My Lords, in moving Amendment 21, I will speak also to Amendments 24, 25 and 27. This group and the next group of amendments are vehicles to effect the recommendations of the Select Committee on the Constitution and the Delegated Powers and Regulatory Reform Committee. I hope the Minister will agree with everything I have to say because traditionally the Government respect those committees for the very careful work they do. It is good to see the noble Lord, Lord Blencathra, here. I am sure he will speak to these amendments. The work of these committees is essential to keep our law sensible, balanced and correctly scrutinised.
The 11th report of the Select Committee on the Constitution, published on 8 March, says at paragraph 7:
“If there are exceptional circumstances which require the creation of criminal offences by regulations, they should normally be subject to the affirmative procedure”.
It then goes on to talk about sifting. Clause 17(7) of the Bill says:
“Regulations under this section may not provide for an offence to be punishable with imprisonment or with a fine exceeding level 3 on the standard scale”.
But clearly there is a criminal offence and as a general rule we do not believe that any criminal offence should be introduced with a negative instrument. I hope the Minister will agree.
Turning to the subject of Amendment 27, the Delegated Powers and Regulatory Reform Committee says:
“Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply to such regulations. For the reasons given at paragraph 9 above, we recommend that there should be a sifting procedure”—
I will come on to that—
“allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.
Paragraph 9 says:
“We also recommend that there should be a sifting procedure for regulations under clause 1—akin to the one we recommended for the European Union (Withdrawal) Bill—allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.
The Select Committee on the Constitution also made some references to Clauses 8 and 17. Therefore, for simplicity’s sake, we recommend that all the regulations under Clauses 1, 2, 8 and 17 should be subject to a sifting procedure which can decide whether any should be subject to the affirmative resolution procedure. I beg to move.