Geoffrey Cox intervenes during debates on the sixth day of the EU Withdrawal Bill

12th December 2017

Geoffrey Cox QC MP intervenes during a discussion on an amendment which seeks to limit the conditions in which ministers can use the so-called “Henry VIII” powers to make the case that this clause would more likely encourage resort to the courts than deter it.

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

More often.

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.

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Later in the Debate, Geoffrey Cox intervened during the Brexit Minister’s response 

I wonder whether my hon. Friend might be attracted by this idea. At the moment, as drafted, the clause gives an inclusive, non-exhaustive list of examples, but I wonder whether the principle of ejusdem generis might not assist us if it were slightly redrafted. One could draft it so that any extensions beyond the inclusive list had to be of the same kind or species as those that were listed. That might give some comfort, if they have to be of a similar character to those enumerated in the Bill.

I am extremely grateful to my hon. and learned Friend, and I would be happy to meet him, our legal team and my right hon. and learned Friend the Member for Beaconsfield to take their suggestions on board. I am keen to address this, and I know that the Secretary of State is keen to do so, but I am not in a position today to have tabled or accepted an amendment. I ask them to bear with me and have further meetings with us and our legal teams to try to find a way through.

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Surgery Dates

Geoffrey holds regular surgeries. To book an appointment please click here or call 01822 612925.

Saturday 8th June
Holsworthy, Tavistock

Saturday 29th June
Bideford, Torrington