My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.
Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.
As the amendment sets out, it would takes 30 days, which is a reasonable amount of time, and would involve the relevant committee—it is difficult to know just now what that committee would be because the Government are moving the tables around, so we have kept it as “relevant” at this stage. The committee would make recommendations and, in preparing the draft statutory instrument containing the regulations, the Secretary of State must take account of what the committee has done and of any representations or resolutions that have come from either House. After the 30-day period, if the Secretary of State wished to make regulations, there would have to be some sense from the Government as to what had happened during the process of consultation. When the statutory instrument arrived, it would have to have approval in both Houses.
It seems to me that this is an entirely reasonable way of a Government acting in good faith. We have a problem with statutory instruments, in that they cannot be amended and are virtually never voted down by either of the larger parties when they are in opposition—which can sometimes be frustrating when I am sitting here. If the noble Baroness, Lady Noakes, was in her seat, I would pitch this as being a supportive way of giving Parliament some oversight of what is likely to be a relatively controversial process.
I turn to Amendment 43 in my name, and will reflect on the other amendments in the group. It is worth remembering that Clause 3 provides the power to make consequential provision—quite considerable power. It confers on the Secretary of State a regulation-making power to make further consequential amendments arising from the Bill; regulations that make consequential provisions that may amend, repeal and revoke an enactment passed either before this Act or later in the same Session as the Bill. It is an incredibly broad power, and it is absolutely clear, as we have seen from your Lordships’ committees, that this is something that concerns noble Lords.
The delegated powers memorandum sets out its justification for the Henry VIII powers. I am not going to read those out—I am sure the Minister will do that job for us. The Delegated Powers and Regulatory Reform Committee has been very clear in its verdict on the memorandum’s justification for the power: it is possible that not all the necessary consequential amendments have been identified in the Bill’s preparation. I think it is not just possible that they have not been identified, it is a certainty, given the lack of detail that we have before the Committee.
The problem is that the Government are taking an exceptional power either because they do not know what they want or because they do know what they want but do not know how to do it. This is a central problem with the Bill and these powers.
The DPRRC notes that even the Business Secretary at the time, Jacob Rees-Mogg, during the Committee stage of the debate in the Commons, characterised Clause 3 as
“almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[
It is a suitably florid phrase, as we have come to expect from Jacob Rees-Mogg MP. However, when someone of that political persuasion is convinced of the skeletal nature of this Bill, noble Lords opposite ought to be consumed with the same concerns. He specifically urged your Lordships to look at the clause and say that it is simply not something that we can pass into law as it is currently phrased. I did not think I would be standing here saying that I agree with Jacob Rees-Mogg, but I agree with him on this one. That can be used in evidence against me later.
Joking aside, the DPRRC’s report—I am not going to read it out verbatim because it has already been before your Lordships’ House—is damning about the powers that are contained in Clause 3. When the Minister writes his letter in response to this report, I hope it says he agrees with the DPRRC and that he takes on its recommendations when it comes to clipping the wings of this extremely undemocratic clause. I beg to move.