My Lords, I am grateful to have this opportunity to speak to these amendments, which in large measure refer to the possibility of introducing the super-affirmative resolution procedure in the parts of the Bill where it is deemed most necessary. Again, I thank the Law Society of Scotland for briefing me so well and for assisting me in drafting these amendments for our consideration.
Paragraph 31.14 of Erskine May states:
“The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate, for instance, for the scrutiny of certain items of delegated legislation made, or proposed to be made, under ‘Henry VIII’ powers. Sometimes it is the only procedure available and sometimes the responsible Minister is given a choice of order-making powers that includes the procedure, a choice that can be constrained at a preliminary stage by either House.”
I remind noble Lords that the super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. It is important to note that the power to amend the proposed instrument remains with the Minister.
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In view of the discussion that we have just had, I believe that we have identified a number of areas that would benefit from the super-affirmative procedure. In Amendment 14, I have identified where regulations under Clause 3(8) would be subject to the super-affirmative procedure, and Amendment 133 introduces the supportive schedule in respect of that procedure.
My concern is about the level of parliamentary scrutiny—currently the affirmative resolution procedure —applicable to regulations under Clause 3. Changing the scope of the mutual recognition principle might have significant consequences, and I believe that the super-affirmative resolution procedure is appropriate here. It enables longer consultation and the views of stakeholders to be taken into account, as I quoted from Erskine May. The Bill before us is of such profound constitutional significance that the Constitution Committee report states, at paragraph 4, that we need as much scrutiny of the Executive as possible. Deploying this procedure will achieve a better outcome than simply—in keeping with the Bill—the usual affirmative procedure. Therefore, I submit that Amendment 14 is necessary in this regard.
Amendment 24 is consequential, following on from the drafting of Amendment 14.
Amendment 25 is reminiscent of the discussion that we had on Amendment 45 in an earlier grouping. It is important to note that Amendment 25 goes on to discuss a different formulation, such as the substance of a change. It is curious that in the clause that the amendment seeks to change, once again “substantive change” is not defined. Therefore, we seek greater clarity on the “substance of a change” or a “substantive change”.
Amendment 29 seeks to ensure that regulations under Clause 6, which relates to relevant requirements for the purposes of the non-discrimination principle, should, again, be subject to the super-affirmative procedure. The amendment introduces the supportive schedule in respect of that procedure—again, as set out in Erskine May.
Amendment 40 looks at ensuring that regulations under Clause 8, which relates to the non-discrimination principle, or indirect discrimination, are, again, subject to the super-affirmative resolution procedure, and again it introduces the supportive schedule in respect of that procedure.
Amendment 76 seeks to do the same in respect of regulations under Clause 17, and Amendment 77 seeks to delete Clause 17(4) as a result of Amendment 76.
Amendment 101 seeks to bring the super-affirmative procedure into play in Clause 20. Amendment 133, which inserts the new schedule for the super-affirmative resolution procedure, is consequential to Amendment 101. Amendment 176 sets out that regulations under the Bill will be subject to the super-affirmative resolution procedure, as set out in the schedule relating to that procedure.
We have an opportunity here to introduce this procedure, and I make a plea that we do so. If the amendments in the previous group are not adopted, or even if they are, I put it to your Lordships that the super-affirmative procedure, in terms of the resolution under Erskine May and indeed the schedule, is best placed to allow both Houses to have greater scrutiny than is currently permitted under the Bill. I beg to move.