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My hon. Friend is absolutely right. The reality is that if this discretion will be scrutinised only in the courts after individuals have raised concerns about the impact of delegated legislation on their rights, then the breadth of discretion that the judiciary has to determine whether something is appropriate rather than necessary could be quite problematic. Indeed, that was reflected in the previous Parliament by judicial concerns about the breadth of discretion afforded by the word “appropriate.” I tried on numerous occasions in the previous Parliament to get Ministers to explain why they must have “appropriate” rather than “necessary,” but I am not a quitter, so I will try again today, and I will be interested to hear what the Minister has to say.
Moving on to amendment 10, in the name of my hon. Friend the Member for Central Ayrshire, I believe that she will speak about it later or may wish to intervene on me, but I will just deal with it fairly briefly, because it is important. Others will obviously speak about Northern Ireland at length this afternoon, but amendment 10 deals with powers in relation to implementing the Northern Ireland protocol. As my hon. Friend said yesterday, the arrangements in relation to the protocol are pretty sketchy, with almost everything left to the Joint Committee to work out and then to be enacted, again, through delegated powers.
However, a significant difference exists between the restrictions on the powers afforded under proposed new section 8C and those under previous similar sections, such as section 8B(5) of the European Union (Withdrawal) Act 2018, because there is no restriction on the powers, for example, in relation to their ability to impinge on the devolved settlements of Scotland and Wales. Of course, concerns exist about the extent to which business organisations, the food and drink industry and, particularly, inshore fishing, as we heard yesterday, could be impacted upon in Scotland by the Northern Ireland protocol.