22: Clause 14, page 8, line 22, leave out subsection (4)
Member’s explanatory statement
This is part of a series of amendments based on recommendations from the Delegated Powers and Regulatory Reform Committee which states that a number of subsections in the Bill “contain inappropriate delegations of power and should be removed from the Bill.”
My Lords, this is a very short group. I will be quick, because to some extent the case has been made—well, the arguments have been presented. I believe that the case has been made; the Advocate-General might consider it not proven, however, for the Scottish reference.
This is another area where it would be helpful if the Government could give some examples of where they seek these very broad powers. The Delegated Powers and Regulatory Reform Committee again has stressed that what is to replace the protocol has not been determined yet because the underlying policy has not been formulated. This is an opportunity to provide some examples and to say why, if there is the defence of necessity, it extends to this clause. I simply do not understand.
If Article 13 of the protocol is to be an excluded provision, it would also be helpful to know the mechanism to supersede it if the Government secure an agreement, or indeed any subsequent agreement, because that is a necessary element within Article 13 that would be removed.
The final point I want to ask concerns Clause 14(3)(a) and (b). I do not know what powers the Government envisage will be necessary to manage the red lane—the EU lane—because that is presumably under EU laws and procedures, and obviously not under a dynamic mechanism. I do not know how the Government envisage the responsibility of managing that process under the EU rules.
My query about paragraph (b) is that I fear that considerable doubt will be raised over how the EU position in the single market will be able to be considered by Northern Ireland Ministers, of whatever Administration. I do not know what the consequences of paragraphs (a) and (b) will be. As I understand the Bill—the noble and learned Lord, Lord Judge, might know if he has had an opportunity to look at this—regulations made under Clause 13(5) could reverse primary legislation that has been removed in Clause 14. We could be in a position where regulations can reverse elements in another clause of the Bill. I think the Government are tripping over themselves.
Lord Judge (CB)
I shall not help the noble Lord, Lord Purvis, out, but I will say that the next time we come to this Bill, I think we will find that Clause 22 is the most devastating of all the Henry VIII powers. As to this amendment, I hope the Committee will excuse me if I do not keep repeating what I have said and would go on saying. I thought of giving the Minister a sheet of paper for him to write on, but then I thought I had better take it away as he might keep it and write on it. That is my point.
I rise to speak to Amendment 22 and, indeed, all the other amendments. I am conscious that this amendment and others like it have been developed in response to concerns raised by the Delegated Powers and Regulatory Reform Committee’s report and, as such, are informed by growing concern about the Executive’s use of delegated legislation. In the context of the legislative challenges posed by Brexit and Covid-19, there has been increased use of delegated powers, which has concerned the Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee and given rise to two important reports, Democracy Denied? and Government by Diktat.
The basic thesis of these reports is that there is a growing democratic deficit arising from the fact that delegated legislation does not afford the same opportunity as primary legislation for parliamentarians to scrutinise its development. The point is not that the delegated legislation is always wrong but that to avoid creating a democratic deficit, wherein the representatives of the people in the legislature are afforded less opportunity to shape legislation than in primary legislation, the use of delegated legislation must be limited.
As a democrat, I applaud this general approach and believe it is imperative in a functioning democracy that the opportunities for people to shape legislation through their parliamentarians in the legislature are maximised. Of course, there are ways in which a democratic deficit has been felt in our politics other than overreliance on delegated decision. In truth, the reason we are considering the Bill at all is the concern about the democratic deficit at the heart of the EU project, which was undoubtedly one of the key drivers of Brexit.
Brexit has been applied in England, Scotland and Wales with the effect that the democratic deficit arising from EU membership has been fixed in those parts of the United Kingdom. Laws are now made for Great Britain by Great Britain, but the democratic deficit in Northern Ireland has not been fixed. It has not been alleviated, it has not even been left untouched and it has not been allowed simply to deteriorate. The underlying difficulties have instead been allowed to become total, such that rather than amounting to a widening of the deficit—a democratic shortfall—that shortfall has been replaced by something much more radical: the complete negation of democracy in relation to the development of 300 areas of law to which we are subject.
My Lords, many of us are worried about the powers to regulate, but it is not just about democracy. I have time for the concerns expressed in the email that was just read out—of course I do. I just point out, however, that the situation that we are in that is so objectionable to the noble Lord’s colleague in Northern Ireland came about because of the actions, decisions and agreements made by their elected Government. Sometimes that is how it works, too. The problem that I have with the powers is not just the issues that we have heard expressed extremely well by those far more qualified to do so than I am; it is that we do not know what Ministers intend to do with those powers. There is a circumstance in which the gentleman who wrote the email might find himself doubly aggrieved, because we do not yet know what it is that Ministers will do to resolve the problem that the noble Lord has, or whether the actions of the Government in the future would actually be ones that would satisfy that grievance. That is where I am coming from. It is because there is a lack of clarity, and uncertainty; there is an option to negotiate that is not being taken. I am now repeating myself, and using yet another set of clauses to make exactly the same general points.
I am not going to repeat what has already been said, but I want to make a wider point about the approach to law-making that the Government are getting increasingly fond of. We see some extreme examples of it in this Bill. The noble Lord, Lord Purvis, when he introduced this set of amendments, said that he could not actually be clear about how Clause 14 would be used by the Government, because, in the words of the DPRRC, the memorandum has so little to say about this broadly worded power. Nothing is said about the sort of provision that could be made under it.
Clause 14 tells us—in case we did not know—that overriding parts of the protocol is going to require a whole host of consequential changes elsewhere, and that is what I will talk about this time when we are talking about powers. We have been here before. Noble Lords will remember that as we approached the end of the transition period, departments rushed to make various changes to the operability of retained EU law. In a worryingly high number of cases during that process, as I remember, the Government made mistakes and further, correcting regulations then needed to be brought forward. This exercise is no simpler than that. If anything—because this Bill is highly contentious and because of the wider context—it is even more complicated than that previous exercise.
My Lords, I thank all noble Lords who have participated in this debate, which was short because, as the noble Lord, Lord Purvis of Tweed, recognised in introducing it, much of the material has been covered before. Noble Lords will, I hope, forgive me if, brevitatis causa, I do not go over all the arguments already deployed and will accept, that, because they have not been deployed, we understand where they apply in the context of this clause, and will bear them in mind when considering our responses.
Amendment 22, in the name of the noble Lord, Lord Purvis, removes the power in Clause 14(4). Clause 14 prevents those necessarily more broad and conceptual provisions from being relied upon, in the different legal context that will prevail under the Bill, to undermine the legal regime that the Government are putting in place for traders. The power in Clause 14(4) is important because it will allow Ministers to ensure, subject to the appropriate parliamentary scrutiny, that the exclusions made under the Bill are coherent. It may, for example, be necessary to make alternative provision where any other provision of the withdrawal agreement or protocol so far as it applies or relates to those exclusions is excluded. It could also be used to provide clarity as to how the horizontal exclusions referred to in Clause 14(1) interact with other exclusions in domestic law.
The noble Lord, Lord Purvis, and the noble Baroness, Lady Chapman of Darlington, sought examples of how it would work out in practice. I ask the Committee to bear in mind that the position in which we are at present is one of anticipation of what will be required in relation to a dynamic situation.
The powers to make secondary legislation allow us to flesh out the precise technical or administrative details of the new regime. The powers also need to be broad to ensure that the Bill can address issues that will arise in future as EU rules continue to change. The Government submit that the powers are both necessary for the legislation to be operable and have been appropriately limited prior to their implementation. As I said earlier, I do hear the criticism in relation to breadth offered by various noble Lords in the debate today and at other stages.
My Lords, I am grateful to the Advocate-General and I will be brief. I welcome his offer to write to the noble Baroness and those who have taken part in the Committee. The extremely pertinent question that was asked about the Government’s estimate of the number of regulations under the Bill that may be necessary to bring about a new regime is really important, so it would be helpful if the Minister could include it in his response.
I found it very interesting when he said that part of the reason these powers needed to be so extensive was that they needed to be sufficiently flexible for the Government to bring forward regulations when the EU changes its rules. I do not know how that brings about a response to the democratic deficit. Under the dual regulatory regime that will be put in place, we will be in the almost farcical situation that whenever the EU changes any of its rules, Ministers will bring to this Chamber negative instruments that will then be nodded through. There may be a fig leaf because it has the Crown on top of it, but it is not necessarily meaningfully different as far as people having an input.
My final element is perhaps for the correspondent of the noble Lord, Lord Browne. I understand and appreciate the frustration, and perhaps our considerations in Committee are long and tedious, but I have the liberty of putting forward amendments. They may frustrate or bore Ministers, but I am lucky to have that liberty. We cannot do that with statutory instruments, which are unamendable, so we do not have the opportunity to ask questions, tease out, challenge and maybe get concessions or further clarifications. If that is the case for framing an entire new system, that is really problematic.
However, on the basis of the Minister’s welcome commitment to write, in the meantime I beg leave to withdraw.
24: Clause 15, page 9, line 1, leave out subsection (2)
Member’s explanatory statement
This amendment would remove the Minister’s power to treat as excluded provision for a permitted purpose any provision of the Northern Ireland Protocol or any related provision of the EU Withdrawal Agreement.
This is a variation on a theme, but this one goes even further—I can be even briefer. The DPRRC reserved its most withering comment for Clause 15. I quote from paragraph 56 of its report:
“Clause 15 contains a power of the sort we rarely see—a power that in essence allows Ministers to rip up and rewrite an Act of Parliament”
and then to retain powers, if any of those new primary legislative functions are, in the Minister’s view, not operating as they should, not to return to Parliament for new primary legislation but to bring forward further regulations. This also completely rips up the entire concept of post-legislative scrutiny, whereby we learn from elements and seek amendments. This is important because, under Article 15(3), three areas of the protocol are not excluded but all the others are, including processes in a joint procedure of dispute resolution, monitoring, evaluation, classification of goods and joint mechanisms designed to be under a process. If it fails, there are mechanisms under Article 16 for safeguarding and rebalancing mechanisms. These are all gone and we do not know what will be in their place.
I understand the arguments presented that anything will be better than what there is at the moment, which is one of the themes. We just cannot be sure, however, because there is nothing in here that offers that reassurance. The breadth of this power, which provides the ability to make primary legislation and then to effect primary legislation again, is really egregious. On that basis, I beg to move.
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If the Advocate-General is responding to this, can he give some examples of these areas? That would go some way towards reassuring the Delegated Powers and Regulatory Reform Committee and me. I beg to move.
The protocol that Parliament imposed on Northern Ireland against the clear wishes of its unionist representatives was one that, rather than addressing the principal difficulty with EU membership for anyone raised in the Westminster political tradition, has made it infinitely worse. In this context, the significance of Amendment 22—and, indeed, all the amendments debated tonight—is that it introduces not a regulation-making power that is part of a process that represents a step backwards, but one that is a step forward.
Finally, to unpack this problem, rather than using my words, I will use some very powerful words of a man living in Northern Ireland who wrote to my noble friend Lord Morrow, who unfortunately is unable to be in his place tonight due to a family illness. This man expressed his dismay at the actions of some parliamentarians from outside Northern Ireland towards our problems. I will be quick and quote just a few passages from his letter.
He writes: “I am deeply concerned about the approach adopted by some Peers who are seeking to remove the regulation-making powers from the Northern Ireland protocol rendering it ineffective.” He goes on, very powerfully, “Anyone who does not understand what a significant, democratic step forward that will be for us in Northern Ireland is completely detached from the reality in which we live and clearly has no idea what it feels like to have your votes slashed, as ours have been. I find it shocking that some Peers seem so absorbed in their Westminster bubble battle against delegated legislation, supposedly in the name of concern for democracy, that they should have completely lost their sense of perspective such that they cannot see how inappropriate it is to oppose these regulations in the name of opposing a democratic deficit. If they wanted to have a fight about delegated legislation out of regard for a concern for democracy, this was the last context in which to do so. It is so striking that the democratically elected House did not pick this fight on this. I would urge you to call Peers to recognise how these regulation-making powers will help restore some much-needed parliamentary democracy in places where it has been completely taken from us and help restore what was promised in the Belfast agreement, namely our right ‘to pursue democratically national and political aspirations’. That right has been taken from us in the 300 areas of lawmaking. These regulation-making powers represent a first step in their restoration. Rather than opposing them in the name of democracy, Peers should examine these powers in context and celebrate them for what they are, a critical step in restoring democracy to Northern Ireland.”
By all means, declare war on regulation-making powers that reduce democratic scrutiny but, please, do not declare war on these regulation-making powers, which take a first, crucial step in its restoration.
We need to be mindful of how these things are going to work in practice. If the Government get their Bill, how is this really going to work? Have they actually considered this? Given the difficulties that the Government had with revoking things such as the duty to post reports to the European Commission, how confident can we really be that an as yet unclear policy direction can even be delivered in a way that is in any sense timely and accurate? That really will matter to the correspondent of the noble Lord opposite. What I am saying is, putting aside my dislike for the Bill, this is not a good way for us to be making law or for the Government to put their policy into practice.
Just imagine that this Clause 14 is available to Ministers —and I hope this does not happen, but suppose it did—can we have some kind of indication from the Minister of how long this process is going to take? How many SIs does he think are going to be needed; how will the Government sequence this workload? The lack of planning around some of this in previous endeavours has really caused problems, and we do not want to be in that place again. I still think this is a bad Bill in principle, but I am afraid that its implementation is likely to render it completely unworkable in practice.
The noble Lord, Lord Browne of Belmont, made points reminding the Committee of the context in which the Government bring forward this legislation, and I am grateful to him for his qualified support. The points he made were no less powerful for having been made before, in the course of various debates we have had at earlier stages.
The noble Baroness, Lady Chapman of Darlington, from the Opposition Front Bench, refers to the way in which more and more laws appear to be being cast in this fashion, with more and more use of delegated powers. I invite the Committee to consider that, in the case of this Bill, the Government are seeking to legislate in such a vital area, as the noble Lord, Lord Browne of Belmont, reminds us.
The noble Baroness speaking from the Opposition Front Bench posed a number of technical questions. The questions she posed perhaps require an answer in more detail than I am able to give from the Dispatch Box, and perhaps than would be desirable to the whole Committee—but, if she will grant me forbearance, I will write to her.
I have not yet addressed the question of Clause 14 standing part of the Bill. It will support the coherent functioning of the Bill. It is important to ensure clarity in relation to the interaction between excluded provision and any wider provisions in the protocol or withdrawal agreement to which such provision relates. Subsection (1) gives effect to this by confirming that any provision of the protocol or withdrawal agreement is excluded provision to the extent that it would apply in relation to any other excluded provision. Subsections (2) and (3) set out further the kind of ancillary provision that may be excluded.
I discussed subsection (4) in addressing the amendment proposed by the noble Lord, Lord Purvis of Tweed, but I provide further assurance that the Bill seeks to establish a coherent domestic regime and that regulations can be made under it in connection with any provision of the protocol or withdrawal agreement to which this clause relates. The Government’s position is that the clause is important to insulate fully any excluded provision from being subject to obligations arising from other provisions of the protocol and withdrawal agreement.
I think I am following the mood of the Committee by not expressing myself in as much detail as my noble predecessor, my noble friend Lord Ahmad of Wimbledon —or Wimbledon of Ahmad, as he was prepared to style himself earlier—dealt in, but the Committee as a whole will recognise that this provision is tied up with its predecessor.
I hope that, at least at this stage, I have said enough to persuade noble Lords not to press their amendments.