My Lords, this is the graveyard shift, but graveyard shift or not I shall speak also to Amendment 239. It is my first contribution in Committee on this Bill and when one finds one’s amendment sandwiched between ones being moved by such luminaries as the noble Lord, Lord Lisvane, and my noble friends Lord Norton of Louth and Lord Lexden, one needs to proceed with a certain degree of care. In these amendments I return to an issue I raised at Second Reading; namely, the weaknesses of the procedures for scrutinising secondary legislation, which the noble Lord, Lord Tyler, talked a great deal about very fluently in his contribution a few minutes ago. In my view, in the very special circumstances that prevail with respect to this country’s departure from the European Union, I was concerned that, maybe inadvertently, there could be what is vulgarly called a power grab by the Executive during this process of redrawing our relationship with the EU and refocusing our legal and regulatory structure on a UK-centric basis.
In part, these amendments may serve to address some of the issues, and concerns raised in earlier debates; notably by my noble friend Lady Neville-Rolfe in Amendments 249 to 251, which we were debating in the early hours of last Tuesday morning. As I say, my fundamental concern remains the weakness of our procedures for scrutinising secondary legislation. The noble Lord, Lord Sharkey, referred to what he graphically called the nuclear option, which is really the only option open to us. Not surprisingly, while Members of your Lordships’ House will finger the nuclear button—sometimes even lovingly finger the nuclear button—they have proved rather reluctant to press it. I am not a lawyer, nor am I an expert on parliamentary procedure,
so I need to place on record my great thanks to the Public Bill Office of your Lordships’ House for helping me give legal form to my practical objections. Therefore I do not pretend that Amendments 238 and 239 are perfect: they are of course at this stage probing amendments, not least because I expected that my noble friend the Leader of the House would have some words to say today about the evolving position of the scrutiny of Brexit secondary legislation.
None the less, the purpose behind my amendments is to give the Committee a chance to discuss a possible new procedure that might be described as a sub-nuclear option; a new super-affirmative procedure to be available for use where particularly significant statutory instruments are being discussed. In establishing this new procedure I have sought to achieve a balance between, on the one hand, the need of the Government to have a reasonable chance of getting their business through—as we have heard in earlier debates tonight, it would surely be irresponsible for us not to have the proper legal practice in place on D-day, therefore the Government need some protection against capricious behaviour—and on the other hand, to give either or both Houses of Parliament the means to require the Executive to think again, and to do so over a timescale that allows public and other opinion to be aroused, discerned and tested, thereby reducing the possibilities of mission creep.
Finally, the think-again option should be limited to regulations concerning this country’s withdrawal from the European Union, so it has an in-built sunset clause. My thinking has been informed, to some extent, by the time I served as a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House. So, with that, to horse!
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These two amendments are designed to provide, for this exercise only and not for general use, a special super-affirmative procedure. I anticipate it being used very sparingly but I equally argue that its very presence would serve as a warning to Ministers or officials who might be tempted to engage in an extension of the powers of the Executive. As laid out in Amendment 238, it applies only to instruments that are subject to the affirmative procedure under the provisions of the Bill. It requires under sub-paragraph (2) that the relevant Minister provides a memorandum explaining why the standard affirmative procedure should apply. That remains the default option. If no objections are raised, the normal affirmative procedure continues unaffected. But under sub-paragraph (3) either House of Parliament can require that the new super-affirmative procedure should apply, by means of sub-paragraph (4), by a request of any committee of either House which has responsibility for scrutinising and reporting on those statutory instruments that result from the UK leaving the European Union. The committee has 10 days to bring forward the request for the new procedure to apply. The relevant House then has five days within which to overrule the committee, for the reasons that the noble Lord, Lord Lisvane, pointed out—clearly, the committee is a committee of the House and the House can decide that the committee has exceeded its powers.
So much for the ways the procedure can be triggered or invoked. The procedure itself is explained in Amendment 239. First, the Minister must have regard to representations made by either House or by members of the public outside Parliament, during a 60-day period. I will come back to the 60-day period in a minute. If the Minister decides to press on with the regulations on an unchanged basis, he or she must give details of the representations that have been made to him or her; that is in sub-paragraph (3). Provided that both Houses approve, that is the end of the matter, under sub-paragraph (4). However, a committee of either House that scrutinises regulations may recommend, if it considers the ministerial response inadequate, that the regulation should not be proceeded with. Again, this decision is subject to being overruled by a resolution of the House in question; that is in sub-paragraphs (5) and (6). In sub-paragraph (7) the Minister has the chance to have a fresh bite of the cherry by revising the regulations, explaining the representations made and the consequent revisions that are proposed. If the Minister does so proceed, in sub-paragraphs (8), (9) and (10), the relevant scrutiny committee in turn has a second chance to consider whether the changes proposed adequately address the concerns made under the earlier representations. Once again, this decision is subject to the House being able to overrule its committee. That is the practical application of this proposed new procedure.
Before I close, I will address some of the criticisms that were made of these amendments inter alia in the briefing circulated by the Hansard Society. I do so against the general background of my earlier comments that I do not regard the amendments as being in any way the finished article. The first criticism is that, as drafted, the procedure will be available only for SIs subject to the affirmative procedure and not the negative procedure. The Hansard Society points out that the Legislative and Regulatory Reform Act, which first introduced the super-affirmative procedure, could be brought to bear on negative as well as affirmative resolutions. Obviously, that is true but I would not draw too close a comparison between the Legislative and Regulatory Reform Act and the European Union (Withdrawal) Bill as to scope, importance or timescale. Further, given that this new super-affirmative procedure is designed, at least in my view, for relatively rare use for regulations of high significance, these will almost certainly be predominantly, some might say exclusively, subject under current conditions to the normal affirmative procedure.
The second point made by the Hansard Society is that it is the Minister who decides and has the whip hand on whether the procedure should be used—yes, and no. Technically yes, given that the Minister provides the memorandum justifying the standard procedure but practically no, because the relevant committee of either House can raise objections and no doubt can be expected to do so loudly, forcefully and publicly.
Thirdly, the society says that the 60-day consultation period is too long in the circumstances of the Brexit timetable. That may well be right. I have no theological attachment to 60 days. All I believe is needed is enough time to marshal any evidence and opinion
which takes a contrary view to that of the Executive, or to discover that no such contrary evidence or opinion exists.
If I were expressing the strategic purpose of these amendments in military terms, I would describe them as another step in a graduated response; that is, a step between the built-in inflexibility of the existing scrutiny procedures of your Lordships’ House, on the one hand, and their complete rejection and destruction on the other. I beg to move.