My Lords, I echo the words of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, in welcoming the Advocate-General for Scotland, the noble and learned Lord, Lord Stewart, to his post. I thank him and the Minister in the Commons, Alex Chalk, and their officials for taking the time to discuss with me and many other Members of this House our concerns, the House’s concerns and the concerns of the Constitution Committee about the delegated powers in the Bill and how those concerns can be accommodated by amendments. The noble and learned Lord has taken a very welcome constructive approach to these issues and I thank
him sincerely for that. He has tabled amendments that go a significant way, in my view, to meeting those concerns.
Like the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, I would have liked, ideally, to see greater restrictions on the use of delegated powers in this context, but the theme tune that often—not always, but often—accompanies Lords’ consideration of Commons amendments is the Rolling Stones song “You Can’t Always Get What You Want”, and since we will not get exactly what we want today, the next best thing is for the Minister to assure noble Lords of the Government’s intentions in this context. Again, he has very helpfully gone a long way to do that this afternoon. I ask him to confirm my understanding on three topics that are raised by paragraph 1A, on consultation, as introduced by government Amendment 4B.
The first of these topics is the purpose of the consultation. There is a mandatory obligation to consult. It is not a discretion; there is a duty to consult. The amendment does not expressly say what the purpose is, but does the Minister agree that it is implicit that one of the purposes of the consultation will be to assist the Secretary of State in deciding whether it is appropriate to implement a particular international agreement by regulations, or whether primary legislation is needed?
Can the Minister confirm that the Government recognise that some international agreements, even when they are in the scope of this Bill, as explained by the Minister, may require changes that are so significant that it would not be appropriate to implement the international agreement other than by primary legislation? I suppose, also, the consultation might assist on whether the international agreement would alter substantive law, albeit incidentally, which I understood the Minister to accept would not be an appropriate subject for delegated legislation. That is the first matter: the purpose of consultation.
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The second matter on which I would welcome assistance from the Minister concerns who is to be consulted. This topic was addressed by the noble Lord, Lord Marks. Does the Minister agree that it is difficult to envisage that there would ever be a case when it would not be appropriate to consult the senior judiciary? I understand that the Minister does not want to write it into the Bill, but it would be helpful if he could acknowledge that it is very difficult to envisage that it would ever be appropriate not to consult the senior judiciary. Does he also recognise that, if the Secretary of State is to be properly informed by this consultation, it will also require—other than possibly in the most exceptional cases—an invitation to the Law Society, the Bar Council and NGOs such as Liberty and Justice to express their views? I am not asking him to give a categorical assurance that this will be done in every case but, in respect of normal cases, I ask him to confirm his understanding that that is what he would expect normally to occur.
The third matter that I hope the Minister will address concerns the publication of the fruits of consultation—a topic that he helpfully mentioned in his opening remarks. Again, the noble Lord, Lord Marks, referred to this.
I too understood the Minister to have confirmed that the Government intend to publish a report on the consultation responses when laying regulations before Parliament. It would give the House great reassurance if the Minister could confirm—as the noble Lord, Lord Marks, asked—that this will be a full, detailed report of who has been consulted, what they said, and what the Government’s response was if the Government disagreed with them.
The reason why this is so important is because, if regulations are laid, the House will itself want to consider whether the subject matter of the regulations makes it inappropriate for the Government to proceed by way of delegated, rather than primary, legislation. The committees of this House—particularly the Constitution Committee and the Delegated Powers Committee—and the House itself will want to take account of those consultation responses when forming their views. Again, I thank the Minister very warmly. I hope he can confirm my understanding on these issues.