My Lords, my noble friend Lord Judd and the noble Lords, Lord Tyler and Lord Lisvane, have also put their names to this amendment. It is a variation on a similar amendment debated in Committee, but it now includes a sunset clause to restrict the scale of its application, which the Minister expressed concern about at that stage. It is, of course, put forward in a spirit of helpfulness to the Government, although I find that a bit difficult to say at this time of night. It encourages the Government to seek wider advice and assistance in spotting any errors in the large number of statutory instruments—between 800 and 1,000 in addition to the normal numbers—that will need to come forward as a consequence of the EU withdrawal Act. I am concerned about possible flaws in the statutory instruments because of the large number of them, the pace at which they will have to come forward, the lack of staff with sufficient experience in some government departments and the overall pressure of Brexit-related legislation.
It is important that the statutory instruments are available for scrutiny before being formally laid, as once they are laid they cannot be amended under either the affirmative or negative procedure. The only option then would be to seek to annul any flawed statutory instrument. That is the nuclear option which would run the risk of leaving gaps in the legislation on exit, which I am sure the Government would not wish.
I thank the Minister and his team for meeting me and the noble Lord, Lord Tyler. The noble Lord, Lord Callanan, was quite rightly keen that consultation should not mean three months for all subjects great and small. The Government have now laid amendments and given formal assurances on this issue, as have some individual government departments. I welcome the pre-scrutiny proposed for the negative procedure statutory instruments, which would mean that they were published as “negatives in draft” and would give a 10-day window for commentators to express concerns about their substance before they were formally laid.
I understand that Defra, which is likely to have about 10% of the statutory instruments, is putting in place a high-level group of external commentators who will advise on the adequacy of the consultation process—a sort of consultation on consultation. It would be good if Defra and any other departments planning this mechanism could press forward so that we might see how this would work.
In their response to the Lords Constitution Committee’s report, the Government have undertaken to lay requirements on Ministers to make statements in explanation of statutory instruments in certain circumstances—for example, where a criminal offence
is created or where an urgent statutory instrument is brought forward—but it is likely that such statements will be published only when the SI is laid formally and it is therefore too late, as I have outlined.
I am sure that the Government are committed to preparing this torrent of statutory instruments in as open a way as possible to make sure that the process of transfer of the snapshot of EU legislation into UK law is as uncontentious as possible. The amendment gives the Minister a real opportunity to flesh out this commitment and would place on the parliamentary record the full range of formal and less formal means of consultation and debugging planned by the Government. I beg to move.