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Mr. Hogg: I wish to follow what my hon. Friend the Member for Beaconsfield (Mr. Grieve) has been saying. Ever since I have been in the House, I have been extremely concerned by the volume of secondary legislation and how the House considers it. I agree with my hon. Friend that it is a scandal. Important obligations are created and extensive penalties sometimes imposed through the process of secondary legislation. As we all know, the House pays almost no attention to the content. Frequently, we cannot do so because it is the subject of the negative resolution procedure. Even when we can, because it is the subject of the affirmative resolution procedure, the debate is extremely short--normally 90 minutes--and one cannot amend the documents. One can simply hope that a draft is presented for discussion before the order is ultimately laid.

I admit that the Government of which I was a member used secondary legislation to a huge extent--all Governments do. The House should resist doing that. The paradox is that, if the Committee accepts the argument of my hon. Friend the Member for Beaconsfield and, as a consequence, improves how we consider and debate secondary legislation, it will be much more offensive to allow the courts to strike it down on the ground of incompatibility.

A serious constitutional issue is raised by the courts' ability to strike down any form of legislation--in this case, we are discussing secondary legislation--and that will probably be made greater if we do what we should do, which is fundamentally to overhaul how we consider and control secondary legislation.

Mr. Leigh: I must confess that I have difficulty with the arguments presented to the Committee by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and my

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right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). They seem to be arguing that the fact that the House gives inadequate consideration to subordinate legislation is a good excuse for allowing judges to strike it down. If that is their contention, it is extraordinary. That is not a good excuse for allowing judges to strike down subordinate legislation.

If we are convinced that we are giving inadequate attention to subordinate legislation, surely the remedy lies in our hands: we should make the House less of a legislative sausage machine, and allow sufficient time to consider subordinate legislation. However, as my right hon. and learned Friend the Member for Sleaford and North Hykeham knows full well from his experience in government, currently that is impossible because we should have to meet not only all week, but all weekend, and we should have no recesses at all. In any event, much subordinate legislation is very technical and the House does not want to consider it. I do not accept the arguments of my hon. Friend the Member for Beaconsfield and my right hon. and learned Friend the Member for Sleaford and North Hykeham.

This is a dangerous precedent, because we are extending the remit of judges. We have made that point repeatedly in these debates. It may well be that striking down such legislation would not, in the words of my hon. Friend the Member for Beaconsfield, produce a seismic shock in the constitution, and no doubt it would not be commented widely upon in the tabloid press. However, that does not negate the important principle that, for the first time, as I understand it--I may be wrong--judges will, at the stroke of a pen, be able to strike down legislation, albeit subordinate, of a sovereign Parliament. That is a development about which we should be considerably worried.

I have been trying to research these matters. There is one point that I do not understand in the otherwise excellent briefing supplied to us by the Library. It states:


I confess that I find that concept difficult to understand. Will the Parliamentary Secretary explain exactly what it means?

I note that subordinate legislation, as defined in clause 21, seems to relate to a great deal of legislation emanating from Acts of the Parliament of Northern Ireland or measures of the Northern Ireland assembly. I wonder whether we are allowing judges to take a close interest in legislation that was passed by the former Stormont Parliament or which will be passed by the future Northern Ireland assembly. That is a small point, but I hope that the Parliamentary Secretary will be able to respond to it.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): I am grateful to the hon. Member for Beaconsfield (Mr. Grieve) for arguing the line he did, because it is important, and I followed it with great interest.

I am not clear whether the amendments deal primarily with an issue of great importance because of the underlying principle or because there could be major consequences in terms of the numbers of cases where the courts felt called on to consider subordinate legislation.

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I do not know whether the Government, in putting forward the proposal in the Bill, had in mind the possibility of a flood of cases arising from subordinate legislation and thought that it would be impractical or difficult to bring them all back to Parliament on a signal from the judiciary that there was incompatibility and deal with them as the Bill proposes to deal with cases arising from primary legislation.

It is hard to decide whether to proceed with subordinate legislation in the same way that is proposed for primary legislation. That would open a huge Pandora's box. Because of the manner in which Parliament reviews secondary legislation, we are guilty of allowing inadvertently to be passed much that should not be passed. The wider constitutional points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Beaconsfield were well put, and I endorse them.

Mr. Hogg: I am grateful to the right hon. Gentleman for his support, but the point goes further than he has contemplated, because European Union legislation is directly incorporated into the United Kingdom by reason of the treaty. A great deal of subordinate legislation is simply EU legislation that is carried over and is not the subject of any discussion.

7.45 pm

Mr. Maclennan: It is such thoughts that make me think that there may be a profound practical reason for accepting the present drafting of the Bill. That must make much stronger the case for the improvement of our scrutiny procedures. I hope that I am not straying out of order in dealing with this point--I think that it is germane to the issue under discussion. There is a problem of overload in this House. We are dispensing powers to other assemblies and Parliaments and we may consider the tasks that should be done in another place if it is reformed and democratised, so there will be plenty of work to be done by both Houses of Parliament, notwithstanding those significant changes, in ensuring that subordinate legislation does not risk running foul of the European convention on human rights.

Mr. Hoon: The amendments would affect the powers of the courts in respect of subordinate legislation. Amendment No. 17 would amend clause 3(2)(c) so that, notwithstanding the interpretative provisions of clause 3, all incompatible subordinate legislation, rather than only inevitably incompatible subordinate legislation--that is, subordinate legislation that inevitably takes an incompatible form because of the terms of the primary legislation under which it is made--would have continuing force and effect.

Amendment No. 11 is consequential. It would amend clause 4(4)(b) so that the power to make a declaration would apply to all subordinate legislation, not only to inevitably incompatible subordinate legislation as at present.

Amendment No. 12 would insert an additional phrase into clause 4(4) to make it clear, in conjunction with amendment No. 17, that the courts could not strike down subordinate legislation. That, I hope, is a fair summary of the amendments.

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The right hon. Member for North-West Cambridgeshire (Sir B. Mawhinney) raised the issue Second Reading, and gave notice that he would return to it in Committee. The present debate gives me an opportunity to explain more fully why the Government disagree with the Opposition's view that the Bill confers on the courts a power in respect of subordinate legislation which differs in kind from that which they already possess. I shall also explain why the amendments would harm the Bill.

The twin starting points are, once again, the sovereignty of Parliament and the protection of individuals' rights under the convention. The Government have decided that the courts should not be able to strike down primary legislation because of the special status that Acts of Parliament and various other measures enjoy. That special status is, of course, acknowledged by the existing powers of the courts. They cannot strike down Acts of Parliament because of the doctrine of parliamentary sovereignty.

However, subordinate legislation can already be, and is, struck down by the courts in certain circumstances. The courts will review the exercise by a Minister of a power to make subordinate legislation, just as they will review the exercise by any public authority of a discretionary power. I emphasise that, because it may be their reluctance to take that on board that lies behind the Opposition's difficulties with the Bill on that point.

Subordinate legislation may be struck down as ultra vires when the making of the instrument in question is outside the scope of the enabling power. Such legislation may also be attacked on procedural grounds--for example, when the mandatory procedure for making it as set out in the parent statute has not been followed or, less commonly, on the ground that the discretion involved in making the relevant instrument has been exercised unreasonably.


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