My Lords, I support the amendment and the arguments advanced by the noble Lord, Lord Pannick. I apologise if the Committee starts its debate on another report from the Constitution Committee before this section is concluded.
In many respects this is a skeleton Bill, and in this area it changes significant amounts of primary legislation into secondary legislation, therefore making it open to less effective parliamentary scrutiny when powers are used. If something needs to be changed because of inconsistency, then the face of the Bill is the place to put it, but here we are with the concept of inconsistency so subjective and vague that it is difficult to imagine how a court would interpret it. Is
“otherwise capable of affecting the interpretation, application or operation of any such provision” restricted to precluding the operation of the Act, or does it extend to casting doubt on provisions in this Act? What is it supposed to mean?
In our report on Brexit legislation, the Constitution Committee said that
“delegated powers should be sought only when their use can be clearly anticipated and defined”,
yet in this Bill we get terms such as “appropriate”, “in connection with” and the ones which I have just quoted. It is an unsatisfactory way of drafting, and I am bound to wonder what instructions were given to the parliamentary draftsmen when they worked on this section.
The Constitution Committee has had quite a bit of discussion over the last couple of years about the drafting of legislation and the circumstances in which parliamentary draftsmen should say, “No, this is not a way in which we write laws, this is not acceptable”, and if a dispute arises, then not only departmental Ministers but also law officers should be involved in defending the basic principles of law. Having looked at these provisions, which I hope the Government will find a way to remove, we concluded that
“they risk making a complex area of the law even more difficult to navigate and understand for practitioners and individuals alike”,
and that they threaten to
“frustrate essential ingredients of the rule of law.”
These seem to me to be compelling arguments for the Government to have more thought on this issue.