Oh, has he come back? I am not doing too well. I am getting tired; I expect we all are.
Amendment 136 would give Parliament some power over the use of the delay to sunset powers in Clause 2(1), where powers are conferred to delay the sunsetting under Clause 1. Clause 2(1) allows Ministers by regulations to postpone the date when any retained EU law, unless expressly saved, is automatically revoked. However, as our Delegated Powers Committee has said:
“Use of this power is apt to be highly significant but is subject only to the negative procedure.”
As is well known, Parliament hardly ever overturns government proposals in a negative procedure—I believe that the last time it happened in the House of Commons was in 1979; I am subject to correction there, but it is not exactly every day. The power for Ministers in Clause 2(1) is not constrained by any requirement for consultation, any criteria to be met or any preconditions to be satisfied. We do not even know from the Bill, because no indication is given, whether the postponement would be exceptional or the general rule—we have no idea what the Government’s intentions are for delaying sunsetting. The DPRRC reminds us that the delegated powers memorandum states that
“the power is not intended for wide usage”,
but how do we know? How can we know? The memorandum also says
“Ministers have confirmed that they do not intend on allowing the usage of this power without collective agreement”.
We might think, “Oh, whose agreement does that mean? Does it mean consultation with businesses, unions, et cetera? Does it mean some kind of consensus?” No, says the DPRCC,
“this is merely a statement of the doctrine of collective ministerial responsibility rather than an effective constraint on the power contained in clause 2(1)”.
We might get excited by that phrase, but “collective agreement” just means collective ministerial responsibility.
The power in Clause 2(1), combined with the scale of the task of determining which pieces of retained EU law are to be retained, revoked or amended, gives rise, in the words of the DPRRC, to
“significant uncertainty as to what the sunset date will be”.
It concludes:
“Given the importance of the power, we consider that its use merits affirmative procedure scrutiny.”
In the light of our debates today, the way that Parliament is just being cut out of this whole exercise is totally at odds with the claims made during the referendum that it would be put back in control and in the driving seat. Two years later, the EU withdrawal Act was accompanied by lots of promises about how Parliament would be the one to decide when to revoke, retain or amend retained EU law.
The point of Amendment 136 is its continuity with, in particular, the amendments we debated in the last group and on Tuesday, which set out that Parliament cannot be ignored in this process—which it will be, in effect, if there is only a negative procedure. I hope that the Government will agree that Parliament should be in the driving seat on the question of whether to delay the sunset.