My Lords, Clause 27 would establish the Henry VIII power, which has drawn the ire of the Delegated Powers and Regulatory Reform Committee—so this speech will come as no surprise to the Minister or,
indeed, the noble Baroness, Lady Bloomfield, who heard a slightly different version of it earlier this week. Thereby hangs a tale, because this is a consistent practice of the Government in legislating not just for the present but putting in place measures whereby the Bill cannot just be continued or rolled over but rolled over and substantially changed. In this case, Clause 27 gives Ministers very broad discretion to change how the Bill would work in future periods of coronavirus control. It would allow changes of a kind that would give rise to serious policy issues and this ought not to be a matter for secondary legislation.
Turning to the detail, the Bill applies to business closures that took place in two specific periods—11 March 2020 to 18 July 2021, for businesses in England, and 21 March 2020 to 7 August 2021 for businesses in Wales. However, Clause 27 gives the Secretary of State powers to make regulations that allow the Bill to apply to future periods of coronavirus control.
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As the Minister said when speaking to the previous group, we do not know what is coming down the line and there is some element of sense in keeping options open. As we know, regulations are subject to the affirmative procedure. However, as the Delegated Powers and Regulatory Reform Committee pointed out and highlighted, there is much more than just the power to provide for the Bill in its existing form to apply to a future problem.
Clause 27(3) allows the regulations to specify provisions
“which are not to apply”,
to provide for provisions to apply “with modifications”, and
“make different provision for different purposes (including different provision for England and for Wales)”.
That changes the nature of the Bill for some uncertain future and means that the regulation could provide for a very different version of the Bill to apply to future periods of coronavirus control. For example—these examples are set out by the DPRRC—the regulations could
“modify the arbitration process (for example, by removing the right to an oral hearing); change the principles that govern the making of arbitration awards; limit the types of award that an arbitrator can make; or limit the availability of awards”.
That is all hypothetical, because we do not know what the Minister might do. There is a practical opposition to this and then there is a principled opposition to it.
The memorandum that accompanies the Bill does not explain why the Bill contains this highly unusual Henry VIII power. It gives very broad discretion to rewrite primary legislation—and we all know what we on this side think of using statutory instruments to rewrite primary legislation. It should not happen. Had the Bill instead contained a power that would allow it to apply to future periods of coronavirus control, coupled with a limited power to make necessary changes to these provisions that currently limit its application periods to 2020 and 2021—in other words, extending its periodicity without changing the nature of the Bill itself—it would not have been an issue for the DPRRC or, frankly, for me.
Accordingly, the DPRRC considers that Clause 27
“contains an inappropriately wide delegation of power and that clause 27(3) in its current form should therefore be removed from the Bill”.
I agree, which is why I am speaking against the clause standing part. The Minister knows that the DPRRC is a serious committee; it is one of the most important committees that we have in your Lordships’ House and it does not make these judgments lightly. I hope that the Minister will understand that, acknowledge this issue and find a way of moving forward, while recognising that Clause 27 in its current form is not an acceptable drafting.