My Lords, it is no exaggeration to say that if the Bill before us is enacted without significant amendment, it will represent the largest single peacetime transfer of power from Parliament to the Executive. By comparison, the 1972 Act was a model of restraint.
This is not what we were led to believe in the referendum campaign by the use of phrases such as “parliamentary sovereignty” coupled with “taking back control”.
The leave/remain and soft/hard/no deal no doubt continues unabated, but that is not where criticism of the Bill should lie. The Constitution Committee has done an excellent job on the Bill. In passing, I gently observe, in the distinguished presence of the chairman of the committee, that some of its recommendations are a little less exacting than those of the Delegated Powers Committee, of which I am a member and which I expect to produce another report in time for the start of Committee.
The issue here is parliamentary sovereignty in the making of law, which the Bill challenges and will constrain—and, not least in the power to make tertiary legislation, not only constrain but extinguish. No one doubts that flexibility and speed will be needed to adapt our legal order to life after Brexit, but it cannot be at the expense of the power of Parliament to scrutinise and decide.
As one or two noble Lords have alluded to, it is worth remembering that once extensive ministerial powers are on the statute book, they can be used by any Minister of the Crown. Her Majesty’s present Ministers may not welcome the thought, but were the powers they now propose to be in the hands of an Administration of a different political colour, I fancy there would be a great deal of traffic down the legislative road to Damascus. It is important to keep in mind that assurances about how powers are intended to be used are of limited value. The only thing that matters is what is on the statute book.
The Bill will, no doubt, be heavily amended by your Lordships’ House. Issues of real concern include the looming presence of a largely unconstrained Henry VIII. Although Henry VIII has become a convenient shorthand for the exercise of ministerial powers which erode parliamentary sovereignty, the dangers of the other delegated powers in the Bill are just as serious. I pay tribute to the speech of my noble friend Lord Wilson of Dinton. There is the Bill’s substitution of ministerial judgment of what is “appropriate” for what is “necessary”, allowing major changes of policy to be made under a power intended, we are told, to make purely technical adjustments to the repatriated legal order.
There is the ability of Ministers to confer on bodies and even individuals the power to make law—tertiary legislation—without the approval of Parliament or even the requirement to publish that law. There is the fact that the superficially reassuring sunsetting provisions do not apply to substantial areas of ministerial power. There is the ability of Ministers, not Parliament, to decide the level of parliamentary approval required for the exercise of many of their delegated powers. There is the ability to impose taxation by statutory instrument, not primary legislation.
The mechanics of approving a final deal will no doubt be an issue, despite the extreme difficulties of timing involved, alluded to by the noble Lord, Lord Hamilton of Epsom. In a parliamentary system of government, I am no friend of referendums, and I recall Attlee’s excoriating criticism of them, which was quoted by Margaret Thatcher, as the noble Lord, Lord Patten of Barnes, recalled. I am genuinely torn. I have sympathy with the noble Lord, Lord Adonis,
in not understanding why, when it is all right to ask the people once, it is not all right to ask them again—not the same question, of course, but to see whether they are content with what has been achieved in their name.
Indulge me for a moment, my Lords. It is as though I have three elderly and extremely nervous aunts of whom I am very fond. I decide to give them a treat and ask them to discuss what they would like to do. They have a discussion and arrive at a democratic solution, which is that they would like to go to the cinema tomorrow. I look in the local paper and discover that the only films on offer are “Reservoir Dogs” and “The Texas Chainsaw Massacre”. What am I going to say to my highly nervous—indeed, squeamish—but much-loved aunts: “You must stick with your democratic decision”? Or do I say, “Now you know what’s on offer, what do you think?”?
Of course, on all these matters, in the end, the elected House must have its way. That is a given, but I would not be surprised, especially in the context of the numbers in the Commons, to see extended exchanges between the two Houses. After all, it was not that long ago that the then Corporate Manslaughter and Corporate Homicide Bill went back and forth between the two Houses seven times. That was an important issue, but it was nothing like as important as the issues now before us. Some argue against any criticism or amendment of this Bill on the grounds that if the Bill were not enacted there would be legal chaos. That is a naive and slightly condescending argument. We all know there need to be mechanisms to move us towards a post-Brexit legal order and, suitably amended, this Bill would provide those mechanisms, but without doing profound damage to the authority of Parliament and its duty to act as a check on the Executive. Of course, there are those who see such criticism or amendment as an attempt to stop Brexit. It is not. It is about what we have after Brexit; it is about parliamentary sovereignty and the long-term constitutional settlement.
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