My Lords, I shall speak also to the other amendments in this group which stand in my name and those of other noble Lords. I am very grateful that such a distinguished group of noble Lords have supported them.
Since my amendments were tabled, the noble Lord, Lord Callanan, has, to my pleasure, added his name to Amendment 2. He will, of course, make his own arguments clear on why he supports this amendment, and I look forward to hearing them. However, I hope to change his mind just a little further in this debate and to say a few words in respect of the amendments as they now stand.
We had a very powerful debate in Committee, when it was made absolutely clear that the majority of your Lordships agreed with the combined censure of the
Delegated Powers and Regulatory Reform Committee and the Constitution Committee that the Government had taken unprecedented and unnecessary Henry VIII powers in this Bill—powers that were too wide, too vague, opportunistic and altogether so inappropriate that the best thing to do was to remove them from the Bill entirely.
I have to declare an interest in the Delegated Powers Committee. It was set up more than three decades ago and has, particularly in the past few years, recorded the casual and accelerating abuse of the parliamentary process.
Both committees dismissed the arguments that the Government made originally in support of these extraordinary clauses as contemptuous of Parliament. They pointed out that the argument that secondary legislation could offer more speed and flexibility to deal with things that just might happen in the future were both specious and dangerous.
In particular, they referred to Clauses 3 and 6, which are the twin pillars of the archaeology of market access—mutual recognition in Clause 3 and non-discrimination in Clause 6. They said that they contained Henry VIII powers which, in each case, allowed Ministers to alter the definition of the key requirements of the Bill—for example, the fundamental nature of what is traded, and the characteristics of goods and matters related to, for instance, their inspection and production—and, in each case, to rewrite those principles substantially in secondary legislation. The DPRRC said that both clauses suffered from the same defects and both proposed to make future amendments merely by consulting the devolved Administrations but without seeking their consent.
The committee was equally clear that both clauses were conjoined and equally egregious, and that the relevant subsections in both should be removed. That is just what my Amendments 2 and 7 would do. Therefore, I was really delighted that the Government had clearly respected the weight of the argument of the committee and had agreed to withdraw completely subsections (8) to (10) of Clause 3.
In his letter to the Delegated Powers and Regulatory Reform Committee on 12 November, the Minister said that the Government had done so because they recognised
“the strength of Peers’ concerns about the number and extent of delegated powers, and therefore”
are
“prepared to remove this power.”
So far, so very good, but, sadly, and for reasons that I really cannot explain, the Government have not recognised the committee’s identical and equally grave concerns in relation to Clause 6. They merely said that they are
“fully committed to ensuring that the use of the power in clause 6(5) is subject to effective oversight and consultation.”
I really do not want to be churlish about this; I want to persuade the Government to do the consistent and logical thing. My first question to the Minister is: if they recognise the problem with Clause 3, why cannot the same grace and logic be applied to Clause 6? What is different about Clause 6? The substance of Clause 6(3) deals with slightly different aspects of trade but ones that are no less important and cover, in some paragraphs,
exactly the same areas, such as inspection. Therefore, why should the non-discrimination aspect be treated differently from market recognition and be subject only to the uncertain and retrospective review that the Government offer? The Minister’s letter is silent as to the reason, but I have some hope that this evening, with encouragement, he might be prepared to reconsider whether it would not make better sense to treat these two clauses consistently, in the same way, and to remove both sets of subsections from the Bill, rather than introduce a whole new set of anomalies.
There is another reason why he might want to think again about Amendment 7. Much of the debate on the whole Bill turns on the impact it has had, from start to finish, on the future of the devolution settlements and the respect given to the devolved and equal Governments. We have just finished a debate on that point on Amendment 1—the way in which the Bill impacts on the freedom that the devolved Administrations have to apply their legitimate and different legislation. I will not repeat what I said on earlier amendments, but, as the DPRRC report puts it:
“Clause 3(4) equally affects all the administrations of the UK. If it turns out to be defective, it should be for Parliament to correct it rather than Ministers at Westminster.”
However, with these clauses the Government can act without the need to introduce new primary legislation or to obtain the consent of the devolved Administrations, the Minister being under a duty only to consult, even though the proper functioning of the internal market is essential to all the Administrations of the UK.
The identical language is applied in Clause 6, so that, I argue, is a very powerful ethical, legal and political case for removing the relevant subsections from both Clauses 3 and 6. These powers of consultation without consent stand out as a failure to understand what the Delegated Powers Committee spells out quite clearly: that this part of the Bill marginalises the devolved Governments. I simply do not understand why the Government do not grasp the significance of that.
The other amendments in my name in this group, Amendments 12, 17, 31 and 42, deal with different ways in which secondary legislation is used to deal with other, related matters in the Bill—indirect discrimination, for example. Amendments 12 and 42 concern the list of legitimate aims; Amendment 17 concerns the powers to amend Schedule 1 in relation to provisions excluded from the application of the market access principles; and Amendment 31 deals with the power to amend Schedule 2 to add, amend or remove services or requirements to or from those currently excluded from principles of mutual recognition and non-discrimination. Each of those amendments, again, reflects the egregious way in which secondary legislation has been seen as a point of first resort.
The Government have responded to the committee’s recommendations, according to the detailed letter that the noble Lord, Lord Callanan, sent to it, by tabling amendments that will provide for additional consultation with the devolved Administrations. Those amendments are not in this group, but I simply say that “consultation” is a very slippery word and a slippery concept, unless it means conducting a serious and independent consultation and taking account of and acting on the findings. If it
does not, it is meaningless. To consult is not to seek consent, which is what the devolved Governments seek and are entitled to.
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The government amendments in this group, however, contain something of a novelty: provision for the review of the exercise of delegated powers in Parts 1 and 2 covering both goods and services. While I would much prefer these powers not to be in the Bill in this form at all, I will listen with care to what the Minister has to say and what he tells us about the reviews, what they will do and when and how they will do it. I will be looking for evidence of independence, rigour and any identification that the powers have been misused in the way that the committee has already drawn attention to.
We should not be having this debate on the Bill in this way. The Government now have the opportunity to change their tone, particularly since the Jacobin tendency seems to have been evicted from No. 10. But we have had years of the Government challenging the legitimate role of Parliament in ways that we simply could not have imagined a decade ago. I really hope that, in the word of the moment, we can reset that relationship. The tone of the letter sent to the DPRRC was something of a mea culpa from the Minister but it was only a start.
I welcome the fact that the Minister has accepted the deep concerns of that committee and the Constitution Committee on Amendment 2. I only ask him to treat Amendment 7 in the same way and agree to the relevant subsections being removed from the Bill. If he cannot accept my Amendment 7, I shall have to seek the opinion of the House when we come to it. For the moment, however, I beg to move.