My Lords, it is a great pleasure to welcome the new noble Baroness to the Front Bench and I echo the welcome offered by other noble Lords. I am only sorry that the first task that has fallen to her is, as described by my noble and learned friend Lord Judge, a hospital pass. I prefer to see it as a sort of legislative grenade with the pin out.
As my noble friend Lord Patel mentioned, I am a member of the Delegated Powers and Regulatory Reform Committee, but of course I do not speak on its behalf: this is an entirely personal set of observations. Delegated powers of unacceptable scope and inadequate arrangements for scrutiny are simply getting worse. Noble Lords may recall our extended debate on the EU withdrawal Bill in Committee and at Report, when noble Lords rightly became very agitated about the use of the word “appropriate”—widening the way in which ministerial powers might be used—as against “necessary”, which provided some sort of objective test as to whether those powers should be deployed. Amendments which would have fixed that went down the oubliette in the Commons. With my noble friend Lord Wilson of Dinton, I declare a degree of interest because my name and his, along with that of other noble Lords, were on those amendments.
This Bill takes us into new realms of the use of delegated powers, albeit that the Trade Bill and the Agriculture Bill, both of which have already been mentioned this afternoon, are strong competitors for this legislative wooden spoon. I congratulate my noble and learned friend Lord Judge on his forensic dismantling of the need for the powers contained in the Bill and his warnings about the way in which they might be used. Any thought of his grandchildren saying that he was “banging on” should not inhibit him in any way from continuing to bang on about those subjects, and I hope that many other noble Lords will do the same.
Two points of principle have a general application but are particularly lively in the context of this worrying Bill. The first is the use of Henry VIII powers. I think that His late Majesty would be extremely jealous of some of what is contained in the Bill, as with the Agriculture Bill, the Trade Bill and the other Brexit Bills to come trooping our way. I accept that Henry VIII powers are sometimes needed, perhaps when there are urgent issues for which you need to make primary legislative provision, but you cannot get a Bill through in the normal course of events. However, where such powers are used, I suggest that there should be a test: that of the three Ss.
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The first S is scope, which my noble and learned friend Lord Judge touched on. When a Henry VIII power is contained in a Bill, it should be possible to predict how Ministers will use it. That makes it slightly less rebarbative for the purposes we are discussing.
The second S is scrutiny. Will use of the power be subject to an adequate level of scrutiny? Again, my noble and learned friend hit the nail on the head in talking about affirmatives. They are not a splendid box of legislative sweeties to make all these problems go away; they do not assuage concern about the use of Henry VIII powers because of the level of scrutiny to which they are subject and because, for good reasons I well understand, they are not subject to amendment.
The third S is sunset. On several occasions—a great many occasions, alas—the Delegated Powers Committee has expressed concerns, the list of which is now becoming wearyingly long, on two accounts. The first is that any
Government may say how they wish to use the powers they seek from Parliament, but there is no guarantee that these things are done in the best of faith and that this is how the powers will be used. Once those powers are on the statute book, they are available to not just the Government giving that undertaking and those assurances but to any Administration of whatever colour that may be at the helm and able to use those powers in the years ahead.
Amendment 44, in the name of my noble friends Lord Patel and Lord Kakkar and my noble and learned friend Lord Judge, is particularly to the point on sunsetting. I suggest with all respect to them that it is no more than a sticking plaster to put over some of these areas of serious concern, but it deserves serious consideration in your Lordships’ House at this stage of the Bill.