Lord McNally: The Government must listen to peers over Henry VIII powers

Posted On: 
11th January 2018

Ministers should take heed of peers’ concerns over an Executive power grab – or they risk a constitutional car crash, warns Lord McNally 

Peers are set to debate the EU (Withdrawal) Bill for the first time later this month
PA Images

It does not need Old Moore’s Almanac to predict that 2018 is going to be a tumultuous year in the House of Lords. In February, we will be receiving the EU Withdrawal Bill. How their Lordships treat that Bill will test the conventions, powers and responsibilities of the Upper House more than at any time since the then Liberal government clipped the wings of the Lords with the 1911 Parliament Act.

We can be sure that any substantial amendments carried to the Brexit Bill or the accompanying flotilla of Bills intended to transition European legislation back in to British Law will be greeted by Brexiteers inside and outside the government with howls of outrage.

The front page of the Daily Mail and Daily Telegraph will be cleared so that peers can join judges and pro-remain Conservatives such as Ken Clarke, Dominic Grieve and Anna Soubry in the now ritual traducing of anyone questioning the government’s master plan for Brexit as saboteurs and traitors.

Rational debate will become very difficult if Brexiteers and their friends in the media see even constructive amendments to Bills as attempts to seize the Brexit prize from their grasp.

Part of the problem is of the government’s own making. Unlike voting on the 1972 European Communities Act or the 1975 Referendum, where both Parliament and public had full knowledge of what they were voting for, Parliament is asked to make this fundamental decision about our future with little beyond the mantra that Brexit means Brexit as a guide to our ultimate destination.

Yet even during the Bill’s passage through the Commons, issues and information have come to light which either played no part in the 2016 Referendum debate or have revealed claims and assertions made during that campaign by Brexiteers as to be either untrue or undeliverable.

Even before we get to the Brexit Bill, the House of Lords will have to take a view on another issue fundamental to our constitution which is a direct consequence of how the government has chosen to deliver Brexit.

In the next few months we are going to hear a lot more about Secondary Legislation and Henry VIII Powers – not usually the topic of conversation over the breakfast table or in the Saloon Bar of the Dog & Duck.

Yet it is one of the supreme ironies of the Brexit decision and the way the government has chosen to deliver it, that a process which it was claimed would return sovereignty from Brussels to the Westminster Parliament, now, in Bill after Bill, gives blank-cheque powers to the Executive. Clauses which allow Ministers, once the Bill becomes law, to take action and create laws and penalties without having to go through the rigours of primary legislation now pop up in Bill after Bill.

This week the Sanctions and Money Laundering Bill, which contains a number of such clauses, will be up for scrutiny at Report Stage. It will be an early indication of the willingness of peers to resist encroachments on Parliamentary sovereignty, by resisting such executive power grabs.

If a constitutional car crash is to be avoided in 2018 the government must accept a House of Lords that reserves the right to say no to proposals which weaken Parliament’s check on the Executive.

This is an issue beyond Brexit, involving the use of powers which successive governments have been willing to leave with the Upper House.

They are powers which must only be used sparingly; but are justified if we are to avoid the elective dictatorship Lord Hailsham warned against over forty years ago.


Lord McNally is a Liberal Democrat peer