My Lords, if I may just follow on from the noble Lord, Lord Lang, I often say that this House’s role is to be the guardian of the nation. To build on what the noble Lord, Lord Wilson, said, when we go back to the beginning of all this—the referendum—it was all about taking back control and sovereignty and not bypassing Parliament. What happened with Article 50? The Government tried to bypass Parliament. Now we have this withdrawal Bill, giving powers to make and amend law. As the noble Lord, Lord Wilson, said, there are over 100 Ministers, and it can be delegated to government departments—once again trying to bypass Parliament.
Under an earlier amendment, I quoted Dominic Grieve, a former Attorney-General, who recently said:
“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the
land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.
That is a former Attorney-General from the government party.
Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should,
“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.
We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots?
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The main point here is, as the noble Lord, Lord Lang, said, our constitution. It is not a written constitution; it is a very delicate constitution. It is like a silken thread, woven through centuries. That delicate constitution is based entirely on the balance between the Executive, the legislature and the judiciary. It is those three together; it is not as simple as saying, “These are simple things, we’ll just use Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but the substantive effect of the law. With these amendments, we are trying to protect our constitution and our democracy.
The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Does the Minister appreciate that? Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined.