Amendments 76, 77 and others in this group. In so doing, I am keen to focus less on the Brexit-related provisions than on the constitutional implications of granting Ministers special powers to undertake the Bill’s purpose, while not limiting and containing such powers and enhancing scrutiny of the resultant secondary legislation The amendments themselves rein in Ministers’ powers from when they are appropriate to only when they are necessary, and are very straightforward. In the case of the amendment yet to be spoken to by my noble friend Lord Hailsham, "essential" is injected into the proceedings as well, giving a threefold choice to your Lordships. However, it is a transparent illustration of why the amendments are needed. "Appropriate" is so bland, broad and subjective as to be almost meaningless, as has been said, and it gives the Minister excessive influence and discretion. "Necessary", by contrast, is more specific and requires justification—and I believe that the courts prefer to handle litigation over "necessary" than "appropriate", for reasons one can understand. Clause 7 is stuffed with powers that need to be addressed in this way. It is time limited to some extent by subsection (8). I welcome that, and I welcome in passing the concession on sifting granted by my noble friend the Leader of the House in her Second Reading speech. But the clause is one that cries out for tighter control and closer scrutiny The Constitution Committee reported extensively on the Bill in three volumes—a unique event—so the Government have known for a whole year of the concern that we expressed on such matters and have heard it often repeated since. I am no longer a member of the committee, but I plead guilty to being partly responsible for the first of those three reports. Again unusually, that report was published before even the White Paper was produced, let alone the Bill itself, a procedure that I rather recommend to Select Committees. It makes life very much easier and gives room for one’s imagination to fly. However, the essence of the report was to recognise that the massive task of legislative retrieval would need special powers for Ministers. The Government repeated that in their White Paper and quoted our report in support, but they rather cynically omitted and ignored the vital qualification that we had stressed that such new powers had to be accompanied by tighter controls and the safeguards that we recommended—explanatory memorandums, certification of statutory instruments by Ministers, strengthened scrutiny procedures and so on. I heard the comment that the noble Lord, Lord Wilson, made about the Constitution Committee’s recommendation as an alternative to "appropriate". I am glad to say, "Not me, guv"—I was off the committee by the time that report came out. Our recommendations were largely ignored in the first report, such that when the Bill appeared last autumn the Constitution Committee, then under the capable hands of the noble Baroness, Lady Taylor of Bolton, felt obliged to point out that, "the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency" Since then, there has been some progress, but not very much and not nearly enough The amendments in this group are not just a matter of trivial semantics; they are the granular embodiment in microcosm of a fundamental principle—namely, that one pillar of our democracy is the balance of power between the Executive and Parliament. This Bill, if unamended, would tilt that balance quite heavily towards the Executive. To do that would be to degrade what will be an historic Act in due course and jeopardise the rights of Parliament. These amendments and others to come are not about Brexit itself; Brexit is important and the Bill is vital to help us to secure that. I want it to pass into law and soon. But the amendments are about something every bit as important —who is going to guard the constitution if not this House Ministers want their legislation to get through quickly and painlessly; officials are loyal to their Ministers and fancy a quiet life. The other place has an interest, but one that is often secondary to political obligations of Members, and the pressure on them from other events. I hope that my noble friend is listening to this debate and that the Government will at last respond to the case being put to them and respond not just in this clause but throughout the Bill, right up to and including Clause 17, perhaps by reference to changes that they have already agreed to the Sanctions and Anti-Money Laundering Bill. Debate in Committee would then proceed just a little faster It falls to us in this House to guard the gate on behalf of Parliament and democracy and to uphold the role of the constitution in protecting both. If the balance between Parliament and the Executive is lost, the rule of law and our freedoms are at risk. The time when we take back control of our laws is not the time to allow the corrosion of our law-making process.