European Union (Withdrawal Agreement) Bill

Committee (1st Day) (Continued)

Clause 21: Main power in connection with Ireland/Northern Ireland Protocol

Amendment 12

12: Clause 21, page 25, line 5, leave out “(including modifying this Act)” Member’s explanatory statement This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”

In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

As the noble Baroness just said, there is a formidable recommendation from the Delegated Powers and Regulatory Reform Committee, on which I have had the great pleasure to serve but no longer do so—but I have the greatest respect for the work it does on behalf of the House. It needs to be said that the committee’s recommendations are made in completely stark terms. For example, at paragraph 21 the committee states:

“Even if the House accepts that there is a good reason for Clause 21 to allow regulations to modify the 2018 Act, the power should, in our view, be limited to the minimum necessary. We therefore recommend that the Bill should spell out the purposes for which the power is to be used rather than leaving the matter at large.”

It goes on to say:

“Clause 21 allows regulations under Section 8C to make any provision that could be made by an Act of Parliament, but without limiting that provision (in the way that section 8(7) of the 2018 Act currently does and new section 8B(5) would do) so that it cannot be used to: … impose or increase taxation or fees, … make retrospective provision, … create a relevant criminal offence (i.e. with a penalty exceeding 2 years imprisonment), … establish a public authority, … amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or … amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”

The committee concludes this section by saying:

“The Government have not justified the difference in approach as between Sections 8 and 8B of the 2018 Act (on the one hand) and Section 8C (on the other). The House may wish therefore to seek a justification from the Minister for this difference in approach.”

I acknowledge that last night the Minister did attempt a justification, but I think noble Lords will agree that it was inadequate.

The Constitution Committee of your Lordships’ House said this morning:

“We agree with the DPRRC that the powers in Clause 21 to modify the 2018 Act should be limited to the minimum necessary and that the purpose of the power should be made clear. The Government must justify the powers in new section 8C(1)–(2) and explain why they are not subject to the same limits as those in section 8 and new section 8B of the 2018 Act.”

Some Members of Your Lordships’ House may regard Clause 21 as a trivial departure from usual practice or they may try to pretend that, since it relates directly to Northern Ireland, with all the sensitivity that that implies, it is of no consequence more generally. However, nobody can deny that it would establish a very retrograde precedent. I am reminded of the authoritative warning of the noble Lord, Lord Anderson of Ipswich, referring to this clause yesterday: