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It is also hard to see how it would be possible adversely to affect the independence of the judiciary. Under Clause 4, a Minister cannot make an order which he considers removes a necessary protection. It is therefore difficult to envisage how a Minister could conclude that an order which adversely affectedthe independence of the judiciary satisfied that precondition. Furthermore, it is hard to see how Parliament would agree to such an amendment, and it is difficult to see how such an order would survive judicial consideration of vires, given that secondary legislation is subject to judicial scrutiny.
The Government are satisfied that such fundamental changes could not be made by order under the Bill. The Clause 1 and Clause 2 powers are circumscribed: they can be used only to make sensible reforms removing or reducing burdens or promoting
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The noble Lords, Lord Jenkin and Lord Borrie, and others made reference to the exemption of the Human Rights Act and Part 1 of the Bill from reform by order. It is true that the Government amended the Bill in the Commons to put amendments to the Human Rights Act off limits. This is not, though, because this is a constitutional statute which differs from other statutes, but because secondary legislation must be compliant with the Act. Therefore, it would be an illogical absurdity were the order-making power to be used to amend the Human Rights Act and so remove the safeguards provided by that Act. Similarly, it would be strange if orders could be used to remove the limits on the order-making powers contained in Part 1. For those reasons and others that have been adduced, I cannot accept the amendments. However, I accept that they were moved not only in good spirit but for very good reasons. I hope that I have answered the various points relating to noble Lords’ quite understandable concerns to protect our constitution.
Lord Goodhart: We have had a substantial debate on this issue. It is clearly important. I have to say that I am unable to agree that the orders of constitutional importance are necessarily and automatically filtered out by the conditions in Clause 4 as they now stand. It is a significant issue and it will need to be taken further.
The problem, as has been demonstrated by this debate, is that there is no single method of dealing with this problem which is ideal. All create some problems of their own. But there has been a clear demonstration of the view that some amendment is necessary, and that is reinforced by the clear statement in the report of the Constitution Committee that the existing protection was inadequate.
In those circumstances, there will have to be further consideration. I certainly hope and expect that, before the Bill comes back on Report, the noble Lord, Lord Kingsland, and I, together, I hope, with the noble Lords, Lord Norton of Louth and Lord Jenkin of Roding, who have their own amendments in this group, will be able to get together and decide on a single amendment which can be put forward and which we think is the best way of dealing with this problem. But that is a matter for the future. For the present, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 pm
[Amendments Nos. 52 and 53 not moved.]
Lord Bassam of Brighton moved AmendmentNo. 54:
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The noble Lord said: This amendment, together with Amendments Nos. 48, 58, 59, 77, 78, 80 to 83, 88, 118 and my opposition to the Question that Clause 22 stand part of the Bill, are consequential to the removal of Clause 3 from the Bill, to which the Committee has already given its agreement. I greatly regret that, in speaking to the Question that Clause 3 stand part of the Bill, my noble friend Lady Ashton omitted to note these amendments formally. I therefore find it necessary to move them this evening. I apologise to the Committee for that. It was a simple omission on her part and entirely understandable in the circumstances. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 55 to 57 not moved.]
Lord Bassam of Brighton moved AmendmentNo. 58:
On Question, amendment agreed to.
Lord Bassam of Brighton moved AmendmentNo. 59:
On Question, amendment agreed to.
Lord Bassam of Brighton moved AmendmentNo. 61:
“( ) In this section and sections 5 to 8, to “restate” an enactment means to replace it with alterations only of form or arrangement (and for these purposes to remove an ambiguity is to make an alteration other than one of form or arrangement).”
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
[Amendments Nos. 62 to 64 not moved.]
Clause 5 [Subordinate legislation]:
Lord Bassam of Brighton moved AmendmentNo. 65:
(a) a Minister of the Crown; (b) any person on or to whom functions are conferred or have been transferred by an enactment; or (c) a body which, or the holder of an office which, is created by the order.(A2) An order under this Part may not make provision for the delegation of any function of legislating.”
On Question, amendment agreed to.
Lord Bassam of Brighton moved AmendmentNo. 66:
Page 4, line 36, leave out from “is” to “; or” in line 37 and insert “an instrument to which section 5(1) of the Statutory Instruments Act 1946 (c. 36) applies (instruments subject to annulment by resolution of either House of Parliament)”
On Question, amendment agreed to.
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Lord Bassam of Brighton moved AmendmentNo. 68:
On Question, amendment agreed to.
Lord Bassam of Brighton moved AmendmentNo. 69:
“(5) For the purposes of this section a “function of legislating” is a function of legislating by order, rules, regulations or other subordinate instrument.”
On Question, amendment agreed to.
Clause 5, as amended, agreed to.
Lord Goodhart moved Amendment No. 70:
The noble Lord said: This is really a probing amendment. Clause 6(1) says:
That leaves it open to reduce or remove taxation. It is obvious that to impose a new tax or make an increase would require primary legislation, but given that taxation is one of the most important powers of Government, I wonder why it should not be also required to exclude all changes to taxation from the operation of this Bill. Can the Minister give an example of a possible reduction in taxation or elimination of a tax that would justify the use of an order rather than through a Finance Bill or something similar?
I wonder, too, what the meaning of “taxation” is. There is no definition in the Bill, and I wonder what it includes. For example, does it include national insurance contributions, which are technically not regarded as a tax? Does it include customs duties, since there is a question whether duties are a form of taxation or, although also acting to raise money, something different from taxation? What is the definition of taxation here? I beg to move.
Lord Henley: I appreciate that the noble Lord’s amendment is a probing one. Although I would normally tend to favour any mechanism that was designed for the reduction of tax I agree with him that it would be appropriate that, just as the Bill prevents any increases in tax, it should not allow for any decreases through this mechanism, and that the appropriate mechanism would be a Finance Bill. In what I think was his first outing as the new Parliamentary Under-Secretary of State for the Cabinet Office, Mr Pat McFadden seemed to indicate that that was what should happen. I should be very grateful for confirmation of that from the Minister.
When Pat McFadden responded in the House of Commons, he said:
“It is not possible to use the powers to create a new tax, but it will be possible to reduce a tax if it meets the procedures and
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If that is the case, why does it not say that in the Bill? That would seem a more appropriate way in which to deal with these matters.
Lord McKenzie of Luton: I hope that I can help on the points that have been raised. I understand the thrust of the amendment, which is probing. At the moment, the clause prevents an order from imposing or increasing taxation. It is not the intention that orders should be used to remove taxes or lower tax rates. Under the amendment, orders could not remove or alter taxation.
I note this amendment and assure noble Lords that the Government agree that orders under Part 1 should not be able to remove taxes or lower tax rates, which is why we are keen to have this discussion today. We will consider carefully options for making it explicit in the Bill that orders cannot remove taxes or reduce tax rates. However, it is important to get the detail right. In particular, it is important that we do not inadvertently rule out being able to deliver a merger of regulators which would reduce or remove burdens on the regulated by reducing the multiple inspections of regulated firms, for example. If we are transferring regulatory functions from one regulator to another, it will often be necessary also to make provision relating to the transfer of assets and liabilities. It will also often be necessary to make associated provision relating to the tax treatment of those transfers—and only those transfers. Noble Lords may wish to refer to the example of Schedule 10 to the Railways Act 2005.
As I say, it is not the intention that orders should remove taxes or lower tax rates, but it is important that any amendment to Clause 6 does not rule out the possibility of such mergers. When an order under Clause 1 is considered appropriate by Parliament and its committees to deliver such a merger for the purpose of removing or reducing burdens, it is important that the order can also make the necessary provision varying the incidence of taxation in that particular case.
On the basis of that explanation, I hope that the noble Lord will be satisfied. He asked, too, about the definition of taxation. For these purposes, taxation is the compulsory levying of money for state revenue, either nationally or locally, when the levy is not a fee or charge to recover the costs of supply in a specific service to which the fee or charge relates. Fines are not taxation; they are penalties for unlawful activities. It should be noted that there are precedents for using the term “taxation” as it is used in this Bill.
For the purposes of Clause 6 it is important that, to prevent the imposition or increase of any tax, the meaning of taxation is not restricted to any particular taxes and is not narrowly defined. I hope that the use of that precedent in that way will reassure noble Lords. With the thrust of what we are trying to achieve, we shall need to bring something back to meet the narrow circumstances that I outlined, with
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Lord Jenkin of Roding: The Minister mentioned the question of merger of regulators, in the context of the amendment. I remind Ministers that I was promised a letter specifically about the merger of the HFEA and the Human Tissue Authority, and I hope that I am going to get it.
Lord McKenzie of Luton: I apologise to the noble Lord if that letter has not yet arrived. Together with my noble friend Lord Bassam, I shall do what I can to expedite it.
Lord Goodhart: I thank the Minister, who seems to accept the principle behind the amendment and wants to make an exception only in very limited circumstances, such as those he has described, such as the tax consequences of something else—the merger between regulatory offices, for example—which is not in itself intended as an alteration of taxation. This is something that I am entirely satisfied with in principle, so I hope that the Government will bring back something that achieves their purpose, without giving a general power to reduce or remove taxation. I may in due course bring the amendment back simply to keep the Government on their toes and to ensure that we see something from them. I would obviously withdraw my amendment in favour of theirs. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Criminal penalties]:
[Amendments Nos. 72 and 73 not moved.]
Clause 8 [Forcible entry etc]:
Lord Henley moved Amendment No. 74A:
“( ) enable the requisition, confiscation or destruction of property; ( ) prohibit, or enable the prohibition of, or require, or enable the requirement of, travel or movement to or from a specified place or places; ( ) prohibit, or enable the prohibition of, specified activities; ( ) confer jurisdiction on a court or tribunal (which may include a tribunal established by any regulations);”The noble Lord said: I shall also speak to Amendment No. 74B. These amendments would insert more protections into Clause 8. Subsection (1) currently inserts only two prohibitions to the order-making power. An order cannot authorise any forcible entry, search or seizure or compel the giving of evidence. The Explanatory Notes are particularly unhelpful on this; when explaining why these provisions appear, they merely state:
“The restriction in clause 8(1) on making provision authorising forcible entry, search or seizure, or compelling the giving of evidence, derives from the 2001 Act (section 3(5))”.
19 July 2006 : Column 1362
8 pm
The reliance on the 2001 Act as some kind of precedent to justify the Bill has been a somewhat disingenuous tactic throughout our debates. I hope the Minister will not merely recite that justification, which is implicit in the Explanatory Notes. Just because the Government succeeded in getting their Bill passed in 2001, that does not mean we should cease to scrutinise any similar measures in this new Bill. The Minister has often referred to how the Bill will be more effective than the 2001 Act. Any protections or safeguards, therefore, have to be considered against these new powers to test whether they are sufficient. With that in mind, will the Minister explain exactly why those particular protections have been singled out in Clause 8, as opposed to anything else?
The Committee will see that in AmendmentNo. 74A my noble friend has suggested a list of possible protections to be built into Clause 8, in addition to the two that were already there. She took as her starting point the Civil Contingencies Act 2004, where, in Section 22(3), the Government have provided a frankly alarming shopping list of things they would like to do by emergency regulations. I hope that transposing the powers suggested in that Act into protections in this Bill will be a useful starting point in discussing what protections are needed here in Clause 8.
As always, I am not suggesting—as, I suspect, my noble friend Lord Onslow would—that this Government would use the order-making powers in Part 1 as a substitute for using the powers in the Civil Contingencies Act. My point is that if the Government believe that these types of powers are necessary only in an emergency, why can they not provide a safeguard, written into the Bill, that these types of powers will never be included in the order-making powers the Bill proposes?
I turn now to Amendment No. 74B. Clause 8(2) provides for the circumvention of the protections provided by Clause 8(1), and states that subsection (1) does not prevent an order from extending any power for purposes similar to those to which the power applied before the order was made. Does that not effectively render any protection in subsection (1) redundant? In other words, so long as the purpose of the power is similar to a previous power, it can be extended, regardless of the fact that it would authorise search and seizure of property or compel the giving of evidence.
No doubt the Government will again pray in aid the 2001 Act. However, that is not a satisfactory argument by itself to justify the appearance of this provision. Section 3(5) of the 2001 Act stated that an order could not do anything that would authorise forcible entry or compel the giving of evidence,
- “unless a provision to that effect is contained in an enactment repealed by the order and the powers conferred by the provision to that effect contained in the order are exercisable for the same purposes as the powers conferred by the repealed enactment or for purposes of a like nature”.
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