I think we are making the same point, which is that it either conceals inadequate thought, or it is devious.
Of course, the truth is that, if you are in government, you want to surround the Minister and yourself with plump cushions of legal protection. The legal phrase is “ex abundanti cautela”. It is about excessive caution—you do not want to take risks. I have to say to the Committee that, in this case, I think the scale of the powers proposed are so extensive that we should lean against giving Ministers plump cushions of legal protection; it should be the strict discipline of an objective test of what is necessary.
It is interesting that the Government themselves, in their White Paper last March, used the language of necessity. The White Paper twice said that the powers would only be usable “where necessary”. |In the cases which it provided where the powers might be used, it used the word “need”: it used the language of necessity; it did not use this language of appropriateness. I think it is only recently, with the sudden alarm that the scale is going to be so great, that the desire for plump cushions has arisen. I think that the Government are backing away from an undertaking only to have the power usable where it is necessary, which they gave in March last year and which they should have stuck to.
There are all sorts of arguments which may be used, such as that the word “appropriate” is used in other legislation. I think that is true, but I do not think that it is justified in this case, where the scale is so extensive. It could be argued that, when faced with a choice, there are different solutions and, therefore, there is no solution which is necessary. That is a flimsy argument—that horse will not run. What we are saying in this amendment is that the power should be used where its use is necessary, not where the solution is necessary.
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There is also the argument that the Ministers will give assurances on the record that they will not misuse the power, and that it will be used only as necessary. What matters is what is on the face of the Bill when it reaches the law. Once you have got your Act of Parliament through with this language in, and you have got Royal Assent, everything changes. You are then in a powerful position. You cannot have it taken away from you. You can be challenged, but if you have got a power in with terms you wanted, you feel much safer in using it. I think people using this power to make law should not feel particularly safe; they should use it only where it is necessary.
There are differences of views in the amendments about the approach that could be adopted. Some noble Lords are proposing amendments which substitute “appropriate” for “necessary” and which have an objective test that it really is necessary; some say it should be where the Minister considers it necessary. The Constitution Committee had a proposal, which I respectfully submit is too weak, which was that the Government should simply explain the reasons for the use of the power and show that they have reasonable cause for using it. I am not sure how that would work. I would put it to the Committee that the simple, clear requirement should be that exercise of the power should be where it is necessary. I think that is clear and objective and would meet the purpose of the Bill. I would strongly urge it to the Committee.
I would like to say one further thing. This is not about whether we withdraw from Europe, or whether we remain in it; this is about how far Parliament should cede sovereignty to the Executive. I think it is terribly important that Parliament should think about this carefully and only give away what is strictly necessary for the purpose of the Act. It should not give away areas of comfort, areas of uncertainty, areas of slippery language. On that basis, I beg to move.