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Legislative and Regulatory Reform Bill

The hon. Gentleman is absolutely right. That is why it is so perverse of the Government here and now not to say that and restate that this procedure will not be used to amend the Scotland Act. However, I am sure that they will say that, when the Minister responds to this debate. I want to make it very plain that if the Government do not agree to amendment (a), it will be our intention to press a Division on that specific consequential amendment, should Lords Amendment No. 9 be accepted by the House. It is clear to us that what comprises a constitutional matter—a provision ““of constitutional significance””, as the Bill will say—is a matter that is objective; it is not a matter for the decision or opinion of a Minister. But because of the arrangement of the terms of the clause in which this is inserted, it is made to be subsequent to the decision of the Minister as to whether he ““considers”” it to be of constitutional significance. Our amendment would remove that subjective test, and replace it with an objective test. What is the practical significance of that? First, it would give reassurance to many people in this country that their constitution will not be tinkered with by means of a fast-track procedure, beyond the scope of this Chamber. Secondly, it means that the action of a Minister in deciding to use this mechanism would be justiciable. It could be argued that it is already, as it is open to judicial review. But the difficulty with saying that the Minister’s decision will be open to judicial review is that what is open to judicial review is the means by which the Minister reaches his decision; what is open to such review is whether that decision is a reasoned opinion of a reasonable man or woman. That is not what we are saying. What we are saying is: is it the right decision? That is an objective test, and one that the court can quite properly adjudicate on. It is quite possible for a Minister to come to a mistaken decision by proper means—by proper reasoning. That would still allow for there to be faulty procedure. In practical terms, I do not think that our proposal would have a huge effect, which is why I very much hope that the Minister will be able to accept it. It is a perfectly sensible amendment. It provides for an objective test. He says—in good faith, I hope—that there are no circumstances in which a Minister would deviate from that objective test in any case. Therefore, in practical terms, it would make no difference to the operation of the Bill. However, it would provide the reassurance that future Ministers—I am not thinking of Ministers of this Government, or of this Administration in any way—who might be tempted to use the mechanism in an improper way, cannot do so. That is our precise intent in tabling this amendment, and I commend it to the House. It would improve the Bill, and I very much hope that the Minister will now do two things: state in terms that the Bill will never be used to amend the Scotland Act 1998, and accept our amendment.