European Union (Withdrawal) Bill — House of Lords, 2018-04-25
Topic: Technology
Martin Callanan (Conservative, Centre-right): My Lords, I first thank all those who have contributed to today’s relatively brief debate, and the many noble Lords I have either spoken to or exchanged letters with between Committee and Report. The scope of the delegated powers in the Bill has, rightly, been one of the most intensively scrutinised areas, and I do not for one moment doubt the best intentions of many of those who have spoken against the Government’s position today. However, I hope noble Lords will listen to my remarks with an open mind, as I hope to offer some new content that we did not cover in Committee Let me start by addressing the specific proposition of the amendments on the Marshalled List—Amendments 31, 42, 86 and 87, tabled by the noble Lord, Lord Lisvane. As has been said, they would remove from the main powers in the Bill the discretion of ministerial judgment on appropriateness, and permit action only where it "is necessary" in the context of the specific power. This has been touted as a change from a subjective test to an objective one. But I hope to demonstrate that this is not the case, as I would question what exactly "necessary" means For example, in the context of Clause 7, would the course of action a Minister takes have to be no more than necessary to correct the deficiency? Or must it be necessary to correct a deficiency for the power to be engaged in the first place—and if so, necessary for what purpose? Let me address these different scenarios in turn. First let us say, hypothetically, that a court interprets the amendments to mean that a course of action taken by Ministers must be necessary to correct an identified deficiency. It might follow that Ministers could follow only the course of action that does no more than is strictly necessary to correct that deficiency, rather than the course of action that is most sensible I know the House likes concrete examples, so let me give an example of how I think this would lead to worse policy outcomes. Take, for example, Section 105B of the Communications Act 2003—with which I am sure all noble Lords are completely familiar. This includes an obligation for Ofcom to notify its regulatory counterparts in other member states, as well as the European network and information security agency, when Ofcom is made aware of a security breach that affects a public electronic communications network or service, and Ofcom thinks it appropriate to make such a notification. It could be argued that it is not strictly necessary to delete the obligation at all. Let us assume, however, that a court accepts that some action is needed in this scenario. A test of necessity could then be taken to mean that the Government should take the minimum action possible to address the deficiency. That might be simply to remove the requirement to share information However, the Government's preferred policy, which this House would surely support, is to change it into a discretion that makes it explicit that Ofcom may make notifications of this kind if it wishes. This is intended to support proportionate information-sharing about security matters after EU exit. That amendment is appropriate but arguably not strictly necessary, and might fall foul of the increased restriction offered by the amendments tabled by the noble Lord, Lord Lisvane. I understand the notional appeal of permitting Ministers to act only where it is necessary. But here I agree with my distinguished predecessor, my noble friend Lord Bridges, the midwife, as he put it, to the Bill. It should not be the role of a Minister to be a statutory firefighter, dousing deficiencies in the statute book only where it is absolutely necessary. Instead, I would argue that a more proactive role is the only way that we can ensure the best possible outcome for the statute book.