Lord Hunt of Wirral:

Moved by Lord Hunt of Wirral

2: Clause 1, page 1, line 3, leave out subsection (1)

My Lords, in moving Amendment 2, I will speak also to Amendment 60, both standing in the name of my noble friend Lord Sharpe of Epsom. Amendment 2 seeks to remove the broad powers granted to the Secretary of State under “Product regulations”.

As my noble friend stated in Committee:

“Clause 1 grants wide-ranging powers to the Secretary of State to make regulations through statutory instruments, SIs, a process with limited parliamentary oversight. Such discretion risks undermining democratic accountability, as SIs are not subject to the same level of scrutiny as primary legislation”.—[Official Report, 20/11/24; col. GC 24.]

Unfortunately, since Committee, the Government, despite the valiant efforts of the Minister, have still failed to address this adequately.

I am very grateful for the tremendous amount of work that has been done on the Bill by the Delegated Powers and Regulatory Reform Committee. In October last year, the DPRRC published its second report on the Bill after an evidence session with the Minister and his Commons colleague. The committee was not mollified and, on 28 October, published the following:

“In our view, the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the democratically appointed legislature to the Executive”.

Having now had a chance to look at the Government’s recent concessions, the committee has just published its latest views, on 21 February. Its unanimous view is that

“these are limited changes that do little to address the significant concerns that we expressed about the Bill in our Reports of 15 and 28 October. The Government has not taken the opportunity to add flesh to the bones of this skeleton Bill … We remain of the view that … the delegation to Ministers of law-making powers in this Bill involves legislative power shifting to an unacceptable extent from the legislature to the Executive”.

Nothing, therefore, has changed.

Meanwhile, on 18 October our colleagues on the Constitution Committee also published a very scathing report. They unpicked the Government’s arguments that much of the existing law in these areas is already secondary legislation by pointing out that the transposition of EU law into domestic law by way of secondary legislation was previously constrained by Section 2(2) of the European Communities Act 1972, which allowed for the use of delegated powers only to implement EU law, and that invariably this law had been subject to scrutiny by EU law-making institutions. They were backed up by the House of Commons European Scrutiny Committee, among others.

This Bill will replace those limited secondary powers with potentially open-ended ones. I do acknowledge—and the House must acknowledge—that the Government, and in particular the Minister, have moved a long way in terms of consultation and some use of affirmative powers. Nevertheless, the DPRRC noted on 21 February that,

“even if the House were to agree to those delegations of power, in our view those powers should be constrained so that product regulations and metrology regulations are in all cases subject to affirmative procedure scrutiny”.

This is not to oppose for the sake of opposition; it is a vital issue of principle. We take the view that, if two vitally important committees of this House express such serious reservations on more than one occasion, those reservations should be taken seriously. We accept, of course, that the Government have the right to disagree and to make their case—indeed, we did so in government on a number of occasions—but this Bill quite simply asks us to go too far.

It is not just the committees that think this. I speak, of course, as the immediate past chair of the Secondary Legislation Scrutiny Committee. We have dealt so much in the past with the inadequacy of controls on the Executive so far as secondary legislation is concerned. I do not know whether the House will remember— I do not want to go too far back in history—but the Secondary Legislation Scrutiny Committee published on 10 October 2022 Losing Impact: Why the Government’s Impact Assessment System is Failing Parliament and the Public. Then, on 2 February 2023, came Losing Control? The Implications for Parliament of the Retained EU Law (Revocation and Reform) Bill. Even more important was the report published as long ago as 24 November 2021—so this is a reflection on the previous Government—entitled Government by Diktat: A Call to Return Power to Parliament. I suppose that is what I am now asking for.

I do have an ally. My noble friend Lord Jackson of Peterborough has quoted very persuasively already, although he was unconstitutionally interrupted twice by my fellow Lord Hunt, the noble Lord, Lord Hunt of Kings Heath. This was totally contrary to the rulebook, as I understand it—but I hesitate to criticise because I am sure I have probably done the same thing myself. Report stage, as the noble Lord, Lord Russell of Liverpool, quite correctly pointed out, is constrained. Here am I, asking everyone to pay attention to the views of our Select Committees; I should also ask everyone to pay attention to the Companion.

It is quite right. I saw the Attorney-General last night during the course of the votes and warned him that we would be quoting, as my noble friend did, from his Bingham Lecture. I thought it was an absolutely brilliant lecture. Indeed, it was so good that I circulated it at the time, as the noble Lord, Lord Russell of Liverpool, will know, to all my fellow members of the Secondary Legislation Scrutiny Committee and asked the clerk to make sure that all our Select Committees were made aware of what was, I felt, a brilliant speech by the Attorney-General.

He laid down a clear procedure to follow: namely, the rule of law. The rule of law has a range of values which the Attorney outlined in that speech. They are all to do with the cardinal principles of accessibility and legal certainty. I am not going to repeat the words of the Attorney because they are already on the record in this debate, but I recognise that Governments tend to prefer a system where they can lay down in primary legislation that they can do what they like in secondary legislation, even to the extent of repealing primary legislation. In many ways, we have to say to ourselves, “Is this the way we want to proceed?”

Amendment 2 in particular gives the House an opportunity just to say, “Enough—no more. Please go back and find a better way of proceeding in this vitally important area of law”. I beg to move.

My Lords, I must inform the House that, if Amendment 2 is agreed to, I will not be able to call Amendments 3 and 4 by reason of pre-emption.

My Lords, I rise not to support the noble Lord, although it is a pleasure to follow him, but to address government Amendments 44 and 61 in this group, which I have signed, together with government Amendment 55, which will be for another day.

The Constitution Committee has already been kindly mentioned by the noble Lords, Lord Sharpe and Lord Hunt. As a member of that committee, I register my appreciation for the fact that the Government have not only listened to the committee’s concerns and to those developed with impressive persistence by the Delegated Powers and Regulatory Reform Committee but have reacted constructively to them. The Henry VIII powers have been greatly reduced in scope and a credible explanation has been given for the small remainder. While the Bill continues to contain uncomfortably wide ministerial powers to make significant policy decisions, the broad duty of consultation in Amendment 61 is a welcome mitigation. The third part of the package—an extension of the affirmative procedure—is another positive step.

It might have been possible to go further, as the Delegated Powers Committee has rightly said. But, for my part, I would not go so far as to support the noble Lord, Lord Hunt, in his—I am tempted to say “wrecking” —Amendment 2. How to avoid the unconstrained use of excessively broad delegated powers is a problem that will not go away. It was raised by this Bill in a particularly acute form. The Government have grappled with it conscientiously and they deserve credit for that.

I have one final thought. It is rather a dry one, I am afraid, but what do you expect from the Cross Benches? I hope that, some day, the relevant committees of this House might have occasion to discuss the constitutional issues around framework Bills and delegated powers with the Government, not only Bill by Bill, as we do at present, but in a more structured and strategic way. Such discussions would give proper weight to the constraints on government but could also draw on the guidance provided by our committees and bodies such as the Hansard Society over many years. Perhaps the Minister will agree, after his generous and productive engagement on this issue, that the goal of a more consistent and principled approach on both sides of the fence might at least be worth pursuing.

I shall speak to my Amendment 4 in this group, which, we are advised, would be pre-empted if Amendment 2 were to be passed, by reason of the deletion of the relevant provision in Clause 1(1), to which it would add an additional subsection. It would add to the overarching objective of making regulations, which is to secure safe products:

“In considering whether regulations should be made … the Secretary of State must have regard to the likelihood of the United Kingdom being seen as a favourable place in which to develop, manufacture or supply products”.

Of course, many of the debates that we have on the Bill will relate to the question of alignment, or otherwise. One of the reasons why we are considering this legislation is because there would be significant issues to do with the manufacture, distribution and supply of products in this country were we to diverge significantly from the standards that lie behind the CE marking from the European Union. Rather than continue, as we have done, with reliance on the retained EU law legislation, it is the Government’s intention, through this legislation, to enable us to accept CE marking. That is not necessarily on a dynamic basis—I agree that it is a matter of choice whether we do so—but the Bill’s structure is intended to enable that to happen. Because we seek to do that by reference to the adverse economic consequences that may flow from failing to be able to bring products here, which may drive some economic activity elsewhere, it seems important that Ministers making regulations under this legislation should consider whether, as a result, the UK is an attractive place in which to manufacture, distribute or supply products.

This is not a new concept. The noble Lord, Lord Hunt of Kings Heath, on the Government Front Bench will recall that the Medicines and Medical Devices Act 2021 includes effectively the same provision in relation to medical devices. Medical devices are outside the scope of this Bill but it is relevant to a wide range of other industrial products. I do not understand why it should not be an essential part of the way that Ministers consider making regulations that have such an impact to have regard to the positive benefits that can accrue to business from ensuring that we have the right product regulatory framework for them, so I commend Amendment 4 to the House.

I do not agree with the noble Lord, Lord Anderson, that Amendment 2 is a wrecking amendment. Why not? Because, if the first subsection were to be removed by that amendment, the regulation-making power would be removed from the Bill so the Government would have to think again. However, the noble Lord and the House will note that later in this group is government Amendment 44. The original formulation in the Bill was to have consequential amendments to Parts II, IV and V of the Consumer Protection Act 1987. In response to the suggestion from the Delegated Powers Committee, which was unhappy with the sweeping power to amend that Act, the Government have instead said, “We’re going to omit Parts II and IV now”. Part II is the bit I am interested in; it is the part of the Act that relates to product safety. The Government simply propose to remove Part II of that Act.

I say to the House and to my noble friend on the Front Bench that if Amendment 2 were to be passed the Bill would clearly have no further regulation-making power in it. However, if at the same time the House were to resist government Amendment 44 then there would continue to be powers in the Consumer Protection Act 1987 for the purpose of making regulations for product safety. The House will be reminded that Section 11(1) of the 1987 Act says:

“The Secretary of State may by regulations … make such provision as he considers appropriate for the purpose of securing … that goods to which this section applies are safe”.

More detail follows, including the respective ways in which provisions can be determined.

The Government should tell us either how they are going to legislate using the powers in the 1987 Act or, if they want to get rid of them, how they are going to replace them in detail. They have done neither of those things. I know we are going to come back to talk about legislation on product liability at a later stage. The Consumer Protection Act is nearly 40 years old and we know it needs updating, but the Government are not doing that; they are sweeping it away and not giving us anything like the detail that was in that Act as to how the powers are going to be used. Nearly 40 years’ worth of scrutiny of the Section 11 provisions on product safety will also be swept away, because the language in this Bill is not the same as in that Act.

The House will have to forgive me: I am slightly anticipating the next group and Amendment 3, because if Amendment 2 is passed, Amendment 3 will not be debated; it will have been pre-empted. I want to make it absolutely clear that although I support my noble friend’s criticisms of the way the Bill is constructed, there is a route available to maintain the powers for determining regulations for product safety. That would force the Government to come back and amend the Consumer Protection Act in ways that are more substantive and clearer than what the present Bill offers us.

My Lords, I recognise and value the constitutional principle that the noble Lord, Lord Hunt, eloquently draws to our attention. Ministers should not be given broad delegated powers, but constitutional principles are not absolute; they have to recognise practical reality.

In the context of this Bill, the practical reality is that technical regulations of the breadth and complexity that will be produced cannot sensibly be enacted by primary legislation. We are dealing, in Clause 1(1), with regulations that reduce or mitigate risks presented by products; to ensure that products “operate efficiently and effectively”; and that ensure that products designed for weighing or measuring operate effectively. Are we really to debate each and every such regulation in this House, either on the Floor of the House or in Grand Committee? We would have little, if any, time for anything else.

If the regulations raise issues of principle, Parliament retains control. Parliament does not have to accept the regulations; it can vote against them under the normal principles. The noble Lord, Lord Hunt, suggested, quoting someone from one of the committees—I cannot remember which—that this is Government by diktat. I suggest to him, with the greatest of respect, that that is unfair and inappropriate in this context, for the reasons I have given.

My Lords, I make it clear that, having disagreed with Amendment 1, I agree with the noble Lord, Lord Hunt, in his discussion here. I fundamentally disagree with the words of the noble Lord, Lord Pannick, because this is exactly the moment when we give away basic parliamentary control. We know perfectly well that, although it is better than it was, it is still true that a great deal can be done by ministerial diktat which ought to come to Parliament.

I am not in any way suggesting that everything should come to Parliament. Of course, it is very easy to say, “You can’t have everything”, but that does not mean that we should allow this to go through without insisting on having a much clearer definition of where ministerial diktat is proper and where it is not. Until we get that right, this is, if I may dare say so to the noble Lord, Lord Pannick, the slippery slope.

I opposed the previous Government—my own Government—again and again on precisely this problem. Ministers always want these powers, and they are always encouraged by civil servants to have them. As a Minister for 16 years, it did me a great deal of good not to have those powers and to have to argue the case across the House. I therefore beg this House to support the amendment from the Opposition, not because it does not have to be overturned and have something else replace it, but because it will make the Government think again about the effects of the wide-ranging powers which they have demanded.

I remind people that we believed, or were told, that we were taking back control. I think we in fact did not take back control at all; we made ourselves less powerful in controlling our futures. But the one thing that we did not say we would do was to give Ministers the unfettered control which some had objected to in the European Union, so it is necessary for the Government to go further. I usually find the noble Lord, Lord Anderson of Ipswich, very persuasive, but I fear that he has given way too early. We ought to ask for further concessions before we can safely pass this Bill.

My Lords, I will speak briefly to Amendment 39, tabled in my name, which has ended up in this particular group almost by accident. It relates to a specific issue about the making of regulations as they relate to criminal offences arising from non-compliance in respect of metrology. This amendment is quite important because it requires that, at least 30 days before the making of a provision in respect of regulations as described in Clause 6(9), those regulations be placed in the Libraries of both Houses in the form of an Explanatory Memorandum.

This is important because the creation in secondary legislation of any criminal offence is a serious matter, and one that needs proper scrutiny and oversight. On that basis, it is a reasonable request for the Government to look benignly on this amendment, because they have previously committed to transparency and openness in many respects in the Bill. This would give parliamentarians an opportunity to raise some questions about the likelihood of a criminal offence arising from metrology regulations. For that reason, I may press this amendment.

My Lords, following the theme of benign attention from government to amendments that have washed up in this group, I shall speak to my Amendment 41. In doing so, I declare my technology interests as set out in the register, not least as it applies to Socially Recruited, an AI business.

There are many things that are not in the Bill, data centres being one of them; yet these are the factories and foundries that are going to fuel our fourth industrial revolution, which is already well under way. We might think back to all that Victorian factories legislation, all quite appropriate and proper, whereas all I am seeking here is not even a whole statute—which we could have on data centres alone—but merely one amendment, which I hope the Government can look benignly upon. It simply asks the Government to undertake a consultation to look at a new standard for the measurement of the power usage of data centres.

We are going to rely increasingly on data centres for almost everything that we do in this country. How we power them, where we site them, the inputs, the outputs, where the technology comes from—all of these are key features currently utterly unconsidered in any legislation or regulations. All that my Amendment 41 seeks to do is suggest that the Government launch a consultation, following the passage of the Bill, to look at the effectiveness of a,

“metrology standard for the power usage of data centres”,

and, not least, to reconsider the current power usage effectiveness—PUE—standard and whether it is up to the job in hand.

My Lords, this has been a really interesting debate. It is a shame that we cannot have this debate on group 3, where we could set out some of the issues that I am going to explain very briefly—without repeating the speech that I am going to make in group 3 —on how scrutiny can be enhanced for secondary legislation. I share the concern of your Lordships’ House that insufficient and inadequate scrutiny happens even when we have statutory instruments. As the noble Lord, Lord Hunt of Wirral, pointed out, we need something better than the way in which we deal with statutory instruments at the moment. Very rarely, if ever, are they turned away; we have regret Motions that, in sum, make no difference at all.

To some extent, we are protecting a paper tiger here. What we should be talking about is whether there is a way we can make sure that these future regulations go through a process that is properly scrutinised. The proper debate on that will happen in group 3, and we will take it through. I completely agree with the noble Lord, Lord Jackson, that the issue of criminal sanctions is a concern and that we need to have a way of scrutinising it. That will be included when I speak to group 3, as will be the environmental measures raised by the noble Lord, Lord Holmes, in this group, and by the noble Baroness, Lady Bennett, in the next group.

We do have a way of having greater transparency, but it is not by statutory instrument to be nodded through over and over again. We have to be honest with ourselves about what we actually do when we are dealing with secondary legislation. That is why I have been working very hard, and why I welcome the conversations I have had with the Minister and his team, to try to open up something that will not only give us better scrutiny—I would say nearly proper scrutiny—but also something that will survive contact with the government majority at the other end. That is the opening point which, to some extent, is a speech for a different group.

With respect to this group, Amendment 61 mandates additional consultation, and Amendment 55—which has strangely been put in group 12—strengthens the affirmative process. I was very pleased to see the name of the noble Lord, Lord Anderson of Ipswich, added to those amendments; I very much appreciated his speech today, and that of the noble Lord, Lord Pannick. Those amendments add further resilience and help to meet some of the issues that were raised by your Lordships’ committee.

Once we have discussed the changes in group 3, hopefully with the response of the Minister, they will also contain some of the issues raised by the noble Lord, Lord Deben. Again, the fundamental question is: how do we properly review legislation? I am hoping that we have come up with a way that will do this. That is why we are keeping our powder dry on these Benches. We have put a lot of work and a lot of hope in what we are going to be doing in the next group, and I think we can give your Lordships’ House, and indeed parliamentarians as well as all the external bodies, a way of participating in the proper pre-scrutiny of statutory instruments before they ever reach your Lordships’ House, whether it is by affirmative or negative process when they get here.

My Lords, first, I welcome the noble Lord, Lord Hunt of Wirral, to his place; I look forward to working with him constructively in the months ahead. I thank the noble Lord, Lord Fox, for giving us a little peek into what to expect in the next group.

I have listened carefully to the concerns around the scrutiny of such regulations from Peers, the Delegated Powers and Regulatory Reform Committee, and the Constitution Committee. I have also read my noble friend the Attorney-General’s lecture, which we have taken on board. That is why the Government propose to introduce a mandatory consultation requirement on the Secretary of State to consult such persons as they consider appropriate. This was welcomed in the DPRRC’s latest report; I particularly appreciate the committee’s constructive engagement. Consultation is a crucial part of the Government’s commitment to continued stakeholder engagement.

I refer to Amendment 4, in the name of the noble Lord, Lord Lansley. Basically, we are amending the Bill to require consultation. The Government will need to consider how to ensure that the UK is a good place to manufacture, develop and supply products. I am sure that businesses will let us know their strong views.

Amendment 61 has been drafted in such a way to ensure that consultation is appropriate to the circumstances, reflecting the potential risks posed and those with an interest. This is well precedented in existing legislation and allows for a variety of approaches, including: calls for evidence on specific areas, such as the recent common charger and outdoor noise calls for evidence; full consultations, such as that undertaken as part of the product safety review; and technical discussions to consider sector-specific actions—for example, on cosmetics—where a specialist scientific committee has been commissioned to form an opinion.

We have set out more details in an accompanying statement within our new code of conduct on how, when and with whom the Government currently engage on regulatory matters associated with product safety and metrology. This code of conduct is available in the Library of the House, and I hope Peers will find it a useful document.

Amendment 60 seeks to introduce a mandatory six-week minimum period for consultations. We believe that this will not always be necessary or appropriate because changes to product and metrology requirements can range from minor technical amendments to more substantial changes. It is important that the consultation requirement gives flexibility to the Secretary of State to consult as needed, and as appropriate, on a case-by-case basis. However, we have not stopped at a consultation requirement.

We have thought hard about an overall package of amendments. I now refer to Henry VIII powers. I thank the noble Lord, Lord Pannick, for his insightful contribution, and the noble Lord, Lord Anderson of Ipswich, a member of the Constitution Committee, for his contribution.

We have heard the concerns expressed about Henry VIII powers and are amending the Bill to eliminate most of them. Amendments 44 to 47, 62, 63 and 65 therefore restrict the number of Henry VIII powers to the absolute minimum necessary. We are removing entirely the power to amend or repeal provisions of the Consumer Rights Act 2015. We are putting in the Bill repeal of the absolute minimum necessary for provisions in the Consumer Protection Act 1987 and the Weights and Measures Act 1985. Commencement regulations will be used to bring those repeals into force at the right time, once regulations are made under this Bill to remove duplication in the statute book or to provide for regulatory continuity. We are pleased to see the DPRRC welcome these amendments.

Alongside these changes, the Government have introduced two small changes through Amendment 42, which is a necessary technical fix to the Bill, and Amendment 52, which is consequential.

I understand that noble Lords have concerns about the creation of criminal offences, which is the subject of Amendment 39, from the noble Lord, Lord Jackson of Peterborough. I reassure the House that regulations that introduce or widen the scope of criminal offences will be subject to the affirmative procedure. This is right and proper. To inform this debate, an Explanatory Memorandum will justify the proposed changes and be drafted after the justice impact tests and impact assessments have been completed. Additionally, the Government have brought forward an amendment to remove the criminal offence in the Weights and Measures Act 1985 applying to the sale of goods in non-permitted quantities.

Finally, I will touch on Amendment 41, in the name of the noble Lord, Lord Holmes, on the policy around the interaction between artificial intelligence and metrology. The Government cannot support this amendment. As we said in Committee, this is not an AI Bill. We will of course consider how the growth of AI affects the safety of the products that this Bill seeks to regulate and our regulatory responses to that. We will continue to work with businesses and consumer groups to understand the needs and development of AI, and what that means for the risks that physical products may present to consumers, before we consider any regulation of products containing AI under this Bill.

While I have listened to concerns, I have been pleased to see Peers across the House, as well as the DPRRC and the Constitution Committee, indicate an understanding for the need for some form of legislation. As technology and regulation continue to develop, we need new powers to keep our existing body of product regulation up to date and to address future threats and hazards. Amendment 2 in the name of the noble Lord, Lord Sharpe, would remove core provisions in the Bill that will allow us to do this. This would leave our product regulation framework frozen in time, unable to respond to either technical updates or substantial new risks.

Powers in other legislation are inadequate for updating the framework. For example, powers in the retained EU law Act are restricted and, except in limited circumstances, cannot be used to make further changes to provisions already amended using those powers or to impose tighter safety measures. I know that no Member on any side of the House wants that. Clause 1(1) is vital to delivering that aim. Our existing regulatory framework covers matters as broad as the use of the radio spectrum, the ergonomic design of protective equipment and noise emissions from certain products, such as lawnmowers and excavators. The powers in Clause 1 must be broad enough to cover these matters too.

I understand concerns about leaving the details of such important matters to secondary legislation, but our regulatory framework has developed over many years. It covers extremely technical details and I do not believe that it would be a good use of parliamentary time—as the noble Lord, Lord Pannick, mentioned—or give businesses the clarity they need, to table primary legislation every time such detailed regulation needs to be updated. We believe that the new statutory consultation requirements and changes to the number of Henry VIII powers, along with providing for greater use of the affirmative procedure across the Bill—which we will debate later—provide good guard-rails for the use of the powers under the Bill.

I hope this assures noble Lords that the regulation-making powers in the Bill serve the interests of consumers and provide clarity for businesses, as indicated by the noble Lord, Lord Hunt, by allowing our product regulation framework to be responsive. Consequently, I ask noble Lords not to press their amendments.

My Lords, this has been a fascinating debate. I thank the Minister for his kind tribute to me at the start of his remarks. We have had a good tour d’horizon. It reminds me of someone I always counted on in moments like this; we still hugely miss Lord Judge. He taught me so much about Henry VIII clauses. In fact, he told me things that I did not know as a practising solicitor. He was brilliant, and we miss him so much.

I say to the noble Lord, Lord Fox—I read his contributions in Committee, particularly about the Delegated Powers Committee—that he was in total agreement, and I do not know what has happened. Perhaps we should have a consultation about a consultation. I will come back to what the Minister said in just a moment. The Attorney-General said that

“the new Government offers an opportunity for a reset in the way that Government thinks about these issues. This means … a much sharper focus on whether taking delegated powers is justified in a given case, and more careful consideration of appropriate safeguards”.

The one message that I take from this short debate—but one of great substance—is that we need to give further reflection to the Private Member’s Bill of the noble friend of the noble Lord, Lord Fox, the Statutory Instruments (Amendment) Bill. I made a special journey—I will not go into the detail—to support that Bill. My colleagues on the Secondary Legislation Scrutiny Committee thought it was a breath of fresh air, but it met with a stonewall from the Government. If only the Government would just think again about how we deal with secondary legislation, so much of what we have been discussing would be unnecessary.

I say to the noble Lord, Lord Anderson of Ipswich, how wounding it can be to describe this important constitutional debate as a wrecking amendment. I was giving the Minister an opportunity to come forward with some new proposals. He has failed to convince the Delegated Powers Committee. Are we to consign that committee’s further report to the rubbish tip? I will not; I will continue to return to its theme that the Government have got it wrong at the moment.

It is perfectly possible for the Government to come forward with something on Third Reading. If we pass Amendment 2 tonight—I am minded to test the opinion of the House—the Government have a real opportunity to listen even more closely to this latest report, which they have only just received from the committee. It was a unanimous report: Cross-Bench, Liberal Democrat, Conservative and Labour Peers all united in saying that the Government have got it wrong in producing what is in effect a skeletal Bill.

I am disappointed that the Minister, who had an opportunity to give more ground and to go away and consider this further, did not take that opportunity. I am grateful to my noble friend Lord Lansley, who directly contradicted what the Minister has just said about the effect of this amendment, as it would not have that effect. His Amendment 4 is such a good amendment.

I am so surprised that the noble Lord, Lord Pannick, should come forward and oppose this. It flies in the face of many of the speeches he has made before. My noble friend Lord Deben—it is like old times; we worked together for 16 years in government—pointed out that we are on a slippery slope, and we just need to make the Government think again.

My noble friend Lord Jackson of Peterborough has a really good amendment in Amendment 39, as does my noble friend Lord Holmes of Richmond in Amendment 41. We have had such a good debate, and it is a shame that the Government have refused to think again. That is why, in my view, we should test the opinion of the House.

My Lords, I must reinform the House that if Amendment 2 is agreed, I will not be able to call Amendment 3 or Amendment 4 by reason of pre-emption.

Ayes 189, Noes 232.

Amendment 2 disagreed.