European Union (Withdrawal) Bill — House of Lords, 2018-03-28
Topic: Government Operations
Annabel Goldie (Conservative, Centre-right): My Lords, I thank all who have contributed to this debate; very important points have been raised. This subject may be academic and technical but the issues are important—and to me, they are actually very interesting. I say to the noble Lord, Lord Wallace of Saltaire, that I think there are a lot worse ways of spending a wet Wednesday morning than looking at these issues In responding to Amendment 355, I would like to take the opportunity to explain the Government’s approach, and explain why we do not consider it necessary or practical to require the making of secondary legislation. Taken together, paragraphs 1 and 2 mean that the Queen’s printer has a duty to publish all relevant instruments in respect of which it has not received a direction. The direction-making power, therefore, is already clearly limited in its scope. I acknowledge the concern, as articulated by the Delegated Powers and Regulatory Reform Committee, that the direction-making power in paragraph 2 is akin to allowing Ministers to change the law by proclamation. The noble Lord, Lord Lisvane, colourfully referred to that. However, the Government respectfully disagree with that characterisation. The power in paragraph 2 to exempt the Queen’s printer from the duty to publish in relation to certain instruments or parts of instruments is, I would submit, a targeted, common-sense provision to enable the Minister to narrow what is—as I hope I have explained in my previous remarks—the necessarily wide task of the Queen’s printer This power does not enable a Minister, by decree, to determine what is or is not retained EU law, nor is it designed to prevent some aspects of retained direct EU legislation being published. I would remind the House that any directions under paragraph 2 must be published. So there is no secrecy here; the process is transparent. I did note the concern of the noble Lord, Lord Pannick, that there was an absence of detail on the mode of publication. I have no specific information about that. I would imagine that it would follow existing practice. However, I shall certainly undertake to write to him about that aspect The National Archives is already looking at how the various directions to the Queen’s printer will be made available on legislation.gov.uk, to make access to them easier still Accordingly, the Government do not consider that this direction-making power can fairly be characterised as an alarming extension of executive power, or as setting an ominous precedent for the future. The law needs to be made publicly available—that is a given—and we need a proportionate way to achieve this. A targeted, carefully circumscribed power for a Minister to give directions in relation to a body is not unprecedented or harmful. I noted that the noble Lord, Lord Tyler, was deeply concerned about the operation of this provision, and the noble and learned Lord, Lord Judge, was, I think, predictably suspicious. So let me try to provide an illustration For example, under Section 92 of the Energy Act 2013, the Secretary of State may direct the Office for Nuclear Regulation as to the exercise of its functions, generally or specifically. In 2017, the Secretary of State did make such a direction as to the supply of information in relation to the nuclear safety of civilian nuclear installations. I say to the noble Lord, Lord Pannick, that that direction was published online, so it was readily visible and accessible. The alternative option put forward in the amendment of the noble Lord, Lord Lisvane, would be to require any such directions to be made in secondary legislation. Such an approach would in our view be unnecessary and potentially counterproductive. It would also impose an added burden to the volume of regulations which we can anticipate following from this legislation.