My Lords, the horse is running to the stables, so I will not speak for a moment longer than is necessary. I shall speak also to Amendment 140. I am grateful to the noble Baroness, Lady Randerson, for putting her name to these two amendments, and the noble Lord, Lord Hutton, who is not here, for also supporting them. They are concerned with ensuring that a proper amount of time is allowed so that both Houses of Parliament can scrutinise the proposed use of the serious powers given to Ministers under Part 3 of Schedule 4. They again follow recommendations made in the SLSC’s report on the Bill.
The powers are listed in paragraph 7(2) of Schedule 4, and it is worth while noting what they are. They are powers in Clauses 8, 12 and 13 to amend, repeal or revoke primary legislation; powers in Clause 15(2) to make subordinate legislation; powers in Clause 16 to update legislation; and last but not least, powers to create a criminal offence in Clause 15(2). We are talking not about parking tickets but about things that are serious.
The exercise of these powers is under the negative procedure, so unless somebody objects it goes through on a nod; it is not debated at all. However, the Minister has to lay a draft of the proposed regulation explaining why he or she thinks the negative procedure should apply, and either House has an opportunity to recommend that the matters concerned are of sufficient importance to warrant an upgrade to the affirmative procedure, which, in turn, would at least allow the regulations to be debated.
Each House will have a committee charged with assessing whether there should be such an upgrade. The procedure follows that established for the European Union (Withdrawal) Act 2108, where the SLSC came to act as sifting committee of your Lordships’ House. Experience under the 2018 Act shows that the two
Houses of Parliament generally ran on parallel tracks. Of the 329 proposed negatives under the Act, 50—15%—were recommended for upgrade by your Lordships’ House, and 57—17%—were recommended for upgrade by the House of Commons, and the Government invariably accepted the recommendations from either or both Houses.
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Under the procedure of the Act, the period within which a decision or a recommendation to upgrade had to be made was 10 days. Experience under the 2018 Act was that the 10-day deadline could be pretty challenging, depending on a number of things: the business as usual that the committee has going through it, which has to be dealt with anyway in the weekly meeting; the 600 or 700 instruments that go through the committee every year; and the days on which the regulations were tabled or laid because, of course, Friday can be a sitting day or not. It can depend, and the period can be shortened quite a lot if two Fridays are counted as sitting days.
We pointed out in one of the committee’s reports that the purpose of the proposed negatives laid under the 2018 Act was comparatively limited, in that they largely concerned instruments intended to deal with correcting deficiencies in a retained EU law. The Hansard Society has suggested that scrutiny of the proposed negatives under this Bill may well amount to a more substantial function. Dr Fox of the Hansard Society said:
“What we are talking about here would be sifting of retained EU law regulations that delve into the realm of policy. They would be more politically salient than we have seen through the period since the EU withdrawal Act was passed.”
This is not just an internal parliamentary matter, because outside voices want to make themselves heard. We had a long and passionate debate led by the noble Baroness, Lady Parminter, about the environment, and we can see that if there is a proposed negative about the environment—just to take one area—there may be a number of outside bodies that wish to write to the SLSC and the sister committee in the Commons explaining their views. It is likely to attract quite a lot of attention in various of the areas that we will be looking at. The committee will then need time to assess the quality of those submissions and to meet before reaching a conclusion as to whether an upgrade was appropriate.
Given the likely volume of the draft regulations to be scrutinised, together with their likely importance, it seems right that there should be an additional five sitting days in which the committee and outside bodies can make their views known to the House of Commons sifting committee and your Lordships’ House. That is the reason for these two simple amendments to change “10” to “15” in the two places where “10” appears in the Bill. If the Government do not intend to try to marginalise further Parliament’s involvement in the Bill, I can see no reason why they cannot accept this very small and important amendment. I beg to move.