My Lords, my noble friend Lord Paddick and I have Amendments 194CC to 194CE, 238A and 238B, 240A and 240B, and 242A in this group. First, of course, there are the amendments of the noble Lord, Lord Rosser. The first of these is very similar to Amendment 194C, which we debated before the Recess, and which would have replaced the word “modify” with “extend or augment”. The amendment of the noble Lord, Lord Rosser, would do the same, except that it says,
“extend and augment the oversight”.
The Minister’s reply on the third day of Committee referred the Committee to the affirmative regulations which would be required and to the scrutiny involved. I am often not convinced by an argument that secondary legislation provides adequate scrutiny regarding the protection that might be given. I will probably never be wholly convinced about this as a mechanism until there is a mechanism to amend secondary legislation. I dare say that the response will be the same; if it is not, that will be interesting in itself.
On Amendment 194CB, I do not think that I would want to limit the modification which is the subject of this to keeping up with technical developments. There could be some other reasons if it is found that the powers are not quite spot on. But this is certainly an area of concern.
Amendments 194CC to 194CE deal with Schedule 7, which relates to codes of practice. I have already expressed some reservations about them. The first of the amendments would add to the procedural requirements that the Secretary of State must consult on a draft code as well as consider representations on it. The Minister may say that the Secretary of State will have to consult because she cannot consider representations without consulting. I am not quite sure whether that would be a logical or complete answer, but assuming that the Secretary of State will be expected to consult, we should say so.
Two other amendments concern the terms “taking into account” and “having regard to”. I realise that we discussed the hierarchy between these terms—if there is any—on a previous day, so I apologise to the Committee. I think that the answer was that it would be inelegant not to use different terms in the clause, which would otherwise suffer from very clunky wording.
The noble Lord, Lord Rosser, referred to our other amendments, which indeed come from the report of the Delegated Powers and Regulatory Reform Committee. I am extremely grateful to the Public Bill Office and in particular to Nicole Mason, with whom I had some quite long discussions and email exchanges as I tried to get to drafting that would pick up the points made by that committee. This is what these amendments seek to do. The noble Lord referred to the concern about a power to amend future enactments—not only those later in the same Session as the Bill, which would be understandable, but whenever they are made.
The committee also quoted a paragraph from the memorandum on delegated powers, which advised the House that,
“this potentially wide power is constrained by the requirement”,
on the Secretary of State to consider,
“the provision to be appropriate in consequence of this Act. Accordingly, the power is effectively time limited”.
The committee said that it found this paragraph difficult to understand—and so did I. It also said that it is not convinced that it is necessarily right. Its recommendation was 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”.
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The committee also commented:
“While the Government accept the general principle that changes to primary legislation by secondary legislation should be subject to the affirmative procedure they consider that there will be cases where the negative procedure is appropriate”.
The committee also referred to the Government’s view that,
“it is not practicable to spell out on the face of the Bill those cases where the affirmative procedure is appropriate”,
and that,
“the Government suggest that it should be left to Ministerial discretion”.
The committee remained,
“unconvinced by the Government’s arguments”,
saying that there will be relatively few occasions when powers to modify primary legislation in the way that is the subject of all this need to exercised. It stated:
“Accordingly, we remain of the view that the affirmative procedure should apply to the exercise of a power to amend primary legislation—even if it is dressed up as a power ‘to otherwise modify’”—
do we really have a split infinitive in all this?—
“save in very exceptional circumstances which need to be convincingly justified”.
That is what underlies the amendment: adding “repeal” to require the affirmative procedure.