In this contribution to the House of Lords, Lord Bilimoria targets the issue of the Henry VIII clause enabling government to bypass Parliament when tweaking EU laws during and after Brexit. Lord Bilimoria begins by stating that he believes the House of Lords is the ‘Guardian of the nation’, and that it is essential that the house stands united against the Henry VIII clause. Lord Bilimoria quotes former Attorney General Dominic Grieve who stated the Henry VIII clause is the most power he has ever seen the Government receive to change the laws.
Lord Bilimoria draws on an important point that the British constitution is very delicate and not codified. Thus the protection of the constitution is essential, but that the Henry VIII clause threatens this.
To conclude Lord Bilimoria argues that judicial activism must be avoided, and that the harmony between Parliament, the judiciary and Government must be upheld.
EUROPEAN UNION (WITHDRAWAL) BILL
7th March 2018
Lord Bilimoria:
My Lords, if I may just follow on from the noble Lord, Lord Lang, I often say that this House’s role is to be the guardian of the nation. To build on what the noble Lord, Lord Wilson, said, when we go back to the beginning of all this—the referendum—it was all about taking back control and sovereignty and not bypassing Parliament. What happened with Article 50? The Government tried to bypass Parliament. Now we have this withdrawal Bill, giving powers to make and amend law. As the noble Lord, Lord Wilson, said, there are over 100 Ministers, and it can be delegated to government departments—once again trying to bypass Parliament.
Under an earlier amendment, I quoted Dominic Grieve, a former Attorney-General, who recently said:
“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.
That is a former Attorney-General from the government party.
Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should, “understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.
We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots.
The main point here is, as the noble Lord, Lord Lang, said, our constitution. It is not a written constitution; it is a very delicate constitution. It is like a silken thread, woven through centuries. That delicate constitution is based entirely on the balance between the Executive, the legislature and the judiciary. It is those three together; it is not as simple as saying, “These are simple things, we’ll just use Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but the substantive effect of the law. With these amendments, we are trying to protect our constitution and our democracy.
The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Does the Minister appreciate that? Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined.
Viscount Hailsham:
Not only that, but the more tightly constrained the language of the Bill, the more readily the courts will intervene.
Lord Bilimoria:
I thank the noble Viscount for that intervention. At the moment, the courts very rarely intervene. They had to intervene with Article 50 being put through Parliament; that was fundamental. This House defeated the Government twice by almost 100 votes each time in two of the biggest votes in the history of our Parliament—614 of us voted in one and 634 in the other. Do we want a situation where this Parliament or the Government are continually challenged by the courts? We do not want to go there, and this is why these amendments are important.
I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.