My Lords, I am pleased that the Minister has wisely responded to the concerns expressed by the noble Baroness, Lady Cumberlege, the noble and learned Lord, Lord Judge, and others. I congratulate her on her efforts and successful attempts to draw attention to the mischief of Clause 40. In its original form, it was a manifestly unacceptable provision —indeed, a quite extraordinary clause. I remind your Lordships that it said that by regulations the Minister may “make such provision” as the Minister,
“considers appropriate in consequence of any provision of this Act”,
and that the provision that the Minister may make included amending, repealing or revoking any enactment —any primary or secondary legislation.
Your Lordships’ Constitution Committee, of which I am a member, has regularly drawn attention to the constitutional impropriety of such broad Henry VIII clauses. Clause 40 should never have been tabled in that form. I added my name to Amendment 68 in the name of the noble Baroness, Lady Cumberlege, which would leave out that clause, because of my concern at the constitutional impropriety. The noble and learned Lord, Lord Judge, added his name for the same reason, as he explained in Grand Committee.
The wording in the amendment is much more acceptable. As the Minister indicated, it is confined to consequential regulations, not regulations that are, in the view of the Minister, appropriate in consequence of the Act. I have no doubt that a court would hold Ministers to that objective test. The new wording is also confined, as he said, to provisions consequential on this part of the Bill.
I am therefore grateful to the Minister for tempering the wish of the Executive to take broad powers to amend primary legislation. I hope he will communicate to his ministerial colleagues that noble Lords are focused on this subject and that if Ministers again bring forward broad Henry VIII clauses such as Clause 40, we will put down amendments and, if necessary, divide the House.