Ray Collins on amending Clause 8 of the EU Withdrawal Bill to prevent the future misuse of delegated powers
Since the 2017 general election, the House of Lords has seen two Brexit related government bills start their parliamentary passage: the Data Protection Bill and The Sanctions & Anti Money Laundering Bill. Two bills that, rather than promote enhanced parliamentary sovereignty, reflect the biggest executive power grab since the days of Henry VIII.
The Sanctions Bill is the one I am more familiar with, having led Labour’s scrutiny of the legislation while it was at our end of Parliament before us in the Lords. Currently at Committee stage in the Commons, this legislation is necessary because sanctions take effect in the UK almost exclusively under EU law, doing so on the basis of the 1972 Act. A new domestic legal framework has to be in place if we are to fulfil our most basic international obligations as a member of the United Nations. Of course, aspects of the Bill required improving. That is why Labour pressed amendments in the Lords – successfully so. It is also why further changes will be sought by our Commons colleagues.
Crossbencher Lord Judge described the Bill as a “bonanza of regulations”. But while acknowledging some of this was justifiable called for sufficient safeguards and adequate parliamentary scrutiny “to make the delegated powers constitutionally acceptable”. The same rationale underpins a Labour amendment to Clause 8 of the EU Withdrawal Bill – the clause giving Ministers extensive delegated powers to introduce regulations which they consider ‘appropriate’ to prevent, remedy or mitigate any breach of the UK’s international obligations as a result of Brexit. That power however, is not restricted to modifying retained EU law, as it would not require Ministers to demonstrate why any changes are necessary.
While others have amendments to Clause 8 that deal directly with the delegated powers issue, the Labour one focuses on the need for increased transparency on treaties and international obligations that may require changing post-Brexit. When using such powers, Ministers should proceed with the fullest parliamentary scrutiny. MPs and Peers must be able to do their job effectively, and with proper transparency on the government’s part. Mechanisms must therefore, be included in the EU Withdrawal Bill that measure and check the use of executive power.
Time and time again we hear reassuring words that everything is going to be hunky dory because the Commons and Lords will be able to vote on statutory instruments. The reality however, is that it’s a case of take it or leave it – and the use of ‘fatal motions’ is both rare and unusual. That is why there should be an obligation to set out more fully the reasoning for any future regulations.
We need to limit the powers to precisely what the government intends, as anything wider could be misused – deliberately or otherwise – by future administrations. As my colleague Charlie Falconer put it during Lords Committee on the Sanctions Bill, whatever Ministers tell us now – in either the Commons or the Lords – ultimately, the Executive always reaches for the Act of Parliament and sees what that Act of Parliament allows.
Lord Ray Collins of Highbury is both Shadow Foreign Office Minister & Shadow DfID Minister in the House of Lords. He tweets @Lord_Collins
Published 9th March 2018