My Lords, it may assist the House to know that we from these Benches can confirm our support for the amendment in the name of the noble Baroness, Lady Chapman, and the amendment we have just heard.
If we are to scrutinise legislation properly in this House—which is our constitutional duty—there is also a duty on us to highlight areas where we are prevented from doing so because the Government have not presented sufficient information. There is clear precedent for this. We did so on the Professional Qualifications Bill, when the mood of the House was reflected to the Minister in very clear terms that accompanying information was devoid of sufficient information and that we would not progress discussion of it unless further information was provided. To his credit, the then Minister, the noble Lord, Lord Grimstone, provided that. We stated in clear terms when the Government presented more than 350 government amendments to the Subsidy Control Bill shortly after they introduced it that they needed to bring further information. To his credit, the noble Lord, Lord True—now the Leader of the House—indicated that the Government would change their position and allow for more debate.
The Government have not sufficiently responded to the desires expressed both at Second Reading and by the committees of this House for further information. They have not responded properly to the Delegated Powers and Regulatory Reform Committee report, which was excoriating in its condemnation of the use of regulation-making powers. As we have heard, the Government have failed to bring forward an impact assessment to show their own estimate of what impact policy options taken to present the Bill will have. The House will recall that I quoted from the original impact assessment of the protocol legislation, so it is fair to ask for the successor legislation, which will have equally profound implications, also to have impact assessment information. The Bill itself is extremely controversial, and it will have an impact on the business community, society, trade and the wider economy. Therefore, an impact assessment is vital.
This is not just a debating point. The Cabinet Office in its 2022 Guide to Making Legislation is very clear on what the requirements are on departments when they bring forward legislation. Section 13, on impact assessments, says:
“The Government has international obligations in free trade agreements to conduct impact assessments on regulation that has an impact on trade.”
Clearly, this Bill has such an impact. It goes on:
“A development, options or consultation stage impact assessment must be submitted alongside any bids for legislation, and a final proposal stage impact assessment must accompany requests for collective agreement to the policy in a Bill.”
The guide says clearly:
“The final impact assessment must be made available alongside bills published in draft for pre-legislative scrutiny or introduced to Parliament.”
When the Advocate-General for Scotland replied to me at Second Reading, he said that the Bill did not have an impact assessment but that
“full details of the new regime will be set out in regulations”. —[Official Report, 11/10/22; col. 767.]
That is just not good enough. We need to scrutinise these now.
On delegated powers, I remind the House that the Constitution Committee report concluded in paragraph 29:
“In examining clause 9, the Delegated Powers and Regulatory Reform Committee concluded: ‘[l]egislation has preceded policy development rather than vice versa’. We agree and recommend that clause 9 be removed from the Bill.”
We will discuss this later, but the essential point is that legislation should follow policy development, not vice versa. The Advocate-General said in response to the Second Reading debate:
“Since the Bill was introduced, we have consulted extensively with businesses and other key shareholders on the underlying details of the regime … There have been over 100 bespoke sessions with over 250 businesses, business representative organisations and regulators.”—[Official Report, 11/10/22; cols. 767-8.]
But on what? We do not have proposals in front of us. The Government’s own code of conduct for consultations states that they should be based on public questions. I have not seen a consultation document. I have not been able to find any draft regulations on which the Government have consulted. I have not been able to see any details of how the new regime might operate in practice, and we have not been presented with an assessment of what the responses are in order to shape views of costs. There is no footnote to the Cabinet Office document from this year that says, “None of this applies when a Minister so decides for political purposes”.
The Minister seemed confident that draft regulations will solve the problem, although he and the noble Lord, Lord Ahmad, did not spell out in detail what they will be; we will hear that later in Committee. I remind the House that we have been furnished with draft orders before, when we asserted our desire to receive them. However, at Second Reading, the Advocate-General contradicted himself. In defence of the Government’s legal position, he said that
“the peril that has emerged was not inherent in the protocol’s provision”,
but, later, he said that
“the problem lies in the protocol and not in its application”.—[Official Report, 11/10/22; cols. 764-68.]
I suspect that a witness contradicting himself in court might have been pounced on by a certain advocate, but we in this House need to see the draft regulations if they are the fix for the root causes, as the Minister said.
Finally, we need formal reporting. We need detail on where the negotiations stand and what the current areas of consideration are. In Committee in the Commons, the then Paymaster-General said:
“I am not sure how much more could be done in terms of negotiation … Good faith negotiations to resolve the issues with the protocol have already been exhausted.”—[Official Report, Commons, 13/7/22; cols. 383-84.]
I think the whole House was encouraged by the comments from the noble Lord, Lord Ahmad, at the start of Second Reading, when he said that the talks have resumed and are of a positive nature. However, we need full updates with technical papers so that we can properly scrutinise this legislation and so carry out our constitutional duty.