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Lord Williams of Elvel moved Amendment No. 183:
The noble Lord said: It may be for the convenience of the Committee if in moving Amendment No. 183 I speak also to Amendment No. 184 in the name of my noble friend Lord Monkswell.
Whenever I see a clause entitled "Minor and consequential amendments" I become rather suspicious. Here we have it again. Subsection (2) provides that:
I have seen such a provision in previous Bills but it is odd that it is introduced without any qualification. It is carried out under negative procedure and it amends primary legislation; it is "any enactment". It is normal for the Delegated Powers Scrutiny Committee to insist that amendments to primary legislation by order are made under affirmative procedure so that Parliament at least has an opportunity to discuss them. I beg to move.
Lord Monkswell: In rising to speak to Amendment No. 183 and to the next amendment which stands in my name there is little I need add to what has been said by my noble friend Lord Williams. The Government appear to be taking rather draconian powers. On the basis that the Bill of Rights is an Act of Parliament it is therefore capable of being amended by this provision.
We hope that the Government can assure us that their intentions are limited. However, it appears that giving themselves the power described in the clause is somewhat excessive.
Lord Lucas: The noble Lords, Lord Monkswell and Lord Williams, are right in saying that the terms within which Clause 54 is drawn are wide. They are restricted to amendments or repeals which appear to the Secretary of State to be necessary or expedient in consequence of the provisions of this part. However, they are certainly not restricted as to any particular enactment. Although I am not aware of anything in this part of the Bill which could render amendment to the Bill of Rights necessary, there is nothing in the clause as drafted which would prevent such a thing. However, in practice it is a matter which the Secretary of State's colleagues would wish to know about before he embarked on such a course of action.
Perhaps I may give comfort to the noble Lords as to why we want the clause. I am also aware that the Delegated Powers Scrutiny Committee drew the attention of the House to the provision and perhaps, with the leave of the Committee, I may take a little time to explain what, for our purposes, it means.
Clause 54 enables the Secretary of State to make, by order, such amendments or repeals of any enactment as appear to him necessary or expedient in consequence of the provisions of Part I of the Bill. I would emphasise that what is to be done must be "in consequence". We intend to use the provision to ensure, for example, that existing statutes will henceforth apply to registered social landlords, which is the term being introduced by the Bill, as they apply to registered housing associations.
In most instances, it will be sufficient to substitute "registered housing associations" with "registered social landlords". And where appropriate, a definition of registered social landlords may also be needed. An example would be amendments to Section 37 of the Land Compensation Act 1973 to provide for an entitlement to a disturbance payment in certain specified circumstances. Similar amendments are also required to the Leasehold Reform Act 1967; the National Health Service Act 1977; the Finance Act 1981; and a number of other Acts.
In a few instances, the amendment will need to reflect that the provisions in Part I of the Bill apply to registered social landlords in England and Wales only. For Scotland and Northern Ireland the existing provisions will continue to apply. An example of that would be the Inheritance Tax Act 1984.
I suspect that one of the questions which lies behind the noble Lord's amendment is why the proposed amendments are expedient as well as necessary. I can assure him that there is nothing sinister in the use of this terminology. It has been used before. Examples of that would be Section 30 of the Landlord and Tenant (Covenants) Act 1995; Sections 48 and 62 of the Agriculture Act 1993; and Section 181 of the Local Government etc. (Scotland) Act 1994. It means that we can use the powers to put beyond doubt the position
Considerable care is being taken to ensure that the amendments to be made by order will essentially be minor. Where a substantive change is justified we have proposed that it should be clearly shown on the face of the Bill, in Schedule 3, where it can be considered in detail. An example of this is the Government Amendment No. 186, which we shall consider later, affecting Section 75 of the Housing Associations Act 1985.
Turning to Amendment No. 184, I should like to reassure the noble Lord, Lord Monkswell, that we are not hiding anything in this provision. I would draw attention to the fact that the Bill, when it was in another place, originally included a list of consequential amendments at Schedule 3. I have the list, which runs to about 15 pages. We decided that they should be removed from the face of the Bill and introduced by secondary legislation precisely because they are routine in nature. They are typical of the amendments which we shall make by order.
I hope that the noble Lords, Lord Williams and Lord Monkswell, feel sufficiently comfortable to withdraw their amendments.
Lord Williams of Elvel: I am grateful to the Minister. He has certainly enlightened me as to what this extraordinary clause is about. I must read carefully what he has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 184 not moved.]
Schedule 3 [Social rented sector: minor amendments]:
Lord Lucas moved Amendment No. 185:
The noble Lord said: In moving Amendment No. 185 I shall speak also to Amendment No. 271. The amendment is introduced to amend Schedule 3 to repeal Section 33 of the Housing Associations Act 1985. Section 33 permits the Secretary of State to recognise and provide grant-in-aid for expenses to a central association or other body which is established for the purposes of promoting the formation and extension of housing associations. This provision is not used and should be repealed accordingly.
Amendment No. 271 is introduced by the Government to record the repeal of Section 33 of the 1985 Act in Schedule 16, Part I, which lists present enactments which are repealed by the Housing Bill. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish: I beg to move that the House be now resumed. In moving this Motion, perhaps I may suggest that the Committee stage begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Clause 1 [Assumed rate of return on investment of damages]:
The Lord Chancellor moved Amendment No. 1:
The noble and learned Lord said: My Lords, I wish to deal with Amendments Nos. 1 and 2 together. This also deals with an amendment to Clause 4 which was moved on Report by the noble Lord, Lord Meston. The amendments are technical amendments clarifying the manner in which the power conferred by Section 1 may be exercised.
In response to the amendment to Clause 8 moved by my noble friend Lord Chelmsford at Report, I said that I was willing to consider putting into Clause 1 more express words to achieve more clearly that the power can be exercised in relation to different claims in different ways. That is what I have done, and that is what is achieved by these two amendments. Unless and until the power has been exercised in relation to any particular class of case, the court's assessment of the damages will not be affected by Section 1.
I have already indicated what my intentions are in relation to the probable first exercise of this power, but I should add that my approach to the first exercise would not in any way restrict the discretion of the Lord Chancellor or the Secretary of State on the occasion of any future exercise of the power. Indeed I believe it to be inevitable that those who may subsequently exercise this power must adopt a different approach.
Once the power has been exercised, the courts will follow the direction in subsection (1) to take into account the prescribed rate unless satisfied that some other rate is more appropriate in the case in question. If it then appears that some other rate--perhaps some rate which is not even available in the present market--may be more appropriate for general application, then it would be open to those exercising the power to prescribe that other rate to replace that which the courts had up till then been using. The intention is to assist the courts with guidance and to enable them to take advantage of developments in the market which may provide even more accurate indicators to use in the difficult task of assessing damages for future pecuniary losses.
Finally, I should like to inform your Lordships of the progress we have made in investigating the problem mentioned by the noble Lords, Lord Meston and
I understand that the difficulty arose, not because the company (Municipal General Insurance Ltd) was in provisional liquidation, but because the structured settlement annuitant was not the policyholder, and to some extent because there were doubts as to whether the liabilities for which he was seeking compensation actually arose from the insurance policy. That structured settlement had been entered into before the reforms which we introduced in the Finance Act 1995 took effect.
Those reforms rationalised the arrangements for structured settlements so that life offices are now able to make payments under annuities bought by defendants with personal injury damages free of tax direct to the plaintiff. That was not previously possible, and that is why, in the case mentioned, the plaintiff was not the policyholder.
The present practice is that for new structured settlements, annuities will be bought in the beneficiary's name. For settlements set up under the old arrangements, the policy can now be assigned to the beneficiary by the general insurance company which purchased the annuity, thus ensuring full protection under the Policyholders Protection Act.
I understand that events had moved too fast in the case in question for that to have been done, but it is highly unlikely that the same situation would arise again. In any event, simply to specify that those provisions should apply where there is a provisional (rather than final) liquidation, would not be necessary or effective, since the Policyholders Protection Board already has powers to make interim orders (under Section 15 of the 1975 Act) and could do so when an insurer was in provisional liquidation. As I have said, it was not the fact of the liquidation being provisional which caused the problem, but the absence of a direct relationship between the beneficiary and the insurance company which was in provisional liquidation.
However, as your Lordships will be aware, my right honourable friend the President of the Board of Trade has already announced his intention to make changes to the Policyholders Protection Act 1975, and to bring forward legislation when parliamentary time permits. We are continuing our inquiries to ensure that there will be no gap in coverage. These will take some time to complete, and if it is found that there is after all still a potential gap, we shall have the opportunity to do something about it when my right honourable friend introduces his reforms.
I shall of course pursue this matter as this Bill goes forward. But my present view is that nothing is required under this Bill and that nothing effective can be done on the basis of the amendment which we considered on Report. I beg to move.
Page 32, line 7, leave out subsection (2).
"The Secretary of State may by order make such amendments or repeals of any enactment as appear to him necessary or expedient in consequence of the provisions of this Part".
I understand that that does not apply to the Bill of Rights because I assume that under this clause the Secretary of State cannot make amendments to that Bill. However, I should like an assurance from the Minister that that is the case.
Page 136, line 35, at end insert--
(". Section 33 of the Housing Associations Act 1985 (recognition of central association) shall cease to have effect.").
7.30 p.m.
Page 1, line 8, after ("return") insert ("(if any)").
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