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I accept that this has the same effect as Clause 8(2), but I would be interested to hear who decides whether
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Lord Bassam of Brighton: Amendment No. 74B seeks to restrict the power of an order to make provision authorising forcible entry, search or seizure or the compelling of the giving of evidence, except where an order is merely restating an existing provision in an enactment that does one of those things. This amendment removes the ability of an order to extend existing powers for purposes similar to those to which they already apply. The noble Lord, Lord Henley, has carefully set that out.
I understand the noble Lord’s concern about the scope of the power in Clause 8(2). However, the provision, as he has noted, is not new; it is a carryover from the 2001 Act. The Government believe that that is correct, to retain the flexibility that Clause 8(2) provides. I shall describe why that is the case. I ought to add in parenthesis that I am not aware that the provision in the 2001 Act has ever been used, and it would only ever be our intention to ensure that the provision would be used sparingly.
There may be occasions when both the Government and Parliament agree it is appropriate for an order to extend existing powers for purposes similar to those to which they already apply. I give an example: where an existing statutory power is conferred on a particular body authorising it to search and seize certain types of goods from cars and vans. Extending it for a similar purpose could mean so that trains could be searched by that body. In the case of an order under Clause 1, the order would of course need to remove or reduce burdens. Where an order reformed a particular inspection regime and replaced it with a less burdensome one, the changes to the regime might require an existing power authorising forcible entry, search or seizure to be extended slightly to fit better with the new regime.
Amendment No. 74A lists additional restrictions on the powers an order may authorise. The restrictions given are unnecessary and, without listing specific activities, it is unclear what effect the third condition would have. There are existing protections against the misuse of the order-making power in Clause 1, both within and outside the extent of the Bill. The effect of the Human Rights Act 1998 is that it is unlawful, for instance, for a Minister to make secondary legislation that includes orders under Part 1 which are incompatible with the convention rights. For example, in Article 1 of Protocol 1 to the European Convention on Human Rights already protects property rights.
Regarding both Amendments Nos. 74A and 74B,I reiterate that orders must also satisfy the preconditions in Clause 4. In particular, provisions must not remove any necessary protection or prevent
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I have already made clear on a number of occasions that we have given an undertaking not to deliver highly controversial proposals by order, and not to force orders through in the face of Committee opposition. I also stress the importance of viewing the powers in Clause 8 in the context of better regulation. Investigative powers should not have a negative impact on good businesses. Rather, they should be used only in a targeted way; for example, against rogue traders. For those reasons, I cannot support the amendment, and I hope the noble Lord will feel able to withdraw it.
The noble Lord asked who decides if the purposes are similar, which is a fair point. It is the Minister making the order, subject to the decision of both committees, which have the power of veto, and subject to the views of the court in the case of a judicial review—perhaps one arising from a criminal prosecution. That fairly settles the question that he reasonably asked.
Lord Henley: I thank the Minister for that response, but it was not satisfactory. In the end it comes down to his relying on the same arguments as were put forward for the 2001 Act, and simply saying that the provisions will continue on that basis. I will look carefully at what he had to say, but I have a sneaking feeling that we will have to come back to this on Report and see if we can get a slightly better answer out of him. At this stage, though, it is probably best if I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 74B not moved.]
Clause 9 [Excepted enactments]:
[Amendments Nos. 75 and 75A not moved.]
The Deputy Chairman of Committees (Lord Geddes): I must advise the Committee that if Amendment No. 76 is agreed to, I cannot call Amendment No. 77 due to pre-emption.
Lord Jenkin of Roding moved Amendment No. 76:
The noble Lord said: This is a probing amendment therefore I do not think that the pre-emption will apply. With Clause 10 we move north of the border. The clause ensures that orders made under Part 1 may not affect devolved matters. However, the words which the amendment seeks to omit make an exception for consequential, supplementary, incidental or transitional provisions. Would such
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It is entirely right that devolved matters should not be the subject of this Bill, but this is an exception where problems may arise, and I should be most grateful for an answer. I beg to move.
Lord Norton of Louth: I support my noble friend as I have added my name to the amendment. It raises important questions about situations where consequential amendments are made but the Scottish Parliament has not invited Westminster to legislate for it. The legal position is clear—the provision would extend to Scotland—but are there not political and constitutional implications? We are trying to tease out whether those implications have been thought through.
8.15 pm
Lord McKenzie of Luton: I understand that this is a probing amendment and I hope that I can satisfy noble Lords why the provision is in the Bill in this form.
Clause 10 makes clear how the Bill works in relation to matters devolved to the Scottish Parliament. The general position is that orders made under this Bill cannot make provision in areas devolved to Scotland. As has been recognised, the only exception to this, as Clause 10 sets out, is that orders can make consequential, supplementary, incidental or transitional provision even in areas devolved to Scotland, so long as the need for this arises out of provision made by the order for purposes which are reserved to Westminster. Orders cannot make any free-standing provision in matters devolved to Scotland.
The intention behind Amendment No. 76 maybe to prevent an order making consequential, supplementary, incidental or transitional provision which would be within the legislative competence of the Scottish Parliament were it contained in an Act of that Parliament. An example of where the ability to make such provision is needed is where an order, in amending Westminster legislation, re-numbers some of its provisions, or if the name of a body is changed or a body is abolished. If a Scottish Act cross-referred to those provisions, the changes to the numbering made by the order would mean that the Scottish Act then referred to the wrong provisions. Under the Bill the order could be used to tidy up the Scottish Act by updating the references to correspond to the correct provisions. This would mean that there was no need for the Scottish Parliament to legislate to make the consequential amendments needed. The amendment
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The ability to make such changes is fully in accordance with the convention agreed between Westminster and the Scottish Parliament. This convention requires the consent of the Scottish Parliament where the Westminster Parliament intends to legislate on devolved matters, but it is agreed that such consent is not required when legislation deals with devolved matters only incidentally to, or consequentially upon, provision made in relation to a reserved matter. This position is set out in Devolution Guidance Note 10 issued by the Department for Constitutional Affairs, which has responsibility for devolution.
I hope that I have dealt with the points raised, but I shall try to answer any further questions, should they be asked.
Lord Jenkin of Roding: I am grateful to the noble Lord. I shall want to study carefully what he has said but he has gone a long way to explain that the Sewel convention will not apply to such incidental matters. I think that that answers my question. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved AmendmentNo. 77:
On Question, amendment agreed to.
Clause 10, as amended, agreed to.
Lord Bassam of Brighton moved AmendmentNo. 78:
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
[Amendment No. 78A not moved.]
Clause 13 [Procedure: introductory]:
Lord Goodhart moved Amendment No. 79:
“( ) An order under this Part which creates any new primary legislation or amends or repeals any existing primary legislation must be made in accordance with the affirmative resolution procedure or the super-affirmative resolution procedure.
( ) In this section “primary legislation” has the same meaning as in the Human Rights Act 1998 (c. 42).”
The noble Lord said: This amendment raises an issue of considerable importance. Its purpose is to ensure that all changes to primary legislation by orders made under the Bill must be made either by the affirmative resolution procedure or the super-affirmative procedure.
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Power to amend primary legislation by secondary legislation—the notorious Henry VIII clause—is now fairly frequent but it must be used with great care and restraint. As a former member of the Delegated Powers and Regulatory Reform Select Committee, I recall that there are some cases where the Select Committee has approved a power inserted in a Bill to amend primary legislation by negative resolution, but those cases are very strictly limited to transitional or consequential amendments resulting from the implementation of the Bill which contains those powers. This Bill is conferring a very wide general power to make orders. The nature of the orders which will be made under this Bill and the degree to which those orders will alter primary legislation is totally unpredictable. It is essential that orders under the Bill which alter primary legislation should be subject to debate in both Houses, which requires the affirmative or super-affirmative procedure to ensure that it happens. That matter should be put beyond doubt by this amendment and not dealt with on a case-by-case basis.
I accept that there may be a few cases where some of the changes in an order are so minor that the useof the negative resolution procedure would be appropriate if looked at independently of the general principle, but those are likely to be a very small minority. In any event, non-contentious orders can go through both Houses very quickly even if the affirmative resolution procedure is used. It is better to make it clear that any change in primary legislation by procedure under this Bill should be by the affirmative resolution or super-affirmative resolution procedure and prevent future Governments trying to extend their ability to make or alter primary legislation through the negative resolution procedure. This Bill, after all, takes powers from Parliament and gives them to the Government. Of course, nothing in the amendment excludes the possibility that orders can be made by the negative resolution procedure if no change to primary legislation is involved.
Your Lordships’ House should not allow this Bill to be used to change primary legislation by a process that involves no necessity for approval by Parliament as a whole. The negative resolution procedure will involve a review of the draft order by a committee, but not by either House as a whole, which I regard as an unsatisfactory procedure. I beg to move.
Lord Bassam of Brighton: Amendment No. 79 was originally part of a larger group of amendments, and I shall reflect that by providing some background. It is right to remind ourselves what the Delegated Powers and Regulatory Reform Committee said in general about the procedures issue, which is clearly the backdrop. It concluded in its report that the powers in the Bill were not inappropriate, and it has expressed broad support for the procedures for scrutinising orders set out in the Bill. On the mechanism for determining the appropriate procedure for orders, it concluded:
“The bill is clear that it is Parliament, not the Minister, which has the final say on what the procedure is to be”.
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It agreed also that it is appropriate that the Bill contained provision to allow the House to overturn a recommendation of its committee. It found,
- “it is right that a committee’s recommendation that an order should not proceed...should have the consequence of preventing further proceedings unless and until the House says otherwise”.
That provides the backdrop to the amendment, which seeks to prevent any order made under Part 1 being delivered by the negative resolution procedure if it amends or repeals existing primary legislation. It would remove the option of the negative resolution procedure for orders. The very purpose of the order-making power in Clause 1 is to provide a vehicle for reducing or removing burdens imposed by primary and secondary legislation, and most, if not all, orders made under Clause 1 will amend or repeal primary legislation. The Government believe that, where orders are evidently straightforward, it is right that there is the option of delivering them by a more proportionate procedure, subject of course to Parliament’s approval. As the Delegated Powers and Regulatory Reform Committee’s report stated, the Bill is clear that it is Parliament and not the Minister, as I just said, which has the final say.
The range of procedures provided for in the Bill is intended to encourage delivery of smaller or simpler proposals such as those seeking to reduce administrative burdens. One example is the Regulatory Reform (NHS Charitable and Non-Charitable Trust Accounts and Audit) Order 2005. That was delivered under the 2001 Act, and removed the unnecessary burden imposed by primary legislation on National Health Service charitable trusts of having to prepare two separate sets of accounts. That duplication was simply an anomaly. The order dealing with the anomaly was not complex and could have been adequately scrutinised under the negative or affirmative procedure. The amendment therefore imposes an unnecessary degree of inflexibility on the order-making process. Why do we need to put a very simple change, such as that which I have just given as an example, through the mill of an overly complex process when it is not controversial and where there is a very simple way of doing it?
We need something that is appropriate and proportionate to the problem that it is dealing with; that is what the negative procedure can on occasion be. It is not our desired intent to circumvent parliamentary approval; I have made that quite clear. The Delegated Powers and Regulatory Reform Committee has accepted that point. I cannot accept the amendment, although I understand the noble Lord’s caution and reason for moving it. I hope that he will reflect on those points before considering his next step.
Lord Goodhart: I am grateful to the Minister for his answer. I remain unconvinced by it, because under the 2001 Act the super-affirmative procedure needed to be used in every case, which is excessive. However, it is an important principle that Parliament as a whole should have an opportunity to discuss amendments to primary legislation. One should not need to pray
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Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendments Nos. 80 to 83:
“(d) in such cases as he considers appropriate, consult the Law Commission, the Scottish Law Commission or the Northern Ireland Law Commission, and”On Question, amendments agreed to.
Clause 14, as amended, agreed to.
Clause 15 [Draft order and explanatory document laid before Parliament]:
Lord Norton of Louth moved Amendment No. 84:
( ) a statement whether in the opinion of the Minister the order is compatible with the European Convention on Human Rights.”| Next Section | Back to Table of Contents | Lords Hansard Home Page |