National Security and Investment Bill — House of Lords, 2021-04-15
Topic: Government Operations
Christopher Fox (Liberal Democrats, Centre to centre-left): My Lords, your Lordships will be pleased to know that I will not repeat the entire, long speech that I gave in Committee. The wording of this amendment has not changed between Committee and Report, but there are a few points I want to remind your Lordships of. I am sure the speech is still fresh in noble Lords’ minds. To be clear, I will be putting this amendment to a vote at the end of this process Under Clause 6, the Secretary of State has great power to make the regulations concerning how the Bill will work. The Secretary of State can specify the description of the qualifying identity for the purpose of identifying a notifiable acquisition. He or she can amend the circumstances in which a notifiable acquisition takes place or does not take place, exempt acquirers with specified characteristics from the mandatory notification regime and make consequential amendments to other provisions in the Bill The Minister has represented, as he did in Committee, the proposed use of the affirmative procedure in the Bill as meaningful parliamentary scrutiny. However, the truth is that, from the perspective of these Benches, this means that Clause 6 can be amended by this and any subsequent Government as they please. Parliament cannot amend statutory instruments and, perhaps more importantly, this House has voted down affirmatory statutory instruments just four times in the past 70 years. I refer, as I did last time, because it is important, to the Constitution Committee’s 2018 report, The Legislative Process: The Delegation of Powers, which states: "Without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation. This is constitutionally unacceptable." For this reason, affirmative statutory instruments do not constitute meaningful parliamentary scrutiny. This Government—or, I remind the Minister, any subsequent Government—are effectively free to amend the Bill as and when they please. The Minister sort of said this when speaking to the second group of today’s amendments Regrettably, I do not think Her Majesty’s loyal Opposition will roll behind me when this moves to a vote. That is the indication I have been given. I know that the noble Lord, Lord Grantchester, is as up for scrutiny as any man or woman. He likes a bit of scrutiny, and he is possibly not averse to knocking back legislation from time to time. However, his colleagues, particularly those at the other end—who are, even now, trying to measure up ministerial curtains in advance of their march towards power—would not welcome the democratic speed bumps proposed in this amendment, so their reaction, while regrettable in the great scheme of things, can be explained in that way Those sitting on the Benches opposite will live to regret not putting in place such measures. Members of their own party are not above adapting powers of Bills to create micromanagement, but we certainly heard enough at Second Reading, from some Members of Her Majesty’s Official Opposition, to feel that there are those who will seek to use this as a proxy for interventionist market strategy. I support having a collaborative strategy for national prosperity, but this Bill should not be used to enforce such aspirations The super-affirmative procedure in the amendment would provide both Houses with opportunities to comment on proposals for secondary legislation, and to recommend amendments, before orders for affirmative approval are brought in their final form. However, the power to amend the proposed instrument remains with the Minister. The two Houses and their committees can only recommend changes, not make them. So I ask the Minister what there is to fear from that. I beg to move Amendment 39, and I give formal notice that, unless a miracle occurs, I expect to divide the House on this issue.