Meeting of the Parliament (Hybrid) 22 December 2020
I want to set out the reasoning for lodging my amendments. I will try to keep my remarks on each group short and to the point, because I am conscious that this will be a long day.
My amendments throughout stage 3 speak to the fact that, fundamentally, it is for the Parliament to legislate. I welcome the changes that have been made at stage 2, particularly with regard to limiting the duration, which the keeping pace power should continue, but I remain concerned that the process of leaving the EU should not open the door to bypassing parliamentary procedure.
When the Parliament decides to delegate powers, there should be clear, good reasons for doing so, and it is important that the limits of that delegation are clearly defined. In doing so, we reinforce the principle that delegated powers should never be used as a substitute for policy development. The question that we have to ask is whether the powers in section 1 of the bill are appropriate or whether they should be limited by being available only to ensure that existing standards in retained EU law keep pace with evolving standards.
While it might be reasonable to accept that keeping pace with EU law might not always be practical through the creation of primary legislation, there is no doubt that there is a difference between refining retained EU law to keep pace and keeping pace with new policy developments in future EU law where there is currently no equivalent in retained EU law. Amendment 4 therefore seeks to ensure that the principle that delegated powers should never be used as a substitute for policy development is followed.
The Cabinet Secretary for the Constitution, Europe and External Affairs’s recommendation, in his response to the Delegated Powers and Law Reform Committee—I believe that it went to the Finance and Constitution Committee as well—that the wording in section 1(2)(f)(ii) be altered, suggests that the amendment is unnecessary and unhelpful, because the Government wishes to have greater flexibility to deal with unforeseen circumstances. However, the current wording, “appropriate to retain”, confers wider powers, as the definition of appropriate does not limit policy making by delegation. I will listen with interest to the cabinet secretary’s position on why it is appropriate—no pun intended—to deal with unforeseen circumstances that lead to new policy by enabling it to be dealt with by delegation rather than in the bill.
Amendments 5 and 6 relate to sub-delegated powers. The current wording in section 1, which would enable the Scottish Government to delegate powers to a public authority or the authority’s nominee to make regulations or provide funding, does not meet the test of the principle of delegated powers, as it neither limits the delegated authority nor defines it; rather, it opens the back door to creating new policy, enabling the incorporation of future EU laws into our domestic laws through delegated powers. The lack of clarity on the necessity to enable sub-delegation is a significant issue.
In relation to amendment 8, I am of the view that those powers are not an appropriate vehicle to make new regulations.
I move amendment 4.