European Union (Withdrawal) Bill — House of Lords, 2018-03-19
Topic: Government Operations
John Kevin Sharkey (Liberal Democrats, Centre to centre-left): I declare my interest as chair of the Hansard Society, whose work on delegated legislation will be familiar to many noble Lords. I have three amendments in this group, to which the noble Lords, Lord Lisvane, Lord Norton, and Lord Lexden, my noble friend Lord Tyler and the noble Baroness, Lady Jay, have variously added their names, and I am very grateful for their support. Amendment 237A is an amendment to the sifting Amendment 237, which I wholeheartedly support. In particular, I support the fact that Amendment 237 removes ministerial discretion over whether to take any notice of the sifting committee’s recommendation to upgrade an SI to the affirmative procedure. Amendment 237A proposes a simple addition to Amendment 237. It gives the House the power to upgrade to the affirmative procedure even if the sifting committees have not. I do not imagine that this provision will be used frequently, but it would be wise to reserve the power for the House to take action if it felt that the sifting committees were making an error or if there was an uncertainty over their decision sufficient to warrant a full debate Amendment 239A proposes a more significant change to the currently available methods of dealing with affirmative SIs. In fact, the next group of amendments, Amendments 238, 239 and 248, also put forward new proposals for dealing with SIs generated by this Bill. Between the current group and the next, there are three SI procedure proposals for the House to consider. They are: a mechanism for sending back SIs to the Commons for reconsideration; an option to upgrade to super-affirmative; and an option to make affirmative SIs amendable. Here I will deal only with Amendment 239A, which is the reconsideration proposal. I will spend a few moments saying why I believe the change to our procedures is necessary for SIs used for withdrawal purposes The Government estimate that the Bill will generate between 800 and 1,000 SIs, and there are rival and much higher estimates. Of these 800 to 1,000 SIs foreseen by the Government, they estimate that 20% to 30% will fall into the affirmative resolution category as determined by the tests set out in the Bill. This is certainly an underestimate. It cannot take account of the sifting committee’s powers to upgrade negative procedure SIs to the affirmative procedure. This means that we will be presented with probably around 300 to 400 affirmative SI procedures from this Bill alone—all to be dealt with as rapidly as possible. This is an unprecedented situation, both in volume and timing. However, there is ample precedent for Parliament’s dealing with very wide delegated powers. Parliament has frequently insisted that a strengthened scrutiny procedure be inserted into Bills to control the use of such wide powers. There are currently 13 Acts of Parliament that contain such strengthened procedures, all of them inevitably slightly different The nature of the Bill before us and the unprecedented powers it delegates to Ministers and to others calls for a strengthened procedure to be incorporated into the Bill too. The question is: what kind? We have to balance the need for thorough scrutiny with the need to have a working statute book on exit day. The noble Lord, Lord Hodgson, and the noble Viscount, Lord Hailsham, will in a moment press the merits of the super-affirmative and amendable-affirmative routes. Amendment 239A proposes a power to send an affirmative procedure SI back, once only, to the Commons for reconsideration, with reasons if we so wish. The Commons will have 10 sitting days to confirm its approval. If it does, the SI is approved; if it does not, it is rejected. This is a classic "think again" procedure entirely in keeping with the normal relationship between the two Houses. Its one-time-only nature gives the Commons the final say At the moment, of course, we have the option of either accepting or rejecting an affirmative SI—a regret Motion has no practical effect—and there is a view that, under the current system, a consideration without explicit rejection can be read as equivalent to approval. That means that we either say yes or we use what has been described as the "nuclear option" of rejection. We have been very cautious about doing this. In fact, we have rejected affirmative SIs only on six occasions since 1950 and noble Lords will remember the constitutional tensions on the last occasion we did that: the rejection, or at least the non-approval, of the tax credit orders of 2015 Given the number of affirmative SIs that will come before us, and the delicate and sensitive areas they will inevitably deal with, it would be very difficult for us, and probably very unwise, to resort to the nuclear option with any frequency. In fact, with only two options open to us, our proper reluctance to reject SIs outright will almost certainly lead us to approve marginal cases, or cases about which we still retain serious reservations. That would be entirely unsatisfactory as to the quality of created law, and potentially damaging as to the balance of power between the Executive and Parliament. Better to do what we often do where doubt exists: ask the Commons to think again. That is what Amendment 239A proposes. The mechanism will not frustrate the will of the Commons—and, importantly, it will not act significantly to delay the progress of the necessary secondary legislation, as other proposals might. There is not a lot of time, as the Minister said, between Royal Assent and exit day, and I think that we all acknowledge the need to have a coherent and consistent statute book on that day Noble Lords may recall that in his report, commissioned by the Government after the House had declined to approve the tax credits order, the noble Lord, Lord Strathclyde, also recommended a reconsideration mechanism for SIs. He said: "I recommend the third option of creating a new process set out in statute, for the Lords to ask the Commons to think again about a statutory instrument. This would provide the government of the day with a degree of certainty, while maintaining for the House of Lords a simplicity of procedure in keeping with already established procedures for other forms of legislation. It would preserve and enhance the role of the House of Lords to scrutinise secondary legislation by providing for such legislation to be returned to the Commons. In the event of a further Commons vote to approve a statutory instrument, it would enable the Commons to play a decisive role" You had to read on into the small print to realise that the noble Lord, Lord Strathclyde, was proposing to substitute this reconsideration mechanism for our veto power to reject—and, of course, we rejected his package of proposals. Our amendment does the first part of what the noble Lord proposes, and for the reasons he sets out. It does not touch our power to reject at all. It simply creates for us an additional mechanism alongside acceptance and rejection, and I commend it to your Lordships.