My Lords, Clause 15 contains what the DPRRC called the “most arresting” powers in the Bill, allowing Ministers to rip up and rewrite an Act of Parliament by granting the
power to classify parts of the protocol as excluded provision or to tweak the precise nature of that classification, with virtually no parliamentary oversight.
The Minister will argue that the Government have constrained themselves by listing nine permitted purposes for which changes can be made to the application of the protocol, but that list changes very little. The DPRRC describes it as
“a very broad set of circumstances”.
Unlike SIs made under the EU withdrawal Act 2018, which must be accompanied by a declaration of the good reasons for them, the DPRRC says that there is no obligation for a Minister to include a statement setting out why the regulations are being made.
The DPRRC report does not take issue with Clause 16, although this also confers very broad powers on Ministers: they can make any additional provision that they like in relation to additional excluded provision. Once again, we need the Government to publish indicative regulations: we currently have no idea how the use of these powers would look or how often they would be used. We are told that the tearing up of the protocol is to bring stability and predictability to trade across the Irish Sea, yet these powers theoretically allow Ministers fundamentally to alter trading arrangements at short notice, with no reasoning, consultation or formal scrutiny. As with Clause 14, the provisions appear unworkable, and granting such discretion to Ministers is likely to increase uncertainty and instability.