My Lords, my noble friend Lady Hamwee and I have Amendments 45, 85A and 85B in this group. While I share the concerns of the noble Baroness, Lady Jones of Moulsecoomb, regarding the potential for partisan action in these circumstances, I would have thought if there was ever a need for political accountability in terms of who is going to be targeted by a warrant of this kind, it is where a parliamentarian is being targeted. I can see the tension and the dilemma in that.
The Bill states in Clause 26(2) that additional safeguards for Members of Parliament include the fact that:
“The Secretary of State may not issue the warrant without the approval of the Prime Minister”.
Our Amendment 45 suggests that where the warrant relates to a Member of the Scottish Parliament, it should not be issued without the approval of the First Minister of Scotland, as the most appropriate person to give such approval. Perhaps the Minister can explain why it should be the Prime Minister in every case.
4.30 pm
Amendments 85A and 85B concern a separate issue arising out of the comments of the Delegated Powers and Regulatory Reform Committee on the Bill. The reasoning behind these amendments is more complex. I commence this explanation with some hesitation because I am not quite sure I understand it either, but I will give it a go. The committee’s 2nd Report of Session 2016-17, published on 8 July 2016, questions the power given in Clause 242(2) to the Secretary of State to,
“by regulations make such provision as the Secretary of State considers appropriate”.
Under Clause 242(3), this power may be exercised by amending or otherwise modifying provisions of primary or subordinate legislation, including future enactments.
Of course, past enactments may have to be amended to ensure that they fit with the provisions of this Bill
but future legislation should be capable of taking those provisions into account. The Government’s explanation that other enactments currently going through Parliament,
“touch upon the powers and public authorities covered by this Bill”,
partly explains the need but does not justify a power to use subordinate legislation to amend future enactments whenever they are made. The Government’s explanation that because the power is limited to provisions appropriate in consequence of the Act,
“the power is effectively time limited”,
does not seem to hold water, at least not as far as the committee is concerned. Whatever the Government think the clause might be in practice restricted to, as drafted it appears to allow that at any point in the future the Secretary of State could decide that a future enactment needs to be altered to fit with the Act. The committee concludes:
“we take the view that the powers conferred by clause 242(2) and (3) are inappropriate to the extent that they permit amendment of future enactments passed or made after the current Session”.
Perhaps the Minister can convince the House on these issues since the Government appear to have failed to convince the Delegated Powers Committee.