My Lords, it is always a pleasure to talk after the noble and learned Lord, Lord Thomas of Cwmgiedd, who manages to enlighten us all with observations that might have passed us by if we had not had the wonder of his words.
In Amendment 74 in my name, which would amend Clause 79, I treat “non-binding” as a sine qua non. The reason I put it in was to allow us to have a discussion and debate about the whole extraordinary clause on guidance. All I seek, of course, is for the Minister to agree that it is non-binding. I am sure that he will do so because all the facts speak for themselves, but there is a high head of steam building up in this Committee about the way in which guidance is being used. I will come back to the spearheading on that and how it has moved on but, basically, this Bill has what we call—Parliament also uses this phrase—“have regard to” guidance. This is a problem because it places an expectation that the guidance will be followed unless there are cogent reasons for not doing so.
Subsections (5) and (6) of Clause 79 give the game away a bit. Clause 79(5) says
“the Secretary of State must consult such persons as the Secretary of State considers appropriate”
before making the guidance. What is appropriate is not specified. Clause 79(6) says:
“A public authority must have regard to guidance issued under this section.”
“Must” is very important in this respect.
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When the Minister introduced the Bill at Second Reading, he said:
“This guidance will support public authorities to ensure that subsidies deliver strong benefits and good value for money for the UK taxpayer, and ensure”—
again we have the use of that word “ensure”—
“that subsidies are being awarded in a timely and effective way, to give businesses the certainty and confidence that they need.”
This sentence is very important:
“The guidance will also ensure that public authorities fully understand their legal obligations, and make clear which subsidies are permitted and which are prohibited.”—[Official Report, 19/1/22; col. 1710.]
If the guidance goes to that level of explanation, it is clearly not appropriate to be guidance; it should be something over which this Parliament has its say.
That is the primary problem we are facing: once we have cleared this Bill, we will have no further say about this guidance in Parliament.
Subsections (5) and (6) are the escape clauses, and use of the word “must” is critical all the way through. That gives a lie to having regard to guidance, placing an expectation that this guidance will have to be followed unless there are cogent reasons not to.
This Parliament should have consultation on all these matters. Perhaps we should share with the Minister the fact that there was a debate on these issues in this House, when Parliament was of the view that the meaning of these words should be explained. In a succession of Bills, the distinction has been blurred between what is true guidance, which helps people to understand, and regulations that lay out the details of the procedures that people are obliged to follow.
The Delegated Powers and Regulatory Reform Committee stated in its most recent report that
“the fact that guidance would be produced after consultation with interested parties cannot be a reason for denying Parliament any scrutiny role”.
Earlier in Committee, I asked the Minister whether the guidance would be produced in draft before the Bill’s passage through the House is completed. I was given no reassurance on that, so I will repeat the question: will draft guidance be produced in advance of the Bill concluding its passage through this House?
Two other committees of this House, the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, have also reported on these matters. The Government’s response to the Constitution Committee in January 2019 said:
“The Government agrees that guidance should not generally be used for the purposes of interpreting legislation.”
The Joint Committee on Statutory Instruments said:
“A key element of the rule of law is for legislation to be clear. Where legislation has been drafted so as to leave gaps in the law or areas of uncertainty, guidance (and particularly non-statutory guidance) cannot be used to fill those gaps as if it were the law itself.”
There is a head of steam building from what committees have said—the Constitution Committee, the DPRRC, the SLSC and the Joint Committee on Statutory Instruments. I am trying to remember all the acronyms. Four committees of this House have said that this is not the way to proceed.
This head of steam is building in this House and a campaign is emerging, spearheaded by Conservative Members. I hope the Minister will not allow this Bill to fall into the “naughty list” category that they are assembling. I look forward to his explanation of the significant use of guidance in the Bill and particularly the recognition that this guidance is expected to be followed.