If that is indeed the case, two wrongs do not make a right, but I do not think that any other provision is quite as extensive as this. The hon. Gentleman’s loyalty to the Government knows no bounds—he has to come to their defence, because it is important for someone to do so—but I think that, in this particular instance, even he may be slightly embarrassed by quite how far Ministers have gone.
Clause 7(1) states:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate”.
The term “appropriate” is entirely undefined, and it is the only condition imposed on the Minister’s desire to address “deficiencies” in the law. The House of Lords Constitution Committee has said:
“This application of a subjective test to a broad term like ‘deficiency’ makes the reach of the provision potentially open-ended.”
The Government tabled amendment 391 to try to ameliorate some of the concern about that, but it barely constitutes a concession. It merely requires Ministers to make explanatory statements that provisions are “appropriate” in order to justify the order-making power.
It is because it is so broad that I tabled amendment 65, which would at least shift the subjective threshold from “appropriate” to “necessary”. I believe that requiring Ministers to feel that a regulation is necessary would present them with a stronger test and a higher threshold. It would allow them to retain fairly broad powers, but I think that it would provide an extra safeguard. A Minister may think that something is appropriate without having to justify it, and I feel that we should expect more in a Bill such as this. The Constitution Committee has also said:
“We proposed that ‘a general restriction on the use of delegated powers’ could be achieved using ‘a general provision … placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework’”.
I followed that advice by tabling amendment 65.
Clause 7(2) implies that the scope of the Henry VIII powers are not exhaustive at all.
That subsection begins with the phrase:
“Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law”
does x, y and z, and it goes on to set out a series of particular conditions.
The right hon. and learned Member for Beaconsfield (Mr Grieve) has also spotted this issue in his amendment 1, and this caveat does not have to be limited to the exceptions set out in clause 7. Again, that provision is too broad and gives too much power to Ministers. Ministers might well say, “Well, it’s not our intention to go beyond the list of prescribed areas in clause 7”, but the Bill as drafted does not constrain their successors; as I have said, there will, of course, always be further Ministers after the current ones have moved on.
1.30 pm