My Lords, I support Amendment 80 in the name of the noble Baroness, Lady Hayter. I cannot speak for her, but my remarks will also encompass Amendment 80A in the name of my noble friend Lady Bowles who, as the Committee will appreciate, is not in a fit state to speak to her amendment, although it relates to Clause 7(3).
Clause 7(3) is rather strange. It was inserted by the Government on Report in the other place. I am trying to resist the word “sneaky”, but the Government gave with one hand and took with another. On 16 January, David Lidington said in the other place:
“The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)”.—[Official Report, Commons, 16/1/18; col. 838.]
Amendment 14 was the one that led to the change in Clause 7(1) to put in “are” instead of “consist of but are not limited to”. So it was more specific on what ministerial powers could cover.
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The Government then tabled and inserted—and there does not seem to have been any debate at all in the other place; it just went through on the nod—the amendment which forms Clause 7(3). That says that whatever deficiencies Ministers can remedy under the rest of Clause 7, they can also regulate for deficiencies “of a similar kind”. Having removed the latitude for
themselves in subsection (1), they brought it back in subsection (3). It does not seem to have been noticed at the other end.
In fact, the Government seem to have portrayed it as some kind of limitation in itself, but I do not read subsection (3) like that. Having purported to restrict Clause 7(1) somewhat, in response to the criticisms in the other place, the Government then attempted to put back the greater latitude in subsection (3)—that Ministers can regulate if there is a “similar kind” of deficiency. What on earth is “similar”? Of course, that begs a big question, but it seems to me that this was not properly examined in the other place. It just got slipped in as part of a response to concerns but it actually adds to the concerns about ministerial powers. It certainly does not remove them but inserts a new cause of worry. So I fully support Amendment 80, which would delete subsection (3), because subsection (3) undoes the good work that was done in a modest tightening-up of Clause 7(1).