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[Amendments Nos. 25 to 27 not moved.]
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Clause 12 [Procedure: introductory]:
Lord Goodhart moved Amendment No. 28:
“( ) An order under this Part which creates, amends or repeals any 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: My Lords, many, though not all, of the orders that will be made under the Bill will involve changes to or the repeal of primary legislation. I believe that the basic principle here is that primary legislation should not be altered by the negative resolution procedure, as that gives virtually no opportunity for either House of Parliament to give proper consideration to the matter.
However, I recognise that there are exceptions to what I have called the basic principle. I am aware that the Delegated Powers and Regulatory Reform Committee sometimes accepts clauses in a Bill that provide for transitional or consequential amendments to be made by the negative resolution procedure. There may be cases where a Bill contains a power to modify provisions in that Bill to a limited extent. In such cases, the negative resolution procedure is appropriate, because the modification is of no significance. But the negative resolution procedure is used appropriately only where the powers to be made by the order using that procedure are very limited and where the ability to make those powers is closely circumscribed.
But with those exceptions I believe that it is right that primary legislation should be altered by secondary legislation only through a process that guarantees that the order is considered by both Houses of Parliament. I recognise that the procedure for dealing with affirmative resolution is unsatisfactory, particularly in the other place, but it is at least better than the negative resolution procedure.
Given that the Bill provides wide powers to alter primary legislation and there is no limitation to the alterations for which the negative resolution procedure would be appropriate, apart from the general restrictions on what can be achieved by the Bill as a whole, we should write into the Bill a requirement that any alteration of primary legislation should be by affirmative resolution or by the super-affirmative procedure. I beg to move.
4.30 pm
Lord Norton of Louth: My Lords, I rise to speak to my Amendment No. 30 in this group. Its purpose is to shift the onus for recommending the procedure to be adopted for considering an order from the Government to Parliament. I pursued this issue in Committee, but I have changed the wording of my amendment to take into account a crucial drafting point made by the noble Lord, Lord Goodhart.
The case for my amendment is compelling and twofold. The first argument is a matter of general principle. Parliament should have a far greater say over the conduct of business. As I pointed out in Committee, the House of Commons is remarkable among legislative Chambers in the democratic world
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My second point is specific to this measure. As I argued in Committee, there is a danger of Parliament missing the significance of an order. Under the Bill as drafted, Parliament assumes a reactive role, in which the onus is on the Minister, and there is a danger that a committee may not pick up on the significance of an order that is recommended for the negative resolution procedure but merits more stringent consideration. A great deal rests on the vigilance of the committees and it is not clear how busy they will be.
My amendment would place the responsibility on both Houses to check an order as soon as it is laid by a Minister and to decide whether it merits being moved from the super-affirmative to the affirmative or negative resolution procedure. The super-affirmative procedure would be the default. That would ensure that no important order slips under the net of parliamentary scrutiny and it would place responsibility for the procedure where it should be—with Parliament, not the Executive.
Because my amendment was grouped with others in Committee, the Minister dealt with it only briefly. He covered it in five sentences, only three of which were substantive. He appeared to consider that losing the reference to a committee in Clause 15(6)(b) removed an important safeguard and that the clause, as drafted, provided the right level of detail to ensure legal certainty. The loss of reference to a committee is not crucial to ensuring parliamentary safeguards. Each House is likely to establish a committee, but that is a matter for each House.
The difference between the wording of the amendment that I tabled in Committee and this amendment is crucial in that it requires the agreement of both Houses to decide that the super-affirmative procedure shall not be employed. It is thus not possible for a Government secure in their majority in the House of Commons to utilise that majority to avoid effective scrutiny of an order laid under the provisions of this Bill. This House, under this amendment, would thus have an important role to play.
The other point raised by the Minister was an expression of view, but not one that undermines the case for my amendment. There will be legal certainty under the procedure prescribed by this amendment, just as there is under the one proposed by the Government. The Minister appeared to mix a claim about legal certainty with one about whether the procedure would be useable. This amendment produces a procedure that will be useable, but in the context of Parliament determining which procedure is appropriate.
I have spent the past quarter-century arguing the case for strengthening Parliament in calling the
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Lord Jenkin of Roding: My Lords, I have Amendments Nos. 31 and 32 in this group. We have listened to two powerful speeches that argued for different amendments to strengthen the oversight of subordinate legislation by Parliament. My wish in relation to this measure is that we should not use the negative procedure at all. The scrutiny period is only 40 days. The review that was published quoted the RRC report on the operation of the 2001 Act and concluded that,
- “we have yet to see any hard evidence that a period of less than 60 days for the initial scrutiny period would be appropriate”.
I shall not argue that we should have only the super-affirmative procedure but, in view of the nature of the orders being made under this Act and the fact that we are, as it were, delegating blind, because one does not know what is going to come, it seems to me that an affirmative procedure throughout would be appropriate. I recognise that the ordinary affirmative procedure gives only 40 days; nevertheless, it requires an affirmative vote in both Houses before the order can be made. On the other hand, the negative procedure—over the years one has recognised, as others have said, that this is a pretty feeble form of parliamentary scrutiny—requires that there should be a Prayer and that time should be found to debate the Prayer and so on. From experience, one knows just how difficult it is to persuade the business managers to find time for a Prayer that they do not like. For that reason, I argue that the procedure should only be affirmative. My amendments would take out the references to the negative procedure and would remove Clause 16, which sets out the conditions for the negative procedure.
We have had three options, to which the Minister will no doubt wish to reply. The noble Lord, Lord Goodhart, said that if you are amending primary legislation, it should certainly always be affirmative. My noble friend Lord Norton of Louth made a very powerful case for strengthening parliamentary procedure and, in particular, for giving power over the decision on business. I would have no negative procedure at all. I suppose it is a case of divide and rule, but we do not like what is in the Bill.
Baroness Young of Old Scone: My Lords, I shall speak to Amendment No. 28. I am in the same quandary over this issue: I do not think that the Bill is right but I am not sure what “right” would look like. Amendment No. 28 has merits and demerits. Its merits are that it could ensure—I keep hammering on about this—that changes in the roles, powers and existence of regulators that have been established by primary legislation would receive a higher degree of scrutiny.
Its demerits are that, alas, some primary legislation gets stuffed with small and rather less important detail, which needs to be changed. I am as guilty of that as many other Members of this House, as I am sure your Lordships are painfully aware. I would not want to see a change in the Bill that prevented some of the minor changes established by primary legislation from getting
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With regard to Amendment No. 28, I do not think that the primary nature of the legislation is the issue. Much primary legislation does not concern matters of high importance but deals in the detail to which I referred. It is the degree of controversy or agreement that should be the touchstone or the fundamental nature of the change. Again, I go back to, for example, changes in the role, powers or existence of a regulator established by statute.
During the debate on Amendment No. 18, I was encouraged when the Minister hinted that there might be some movement by the Government to bring forward an amendment at Third Reading to specify in the Bill when the affirmative or super-affirmative procedure might be required. I hope that I did not misunderstand him and that we can press him to give us more information today about his hint before this matter is put to the test—if, indeed, it is.
Lord Desai: My Lords, I am not persuaded by the idea put forward by the noble Lord, Lord Norton of Louth, that somehow committees of the House can be very busy and that both Houses should consider such matters on the Floor. My experience is that committees scrutinise such matters more thoroughly over more time. When the whole House discusses such issues, the debates are either at a very obscure time or they tend to be rushed. Eventually the orders made under the Bill will not be major orders. I know that the Opposition pretend that this Bill will change the constitution, but it is just about red tape. If we want to expedite the cutting of red tape, we should have a committee that looks at the matter carefully and quickly, and reaches a decision. Leaving the matter to both Houses will take much more time and could be, dare I say it, much more sloppy.
Lord Bassam of Brighton: My Lords, this has been a valuable mini-debate on the appropriate level of scrutiny for a draft order. In his brief contribution, the noble Lord, Lord Desai, put his finger on it. It is about having something that is appropriate to the scale and level of the problem.
The noble Lord, Lord Jenkin, said that there was a commonality of view but that there were different solutions on offer as amendments, which I shall work through. The first amendment—Amendment No. 28—would prevent any order made under Part 1 from being delivered by the negative resolution procedure, if it amends or repeals existing primary legislation. That is an important caveat. As I said in Committee, the amendment would effectively remove the option of negative resolution for all orders, as most, if not all, made under Clause 1, will include provisions to amend or repeal primary legislation. For this reason, in addressing Amendment No. 28, I also need to consider Amendments Nos. 31 and 32, which would remove Clause 16—the negative resolution procedure—from the Bill altogether.
During our previous debate on this issue, I was delighted when the noble Lord, Lord Goodhart, in
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Furthermore, Clause 15 ensures that the final decision on the appropriate procedure for an order is left to the House. In a sense, we satisfy a point raised by the noble Lord, Lord Norton of Louth. Parliament should be the master of the process. It is right that Parliament will determine whether, and on what basis, an order should be subject to the negative, affirmative or super-affirmative procedure; it may decide, in any case, that there will be a more onerous level of scrutiny. It is for these reasons that I urge noble Lords not to press their amendments.
The second amendment in this group—Amendment No. 30—removes the provisions set out in Clause 15 for determining the level of scrutiny for a draft order. It replaces these with the condition that all orders are to be subject to the super-affirmative resolution procedure unless both Houses of Parliament require a less onerous procedure. From this and earlier debates on a similar amendment tabled by the noble Lord, I understand that the amendment seeks to ensure that Parliament has a proactive role in determining the level of scrutiny and does not miss the significance of a particular order.
As I have just stated, Clause 15 already provides that either House may require that an order proceeds via the more onerous super-affirmative procedure, and the final decision on the level of scrutiny is left to the House to determine. I also should reiterate that I fail to see the value in preventing a Minister from even recommending a level of scrutiny. A Minister’s opinion will not be made in isolation, but will take into account any representations received during the statutory public consultation period. The opinion is there to add some benefit, advice and guidance from the ministerial perspective, but it does not have to be the final determinant.
4.45 pm
I also question the value of removing the reference to the parliamentary committees’ ability to recommend that a different scrutiny procedure should apply. These committees evidently have considerable expertise in assessing orders under the 2001 Act, and would be well placed to recognise proposals that should be subject to more onerous procedures. Why take that away? Indeed, the Delegated Powers and Regulatory Reform Committee, responsible for scrutinising orders laid under the 2001 Act, stated that it agreed,
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- “that 30 days is sufficient for either House or a Committee to consider the proposed procedure and if necessary ‘upgrade’ it”.
Furthermore, it is not clear from this amendment how the process of determining the procedure would work in practice—specifically, how the noble Lord envisages that an agreement would be reached between the two Houses, and how this process would affect the time periods provided for scrutinising the proposals. I am not sure how any conflict would be resolved in that situation.
The noble Lord, Lord Norton, asked whether Parliament might miss the significance of an order. Well, committees have 30 days in which to recommend a more onerous process. During that time, they will be scrutinising the content of the order, so it seems unlikely—very unusual—that they would miss the significance of an order during that timeframe, not least because they have great levels of expertise, as we have discovered over the years.
The noble Baroness, Lady Young of Old Scone, probed the offer that we made earlier in the debate. We will give further consideration to that, and I am grateful to her for reminding us not to put it to one side.
Lord Goodhart: My Lords, this debate has seen three alternatives proposed, each of which has merits and is arguably an improvement on the present situation in the Bill. Having said that, I recognise that Clause 15 allows either House to require that anything introduced under either the negative or the affirmative resolution procedure can be upgraded as a result of the decision of either House of Parliament. That being so, the difference between what has been proposed in this group of amendments and the Bill as it now stands is fairly narrow. Under those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Draft order and explanatory document laid before Parliament]:
Lord Goodhart moved Amendment No. 29:
( ) a statement that in his view the provisions of the order are compatible with the Convention rights (as defined in the Human Rights Act 1998 (c. 42)).”The noble Lord said: My Lords, this is the first of two amendments in my name involving the Human Rights Act 1998.
Amendment No. 29 requires a statement to be made that the provisions of a draft order put before either House are compatible with convention rights. That requirement is based on Section 19 of the Human Rights Act. It does not, of course, include the second limb of Section 19, which enables a Minister to make a statement that the Bill is incompatible with the convention rights but the Government wish to proceed with it. I think that has happened only once, when an amendment was made to a Bill in your Lordships’ House against the wishes of the Government, who took the view that it was inconsistent with the Human Rights Act, therefore they had to make a statement of incompatibility when the Bill moved to the Commons.
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It is plainly inappropriate that the procedure under the Bill should be used if the Minister is unable to give a statement of compatibility. Any order made under those circumstances would be seriously controversial, and it would therefore be wrong to introduce it. A Minister should be able to give an order a declaration of compatibility before it can be introduced.
In practice, a statement of compatibility does not apply to primary legislation only; it has also become a convention that one is made in the case of statutory instruments subject to the affirmative resolution procedure, as a result of a decision pronounced some years ago by the late Lord Williams of Mostyn. It is plainly appropriate to require a statement of compatibility for draft orders made under the Bill. This simple amendment would involve no difficulties in practice but it would at least concentrate the Government’s mind on the human rights implications of a draft order before they introduce it. I beg to move.
Lord Norton of Louth: My Lords, I support the amendment moved by the noble Lord, Lord Goodhart, to which I have added my name. I moved a similar amendment in Committee, but the noble Lord’s is better drafted. As we are on Report, I did not intervene in response to the noble Lord, Lord Desai, but, in passing, I note that he confused the House and the Chamber.
Lord Kingsland: My Lords, I support this amendment for the reasons given by the noble Lord, Lord Goodhart, and have nothing further to add.
Lord Bassam of Brighton: My Lords, I always admire the telegraphic style of the noble Lord, Lord Kingsland. It is most helpful on this occasion.
Before I turn to this specific amendment, it may assist the House if I first address some confusion about the interpretation of the Human Rights Act that arose in Committee. As your Lordships will be aware, the Human Rights Act gives effect in our law to rights drawn from the European Convention on Human Rights; those rights are known as the convention rights. Section 6(1) of the Act makes it unlawful for a public authority to act in a way which is incompatible with the convention rights. A Minister of the Crown is a public authority for those purposes and is therefore bound to act compatibly with the convention rights when discharging his or her duties. Parliament is, however, expressly excluded from being a public authority by virtue of Section 6(3).
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