There is so much wrong with this Bill that it is hard to know where to start—apart from, of course, warmly congratulating and welcoming today’s maiden speakers, the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Sarfraz.
I will make three points. First, on the use—or, I should say, abuse—of delegated powers, the Delegated Powers Committee has done its usual excellent job. It notes that this Bill contains 11 delegated powers and describes some as “extraordinary” and others as “unprecedented”. There are seven Henry VIII powers, allowing Ministers simply to rewrite primary legislation, with a much lower level of parliamentary scrutiny and public exposure. Overall, the Bill exemplifies the decline in the legislative process that I have observed for nearly half a century. Now it is, I fear, a disaster area, which the promised Constitution, Democracy and Rights Commission should examine as a high priority—although I have little hope that it will do so, or will be allowed to do so.
Secondly, on the Bill’s effect on the devolution settlement, it has successfully united three of the constituent parts of the—presently—United Kingdom in a chorus of execration at what they see as an attempt to undermine the devolution settlements and change the nature and scope of reserved powers. Noble Lords are expressing strong views on this aspect, but I simply draw your Lordships’ attention to the Act of Union Bill that I introduced towards the end of the last Parliament, in which the Constitution Reform Group chaired by Lord Salisbury seeks a more effective and equitable settlement between the constituent parts of the United Kingdom. A moment ago, I described it as the “presently” United Kingdom. I do not think that history will deal kindly with an Administration who contrive to take us out of not one union but two.
I conclude with the rule of law issues. Yes, Parliament can legislate in the way proposed—of course it can—but it should not and, I suggest, must not. The rule of law is not something just for lawyers and academics; it is for us all. As my noble and gallant friend Lord Stirrup said, if I break the Covid-19 restrictions, will the Government come to my aid when I say, “Yes, I was breaking the law, but only in a specific and limited way”? The attempt to present the law-breaking powers in the Bill as more acceptable by making them subject to approval by the House of Commons is naive. It is as though I were to say to your Lordships, “I have a revolver—but don’t worry, it’s empty. I’ve given the ammunition to a friend of mine. But when I ask, he’ll give it back and I’ll put the rounds into the weapon.” The answer is, of course, that I should not have the revolver in the first place.
I shall certainly vote for my noble and learned friend Lord Judge’s amendment, and when the Bill goes back to the Commons it should do so without at least Part 5. What happens then? I agree with my noble friend Lord Butler that this is an issue on which your Lordships should be prepared for a bumpy ride.
It would not be possible to use the Parliament Acts in the time available, so the Government would have to rethink their approach.
Please let us have no chuntering about the Salisbury/Addison convention. In 2006, the Joint Committee on Conventions of the UK Parliament acknowledged the change in the nature of the convention over time—hardly surprising as it arose from very specific circumstances 75 years ago—but it still linked the convention only to manifesto commitments, with a reserve responsibility of this House in exceptional circumstances, as the noble Lord, Lord McNally, reminded us. No one could seriously suggest that departing from the rule of law has received electoral approval. I suggest that your Lordships should not be deterred by any assertions of unconstitutionality. If there is unconstitutionality anywhere, it is in this Bill.