My Lords, I rise to speak briefly in support of Amendment 50 and to address the issue of delegation. I am delighted to see my noble friend in his place, undiminished in his powers of argument and bringing such positive messages.
The amendment anticipates in principle a wider argument about the nature of delegation as a whole in what we all agree is a very perverse Bill. I hope that it provides some context for later amendments, Amendments 66 and 70—to which I have put my name—which raise the question of inappropriate delegation. I do not want to pre-empt that debate but instead to raise a general point about the approach taken to parliamentary control in a Bill of such enormous constitutional importance.
This House is well versed in discussing issues of delegation and we are well used to challenging a Government when they bring forward legislation with inappropriate or inadequate delegation and parliamentary control. We are all too familiar with the problem that statutory instruments can be debated but not overturned apart from in exceptional, even notorious, circumstances. Time and time again, the Delegated Powers Committee, on which I have the privilege to sit and which is ably chaired by the noble Baroness, Lady Thomas of Winchester, has had to challenge attempts to delegate legislation which is sloppily drafted and based on arguments which are weak, confused, disingenuous and generally inadequate. We have often in our reports to government rejected those arguments in favour of stronger controls. We have been successful and this House has supported us in protecting Parliament.
Here we have a Bill which is in a class of its own, a Bill which should never have come before this House as a Private Member’s Bill let alone with the support of government. That is where the problem over the delegation of powers in this Bill starts. This is not a government Bill. There is no Explanatory Memorandum, which is what we would have expected in the Delegated Powers Committee had it been a government Bill. Such an Explanatory Memorandum would have set out the case for delegation; it would have defended it; it would have explained why it was the only recourse; and we would have been able to test those arguments. We would have brought those arguments to the House and made a judgment on them.
We are not able to do that. Reports from two very distinguished committees of this House have made severe judgments on this Bill, but we have not been able to test the arguments. I am sure that when the noble Lord, Lord Dobbs, replies to the amendment, he will try to help the House and offer an explanation as to why there is such a unique—apart from in the 1975 referendum Bill, which was very different—degree of delegation in this Bill.
However, I do not believe that an oral explanation is sufficient for this House, so I invite the noble Lord, Lord Dobbs—and I do not believe that it is too late for him to do it—to provide, even now, an Explanatory Memorandum for the House to consider, to explain why he thinks that a Bill of this magnitude should delegate the key functions to secondary legislation and thus place debate on those functions effectively beyond the reach of this House, rather than provide for them in the Bill, as would have been far more proper. I do not have to remind the noble Lord that, since it is a Private Member’s Bill, such a memorandum would have to be entirely his own work, but I do not think that, as a gifted novelist, he would have any difficulty with that, so I look forward to his reply
Any Bill of such major constitutional significance should be a government Bill, which sets out on its face the major characteristics and implications and which can be debated, explored, and above all, changed, if necessary, in this House. That is what we are for; that is what we do.
I am sure that our debates on Amendments 66 and 70 will reflect on how Parliament could exert stronger control over this process. In terms of this amendment, Clause 1(6) attempts to put both the date of the election and the Welsh version of the question into an affirmative order. In any other context, that would indeed be an appropriate level of control. However, I believe that this clause should simply be removed because, in the words of so many noble Lords, the Bill is unfit for purpose. It is of such a confused parentage that it is very difficult to know whether it is a single parentage. If it were a child, it would certainly be very much at risk; social services would be taking a serious interest in it. Under these circumstances, any attempt to legitimise the process by way of delegation is inappropriate itself and should be rejected. That is what my noble friend Lord Foulkes’s amendment does and that is what I hope the House will commend.
10.30 am