Ghost of Henry VIII exorcised. Government should be spooked

Yesterday saw another government defeat over the EU Withdrawal Bill, this time limiting the powers of ministers after Brexit. It is not just the defeat that matters but the scale of the defeat.

Day by day the EU Withdrawal Bill is being amended in ways ministers do not like, and with only limited prospects of them reversing these changes when the Bill returns to the Commons. Yesterday amendments were made to the so-called “Henry VIII” clauses of the Bill, which would give ministers the power to amend existing legislation after Brexit.

The ghost of that Tudor monarch hung over the House of Lords as they debated clauses enabling ministers to alter legislation, to create new public bodies and to raise fees and charges after Brexit by executive order. Such changes in law are usually made by Act of Parliament, which unlike an order or regulations can be amended during debate.

MPs had signalled their displeasure at the Bill for granting ministers such wide powers, and the government had tabled amendments in response. But peers were not satisfied that the minister, Martin Callanan, had gone far enough.

The government proposed removing clause 8, which would have allowed ministers to repeal existing laws or create new ones by order to deal with the UK’s international obligations after Brexit. This was accepted by peers, but the broader question of remedying deficiencies in the law after Brexit, dealt with in clause 7 of the Bill, still raised concerns.

Crossbench peer Robert Rogers (Lord Lisvane), who served as Clerk of the House of Commons, said the bar for ministers to be allowed to change the law using regulations had been set so low that it would “challenge even the most lithe and determined limbo dancer”. The test currently written into the clause is whether a minister considered it “appropriate” to prevent, remedy or mitigate any problem with EU law in the UK after Brexit. Rogers thought that this test was not strict enough and should be replaced by one of “necessity”.

Rogers’ argument was backed by parliament’s expert committee which looks at such matters, plus support from the Conservative, Labour and Liberal Democrat benches. The point really at issue was whether a minister would be able to be challenged in the courts for decisions under the clause. If the word used was “appropriate”, the former Attorney General Peter Goldsmith argued, then decisions would not be easy to challenge but if the minister claimed “necessity”, then he would have to prove that.

Brexit Minister Martin Callanan did not deal with Goldsmith’s point but claimed that the use of the word “necessary” was ambiguous and unhelpful. He thought that the test could stop ministers from doing what was sensible because that might go beyond what was strictly necessary. Rogers was not convinced by that argument, and so the House voted on his amendment and carried it by 349 to 225.

The EU Withdrawal Bill is getting a rough passage in the House of Lords. Until now, ministers have made only limited concessions to the Bill’s many critics. That has left them exposed to the sort of attack that Rogers carried off. The scale of defeat bodes ill for the government – it lost on this issue by a majority of over 100, even though few Conservatives voted for the amendment. On other issues (as we saw with the customs union issue last week) a sizeable block of Conservatives are prepared to vote against their government or abstain.

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Edited by Luke Lythgoe