The purpose of this Bill is to provide the legal mechanism to ensure that if we leave the European Union, we do so without leaving a huge hole in our law. However, we are having to consider it when we have no idea of what our future relationship with the rest of Europe will be and we have a Cabinet that cannot agree on what that relationship should be. Moreover, the Bill as drafted is incapable of carrying out its purpose without leaving a mess of legal uncertainty for the courts to sort out, without giving sweeping powers to Ministers, without undermining the sovereignty of Parliament and without undermining the devolution settlement, the Good Friday agreement and the future integrity of the United Kingdom. All that is in addition to the damage that Brexit will do to the UK economy and to European common endeavour on issues such as security, judicial co-operation and the environment. That is also in addition to the damage that leaving the customs union and the single market will do to my own region, the north-east of England, with its strengths in the motor industry, train building, pharmaceuticals, agriculture and its universities.
As this process staggers on, the demand for the eventual terms to be put to the British people will grow. In the meantime, however, let us get the Bill right; let us try to make sure that it does not further embed undemocratic practices, ambiguous laws and overcentralised government.
My priorities for the task are those of the Constitution Committee, on which I have the honour to serve in the company of some of the most expert and diligent Members of this House. There is a very convenient set of potted biographies of us all in Monday’s Daily Mail, in which we are named not as “enemies of the people” but as “The peers trying to slam the brakes on Brexit”. In this task, however, that is not what we are doing: we are trying to fix the steering and get the Bill through its MOT test.
We should first be getting the task of the courts manageable and the sovereignty of Parliament clearer by treating retained European law as primary legislation. Why a Brexit Government want to confuse the issue by retaining the concept of the supremacy of EU law in the Bill puzzles me.
Secondly, we must secure effective parliamentary control over the mass of delegated legislation which will flow from this Bill, by more narrowly defining its scope and by giving the House the power to determine, not merely to advise on, what level of scrutiny it requires. This is not just about Henry VIII powers. It extends to other statutory instruments, which can, for instance, set up new public bodies. Such an instrument would not be open to amendment, so the House could be presented with a new health or environment regulator and be unable to insist that it was more independent or had a better defined remit.
My third objective is to see that Clause 11 is amended so that it conforms to the devolution settlement. As drafted, the Bill allows the UK Government to hold on to powers which should be passing directly to the devolved Governments. There may indeed be a need for common frameworks in some fields, but as it stands these would not be discussed on an equal basis. UK Ministers could say, “We will devolve the powers, but only if you accept our view on what the common framework should include”. The power of UK Ministers to change the content of legislation previously enacted by devolved Parliaments is an offence against the principles of devolution. I have no idea why Ministers have not so far delivered on their promise to amend this clause, but we need to see whether what they propose is adequate and whether they have got the message that this House has delivered loud and clear.
Finally, I remain puzzled—or should I say mistrustful —about the position of Brexit hardliners. They say that they want to bring power back to this Parliament—this sovereign Parliament. This sovereign Parliament, however, is entitled to insist that Brexit, if it happens, does not become an accretion of power by Ministers without adequate parliamentary control. Furthermore, this sovereign Parliament is entitled, if it chooses, to insist that if we do leave the European Union we nevertheless seek to remain in the customs union and the single market, for the sake of British business and British jobs. Moreover, this sovereign Parliament, once the terms of any British exit are known and the reality of it becomes clear, is entitled—if it wants to—to seek the opinion of the British people as to whether this is what they want.
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