My Lords, we have Amendment 139 in this group. It would require all the delegated powers in the Bill to expire on the third anniversary of its passing. We chose the three-year time limit because that had been discussed in the Commons. But, having heard what other noble Lords have said on the issue of expiry, I am persuaded that two years may be more appropriate, as the noble Baroness, Lady Thornton, has argued, given the wide-ranging
and carte-blanche nature of the delegated powers. I am also persuaded that a sunset provision is absolutely necessary.
As many noble Lords noted on Second Reading, this is a skeleton Bill. It contains no, or very little, policy, and allows policy to be made by secondary legislation. This clearly avoids meaningful parliamentary scrutiny, and is a direct and flagrant abuse of the delegated powers system.
In its 16th report of the 2017-19 Session, The Legislative Process: The Delegation of Powers, our Constitution Committee noted that the Government had designated
“functions for which delegated powers may be appropriate”.
These included
“providing for the technical implementation of a policy; filling in detail that may need to be updated frequently or is otherwise subject to change; and accommodating cases where the detailed policy has to work differently in different circumstances. Such purposes constitute reasonable uses of delegated powers.”
The Constitution Committee’s view of all this was clear. It considered the use of delegated legislation to formulate policy, or to create new criminal offences or public bodies, to be “constitutionally unacceptable.”
The Delegated Powers and Regulatory Reform Committee, in its recent report on the Bill, points out that the Government say nothing about why it would not be appropriate to have aspects of the regulatory regimes which are not detailed or technical on the face of the Bill, combined with more focused delegated powers to fill in the detail. This is still the case.
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I raised this issue in meetings and in correspondence with the Minister, looking to draw a distinction between policy changes and technical or detailed amendments or updates. In his letter to me of 2 August, the Minister said:
“You expressed some concern that this way of regulating the sector meant that Parliament would not be able to scrutinise the powers in the Bill if we did not provide further clarity about the policy changes we intended to make through the delegated powers. I have asked my officials to think further about the extent to which we can provide Parliament greater information to aid its scrutiny.”
A month or so later, on Second Reading, I asked whether there had been any progress in this further thinking. The Minister did not respond then, and he has not responded directly since. I note that the proposals contained in his recent amendments and outlined in his letter to us of last week allow for Parliament to receive information about, for example, the outcomes of the consultations. That may be an aid to discussion, but it is not an aid to scrutiny. Parliament will still be unable to make changes.
It is bad enough that the Government should completely ignore the real functions and purpose of secondary legislation and effectively put policy beyond parliamentary scrutiny. It is worse when those delegated powers endure, so that the Executive may change, without real scrutiny, the regimes that govern our human and veterinary medicines and medical devices, without limit in time.
It is bad enough that this is a skeleton Bill. The root of the problem is the Government’s desire to take powers to make policy before they have decided what
that policy is. We should make sure that the powers in the Bill to act without proper parliamentary scrutiny expire as soon as enough time has passed to allow them to be replaced by primary legislation, subject to proper parliamentary scrutiny. I hope the Minister can agree. If not, I expect us to return to the issue on Report.