Lords Hansard text for 3 Jul 200603 July 2006 (pt 0814)

Criminal Justice

3.11pm

Lord Goodhart asked Her Majesty’s Government:

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, no.

Lord Goodhart: My Lords, over recent weeks the Home Office has shown that it is totally incapable of handling the multifarious responsibilities that it now has, and it is plain that those responsibilities should be reduced. In particular, would it not be both logical and sensible to transfer responsibilities for the criminal justice system to the Department for Constitutional Affairs, leaving the Home Office with the police, the prisons and immigration? As criminal and civil justice overlap in many respects and are administered in the same courts by the same judges, should they not be under one department, a department for justice?

Baroness Scotland of Asthal: My Lords, I can reassure the noble Lord that the Home Office is capable of managing its current portfolio, and noble Lords know that we are undertaking a review. However, let me remind the House that at the moment the criminal justice system is managed on a tripartite basis between

3 July 2006 : Column 10

the Lord Chancellor in the Department for Constitutional Affairs, the Home Secretary at the Home Office and, indeed, my noble and learned friend the Attorney-General. Together we are making significant improvements to the criminal justice system which many outside the House have had the courage to applaud.

Lord Tebbit: My Lords, can the noble Baroness tell us when the Government first became aware that the Home Office was not fit for purpose?

Baroness Scotland of Asthal: My Lords, the noble Lord will know that that is not what my right honourable friend the Home Secretary said about the Home Office. He said that one part—the processes related to IND—was not fit for purpose, but it does not apply to the Home Office as a whole. I am sure that the noble Lord knows that perfectly well.

Lord Lester of Herne Hill: My Lords, two and a half years spent in the Home Office 30 years ago convinced me that it was wholly irrational, if not worse, to split responsibility for criminal law from responsibility for civil law between different government departments. Can the Minister tell the House which other country in Europe or the Commonwealth has adopted that solution? What is the principal justification for splitting responsibility between not two but three departments instead of having a department for justice, as is the case in almost the whole of the rest of the civilised world?

Baroness Scotland of Asthal: My Lords, I should perhaps remind the noble Lord that no other democracy has a House of Lords, yet we still manage perfectly well. It is not irrational. The noble Lord will be very familiar with the report by Lord Justice Auld, who advocated bringing together the three parts of the criminal justice system. That is what we have done with the National Criminal Justice Board, where the component parts work very well in unison. The board has a meeting every month, and all parties are able to come to consensual agreement on how best to manage criminal justice—and that has inured to the advantage of our country.

Lord Woolf: My Lords—

Lord Hodgson of Astley Abbotts: My Lords, could the noble Baroness confirm to the House—

Lord Woolf: My Lords, I am grateful to the noble Lord. Does the Minister feel that it would be an improvement to have the department that is primarily responsible for the independence of the judiciary—namely, that which continues to be led by the Lord Chancellor—also responsible for prosecutions?

Baroness Scotland of Asthal: My Lords, we certainly do not feel that that is necessary. The noble and learned Lord will know that the prosecution department is currently brilliantly headed by my noble and learned friend the Attorney-General. It is a situation with which we are absolutely content. Working together in unison, however, has been greatly beneficial, and we intend to continue along that line.

3 July 2006 : Column 11

Lord Hodgson of Astley Abbotts: My Lords, can the Minister confirm that her department has produced more than 40 pieces of law and order legislation since 1997? That is one for every 80 days since taking office. When will the department start to get right what it is supposed to be doing?

Baroness Scotland of Asthal: My Lords, I hope that the noble Lord will agree that each of those pieces of legislation was necessary. The measures in the anti-social behaviour legislation and the work that we have done with the Criminal Justice Act have all proven necessary. I do not know whether noble Lords opposite think that perhaps we should rescind those measures.

Lord Foulkes of Cumnock: My Lords, if a Conservative Government legislated to effect what is proposed in the Question and they had their way on the constitutional issue in relation to Scottish MPs, Scottish MPs could not vote on the changes proposed. Perhaps my noble friend can help me: could I, as a Scottish Peer, vote?

Baroness Scotland of Asthal: My Lords, that is a matter for Members opposite. I notice that a number of them are shaking their head, so I can only take it that they would deny my noble friend that opportunity.

Lord Phillips of Sudbury: My Lords, further to the Minister’s answer to the noble Lord, Lord Hodgson, does she agree that it would be wise for the Home Office, if it is to retain these responsibilities, to make much more effort to implement the laws that exist? At the same time, would she not concede that the record of this Government in creating new criminal offences since they came to power has been unique and, in many ways, counterproductive?

Baroness Scotland of Asthal: My Lords, I regret to tell the noble Lord that I cannot agree with him: it has been neither unique nor counterproductive. I assure him that every effort will be made to ensure that the implementation of legislation is rigorously pursued.

The Countess of Mar: My Lords, is it not the case that the noble Lord, Lord Foulkes, was introduced into this House as a Peer of the United Kingdom? He might be a Scot, but he is a Peer of the United Kingdom.

Baroness Scotland of Asthal: My Lords, I absolutely agree, but I think that the import of my noble friend’s question was that noble Lords opposite, as a result of their new policy—I appreciate that these policies come thick and fast—would deny my noble friend.

Lord Armstrong of Ilminster: My Lords, is the Minister aware that, following the example of the noble Lord, Lord Lester of Herne Hill, four years as an official in the Home Office—two of them as Permanent Secretary—lead me to admire the content of her first Answer as much as I admire the brevity of it?

Baroness Scotland of Asthal: My Lords, I am grateful.

3 July 2006 : Column 12

Business

3.20 pm

Lord Grocott: My Lords, with permission, a Statement will be repeated this afternoon. The subject is the position of British Forces in Afghanistan. It will be repeated by my noble friend Lord Drayson, and we shall take it at a convenient time after 6.45 pm.

Information Committee

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the Lord Kalms be appointed a member of the Select Committee in the place of the Lord Chadlington.—(The Chairman of Committees.)

On Question, Motion agreed to.

Wireless Telegraphy Bill [HL]

Read a third time, and passed, and sent to the Commons.

Legislative and Regulatory Reform Bill

Lord Bassam of Brighton: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)

Lord Jenkin of Roding: My Lords, I do not think we should agree to this Motion without further discussion. Given the history of the Bill, which was massively amended in another place, and the raft of amendments which the Government have tabled to the Bill as introduced into this House, I do not think we should accept this Motion without once again asking whether we really need this Bill.

The question was asked several times at Second Reading on 13 June, but—and I say this in all kindness—in his winding-up speech the Minister failed to convince many of your Lordships of the case he was seeking to make. For instance, the noble Lord, Lord Garden, asked,

[Official Report,

When the Minister came to answer that question, the first thing he stressed—and I think it is important to notice what he gave the most importance to—was that it would help,

Official Report

My noble friend, of course, was referring to the culture in Whitehall departments, which the Minister acknowledged seemed to be reluctant to engage in deregulation. But if departments are unwilling to deregulate—if the culture does indeed need to be changed—surely to goodness it is the job of the Ministers who head the departments to make sure that change is achieved.

3 July 2006 : Column 13

What is there in this Bill that is supposed, miraculously, to convert officials to embrace the spirit of deregulation? Yes, it provides some new definitions, for example, of the burdens that can be removed or reduced by order. So one goes on to ask, as several noble Lords did on Second Reading, including the noble Lord, Lord Goodhart, why cannot the 2001 Act be amended,

Official Report,

The noble Lord got no answer either, except that the Minister riposted by inviting him to use the Committee stage to “have a go”, as he put it, at drafting amendments that simplified things. It may be that the noble Lord’s amendments, of which there are many, would do that.

We now have this raft of new amendments, tabled by the Government in this House. For instance, Clause 3 contains the power to implement Law Commission reports by order, to which the noble Lord, Lord Bassam of Brighton, said at col. 186, he remained “wedded”. He remained wedded in the letter he wrote to us, which I shall refer to in a moment. But we now see, looking at the Marshalled List, that Clause 3 is to be removed.

The criteria written into the Bill to govern the use of the veto by committees of either House are to be removed. These are changes which I am sure the House will welcome, but why were those criteria in the Bill in the first place? Is this not evidence, if evidence were needed, that the Government are simply making up this Bill as they go along?

When this Bill started its life in another place, it contained powers to legislate by order that were so sweeping and all-embracing that it attracted the sobriquet the “Abolition of Parliament” Bill. Mercifully, most of those powers were withdrawn in that House, so it was a radically different and far more modest measure that came to this House. But here we go again: the Marshalled List contains upward of 30 government amendments and proposals for the removal of two entire clauses. The noble Lord, Lord Bassam, was kind enough to send a number of us a letter which covered the points that had been raised at Second Reading. It is no fewer than nine foolscap pages long, plus an annex—let me say at once that I make no criticism of that: anything the Government can do to explain what they are trying to achieve must be an advantage. However, in the letter, the Minister once again tried to spell out why we needed the Bill rather than a much shorter measure amending the 2001 Act. He argued that the differences between the order-making powers in the Bill and in the 2001 Act,

But I am driven to ask, if the Government had not originally attempted to introduce their far more drastic order-making power and to legislate by what was called the “Abolition of Parliament Act”, whether they would not then have preferred to make the amendments in the form of a much shorter, simpler Bill, amending the 2001 Act. Would that not, even now, be a better course?

3 July 2006 : Column 14

Here we are, into July, with a very heavy legislative programme before us. Would it really not be wiser to recognise that this Bill, which in its present form still needs further to be amended, as witness the number of amendments on the Marshalled List, should be withdrawn before we waste any more time on it? Ministers could then really work out what they want to achieve and come back to the House in October with a simple amending Bill. I would hazard a guess that this might gain parliamentary approval quite quickly. Most of us are agreed on what needs to be done to speed up the process of deregulation. That would be a very much better way of doing it than starting to wade through this Committee now.

The Earl of Onslow: My Lords, I strongly support my noble friend Lord Jenkin, because I have an extraordinarily strong feeling, which I expressed at Second Reading but which needs to be expressed again, that giving any power to Ministers ever to amend primary legislation must be a bad thing, even if it is for anodyne and sensible purposes such as making regulation better. It is incredibly dangerous to give any Ministers that power. Let us reasonably assume that, on this issue, this Government are completely and utterly virgin pure, that they are a Government who, we know, are driven solely by the best of motives, that they are a Government who never put a foot wrong and never would dream of amending a Bill badly if they had the power. Let us for the sake of argument make that assumption. I do not trust any other Government, ever, to have that power, be they led by the right honourable Member for Witney, be they led by some as yet unborn child. I do not trust any Government, except possibly this one, to behave like that. So we have to be extremely careful about ever giving Ministers this power.

Is it not obvious beyond peradventure that over-regulation arises from regulation, and regulation arises from the powers given to Ministers in primary legislation, so that over-regulation can and should be cured by re-regulation? In other words, let us say that fishing for snails in the River Wey is regulated, deriving the ministerial power of regulation from some agricultural Act. Going back to the agricultural Act containing the power for the Minister to make an order, the Minister sees that the order is wrong and changes the regulation. Surely, this matter is being looked at in an intellectually sloppy way. We say “over-regulation” and immediately we rush to the statute book. Over-regulation can and should be cured by proper attention to detail and making sure that regulations which have arisen out of primary legislation are properly drafted and enforced. So do we actually need the Bill? That is the point that I hope my noble friend Lord Jenkin is making.

3.30 pm

Lord Desai: My Lords, I am not sure under what rubric we are having a Second Reading debate all over again. The noble Lord, Lord Jenkin, who introduced this device, said that we had far too much work to do and that if only we did not have this Bill we could get on with it. If he had not raised his objection, we could

3 July 2006 : Column 15

have got on with it faster. The Government have listened to what was said in the House of Commons and the House of Lords and followed that by introducing amendments. This is not the first Bill for which amendments have been introduced in the House by the Government. Surely the noble Lord, with his long experience, knows that. Why has this particular Bill been blown up into an “Abolition of Parliament” Act when it is only very modest legislation about regulatory reform, which was slowed immensely by the previous legislation? I said at Second Reading that we really needed something better; this Bill provides something better—and the sooner we get on with the Bill, the better off we will all be.

Lord Goodhart: My Lords, I agreed with much that the noble Lord, Lord Jenkin, said, particularly on why the Government have not simply amended the Regulatory Reform Act 2001. It is to deal with that issue that I gave notice of my intention of objecting to Clause 1 stand part, so that we can get a proper explanation from the Government of why that was not done. However, this House did not oppose this Bill at Second Reading or vote on any amendment that it should be delayed for six months. In the circumstances, it seems wholly illogical to object to this Bill going into Committee.

Lord Peyton of Yeovil: My Lords, I do not see that anybody has really answered my question; I hope that the noble Lord, Lord Bassam, will answer it. What on earth is the point of us expending further time on a Bill that has no obvious purpose? My noble friend Lord Jenkin put his points marvellously well and very clearly, as he always does. Of course, my noble friend Lord Onslow then hammered the nail home with his characteristic force.

I do not want to spend time on this, but I want to make one point. I regard this Bill with some welcome because it is a classic example of, and illustrates with unusual clarity, what is meant by the phrase, “Satan rebuking sin”. In the spectacle of Satan rebuking sin there is an element of hypocrisy. I wonder whether there is not an element of hypocrisy in the Government going ahead with this Bill. What puzzles me is that it may give this licence—these new powers—to Secretaries of State, but I wonder what form of conversion Secretaries of State, who all their lives have been soaked in the tradition of regulation, will need to undergo to be suddenly minded to withdraw them, repeal them, change them, weaken them and amend them.

I do not want to say any more, but I hope that the noble Lord, Lord Bassam, will bear in mind that today he represents Satan. I am sure that he will do so with some skill.

Lord Richard: My Lords, I have listened to what has been said so far with bewilderment. As I understood it, this Bill has had a Second Reading in this House. If it has, it should now proceed through its stages. If Members of the Committee do not like what is in the Bill, they can table amendments. The only real issue upon which a Motion of this sort

3 July 2006 : Column 16

should be considered seriously by the House is surely one where the Bill has been changed so much between Second Reading and today that it is a different Bill. However, I do not think that is the position at all. The noble Lord, Lord Jenkin, the noble Earl, Lord Onslow, and my friend, the noble Lord, Lord Peyton, may well feel that it would have been better if the Bill had not been introduced, but that is not the point. It has been introduced, it is part of the Government’s programme, it has had a Second Reading in this House and we really ought to get on with Committee.

Lord Kingsland: My Lords, with his characteristic perspicacity the noble Lord, Lord Richard, has put his finger on the point. But the answer to his point is not the one that he gave to his own question. When this Bill started its life in another place, it had two features which distinguished it from the 2001 Bill. The first was that it sought to remove the distinction between primary and secondary legislation. It was described by the fourth estate as the Bill to abolish Parliament. Fortunately, pressure from the fourth estate and a leaked letter from the government Chief Whip, which we all read with great interest, in combination forced the Government to think again in another place.

But since Second Reading a second big change has been made to the Bill: the Government have decided to remove Clause 3. If Clause 3 had remained in the Bill, it would, indeed, have been an important distinction between this legislation and the 2001 Bill because Clause 3 sought to establish a completely separate system for driving Law Commission proposals through Parliament. The Government have now decided—in my submission, wisely—to withdraw Clause 3. So the question that my noble friend Lord Jenkin of Roding is posing to the Government today is: given that we have removed all the features of the Bill which might otherwise have rendered it an “Abolition of Parliament” Bill, and given that we have now removed the Law Commission features, what is left in this legislation which distinguishes it from the 2001 Bill? That is the difference between Second Reading and today.

It is a well merited question. The Delegated Powers and Regulatory Reform Committee report, as we all know, stated that the main inhibition from making a deregulatory order is not the definition of “burden” in the 2001 Bill—a definition largely repeated in this Bill—or, more widely, parliamentary processes themselves, but the failure of government Ministers to put deregulation high enough on their agenda to make it work. That is said in terms in the report. So, with great respect to the noble Lord, Lord Richard, the intervention of my noble friend Lord Jenkin of Roding was exactly to the point. We need an answer from the Government.

Lord Tebbit: My Lords, perhaps I may briefly intervene. I do not know whether what I am going to say will help the case put by my noble friend Lord Jenkin or the case that, I suspect, will be made by the noble Lord, Lord Bassam, but there is already power under the 1972 Act to amend primary legislation by use of orders or regulations. I recollect very well that some years ago, before this Government came into

3 July 2006 : Column 17

office, the previous Government brought forward under the 1972 Act an order that amended the Sex Discrimination Act by removing a whole section and replacing it with another. That section related to the immunity of the Armed Forces from the Act. That amendment of primary law was made by an order under the 1972 Act. I remember that occasion clearly, because I asked an embarrassing question of the Minister who was taking through the order: what difference would it make if this House rejected the order? The answer, of course, was none whatever, because the order was being taken through under the 1972 Act of accession. So perhaps we are not quite in such uncharted waters as we might have thought.

Lord Bassam of Brighton: My Lords, I join the noble Lord, Lord Richard, in being rather puzzled by this debate, although I thank the noble Lord, Lord Jenkin, for at least giving me advance notice of it.

At Second Reading, we went carefully over the issue as to why a new Bill was required. I answered the points made and did so again, I thought fully, in the letter to which the noble Lord, Lord Jenkin, referred. We need a new Bill. Each Bill builds on another. This is hardly new territory, because noble Lords opposite will recall that they were the progenitors of a Bill back in 1994 that began this process.

The noble Lord, Lord Jenkin, pointed out that we were bringing forward further sweeping changes, particularly in Clause 3, to which the noble Lord, Lord Kingsland, has also referred. Those changes were called for in considerable measure during the Second Reading debate. I listened to it. My noble friend Lady Ashton listened to it, as did my noble and learned friend the Lord Chancellor. We have reflected further on those issues and we have brought forward amendments to which I expect to receive welcome support from the Benches opposite.

This Bill demonstrates that the Government are prepared to listen to those who criticise them and to bring forward thoughtful and sensible measures. Noble Lords opposite really need to understand and to get their act together, because on 14 April, I think, the Conservative Party produced a press release, which I do not have to hand, crediting the Government for making major amendments to the Bill and giving its support for that. I know that the Bill is supported by business. The CBI and the Institute of Directors have written to us. Today, I received a letter from the—

Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord for the amendments that he has brought forward, which I welcome. But can he give me just one example of a regulatory measure that could be got rid of by the Bill, as amended, that could not be achieved under existing legislation—just one example?

Lord Bassam of Brighton: Well, my Lords, I can give the noble Lord an example quoted in annexe A to the letter that I sent out towards the end of last week. It is a simple example regarding the reform of tree preservation orders and the system relating to it. The noble Lord laughs at that, but many such measures cannot currently be dealt with under the

3 July 2006 : Column 18

Regulatory Reform Act 2001. This will make a change. Another example is the Game Act of 1830 or thereabouts—it was quoted in the correspondence. There are many such small measures and that is why the Federation of Small Businesses has written to Peers involved in this afternoon’s debate making a very effective case for this Bill. It simply says:

I shall read into the record a paragraph from its briefing because it deserves to be there. It states:

Noble Lords opposite have a choice. They should back this Bill. Yes, we can have arguments and, yes, we can have criticisms about the detail but the noble Lord, Lord Goodhart, made the point—the time to object to this was earlier. This Bill received a Second Reading and it has the support of another place. I think that we should get on with the business of dealing with the Committee stage this afternoon.

3.45 pm

Lord Kingsland: My Lords, I think the question that my noble friend Lord Jenkin of Roding put was rather different from that which the noble Lord suggested. My noble friend’s question was that, given that the Bill is now shorn of the principal characteristics that distinguished it from the 2001 Bill, why cannot we simply amend the 2001 Bill rather than go to the trouble of establishing a completely new Bill—which will absorb an enormous amount of time in both your Lordships’ House and another place? That was the question.

Lord Bassam of Brighton: My Lords, we are here as a revising Chamber. This Bill does things that are different and it works in a different way. I explained that to the noble Lord at Second Reading and I explained it in the detailed correspondence that I sent out to all noble Lords involved in that debate.

I ask this House simply this question: do noble Lords want to join those bodies that are a progressive force in this country and which want to institute sensible change and which deal with things in a pragmatic way? The noble Lord, Lord Peyton, said that in his view we had had a change of heart, as it were, and that somehow I was satanic in my efforts to bring about greater measures of deregulation. I do not care whether I am Satan or not; I should like to get on with this Bill and make some changes that are important to this country.

Next Section

Back to Table of Contents

Lords Hansard Home Page