My Lords, the amendments in this group concern the Henry VIII powers in the Bill. Without going into the details of the drafting of my amendments, because they hang together, I make one central point. It is my contention that, given the breadth of the powers as they currently appear in the Bill, the only Henry VIII powers enabling the Secretary of State to make regulations amending, repealing or revoking primary legislation or EU retained law should be those that are limited to consequential,
supplementary, incidental, transitional, transitory or saving provisions. That is quite a wide category for these powers in any case. If when the Bill comes back on Report the Government have changed their position, and the Henry VIII powers in the Bill are limited to those which they can justify in accordance with what I might call a conventional approach to permitting secondary legislation to amend, revoke or modify limited categories of primary legislation, we may change our position.
For the moment, however, we stand by the position taken by the Delegated Powers Committee, which described the Henry VIII powers in the Bill in trenchant terms:
“The Bill contains a Henry VIII power to amend or repeal any Act of Parliament ever passed”.
The power may be used for the purposes in Clause 5(3), but those powers are no narrower than the purposes of the Bill as a whole:
“Regulations under section 2 may amend, repeal or revoke primary legislation (a) for the purpose of conferring functions on the Secretary of State or on any other person (including conferring a discretion); (b) to give effect to a healthcare agreement”.
These purposes are scarcely narrower, and to describe them as limiting is to misuse the English language. The committee pointed out that the Minister does not give any indication of what primary legislation might in future need to be amended. She said that there may be a need to confer functions on healthcare bodies at some stage in future, to which the committee’s robust and, I suggest, accurate response was that the time to confer functions on such bodies is when those bodies are created.
We should all remember why such powers are called Henry VIII powers. Their name is a reference to the Statute of Proclamations of 1539, which effectively enabled the Crown to govern by decree, ordering that proclamations should be obeyed as though they were made by Act of Parliament. Writing in the 18th century in his Commentaries on the Laws of England, Sir William Blackstone—after whom the great human rights set of chambers of which the noble Lord, Lord Pannick, is a member is named—described the Act as a statute,
“calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed”.
Those words are as true now as they ever were.
I suggest that when it comes to primary EU retained law, the principles are the same. The Constitution Committee report draws attention to the distinction specifically drawn in Section 7 of the EU withdrawal Act between retained direct principal EU legislation and retained direct minor legislation, on which less stringent conditions are imposed for its modification. In this Bill, the Government have simply ignored the distinction.
The Constitution Committee said:
“One of the purposes of drawing this distinction was to make it possible for subsequent Acts of Parliament to afford greater protection to retained direct principal legislation, such as by requiring delegated powers that amend it to be subject to the affirmative procedure”.
It continued, in bold:
“We recommend that clause 5 be amended to reflect the distinction drawn in the European Union (Withdrawal) Act 2018 between principal and minor retained direct EU legislation”.
The report drew attention to the fact that the committee had made the same recommendation in its report on the Trade Bill and that the Government, in their response to that report, had accepted it. It went on:
“We recommend that the Government ensures that all future bills that provide for the amendment or repeal of retained EU law include the distinction between principal and minor retained direct EU legislation”.
First, why have the Government not accepted the committee’s recommendation on this occasion, and, secondly, will the Government commit to complying with the committee’s general recommendation in the future?
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I agree with the point made by the Delegated Powers Committee and often made in this House that, if a power is too wide and its delegation is inappropriate, those fundamental defects cannot be cured by making them subject to the affirmative rather than the negative procedure. If they should not be there, they should not be there, and packing them up in an affirmative procedure box does not make them more acceptable.
In other contexts, the noble Baroness has shown herself to be sensitive to the distinction between primary and secondary legislation. Only yesterday, in answer to the suggestion from the noble Baroness, Lady Deech, that regulatory change might be appropriate to alter the 10-year limit for the storage of frozen eggs under the Human Fertilisation and Embryology Act 1990, she said that she did not agree,
“that the regulatory route … would be appropriate, as it was not envisaged at the time of the legislation”.
She went on to say that,
“given that this is such sensitive legislation”,
the Government and she,
“believe that continuing with primary legislation is appropriate”.—[Official Report, 20/2/19; col. 2265.]
I urge her to bring pressure to bear on other members of the Government to extend that kind of sensitivity to this Bill, and to accept that the principle is applicable here and that allowing for future regulatory change to primary legislation on an unrestricted basis, as this Bill does, is unacceptable and unconstitutional. I beg to move.