Lord Flight is Chairman of Flight & Partners Recovery Fund, and is a former Shadow Chief Secretary to the Treasury.
The European Union (Withdrawal) Bill had its Second Reading in the Lords last week. There is widespread lack of understanding of what the Bill is about.
The Bill repeals the European Communities Act of 1972, which is the legal underpinning of our EU membership. The legislation serves to retain most of the EU-derived law which would otherwise disappear on the repeal of the 1972 Act. Particularly, it converts EU law as it stands at the moment of EU exit into domestic law, before the UK leaves the EU.
The Bill creates powers for secondary legislation, including temporary powers, to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU, and to implement the withdrawal agreement. The Bill ends the supremacy of EU law in UK law. The resulting legislation will need to be “weeded” – reviewed and amended over the next few years. The Bill gives unprecedented law-making powers to ministers, including the ability to impose taxation by statutory instrument, which is surely not acceptable.
The Lords’ Delegated Powers and Regulatory Reform Committee, on which I sit, has made a number of recommendations that the affirmative procedure, rather than the negative procedure, should apply to most subsequent statutory instruments. It also opines that the Bill contains insufficient Parliamentary scrutiny of many of the law making powers given to ministers, and that Parliament should also have a greater say on the procedure applicable to regulations made by Ministers under the Bill.
At the heart of the Bill is the issue of the distribution of power between Parliament and government, and in particular the power of ministers to amend or repeal Acts by statutory instrument without the need for any prior Parliamentary debate. The underlying question here is as to whether it would be practical, time-wise, to increase substantially the amount of Parliamentary scrutiny of the massive portfolio of legislation which the Bill covers.
Many are also concerned that the Bill entails too many Henry VIII (dictatorial) powers and is thus unacceptably undemocratic. Here I make the point that the fundamental democratic decision to leave the EU has been taken directly by citizens in the referendum, with both a meaningful majority and a meaningful number of citizens voting. The volume of legislation to effect departure cannot avoid some element of rough justice. If the Remainers in the Lords seek to neutralise departure by challenging much of the detail related to the Bill, they will be acting in a more fundamentally undemocratic fashion than the Bill itself, giving the executive substantial powers to amend or update legislation.
The Bill’s committee stage in the Lords should be used to identify the areas of the legislation which need amending, updating or removing, and where there is a very strong case for the affirmative procedure applying to subsequent statuary instruments. All this is essentially a technical, legalistic territory.
In the Lords we had nearly 200 peers speaking in the Second Reading of the Bill. Many of these used the opportunity to express their views on Brexit and several have called for a further referendum. So be it, although strictly speaking they are out of order in not addressing the issues relating to this legislation.
The practical point is that this legislation is needed to give the UK its legal framework post leaving the EU. It is likely to need a lot of amendment and changes which will require ministers to have the power to effect these. Beyond speaking out about the legal issues and principals there is not a huge amount to say about the purpose of the legislation. If we are to meet the timetable for leaving the EU we need to get on with the legislation.