European Union (Withdrawal) Bill — House of Lords, 2018-04-25
Topic: Government Operations
Robert Rogers (Crossbench, Unknown): My Lords, in moving Amendment 31 I shall speak to the other three amendments in the group, which are to the same purpose and are also all tabled in the names of the noble Lords, Lord Tyler and Lord Cormack, and the noble and learned Lord, Lord Goldsmith. The first point to make is that the powers to make regulations proposed to be given to Ministers in Clause 7 and Clause 8—although I am glad to say that Clause 8 is to be removed from the Bill—and Clauses 9 and 17 are heavyweight. With the exception of the matters listed in Clause 7(7), which are to be modestly extended by government amendment, regulations can do anything that an Act of Parliament can do—including, of course, the wholesale amendment or repeal of statutes that have passed through the far more exacting process of primary legislation I am grateful to the Minister and his officials for their generosity with their time and explanations, and I know that I speak for other noble Lords—but on this issue I do not think that our points of view have come significantly closer. I see that the Minister is kindly indicating confirmation of that. On Report I must not hark back too readily to what occurred in Committee, but it is worth recalling that when an identical amendment was moved compellingly by my noble friend Lord Wilson of Dinton, out of the 16 noble Lords who contributed to the debate, the only noble Lord who spoke against the amendment was the Minister There have been several rounds of detailed exchange between the Government and the Delegated Powers Committee, of which I am a member, and the committee has reported on these issues in its 12th, 20th and 23rd reports. I will spare noble Lords a detailed recapitulation. The issue is this: if a Minister may exercise these powers when he or she thinks it appropriate, I suggest that this subjective test is inadequate. These amendments would not simply replace the word "appropriate" with "necessary"; they would also remove the words, "the Minister considers", so that we would be left with a statement of objective necessity. The Government have argued strongly that this amendment would unduly constrain Ministers so that they might not be able to do things that needed to be done because they would not be confident of being able to demonstrate necessity. I accept that "necessary" is a high bar—but "appropriate" is a bar so low that it would challenge even the most lithe and determined limbo dancer The Government have sought to make the use of "appropriate" more acceptable by requiring Ministers to give "good reasons" and show that they are pursuing a "reasonable course of action" via government Amendment 83C. But this does not cure the problem. The good reasons and the reasonableness of a course of action are still only in the opinion of Ministers. In its 23rd report, the Delegated Powers Committee points out: "The requirement to state good reasons is a very low threshold. We would always expect Ministers to have good reasons before doing anything, and certainly when making new law in secondary legislation" The committee goes on to say: "It does not advance matters for Ministers to commit to lay a document that merely confirms their belief that they are acting lawfully" Finally, the committee said: "The test for political decision-making is not simply whether there are good reasons. There may be good reasons for doing something and better reasons for not doing it" There is also the point that under paragraph 22(6) of Schedule 7, if a Minister "fails to make a statement" of good reasons, he or she has only to "make a statement explaining" why this has not been done—so, not a high threshold, then I have heard it said that, were your Lordships to agree to the amendments in this group, it would make the Bill unworkable. It is of course a practice of very long standing to describe the likely results of unwelcome amendments in apocalyptic terms, up to and including the onset of plague and asteroid strike. However, in this case the problem is easily cured. Clause 7 contains a lengthy definition of what constitutes or does not constitute a deficiency in EU retained law. Indeed, the definition runs to 39 lines. With this example before us, it would be a relatively simple matter to gloss "necessary" in order to include the things that Ministers may indeed need to do For example, they may want to avoid unnecessary public expenditure, ensure that there is no inert or irrelevant material on the statute book or avoid legal uncertainty, as the Delegated Powers Committee suggested. I would be both surprised and disappointed if parliamentary counsel were not able to draft a form of words so that the common sense things that Ministers will need to do as part of the repatriation process fall—and are clearly seen by Ministers, Parliament and the courts to fall—within the definition of "necessary".