My Lords, the House of Lords is coming to a watershed. When we threw out the statutory instrument in relation to tax credits in 2015, the reaction of the Government was to wheel in the noble Lord, Lord Strathclyde, to set up a review. His report advised that the House of Commons should be given the power to overrule this House should it ever have the temerity to do the same thing again. Since then, the Labour Party has followed an unwavering policy of abstaining on fatal amendments to statutory instruments.
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The premise of the review of the noble Lord, Lord Strathclyde, was that the issue lay in conflict between this House and the other place. But, as the Constitution Committee pointed out at the time, he had addressed the wrong question—the conflict was really between Parliament as a whole and the Government. Our unwritten constitution is praised for being flexible. If we had rules which were inscribed in a formal written constitution, they would need to be interpreted and given effect to by the Supreme Court. Then, as in the United States of America, all eyes would turn to the backgrounds and values of the judges of that court, and the appointment of Supreme Court justices would become very much under the spotlight, as we have seen in Washington this week.
The Government have taken advantage of the timidity of this House in exercising its undoubted power to strike down statutory instruments. We have now reached the situation where the Government have the gall to seek powers to act unlawfully and contrary to the rule of law, confident that we will grumble mightily but not interfere. In addition to that, the Executive seek power to bypass Parliament in this Bill with a whole series of Henry VIII clauses.
As I sought to explain in a debate on the Agriculture Bill, it was the idea of Thomas Cromwell that that unruly monarch should ignore Parliament and rule by proclamations, as though they were actually Acts of Parliament. But, importantly, even Henry’s proclamations could not interfere with existing rights; it did not give power, as the provisions subject to these amendments to the Bill do, to repeal or modify existing legislation. Henry’s Act lasted only 12 years before it was swept away.
The Delegated Powers and Regulatory Reform Committee has consistently fought against the tendency of this and the previous Government to introduce Henry VIII clauses. This Bill is an egregious example. In the provisions which these amendments seek to strike out, powers are given to Ministers not just to rectify mistakes or trivialities but to introduce policy by ministerial decree and to design policy—as the noble Baroness, Lady Andrews, said a moment ago—most significantly in the sensitive area of the Northern Ireland protocol.
The DPRRC, in its guidance to departments in drafting legislation, in July 2014 laid down expressly that a compelling reason must be given for introducing Henry VIII clauses. The Delegated Powers Memorandum provided by the department for this Bill gives the general reasons for these clauses on this occasion in these terms:
“There will … need to be powers in the Bill to enable the Secretary of State to ensure that the internal market framework can adapt in line with future developments.”
There follows some utter gobbledegook:
“This future proofing will necessitate the ability to make technical and likely unforeseen issues and therefore best suited in secondary legislation.”
That is a meaningless sentence—lazy and threadbare, as the noble Baroness, Lady Andrews, called this sort of language. What does “future proofing” mean? The memorandum goes on:
“There will also need to be powers to enable HM Government to adapt towards the specificities of the Northern Ireland Protocol.”
It concludes by praying in aid the need for speed.
The memorandum sets out its justification for each of the clauses the amendment seeks to strike out in very similar terms. As an illustration, I shall refer simply to the justification given in paragraph 21 of the memorandum for the powers taken in Clause 3(7). It is said that the power taken is necessary to enable the Secretary of State, first, to act swiftly and, secondly, to change the list of statutory requirements that are in scope of the mutual recognition principle if it becomes apparent that the existing list does not effectively deliver the objectives for the UK internal market for goods, including “unfettered access” for goods moving from Northern Ireland to the rest of the UK. That final phrase “unfettered access”, used by the noble Lord,
Lord Callanan, with relish in the first debate this afternoon, gives you the clue to the real reason behind these clauses: to break the terms of the Northern Ireland protocol in a manner such that Parliament cannot interfere.
What none of these clauses, made by Westminster ministerial decree, ensure is that there should be any form of agreement by the devolved Administrations to any changes to primary legislation which significantly affect their devolved competences—a point made already by the noble Baroness, Lady Andrews, and the noble and learned Lord, Lord Hope. Noble Lords waiting patiently to get their teeth into the illegalities of Part 5 must not think that that is the only objectionable part of the Bill. If this and subsections with similar terminology are passed, the Secretary of State will have the power by statutory instrument to twiddle about with the existing law of this country and with the provisions of the protocol, as agreed by international treaty, as he thinks fit.
Of course, if Parliament had a robust way of dealing with statutory instruments—if we could amend or throw them out as a check on executive power—it might not be so crucial. But that is not the case. Cowed by the Strathclyde threat, the power we have to say no is never exercised by Her Majesty’s Loyal Opposition—or perhaps they hope that some day, over the rainbow, they may have the opportunity to exercise similar powers themselves. The DPRRC has concluded that the justification of the necessity for speed has not been made out. As a second and most important point, the committee points out that the powers taken are much wider than the justification claimed. The noble and learned Lord, Lord Hope of Craighead, also rightly argued that no purpose, no scope, is defined. I urge—including on Her Majesty’s Opposition—that the time to say no to this proliferation of Henry VIII clauses has now arrived.
I leave the House with the thoughts of Sir Edward Leigh, once a Brexit rebel but now a Tory loyalist, speaking on the other place on Mrs May’s EU withdrawal Bill. He said:
“We have heard a lot about Henry VIII. When I was a rebel, I used to care about these things. Now I am a loyalist, I let the Government get away with it … Henry VIII is a bastard, but he is my kind of bastard”.—[Official Report, Commons, 11/9/17; col.466.]
Does the noble Lord, Lord Callanan, agree with his colleague in that terminology?