My Lords, it is always a delight to follow the noble Lord, Lord Judd, who always helps us with his wisdom and experience. I join him in commending this understandable attempt by the noble Baroness, Lady McIntosh of Pickering, to strengthen the scrutiny of any regulations made by the Minister under the proposed Bill, whether in the exercise of Henry VIII powers or otherwise. While I entirely support their purpose, I cannot support the precise method that the noble Baroness puts forward. The trouble is that there is no single super-affirmative procedure; there are, as the noble Lord, Lord Naseby, pointed out, a whole host of procedures.
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In paragraph 88 of its report, dated 20 November 2018 and entitled The Legislative Process: The Delegation of Powers, the Constitution Committee pointed out that, over the years, there have been:
“A variety of strengthened scrutiny procedures … specified in individual Acts.”
The Hansard Society’s report, The Devil is in the Detail: Parliament and Delegated Legislation, identified 16 variations of enhanced scrutiny procedures, while the DPRRC said in paragraph 13 of its third report of 2017-19:
“Although these strengthened scrutiny procedures share a number of common features, there are marked differences between the Parliamentary procedures applicable to different powers or categories of powers.”
The Constitution Committee pointed to the view of the Law Society of Scotland, which has already got a mention, that instruments subject to these enhanced procedures
“can attract significant scrutiny which undermines the concept of speed and flexibility which delegated legislation is supposed to represent.”
Indeed, the noble Baroness, Lady Fookes, who chaired the DPRRC when I was a member of it, suggested that Parliament should “standardise these enhanced procedures”.
However, there is a more fundamental problem. If a Minister wishes to exercise his powers under the Bill, there is no requirement under the noble Baroness’s proposed schedule that scrutiny of his proposed amendment to primary legislation should in any way involve the devolved Administrations; no mechanism is proposed. It is true that, in paragraph 5, the Secretary of State must have regard to “representations”, but there is no indication from whom the representations would or should come.
Since the Minister’s powers undoubtedly include the possibility that his proposals would at the very least impinge on the devolution settlement, I would be more supportive of this proposal if it required as part of the super-affirmative procedure that, in the periods of 30, 40 or 60 days during which the proposals would be looked at in Westminster, there were a requirement that the devolved Administrations should at the very least be consulted, preferably that their consent to the proposals should be a necessary prerequisite. It is not enough that the Minister should “have regard to representations”.
That is the problem with the Bill, and it has echoed through all the debates on Monday and today: instead of consultation and consent, we have diktat from the centre without any form of necessary consultation. It is not surprising that both Wales and Scotland have informed the Government that, without significant amendments, legislative consent to the Bill will be withheld. This is not a small point. Negotiations for common frameworks, which would include arrangements for the continuation of the existing internal market, have been proceeding with some success—and these have been negotiations that, hopefully, will result in an agreed solution. If that does not happen in this important area, the scene will be set for conflict that I suggest will rock the unity of the UK to its foundations.