My Lords, I have to give the Committee apologies from my noble friend Lord Paddick, who is unwell. I am afraid that your Lordships have me whinging over this instead.
I was a member of the Secondary Legislation Scrutiny Committee for some time and its staff always amazed and impressed me with their ability to grasp detail while not losing a grip of the bigger picture. Reading the committee’s report on this instrument, it seemed to be the verbal equivalent of throwing one’s hands up in despair. It drew it to the special attention of the House,
“on the ground that the explanatory material … provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.
When I got the draft instrument out on Sunday, to look at it in a rather casual way, I thought it was just me but apparently it is not.
The committee also has within its terms of reference reporting to the House when an instrument fails to fulfil its policy objective. It has made it quite clear that it has some difficulty in assessing that. Its report says that it found the impact assessment,
“to be of little practical use”,
and that,
“for the most part the impact is categorised as … ‘there could be some practical impacts arising if legislative deficiencies are not addressed through these Regulations’. No information is given about the frequency with which the provision is currently used, whether an alternative route to the information is available at a different cost, or what effect the loss of this intelligence or information will be. Neither the financial nor the societal cost is quantified”.
The committee went on:
“We … expect an EM to include some contextual explanation, preferably with estimated numbers or an indication of the degree of usage, illustrating how the system will operate differently after the legislative change has happened”.
The Minister may say that she has told us that there really will not be a change, but I think that the committee is commenting on getting from A to B. It continued:
“Without such information we cannot assess the significance of a policy change and, therefore, advise the House accordingly”.
If I caught it correctly, the Minister said that for the most part there is no policy change. She is nodding at that, and I suggest to the Committee that that rather makes my point for me.
Scrutiny is not a rubber-stamping exercise. Analysis is at its heart. We have already heard the term “real-world effects”, and on that point the committee said that statements made by the Government,
“raise concerns that cannot be assessed properly without appropriate information on the current scale of usage and how that might change as a result”.
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The draft instrument covers, inter alia, law enforcement and judicial co-operation in criminal matters and investigatory powers. A comment on the situation seems to have come more from outside the House and the Government. The Metropolitan Police Commissioner
commented just before the new year on a no-deal Brexit potentially meaning loss of access to intelligence databases and throwing up barriers to arresting and extraditing suspects. She said:
“We will have to replace them as effectively as we can. That will be more costly undoubtedly, slower undoubtedly and potentially put the public at risk. No doubt about that”.
That is the practitioner’s assessment of the impact. I know that my noble friend Lady Ludford will be able to give a much more precise critique of this instrument than I can.
The Minister responding to the Secondary Legislation Scrutiny Committee—not our Minister—wrote that the Government considered that the portmanteau approach would assist scrutiny and assist eventual users of the legislation. The committee was, of course, not persuaded by that.
We now have a 16-page Explanatory Memorandum replacing the 78-page memorandum. Certainly this guide is more easily handled, provided you can find it. The hard copy, which I collected at the end of last week, has the old memorandum attached to it. I am not persuaded that it enables scrutiny at the level and of the standard for which our House is known. I do not think that most of us will feel that we have really done the job as well as we should have done. There is a complexity and a scale to this, and bringing this draft instrument to the Committee so close to the wire—as may be the case—does not make the best use of the dedication and application that Members of our House show in scrutinising such instruments. There simply has not been the capacity to do so. It gives me no pleasure to say that, nor any pleasure to say that when the instrument goes to the Floor of the House, Liberal Democrats will oppose the instrument unless the Minister can satisfy noble Lords, although it is not her fault that we are in this situation.