My Lords, this amendment and Amendment 364 follow the previous debate in the sense that they question powers that Ministers seek to take in the Bill which we in the Committee want to quiz and question and understand better. My concern is a simple one. Why do Ministers feel that they should have the right, and seek to have the right, to determine whether a piece of retained EU law should be designated as either, on the one hand, primary legislation or, on the other, secondary legislation?
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I understand primary legislation, because it is what we deal with all the time. It is what we debate, consider, seek to amend, improve and all of those things. It is something over which we have much more control. When it comes to secondary legislation, as I said
earlier, it is not so easily amendable. You have to either take it or leave it. Sometimes we can regret it, but we cannot do much else with it. The Minister is seeking a power in Clause 17(1) that is extraordinarily helpful to the Government. It says, “Let’s just shove this into secondary legislation. They can’t amend it there or tinker with it. They either have to take it or leave it”.
That is an extraordinary powerful thing to be able to do if you are a Minister. I have sat in the seat that the noble and learned Lord sits in, and I am quite sure that I would have liked to have had that power from time to time. It would have been extraordinarily convenient and enabled us more speedily to get on with what we were seeking to do. I can think back to several Bills and subsequently Acts that I participated in putting on to the statute book and I can see how pleasant it must be to be able to do something rather more simply with secondary than with primary legislation.
We need to understand better exactly why the Minister feels that that clause is appropriate. The Constitution Committee raised this as an issue. Similarly, Amendment 364 is also in this group and handily co-signed by my noble friend Lord Pannick. That amendment seeks to remove paragraph 19 of Schedule 8, again on the recommendation of the Constitution Committee, because it relates to retained EU law which has been assigned the status of primary legislation.
We are looking for some clarification and transparency from the Minister on this because it seems an extraordinary power. He has helpfully quoted other pieces of legislation in earlier debates in aid of his argument about whether or not the powers that the Government are seeking under this piece of legislation are reasonable. Perhaps he can give some examples and explain to us the circumstances in which this particular power would be of value to this and other Governments. Maybe he can explain to us when it has been used in the past because that would at least enable us to understand the circumstances under which what on the face of it seems extraordinary would be acceptable. I am not happy about the powers sought here and neither was the Constitution Committee. For those reasons, I beg to move.