I have listened again to the noble Lord and, if I may, just for clarity, I will ensure that I get a full response to this. I will check with my officials again and provide the added
clarity that the noble Baroness and the noble Lord are seeking. If that needs to be followed up in writing, I will, of course, do so as well. Ultimately, I stand by what I said earlier, that what we are seeking to do here is to address the specific issues that there are in practical terms.
My noble friend’s concerns about the scope of the Bill’s delegated powers were raised by other noble Lords. I hope that I can reassure my noble friend that the power may already be exercised only to make appropriate provision in connection with the exclusion of Article 10 of the protocol and the domestic provision that Clause 12 places on it. This provides a clear and limited framework for what the power can do; providing further constraints would provide additional uncertainty to businesses and consumers. In this case, it would put off, and potentially circumscribe, the ability to facilitate an effective domestic subsidy control regime that applies to the whole of the UK, leaving Northern Ireland being treated unfairly compared with the rest of the UK.
The Government are aware that regulations with retrospective effect are exceptional. However, it is clear that the continuing application of the state aid acquis in Northern Ireland has led to a sense of disconnection for many people, particularly the unionist parties, and puts the re-establishment of power-sharing arrangements at risk. As the EU state aid acquis is removed, it may be necessary to ensure that actions granted under the regime are appropriately reconciled with the UK regime. Removing Ministers’ ability to make retrospective provision, which was mentioned by several noble Lords, could undermine the Government’s ability to ensure a single, coherent, domestic subsidy control programme throughout the UK. It would also, in the Government’s view, create further uncertainty for businesses in Northern Ireland and across the UK. Any such regulations would already be subject to the higher level of scrutiny in the House. I know that my noble friend is concerned about creating uncertainty for investors, to which he alluded in his contribution. I hope he is reassured by what I have said: that the Government’s intention in this case is only to provide certainty. There will be time to examine any subsequent regulations.
The amendment also seeks to ensure that the power can make incidental and transitory provision. I am happy to be able to inform my noble friend that this is already the case by virtue of the operation of Clause 22(2)(e). The amendment also seeks to make necessary regulations subject to annulment by Parliament. We will, of course, debate this further when we reach Clause 22, but the Government’s proposition is that this is appropriate when regulations are making retrospective provision or amending an Act of Parliament, but that it would not be the appropriate level of scrutiny for other instruments making what are likely to be smaller or more technical free-standing provisions. I hope, for these reasons, that my noble friend will be minded to not move his amendment.
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The noble Baroness, Lady Chapman, spoke to Amendment 18. We have had these discussions before, and she will know that the Government’s position remains the same; my noble friend also alluded to this
a few moments ago. The Government’s position remains that “appropriate” gives the correct degree of ministerial discretion, with substantial but constrained powers, which this House ultimately accepted on Acts including the EU withdrawal Act, the withdrawal agreement Act, the Trade Act and the sanctions Act. The use of those powers has shown that appropriateness stands the test and is resilient to the kind of abuse that noble Lords have alluded to and feared. I accept what my noble friend Lord Cormack said about the test for any Minister in government and the powers given by a government Bill to those who may be in power at some future point, but at the same time, as I said, previous Acts have been passed and have stood that test.
I move briefly to Clause 12 standing part of the Bill. Clause 12 provides the basis for a single, UK-wide subsidy control policy—a point on which the noble Baroness sought clarification—rather than two separate regimes, as currently provided for under the Northern Ireland protocol. Once commenced, this clause will provide legal certainty and confidence, on the basis of which businesses can receive subsidies. We believe it provides clarity in domestic law that Article 10 is disapplied. Any subsidies that would have been notifiable under Article 10 will no longer need to be notified to the EU.
The clause also amends Section 48(3) of the Subsidy Control Act so that UK subsidy control requirements apply in Northern Ireland. Clause 12(3) provides powers for a Minister to make appropriate provisions in connection with any part of the Northern Ireland protocol to which the clause relates. The Government believe this clause is vital in facilitating a single domestic subsidy control regime applying throughout the UK, thereby giving businesses in Northern Ireland and across the UK greater certainty, and I therefore recommend that the clause stand part of the Bill.
I know that more general issues have been raised in this debate and previously, and I am sure they will be raised in our future discussions in Committee. I hope I have provided detail, to the extent I can, on some of the questions, issues and concerns raised. Equally, I give the added assurance, as we have in previous Committee stages, that I shall write to the relevant noble Lords if there is further clarity or detail to be provided.