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The list of excluded Acts in Amendment No. 27 is much shorter than those we considered in Committee and differs from the list of statutes and areas in Amendment No. 25. The difference between the lists shows the lack of consensus on the issue. Amendment No. 27 creates a list of excluded Acts regarding devolution. The Government are content that the new precondition would prevent any constitutionally significant amendments to the Scotland Act and the Government of Wales Acts, just as it would prevent constitutionally significant amendments to any other enactment.

We are therefore content that orders could not be used to effect significant constitutional changes to the UK’s devolution settlements and that Amendment No. 14 puts that beyond doubt. However, as I mentioned, the new constitutional precondition would allow minor amendments which are not of constitutional significance. The Government believe that we should not prevent orders from delivering useful better regulatory reforms which are not constitutionally significant to statutes, which could include the Scotland Act and Wales Acts. Our Amendment No. 14 is therefore better targeted than Amendments Nos. 25 and 27.

I do not understand why the noble Lords, Lord Goodhart and Lord Maclennan, have singled out the right to trial by jury in Amendment No. 16. Clause 3 already prevents Ministers from making orders containing provisions which they consider would remove necessary protections, or prevent a person from continuing to exercise any right or freedom which they might reasonably expect to retain. Therefore, the Government are already of the opinion that the right to trial by jury is a necessary protection, and a right which someone might reasonably expect to keep. I cannot see how an order could be used to effect such change. I give the assurance that the right to a jury trial is already protected in that sense.

As I have said before, defining the parameters of an appropriate list of statutes or areas would be cumbersome. It would amount to trying to write or codify the constitution, which is what Amendment No. 15 of the noble, Lord Norton, and Amendment No. 25 of the noble Lord, Lord Jenkin, attempt to do. This is a significant project, as I am sure noble Lords would agree. If we are to debate the parameters of the constitution, this Bill is not the context in which we should do so.

The House of Lords Constitution Committee recognised the difficulties with devising a schedule of exempted areas, and states that a schedule would be something of a blunderbuss approach. It notes that not all provisions in Acts with constitutional implications affect our constitutional arrangements, and concludes that,

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This is precisely the problem with Amendments Nos. 15, 25 and 27.

The amendment tabled by the noble Lord, Lord Norton of Louth, sets out areas which he thinks should fall within the scope of the “constitutional significance” amendment. Not every proposal for change in these areas will necessarily be of constitutional significance; they might be exceedingly trivial. If they are significant, they will fall within the scope of the precondition without further definition. Unless they deal with issues which fall within the general purposes of the Bill, they will be doubly ultra vires.

The amendment adds nothing to the protection of rights and freedoms in the Bill, which, of course, include the precondition concerning rights and freedoms. It is already unlawful for a Minister to make an order that is incompatible with convention rights under Section 6 of the Human Rights Act. Clause 9 also prevents amendments to the Human Rights Act itself. Adequate safeguards concerning the Human Rights Act already exist, and so the provision is, in this respect, otiose. Furthermore, the Government consider that it would be foolish to put some Acts off limits when it may be necessary to make minor or consequential changes to them for the purposes of better regulation.

I note that the list in Amendment No. 15, tabled by the noble Lord, Lord Norton, would rule out any reform of the Executive, preventing useful better regulation reforms to government departments which act as regulators. Clause 1(4) prevents orders from inappropriately removing burdens which fall only on Ministers or government departments. It provides that burdens falling only on Ministers or departments can only be removed in so far as they are burdens which affect the Minister or department in their exercise of a regulatory function, as we discussed earlier.

Fears were expressed that the Bill would somehow allow departments to cease providing public services. Clause 1(4) ensures that, for instance, it would not be possible to make an order stopping the provision of a public service because it was considered a cost and a burden. As Cabinet Ministers have argued on many previous occasions, any substantial policy change to core public services would be utterly unsuitable for delivery by order. However, some amendments to enactments relating to the Executive could be usefully delivered by order. The Government have a number of regulatory functions such as the company law regulatory functions within the DTI and the pesticides directorate, to which we have referred before. The Government believe that orders should be able to remove or reduce burdens from departments where they are carrying out regulatory functions, in the same way as they can for regulators.

Amendment No. 15 would seem to permit major reforms to the Civil Service or local authorities. Abolition of local authorities would fall foul of my Amendment No. 14, but Amendment No. 15 seems to define constitutional significance in a way which would no longer rule this out. This shows the strength of the government amendment. The new constitutional

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precondition rules out the elephant of constitutional significance—which we all recognise when it arrives—while avoiding the difficulties of attempting a definition.

Although the Bill could not be used to make significant constitutional change, Amendment No. 14 will put beyond any doubt that the order-making powers could not be used to enact significant constitutional change. It also avoids the difficulties with a list of constitutional enactments or subject areas, which were highlighted by the Constitution Committee.

I have explained why the Government believe that their approach is the most appropriate and wholly adequate without further bolstering. I therefore commend Amendment No. 14 to the House, and suggest that, on reflection, noble Lords do not move Amendments Nos. 15, 16, 25, 26 and 27. I beg to move.

Lord Norton of Louth moved, as an amendment to Amendment No. 14, Amendment No. 15:

The noble Lord said: My Lords, the government amendment is welcome but runs up against the obvious problem that the Minister has touched upon but not really dealt with: what constitutes a measure of constitutional significance? He says that we will all recognise it when it arrives. I do not think that is the basis for legislating.

We have come up against this problem before, not least when debating the then Political Parties, Elections and Referendums Bill, as the Minister will remember, when there was an attempt to provide for referendums on issues of constitutional significance. The problem was recognised in Committee, prompting the Minister’s amendment. If we are to have the government amendment, however, we need to know precisely what it encompasses.

The Government have a problem defining what their amendment encompasses. When the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, appeared before the Constitution Committee of your Lordships’ House, he conceded that the Government did not have a definition of a constitution, but also that the one offered by the committee was as good as any. When his successor, the noble and learned Lord, Lord Falconer—Secretary of State for Constitutional Affairs as well as Lord Chancellor—appeared before the committee, he, too, reiterated that the Government did not have a definition of a constitution. Under Amendment No. 14, Ministers are thus precluded from using orders to amend measures of constitutional significance, without any clear definition of what falls within the scope of that term. One cannot rely on each Minister to determine what it means, as the noble Lord, Lord Bassam, seems to imply. Hardly any

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Minister has any grounding in the subject, and relying on consultations, as the noble Lord suggests, will not advance us any further. What one Minister deems to be of constitutional significance may not be so construed by another.

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The purpose of my amendment to Amendment No. 14 is to provide a clear stipulation of what the term “constitutional significance” encompasses. As the Minister noted, I have adopted what I referred to in Committee as “the generic approach”. As I argued then, it is not incompatible with the approach of listing measures to be excluded because they are deemed to be of constitutional importance. However, given the Minister’s amendment, I think the generic approach is the appropriate one.

I concede that what I propose is not a watertight definition, which is the point the Minister developed. It is impossible to generate such a definition, but I think that it is sufficient to demonstrate what should be out of bounds for the order-making powers in the Bill, and that it is necessary in the light of the government amendment. I am not sure that one can have Amendment No. 14 without Amendment No. 15; it is a case of both or neither.

The definition I have employed is not watertight, but it is not too dissimilar to the one that the noble and learned Lord, Lord Irvine of Lairg, said was as good as any he had seen. In Committee, the noble Lord, Lord Bassam, appeared to misunderstand what was embodied in the definition; he then thought it was confined to the relationship of the different organs of the state to one another, which clearly it is not. It is a more encompassing definition.

I hope that, on reflection, the Minister will realise that this amendment is helpful to Ministers. It helps to prevent them straying into territory that they should avoid and thus reduces the chances of a challenge to the decision. The noble Lord may argue—as he did in Committee and has already done today—that Ministers will not stray into that territory. However, the amendment he moved is designed to provide in the Bill that that territory is out of bounds, and my amendment helps to define the territory.

I can see that the Minister has gone a considerable way to meet the concerns expressed in Committee, and I am grateful to him for his letter on the subject. His amendment is a necessary but insufficient condition if provisions of constitutional significance are to be excluded from the order-making powers of the Bill. I beg to move.

Lord Goodhart: My Lords, Amendments Nos. 16 and 27 in this group are tabled in my name and that of my noble friend Lord Maclennan of Rogart. I strongly welcome Amendment No. 14, which provides a useful additional block against abuse of the process provided for by the Bill. However, I do not welcome it quite as strongly as I would have welcomed my Amendment No. 13 being accepted. This is the simplest and best solution to the problem debated in Committee. It is certainly preferable to having a list of constitutional statutes and, probably, to having a list

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of topics of constitutional importance. In any event, I could not support Amendment No. 26 because a list of constitutional statutes would need constant updating, and many statutes contain provisions that are constitutionally important alongside those that are not.

Amendment No. 15, tabled by the noble Lord, Lord Norton of Louth, is considerably more valuable. I have some difficulties with it and, if it is to go into the Bill, it would need to be looked at more carefully. For example, the statutory powers of the Executive would not be touchable, but some minor steps to extend or, perhaps more importantly in this context, restrict powers would plainly not be of constitutional significance. Indeed, one of the main purposes of the Bill could be said to be to remove unnecessary powers of the Executive. To that extent, the amendment arguably defeats part of the purpose of the Bill. On the other hand, the definition does not include the Scottish Parliament or the Welsh Assembly in the definition of the organs of the state, but any move in Westminster to impose restrictions on the powers of the devolved legislatures would, in the present circumstances, plainly be a matter of constitutional importance.

I tabled Amendment No. 16 to fill a possible gap because I was not entirely satisfied that the rights to a trial by jury were covered by the Bill. However, I heard the Minister say that the Government’s understanding is that the existing conditions in Clause 3 would have that effect and would prevent any step to remove an existing right to trial by jury. I am happy to accept that statement and shall not press this amendment.

Amendment No. 27 adds the devolution statutes relating to Scotland and Wales to a list of statutes in Clause 8 that cannot be altered by order under the Bill. I tabled this amendment to meet the concerns of some Members of the Scottish Parliament. I understand that the Scottish Parliament was assured that changes to the devolution settlement—in particular, any changes to the Scotland Act—would be interpreted as being provisions of constitutional significance. The Minister said that the Bill would permit changes to the Scotland Act that are not of constitutional significance. Having looked at the Scotland Act, I can see that there are some changes that, on the face of it, could be regarded as not being of constitutional significance. But there is concern in Scotland that the Westminster Parliament should not be free to use this special procedure to make any changes to the Scotland Act. The Scotland Act is, in a sense, the possession of the Scottish Parliament in the same way as it is clearly the possession of the United Kingdom Parliament in which we sit. In those circumstances, unless the Minister is prepared to give an assurance that the Scotland Act will be untouchable under the Bill and that any changes to it will be regarded as being of constitutional importance, I would need to take further instructions from my colleagues in the Scottish Parliament to see whether they are satisfied with that position. At present, I am not satisfied with what the Minister has said on that subject.

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Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Goodhart, has made an important point. Amendment No. 25, which was tabled by my noble friend Lord Jenkin, who probably feels he need not speak to it at this point, lists a number of Acts as a means of defining that which is of constitutional importance. That would solve the problem that the Members of the Scots Parliament see. They are thinking rightly when they say that they do not want the Scotland Act fiddled about with by regulatory reform orders at Westminster, although the Scotland Act is, of course, Westminster legislation. It is excellent that the Minister, having argued strongly in Committee against doing anything about the issue, has now moved an amendment to exclude matters of constitutional importance from Part 1. The definition by list, which the Law Society of Scotland suggested previously and is again suggesting, has weaknesses. It is difficult to have an exclusive list. But, at the same time, it solves the problem raised by the noble Lord, Lord Goodhart, so we have a difficulty.

My noble friend Lord Norton made a very powerful argument for clarifying what Amendment No. 14 would do. I too wondered whether legislation passed by the Scots Parliament and the Welsh Assembly would be included in the amendment. Of course there is ancient legislation in Scotland, which may have to be changed, and the question is how to do that when it concerns devolved matters.

The Government should look very carefully at what my noble friend Lord Norton said. His wording may not be absolutely correct, but I suspect that he has thought deeply about this subject, on which he knows a great deal. The Minister should not brush it off lightly but see whether he can return at Third Reading with something similar.

Lord Henley: My Lords, we are grateful that the Minister, despite the strong manner in which he expressed himself in Committee, has listened to the arguments put to him and come forward with Amendment No. 14. With my noble friend Lord Norton and the noble Lord, Lord Goodhart, we are grateful also for the further reassurances given by the Minister. I support my noble friend Lord Norton because I think that his approach is a better one. Since the Minister seems prepared to move, perhaps between now and Report—

Lord Jenkin of Roding: My Lords, Third Reading.

Lord Henley: My Lords, I am grateful for the correction from my noble friend. The Minister could give further thought to the amendment of my noble friend Lord Norton and see whether he could further improve the Government's response.

Lord Desai: My Lords, this is a very interesting situation. We all agree that this Bill should not be allowed to alter the constitution, but we really do not know what the constitution is. We can neither find a one-line definition of what we can prevent nor decide whether the admirable effort of the noble Lord, Lord Norton, meets the requirement. This proves that we need a written constitution.

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Lord Bassam of Brighton: My Lords, I am grateful for those words of support from the Front Benches opposite for the Government’s amendment. The noble Lord, Lord Goodhart, said that he strongly welcomed it, and the noble Lord, Lord Norton, from the Back Benches and the noble Lord, Lord Henley, said that they welcomed it.

We all recognise that the debate has moved on. We listened very carefully to what was said at an earlier stage in the Bill and have come up with this new precondition. I am not attracted to the attempt by the noble Lord, Lord Norton, to link Amendments Nos. 14 and 15. It is a seductive offer, but one I shall have to decline. I cannot agree that the constitutional precondition fails to offer real protection unless the Bill defines constitutional significance. The other preconditions offer real protections—for example, they offer necessary protections without defining what those necessary protections might be. That was the approach adopted in the 2001 Act, and we think that it provides a genuine protection.

The approach of the noble Lord, Lord Norton, would cause some uncertainty to enter into our intentions, because it is unclear to what extent the piece of legislation would have to affect these areas to be prohibited from reform by order. That could lead to the Part 1 power being interpreted rather narrowly, and might limit its usefulness. In the time we have been debating and considering the legislation, I have sensed that that is not what Parliament wants. It is not the best way to proceed if we are to use those powers in terms of creating the right atmosphere for deregulation.

We do not think that it would be appropriate for the Government to try to pre-empt the views of not only Parliament but consultees in suggesting a list of areas—or statutes for that matter—which Ministers, consultees, Parliament and so on would find constitutionally significant. We do not think that that approach recommends itself.

The noble Lord, Lord Goodhart, raised an issue about Scotland, which was echoed by the noble Baroness, Lady Carnegy of Lour. We do not accept that all changes to the Scotland Act would be of constitutional significance. As she said, the Scotland Act is a Westminster Act. We are content that the new precondition would prevent amendments to the Scotland Act and the Government of Wales Act which were constitutionally significant, just as it would prevent amendments which were constitutionally significant to any other enactment. We are content that orders could not be used to effect significant constitutional changes to our devolutionary settlement. Our Amendment No. 14 puts that beyond doubt.

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Lord Goodhart: My Lords, I quite see that some changes could be made to the Scotland Act itself which would not be of constitutional significance. Does the noble Lord not accept that the constitutional significance really attaches itself to any change because of the fact that there are two Governments involved in the Scotland Act—the Government of the United Kingdom and the Government of Scotland? That

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could—I suggest would—make any change a matter of constitutional significance, even if the change looked at on its own is not particularly significant.

Lord Bassam of Brighton: My Lords, I understand the argument the noble Lord puts forward but, because of the narrowness of the issues we are considering and the approach we have adopted, I think that he will accept that most of the things we propose to do by order are, of their nature, minor and technical legislation. It does not fundamentally breach the important principle. For that reason, I think we are on safe territory, but I will reflect on the point noble Lords make. Clearly, we do not wish to unsettle in any way the beauty of the constitutional arrangement that currently exists, and I certainly would not want to upset the noble Baroness, Lady Carnegy of Lour, on this because she is very fierce on these subjects. We know that we have to take very carefully into account any issues of constitutional importance which are raised in Scotland.

Baroness Carnegy of Lour: My Lords, the Minister said that the Government were on safe territory, but I am not sure that they are.

Lord Bassam of Brighton: My Lords, I said that I would give further thought to the point between now and Third Reading. In general, we are satisfied that the value of the precondition and the particular position of the devolution settlement provide sufficient protections, but the noble Lord, Lord Goodhart, has made a very subtle point that I will consider further.

Lord Norton of Louth: My Lords, as my amendment to the government amendment is before the House, I shall respond briefly to the Minister. I shall also respond to points made by other noble Lords.

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