My Lords, I will again use the 19th report of the Delegated Powers Committee. Paragraphs 15, 16 and 17 relate to Amendment 42.
Clause 17 concerns the power to
“make provision for requiring a person to carry out an environmental risk assessment before they import or otherwise acquire”
a precision-bred organism. Clause 17(1) gives the Secretary of State the power to make a negative procedure regulation that requires those who wish to import or otherwise to carry out an environmental risk assessment of damage to the environment as a result of importing. Paragraph 16 of the committee’s report makes clear that the delegated powers memorandum provided by the Government said that this power
“allows the Secretary of State to make equivalent provision for such environmental risk assessments as is currently provided for under section 108(1)(a) of the Environmental Protection Act 1990 in respect of the import or acquisition of genetically modified organisms”.
Paragraph 17 then says:
“However, section 108(1) of the 1990 Act imposes on those who wish to import or acquire genetically modified organisms a requirement to carry out an environmental risk assessment.”
The previous paragraph said that it makes equivalent provision. It does not, because the provision in Section 108 is a requirement to carry out an environmental risk assessment. Clause 17 gives Ministers the discretion on whether to make the regulations that require an assessment to be carried out. There is no explanation in the memorandum for this, so it is not correct, as the memorandum given to the committee said, that it makes equivalent provision—it does no such thing.
The other two amendments in this group, Amendments 65 and 66, relate to Clause 32, on the power to make regulations that provide for enforcement measures in relation to failures to comply with requirements under Parts 2 and 3. Clause 32(1) gives the Secretary of State the power to make regulations that provide for a “compliance notice”, a “stop notice” or a “monetary penalty notice”. However, as the committee says at paragraph 41:
“We are surprised that clause 32(1) does not require the Secretary of State to make regulations that provide for such enforcement measures but … leaves it to the Secretary of State’s discretion.”
Again, the memorandum supplies no information or explanation for this. It is left to Ministers whether to enforce the provisions. That cannot be right. In a previous paragraph the memorandum said that it is the “equivalent provision”. It is not.
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It cannot be right for Parliament to abrogate the power. These Bills are drafted by parliamentary counsel. My conclusion from the debates we had earlier this year in January, and will have again next January on Government by Diktat, is that parliamentary counsel should be renamed “government counsel”. They are government employees located in the Treasury. They actually act against Parliament, because they constantly draft Bills, following instructions from Ministers, that remove powers from Parliament—not this House but Parliament—and give them to the Executive. That is what they are paid to do. It should be “government counsel”, not parliamentary counsel. This is a classic example, with Ministers being given the power as to whether they enforce the provisions in the enforcement part of the Bill. That cannot be right.
The concluding paragraph of the report says that this “merits explanation”, and that
“unless the Minister can provide the House with a convincing justification for this approach, the power in clause 32(1) is inappropriate in its current form and should instead require regulations to be made to ensure that the enforcement measures in question are put into place.”
On this one, the Minister can say now, in Committee, “Yes, we’ll do it.”