My Lords, I will speak to Amendment 246 in this group—entre nous, I support the amendments from the noble Lord, Lord Low; they are rather good, and I can well understand why colleagues have added their voices in support. My amendment picks up a slightly different point. It emanates from the excellent report from the Constitution Committee, which in its summary, at paragraph 33, recommended that the Government bring forward statements accompanying regulations which modify retained EU law so that they provide an explanation of the intention of the modification to guide the courts.
One of the endearing frustrations of this House, and no doubt the other place, is that we can have very little purchase on statutory instruments. Rightly, I think, they are unamendable, but clearly there has to be a way of improving the understanding of what a statutory instrument does. This legislation is riddled with Henry VIII powers and powers that I think go well beyond what a Minister should properly have access to in making, effectively, law by decree. That is the central concern of a lot of the recommendations in the Constitution Committee’s report. We are asking
here for the Minister to ensure that, when a statutory instrument is brought forward, it has to satisfy a test of appropriateness under the relevant sections, state an intention of any proposed modification from the retained EU law that is carried over and provide guidance to courts to assist with interpretation.
Reflecting back on some of the more recent debates on statutory instruments in your Lordships’ House—for instance, last night’s debate on free school meals—I wonder whether it would be helpful to your Lordships if we had a better understanding and explanation of those statutory instruments. The thing that always comes across to me when I listen to debates on SIs is this: there is very poor background information. The statistical data that is supposedly there to underpin the argument is often missing; the impact assessments have not been done; and we do not really understand the real effect of what is before us. In my book, that means that there is a lot of scope for the Government to get away with things. I do not think that is right or a product of good lawmaking.
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I want to hear the Minister say that the Government will take the issue seriously. that they will consider bringing forward amendments to satisfy these points, because they need to be satisfied and the House will want to hear them being satisfied, and that in the future we will get clear statements of intent when there is a change and a variation through a statutory instrument that relates to EU law that has been carried across. That is important not just for lawmakers in your Lordships’ House, but also for the courts when they come to determine an issue. Given the volume of work they are likely to confront, certainly in the early stages, that is going to be extremely important.
It is a weird world—you wait for several weeks with an EU withdrawal Bill and all your amendments come at once. That seems to be my misfortune this morning. If the noble and learned Lord can give us some reassurances on the sort of information that is likely to be supplied with statutory instruments, I am minded not to debate Clause 17 stand part. In a sense, it is a follow-on, because in that debate I would hope to hear that the Minister would want to consider ensuring that when information is provided as background for statutory instruments, the appropriateness of that statutory instrument is very clearly spelled out. I am looking to hear from the Minister some other words of comfort on that issue. In those circumstances, I will not call for a debate on Clause 17 stand part.