My Lords, I welcome Amendment 83C but will refer to Amendment 83D, to which the Minister devoted considerable attention. Amendment 83C goes some way to meet the concerns of the Constitution Committee, indicated by the tabling of Amendment 83D, even though the committee’s amendment is expressed in different terms. I will refer to that difference initially. The noble Baroness spoke at length about it, and it is a sore point with the Government. They do not want there to be any possibility of being accused of making big policy choices by delegated legislation, and indeed they ought not to do so. The Constitution Committee’s purpose in drafting its amendment was to ensure that delegated legislation is used to make technical changes which are necessary to ensure that retained EU law functions after exit day, and not to make policy choices.
I recognise that there are some cases where a technical change does in fact represent a policy choice—for example, the question of which body should handle this matter in the UK might be seen as a policy choice —but it would be no bad thing for Ministers’ attention to be focused on the need to police that boundary, so far as there is a boundary, between what provisions of EU law it is necessary to put on to our statute book in functioning form and what represents a policy change. That is what the House is anxious about.
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If Ministers do not address that issue in their statements under Amendment 83C, it will be taken up by the House, because there will be concern in all parts of the House if wider policy changes are made. Therefore, I am not unduly worried and am not anxious to press the amendment which found favour with the committee; rather, I am concerned to ensure that Ministers are reminded that this distinction is important, even if it does not come formally into the statute.
Also in this group, however, as the noble Baroness reminded us, is Amendment 83G, which relates to the creation of criminal offences. My colleagues on the Constitution Committee are deeply hostile to the use of delegated legislation to create criminal offences. It is quite hard to envisage circumstances in which that can be justified, and the government amendment is an attempt to address the concerns of the House on this point by providing that that too will be the subject of specific explanation. If I were to try to imagine a circumstance, it might be one in which what was a criminal offence in EU law would not be a criminal offence unless we created a new law to do it. I would still rather see that done by primary legislation but I note that the Government are trying to ensure that there are at least explanations for it. If the Government are leaving that open and are still discussing what form of words will best meet that point, presumably that matter must be referred to at Third Reading. Certainly I do not intend, and I not think that my colleagues on the Constitution Committee intend, to press Amendment 83D.