My Lords, I thank all noble Lords for their contributions to this debate. The Government take parliamentary scrutiny of the powers afforded them very seriously, which is why, from the outset, I have made clear our view that both Houses should be treated equally when it comes to the sifting process proposed by the Commons Procedure Committee. The Government have already accepted amendments, although they only included a committee in the other place, and the government amendments that we have just discussed would extend that process to your Lordships’ House. We have listened carefully to the views of the House and numerous committees on ways in which to improve this Bill. Among other amendments, we have removed the Clause 8 power altogether and sunset the consequential power and the power to make new fees or charges. The correcting power has been prohibited from creating public authorities or amending the devolution statutes, and we have provided that regulations should be amendable only in the same way as primary legislation.
Having heard the views of the House in Committee, I am pleased to confirm that the Government have tabled amendments that we will debate shortly to extend the sifting committee’s remit to instruments made under the power contained in Clause 17(1). I hope that noble Lords will see this as further evidence of the Government’s willingness to listen to the case put by this House and, in particular, by the DPRRC. I believe that we have made clear our commitment to ensuring that this House can rigorously scrutinise the secondary legislation that will flow from this Bill.
The government amendments allow the changes to the SLSC’s order of reference, agreed by the Procedure Committee, to be put into practice following Royal Assent. I am sure that noble Lords on all sides will want to consider the committee’s report in good time. As I have said before, the agreement reached regarding the SLSC taking on the new and vital role as the sifting committee demonstrates the constructive collaboration
of the House. I remain grateful to other members of the Procedure Committee and the SLSC for their support in this decision.
A number of noble Lords have made it clear that they would like further reassurance that the recommendations of the sifting committees will be taken seriously by the Government. I am happy to repeat what I said in Committee—that if both sifting committees were to make the same well considered and no doubt persuasive recommendation that an SI should move from the negative to the affirmative procedure, I assure the House that the Government’s expectation is that such recommendations are likely to be accepted. Where the two committees disagree, the situation would, of course, need to be carefully considered on its merits. The noble Baroness, Lady Smith, tempted me to speculate on how often the Government would disagree with a recommendation coming from both committees. Clearly, I cannot usefully do that, but I can say that the Government are not placing shackles on their ability to make a recommendation to upgrade the procedure if they so wish. It is right that this is the case, but I repeat my view—I expect that to be a rare occurrence. I can confirm that on the very rare occurrence, one hopes, when that happened, and the Government did not agree with a recommendation to use the affirmative procedure, we would fully expect to publicly set out our reasons to the committee concerned.
Amendments 70 and 77 in the name of noble Lords, Lord Lisvane, Lord Norton and Lord Sharkey, and the noble Baroness, Lady Smith of Basildon, propose an alternative sifting process. There are two significant differences between the process proposed in Amendment 70 and that proposed by the Commons Procedure Committee, the consequences of which would put at risk our ability to achieve this Bill’s fundamental aim: a functional statute book on exit day and, indeed, for this House to exercise timely and effective scrutiny. The first would make the sifting committee’s determinations binding on the Government unless the House decided to disagree with its committee. The second is that the amendment would build into the sifting committee process a mechanism for the House as a whole to make a binding determination, irrespective of the decision of the committee to which it has delegated the responsibility for making recommendations. Such determinations raise several serious problems. The first is the potential for disagreement between the Houses, and I note that Amendment 71 involves the same problem, to which I shall come in a moment.
The second risk, which is potentially more serious in practical terms, is the delays which this process could create. Given that this House and the other place do not often sit on Fridays, 10 sitting days is already likely to stretch across three weeks. The addition of an extra five-day period, during which each House could overrule its own sifting committee, potentially extends this process into a fourth week. Of course, if any of this were to occur around either House’s normal recesses, the period would be longer still. Then, after that, any negative instrument would still have a praying period of 40 days during which, as now, a debate could be sought. In addition, any affirmative instrument
would be subject to the usual scrutiny procedures and laid before Parliament until it could be accommodated in the parliamentary schedule.
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The additional 10-sitting-day period proposed in Amendment 71 would begin only after your Lordships’ House had come to a resolution on the SI, potentially extending this process further. The problem also arises in the amendments tabled to the Government’s Amendment 77B by the noble Lord, Lord Kirkwood of Kirkhope, and the noble Baroness, Lady Watkins of Tavistock, which seek to extend the Commons’ Procedure Committee sifting period from 10 sitting days to 15. Extending the sifting period would also cause similar delays. Under either of these arrangements, a draft negative SI given to the sifting committee in the first sitting week in September could be held up until late October before the normal scrutiny processes can begin. The noble Lord, Lord Kirkwood, said that extending the sifting process is likely to be an unusual event but, even so, we simply do not believe that these timescales are practical. I suggest that this would be true under normal circumstances, but it is certainly so given the time available to us before exit day.
When the Commons’ Procedure Committee originally proposed 10 sitting days for the sifting period, it was agreed to without division. The Government were content to accept that timeframe then and we continue to believe that it can provide sufficient time for the sifting committees to carry out their work scrutinising the choice of procedure. Indeed, in order to ensure that this is the case, part of the purpose behind the proposed changes to the SLSC’s terms of reference, which I put to this House’s Procedure Committee on 5 March, and which were agreed, was to maximise the sub-committee’s ability to conduct its work within that period, including the power to report directly to the House. Furthermore, in cases where the Government and an SLSC sub-committee disagree on whether a negative instrument ought to be upgraded to the affirmative but noble Lords feel that tabling a motion against an instrument would be disproportionate, this House has a number of other avenues for making its views known to the Government, including take-note debates. This would allow for further detailed discussion, if your Lordships viewed that as warranted. In the meantime, the relevant Minister could also be invited to appear before the sub-committee to justify their position.
The noble Lord, Lord Lisvane, has again drawn our attention to the examples of the Legislative and Regulatory Reform Act, the Localism Act and the Public Bodies Act, under which committees of both Houses determine, rather than recommend, the procedure that will apply. I remain of the view that establishing such a mechanism is not proportionate for the sifting role which we are proposing. As I mentioned in Committee, the Acts to which he referred are examples where the committees have it open to them to recommend super-affirmative procedures. I think we agree that that procedure is not practical for this Bill, and I know that the noble Lord is not making that case here. In the case under consideration, the question for the committee is not consideration of the detail of the
instruments but whether they are subject to the negative or affirmative procedure. In that case, unlike super-affirmative procedure, the sole practical difference is that the SI in question is proactively debated, not that it undergoes a procedure which might lead to its being amended.
I therefore suggest that Amendment 70 puts at risk the constructive work that has taken place so far in the House’s committees and through the usual channels. If your Lordships’ House agrees to Amendment 70, the Government’s amendment to the sifting committee arrangements would fall, due to pre-emption. There is no guarantee that the other place will accept an amendment that changes the nature of something they themselves put into the Bill. Therefore, the role of your Lordships’ House in this important process will become uncertain. That is a situation which I would very much like to avoid.
Amendment 71, in the name of the noble Lords, Lord Sharkey, Lord Lisvane and Lord Norton of Louth, and the noble Baroness, Lady Jay of Paddington, attempts to deal with a disagreement between the Houses on an SI by allowing the other place to overrule your Lordships’ House, although it would not resolve the issue of the two sifting committees disagreeing. While the Bill adheres to the House’s established procedures for the scrutiny of secondary legislation, that amendment would represent a significant departure. I appreciate that it is an attempt to create a solution to the problem of the two Houses disagreeing, but we do not believe that it would be appropriate, even in the limited circumstances proposed, to make such a significant change to the relationship between the Houses.
Amendment 71 would create a new reconsideration procedure for this House to ask the other place to think again after it has approved an instrument. This amendment raises wider questions about the ability of this House to make its own determinations with respect to secondary legislation. This is certainly a significant debate, and one which we had on my noble friend Lord Strathclyde’s proposals, but we should not be trying to resolve it, let alone legislate on it, in the Bill, and I hope that noble Lords will be content not to press their amendments.
On Amendment 84, which was tabled by my noble friend Lady Neville-Rolfe and the noble Baroness, Lady D’Souza, while I cannot accept it, I reassure them that that there will be ample opportunities for the SIs laid under the Bill to be seen by the public before they are made, and in order, as the noble Baroness, Lady Smith, said, to get them right. All the proposed negative instruments to be made under the powers listed in the noble Baronesses’ amendment will be laid as drafts for the 10-sitting-day sifting process. We intend this to be public and are working through ways to achieve this using GOV.UK, as my noble friend suggested.
It is worth noting that the 10-sitting-day sifting process is likely to be spread across two and potentially three sitting weeks, or longer if there is a recess, which means that the draft negative SIs would be publicly available for longer than the 10 days my noble friend’s amendment seeks. The House would then be able to carry out its other scrutiny functions when the SIs are laid before Parliament after sifting, and the 40-day praying period
would then begin. Draft affirmative SIs will be published in the usual way—on legislation.gov.uk—at the same time as they are laid before Parliament, which is usually several weeks before they are debated. There will therefore be an opportunity for the public and parliamentarians to consider the SIs before they are made.
In addition, I assure the noble Lord, Lord Haskel, that the Government are committed to effective consultation on our exit from the EU. It is extremely important to gather views from stakeholders and those most affected. For example, the Bank of England is already consulting on an updated approach to authorising and supervising branches of international banks and insurers, and Defra is currently seeking views on future agricultural policy and funding. Again, I point noble Lords to the illustrative examples that a number of noble Lords mentioned, which the Government have already published in draft to help demonstrate how we intend to use the powers in the Bill. I realise that this is not the total commitment that those who tabled the amendment were seeking, but I hope that it is sufficient that they will feel able not to press it.
I hope that the Government’s clear commitment to replicating the sifting mechanism in your Lordships’ House by building on the important work of the SLSC and providing additional staff and members demonstrates that we continue to take the established and valuable scrutiny role of this House seriously and that we will continue to do so when the sifting process is under way. With that, I hope that the noble Lord, Lord Lisvane, will feel able to withdraw his amendment.