Clearly, there are major risks with Henry VIII clauses, and we have more of them in this Bill. My noble friend Lord Thomas reminded us of the roots of the term, and that the tools were once weaker than those used by the Government today. Statutory instruments are unamendable and almost never voted down. These clauses use secondary legislation to amend primary legislation. We are getting more and more instances of their use.
The House of Lords Select Committee on the Constitution has been very critical of this. As the committee put it:
“A distinguishing feature of the Brexit bills was the extent of the delegated powers they contained. Many were skeleton bills, providing broad powers to ministers to create new policy regimes and public bodies for the UK after Brexit with little or no detail as to what policy would be implemented or the nature of institutions which would be created.”
The University of Bristol Law School has noted:
“It seems that the desire to ‘take back control’ from the EU has morphed into an altogether more sinister desire on the part of the Government to minimise scrutiny of its policy choices.”
The noble and learned Lord, Lord Judge, to whom other noble Lords have referred, has called for such clauses to be
“confined to the dustbin of history”.
He is surely right.
There was huge concern about this when the predecessor Bill was published in 2018. There have been improvements, but they are insufficient. It is still not clear what the policy will be in the coming years, with so many “may”s and so few “must”s in this Bill. All noble Lords who have lasted this long in the proceedings on the Bill to contribute to this group have expressed concern. The Minister is probably relieved that some stood aside, but I expect they would have said similar things. However, even that would not have tested the patience of the Minister, who richly deserves a summer holiday back in the English countryside. But he will have much to think about.
Despite the changes from the 2018 Agriculture Bill, the Delegated Powers Committee remains concerned, and these amendments reflect that. These amendments also reflect the NFU’s concern. Nothing is certain for British agriculture at the moment, and these powers need to be clarified and curtailed. I look forward to the Minister’s response.