My Lords, I move Amendment 36. As with previous amendments of a similar character, I am grateful for the support of the noble and learned Lord, Lord Judge.
Clause 18 was neatly described by the former Treasury counsel Sir Jonathan Jones as the “do whatever you like” clause. It was unclear in Committee in the Commons what the Government’s intention behind the clause was. Michael Ellis, the then Paymaster-General, said that the Government needed Clause 18, which is a power to give legal effect to a Minister’s conduct in carrying out their duties. He said:
“It simply makes clear, as would normally be taken for granted, that Ministers will be acting lawfully when they go about their ministerial duties in support of this legislation.”—[Official Report, Commons, 20/7/22; col. 1004.]
It is a great relief that we need a Minister to state that. It was quite telling that he said that they needed this power to make their conduct lawful, which would normally be taken for granted.
However, the seriousness is that there has been little explanation on what that “conduct” would be. The Government’s delegated powers memorandum did not explain it. Perhaps that is because they consider this not to be delegated power. The Explanatory Memorandum did, however, give some examples, including issuing guidance. As Michael Ellis indicated, it would also be instructing civil servants. The concern is that we have many other examples where legislation frames the conduct of providing guidance. As the Hansard Society and the Delegated Powers and Regulatory Reform Committee have highlighted, this is one example of disguised legislation. Powers on providing guidance can, in effect, have legal effect. For example, my reading of this clause suggests that it is so broad that it would allow a Minister to issue guidance, which is non-statutory, but also issue instructions that that guidance needs to be followed—which, in effect, is statutory. I would be grateful if the Minister could confirm that that is not within the scope of this clause.
The Hansard Society has sought an exhaustive list of how conduct can be described. If we are to be avoiding hidden legislation, the Government need to be clear in what they seem to do. In the UK Internal Market Act, which has been referred to previously in Committee, I tried to find some equivalent—and there is some equivalent when it comes to the powers of Ministers to provide guidance. However, there are a number of subsections on that power which restrict the Minister’s ability to provide that. Crucially, there is a statutory duty for Ministers to consult with those who would be in receipt of the guidance on the operation of the Act.
Finally, the DPRRC said:
“Despite its being highly unusual and its breadth, the exercise of the power in clause 18 will have no parliamentary oversight since it is subject to no parliamentary procedure.”
Previously in Committee, the noble Lord, Lord Kerr, said that this is not what we do when it comes to breaking international law. This is not how we should be making laws—so broad, and with potentially few restrictions. The Minister simply says that this is about what they do already. If that is the case, why is it necessary? If it is necessary, what they intend to do with it should be spelled out exactly. I beg to move.
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