My Lords, I am grateful to have this opportunity to move the amendment standing in my name and that of the noble Lord, Lord Foulkes. I thank him for kindly supporting the amendments. I shall speak also to Amendments 13, 33, 44, 60 and 74.
Amendment 9 requires the Secretary of State to publish the results of the consultation referred to in Clause 6(7) and to give reasons for any decision reached. The reason for this is the history of the Bill, which we are told was drafted at pace, and had an unusually short overall consultation period of one month. I understand the responses to the consultation were published on the same day as the Bill. There was no
prior consultation on drafts of the Bill, which I understand is a most unusual procedure. Once again, I am obliged to the Law Society of Scotland for its assistance in drafting these amendments.
The obligation on the Secretary of State to consult the devolved Administrations is welcome, but the clause currently lacks any obligation on the Secretary of State to report the outcome of the consultation with reasons for the decision. In the interests of transparency, the Government should make public the outcome of the consultation for that reason. I hope the Minister in winding up this debate will see fit to do that.
The other amendments in the group all relate to the super-affirmative resolution procedure. Amendment 13 adapts Clause 8 to this; Amendment 33, Clause 17; and Amendment 44, Clause 20. Amendment 60 creates a new schedule on the super-affirmative procedure and Amendment 74 creates a new clause setting out the scrutiny procedure in certain urgent cases. The reason why the amendment seeks to introduce the super-affirmative resolution procedure, the supportive schedule and the new clause, as I have mentioned, is to up the level of parliamentary scrutiny applicable to regulations under these clauses and the new schedule, which is currently by the affirmative resolution procedure. This is partly for the reason that I gave earlier: woeful time was given, in quite unusual circumstances, in which to draft the Bill. Changing the scope of the relevant clauses, in my view, that of the Law Society and of the noble Lord, Lord Foulkes, may have significant consequences. It is much more beneficial to use the super-affirmative resolution procedure, because it enables longer consultation and for the views of interested parties to be taken into account.
I mentioned Erskine May previously in Committee. Paragraph 31.14 describes the super-affirmative procedure as having
“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… 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.”
In the view of the Law Society of Scotland, with which I concur, the Bill is of profound constitutional significance. As paragraph 4 of the Constitution Committee report indicates, we need as much scrutiny of the Executive as possible. Deploying the procedure that I propose, as set out in these amendments, will achieve a better outcome than simply keeping the Bill in its present form, with the usual affirmative procedure.
I was delighted by the debate that we enjoyed in Committee on the earlier manifestation of this amendment, as summed up by the noble Lord, Lord Thomas, in his objection. He said he could not “support the precise method” adopted. There may be many approaches to the super-affirmative resolution procedure, but the schedule that accompanies this amendment contains a detailed procedure. The noble Lord, Lord Thomas, also noted that:
“If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary
legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to ‘representations’, but there is no indication from whom the representations would or should come.”
Since the Minister’s power undoubtedly includes the possibility that the proposals will, at the very least, impinge on the devolution settlement, the noble Lord goes on to say that:
“I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should ‘have regard to representations’.”—[Official Report, 28/10/20; col. 279.]
I am delighted to say that the schedule now provides a requirement to receive representations from and to consult with the devolved Administrations. We have also proposed a new clause in Amendment 74, which will deal with cases of urgency when regulations need to be presented. I am further encouraged by the fact that I understand from private discussions that the Liberal Democrats are minded to support the super-affirmative procedure, but I have had less success with the Official Opposition. There is still time for them to change their mind. On this basis, and with these brief remarks, I beg to move.