My Lords, I support what has just been said by the noble Lord, Lord Norton, and draw attention to my own interests in the register. We have a perfectly clear piece of legislation in Clause 2(1), in which Parliament tells the OfS what it must do and what it must have regard to. We then have the creation in Clause 2(2) to Clause 2(6) of guidance which has absolutely no parliamentary scrutiny, whether before or after the Secretary of State chooses
to issue that guidance. It looks like legislation, because it is contained in Clause 2, but it is not legislation and it should be.
There is a remarkably strange feature if we turn 44 pages onwards to Clause 71, where we have the power granted to the Secretary of State to give directions. Of course, that is going to be a necessary ingredient of the Bill. The strange thing about it is that in the directions, Clause 71(2) is in identical terms to the guidance authorisation in Clause 2(3); Clause 71(3) replicates Clause 2(4); and Clause 71(4) replicates Clause 2(5). In other words, there are identical provisions in these two clauses: one creates the power in the Secretary of State to give guidance, the other gives the Secretary of State, after Parliament has agreed, the power to issue directions.
As far as I can see, there is no indication about the criteria which should be applied as to whether a particular directive by the Secretary of State should be treated as guidance or legislation. The fact of the matter is that there is now going to be power to give guidance with no statutory scrutiny and power or authority to give directions which will be subject to statutory scrutiny. There is no logical reason why we should have such an absurd situation. The amendment proposes simply that the guidance should be brought before the House at some stage in the process so that the House can have a look at it. We should have a chance to consider guidance issued by the department in this influential new arrangement.