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I labour the point about sovereignty because devolution is based on the retention of a sovereign UK Parliament—a Parliament that continues to be able to legislate on any matter, reserved or devolved. We, of course, choose to exercise a self-denying ordinance in relation to devolved matters in Scotland through the Sewel convention. Indeed, the Bill before us contains provisions in Part 3 that require the consent of the Scottish Parliament, and that consent was overwhelmingly given on 5 October 2006.
But the sovereign UK Parliament retains the responsibility for reserved matters such as the constitution. The Scotland Act itself is a matter reserved to Westminster. Of course, we must respect the views of the Scottish Parliament. That is why we
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The constitutional precondition allows for minor changes to enactments which contain provisions which are constitutionally significant—that would include the devolution Acts—but only ever for the purpose of better regulation, as the limits of the order-making powers make clear. The constitutional precondition rightly respects the sovereign nature of Westminster within our governance arrangements.
On Report, the noble Lord, Lord Goodhart, said that he could not support a list of constitutional statutes because it would need constant updating and, importantly, because,
- “many statutes contain provisions that are constitutionally important alongside those that are not”.—[Official Report, 26/10/06; col. 1309.]
This is exactly what the Government’s amendment introducing the new constitutional precondition was intended to address. It is not easy to reconcile the noble Lord’s statement with the proposition that any change to the Scotland Act would be of constitutional significance.
It is worth adding that Clause 9 already restricts the order-making powers to reserved matters; that is, to matters for which only this Parliament is responsible. So these order-making powers cannot be used to make changes to legislation that has been passed by the Scottish Parliament. The only exception is that the Bill allows for incidental and consequential changes to be made to devolved matters, but only ever for a reserved purpose. This is consistent with the fact that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in, or the agreement of, the Westminster Parliament.
I highlight an important point that I think will provide the noble Lord with some of the comfort which he seeks. The Scotland Act recognises that over time changes may have to be made to the reservations and exceptions set out in Schedule 5. Section 30(2) of the Act therefore allows the schedule to be modified through an Order in Council. A draft order has to be approved by the Scottish Parliament and both Houses at Westminster before it is made. The initiative in proposing a Section 30(2) order can be taken by either Administration but both sides agree to both the principle and the detail before the order can be pursued. Since devolution, the Government are committed to that being the appropriate route to effect alterations to the Scottish Parliament’s legislative competence. The Legislative and Regulatory Reform Bill does not change that arrangement. Orders under the Bill should not be subject to procedure in the Scottish Parliament.
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As I have already mentioned, the Bill restricts the order-making powers to reserved matters; that is, matter for which only this Parliament is responsible. It would not therefore be appropriate for orders to go before the Scottish Parliament for approval. That is particularly true when one considers that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in or the agreement of the Westminster Parliament. For those reasons, we stick to our original position. I invite the noble Lord to withdraw his amendment.
Lord Goodhart: My Lords, I am disappointed with the answer from the Minister. Of course, I recognise that in law this Parliament is sovereign and that the Scotland Act is a reserved matter and can be changed by this Parliament. Nor am I suggesting that it is necessary for changes to the Scotland Act to receive the approval of the Scottish Parliament. I am suggesting that what is important is how this Parliament is to exercise its sovereignty. The Scotland Act is of such importance in determining the relationship between the two Parliaments and the two nations that it is necessary that any amendment of the Scotland Act should be treated as a matter of constitutional importance, however minor the proposed change. In those circumstances, it would be right to insist that any change to the Scotland Act, however minor in itself, should be made by primary legislation. That is essential in the case, which could happen, where Members of the Scottish Parliament, or the Scottish Executive, were not in favour of those changes.
However, I recognise that this is a very late stage in the procedure of the Bill. I imagine, now that we have paragraph (f) in Clause 3(2), that it is pretty unlikely that a problem such as the one that I envisage would happen. In those circumstances, it is not appropriate to press the amendment to a Division. 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. 3:
( ) 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, Amendments Nos. 3 and 4 have been grouped. They both deal with the inter-relationship between this Bill and the Human Rights Act. Amendment No. 3 requires any draft order laid under the Bill to be accompanied by a statement of compliance with the convention rights under the Human Rights Act. That is not in the same form as Section 19 of the Human Rights Act, because that permits a Minister introducing primary legislation to make instead of a statement of compliance a statement that the Government wish to proceed with the Bill even though it is not compliant. In fact, that power has, I understand, only been used
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That cannot be done with secondary legislation such as an order under this Bill; in other words, as the Minister pointed out on Report, it would be unlawful for a Minister to lay before the House a draft order that was not compatible. It has become standard practice for draft statutory instruments that require the affirmative resolution procedure to be accompanied by a statement of compatibility when they are laid. That requirement results from a direction given some years ago by the late Lord Williams of Mostyn—possibly in response to an issue that I raised with him. Since the Bill gives a wide general power to legislate by statutory instrument, it is desirable that the practice should be put on the face of the Bill.
Amendment No. 3, as it stands, would extend that principle to orders made under the negative resolution procedure, in addition to those under the affirmative and super-affirmative procedures. That is reasonable, due to the special nature of the Bill and, anyway, very few orders are likely to use the negative resolution procedure. I accept that the statement that I propose will simply reflect the law, but I believe that it will nevertheless be useful, because it will concentrate the minds of those drafting the order to check for compatibility. It should not be assumed that a reminder is unnecessary.
Amendment No. 4 provides that orders made under the Bill will be treated as secondary legislation, although they amend primary legislation. That is a departure from the rule in Section 21 of the Human Rights Act which states that where primary legislation is amended by secondary legislation under what is widely known as a Henry VIII clause, the amendment is treated as being primary legislation. I can see the point of that, as it is inconvenient, when challenged on human rights grounds, to have to check primary legislation to see whether it has been altered by an order made under a Henry VIII clause.
But there are also problems with the other way. Orders made under the Bill are secondary legislation; therefore, an amendment to primary legislation made by an order under the Bill can be quashed on judicial review if the court is, for example, satisfied that one of the conditions in Clause 3 has not been met or that the procedure for consultation or otherwise, as laid down by the Bill, has not been properly followed. In any event, we would be left with a potential degree of uncertainty as to whether the court could quash the order, thereby removing it from the Bill. We may still have to find out whether the statute was or was not amended by the order.
It would be illogical also to have two different consequences of the unlawfulness of the order, depending whether the unlawfulness was based on its incompatibility with the Human Rights Act or on
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Lord Kingsland: My Lords, we support the amendments of the noble Lord, Lord Goodhart, for the reasons that he has given.
Noon
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, my noble friend Lord Bassam outlined the workings of the Human Rights Act on Report, so I do not propose to reiterate that which noble Lords who have already spoken know as well as I do, if not better. I am replying now because I have been engaged in conversation with the noble Lord, Lord Goodhart, in light of my responsibilities for human rights. My noble friend was kind enough to let me deal with these amendments, in order, I hope, to reassure both noble Lords appropriately of the position.
As I said, I am not going to repeat what has been indicated at previous stages, except to say that—as the noble Lord, Lord Goodhart, said—it is unlawful for a Minister of the Crown to make secondary legislation that is incompatible with the convention rights. As he indicated, his Amendment No. 3 would put a requirement into the Bill that orders made under it would have to be accompanied by a statement of compatibility with the convention rights. My noble friend Lord Bassam explained on Report that the Section 19 statement, which we already have, is in a sense a genuine alternative in respect of primary legislation, as Parliament can choose to legislate incompatibility. That alternative does not exist with secondary legislation, which it is simply unlawful for Ministers to make incompatible.
As the noble Lord said, the Government as a matter of convention accompany some secondary legislation with a statement confirming compatibility with the convention rights—specifically, where secondary legislation amends primary legislation, or where it is subject to affirmative or super-affirmative procedures. My honourable friend Jim Murphy gave an undertaking in Committee in another place that the Government would accompany all orders under this Bill with a statement confirming their compatibility, of the precise kind envisaged by the noble Lord, Lord Goodhart. I can confirm that undertaking today; it will be followed through.
However, as the noble Lord knows, I have no desire to put that into the Bill—not just because it confirms what we have already said would be the case about the compatibility of orders, but because I am worried about there appearing to be a genuine alternative in consequence. In other words, by putting this into the
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I am sympathetic to what lies behind Amendment No. 4, as the noble Lord would expect. However, I hope that he will feel eventually that it is unnecessary and could cause some difficulty and confusion, as his opening remarks indicated. Let us again be clear: a Minister could not seek to make an order that amended primary legislation in a manner incompatible with the convention rights—nor would such an order pass parliamentary scrutiny. Not only would that be unlawful under Section 6 of the Human Rights Act, as I have explained, but it would probably not meet the preconditions set out in Clause 3 of this Bill—which, from the human rights perspective, I have studied and discussed with my officials to ensure that we are absolutely clear on the meaning. Notably, within Clause 3(2)(e), there is the precondition that requires the Minister to be satisfied, before he can make the order, that provision in it will not prevent an individual,
Noble Lords will, I am sure, also look at Clause 3(2)(d), which says that,
and subsection (2)(f), which says that,
We therefore believe that the preconditions set up around this Bill, which noble Lords have debated at length, are the key to why we do not wish to accept this amendment, despite our great sympathy with what is behind it. We believe that in putting forward any proposal the Minister would have to be mindful of those preconditions in the Bill. That would have an impact.
The effect of the amendment on legal certainty, as the noble Lord indicated, could present problems. As he would expect, although there is a position under what I have said on preconditions where an order being dealt with would be ultra vires—and able to be challenged in the courts—I am not minded to add any other “uncertainty” within this legislation. The difficulty is that we would then create different kinds of primary legislation—that already within an Act of Parliament and that inserted through the order.
I had to ask myself whether I was comfortable that the way in which we set up the Bill and the way in which we would be looking at secondary legislation meant that we had dealt with the underlying concern within the amendment. I believe that that is the case. The courts can strike down under ultra vires and, if legislation went through, it would amend primary
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Therefore, with the combination of the preconditions and what I have already said about the convention and the Human Rights Act, I hope that the noble Lord will feel that we have addressed his underlying concerns. I hope he will accept that I do not wish to create forms of uncertainty in determining legislation that I think are unnecessary in these circumstances, and that he will feel able to withdraw the amendment.
Lord Goodhart: My Lords, I am happy to accept the noble Baroness's assurance on Amendment No. 3. I regard that as adequate and, although I still think that no harm would be caused by making that amendment to the Bill, I do not wish to press it any further.
I am less satisfied with the noble Baroness’s response to Amendment No. 4. The position as she outlined seems to produce an unnecessarily complicated situation. If it can be argued that something in the Bill that is incompatible with the Human Rights Act is also a breach of one of the statutory preconditions, it then follows that that order can be declared void by the court, with the result that the primary legislation will continue in force in the same way as it did before the order was made and the order will be totally ineffective. If, on the other hand, it is held that something in the order is in breach of the convention rights but is not in breach of one of the preconditions, then the consequences of judicial review would be entirely different because the court could not quash the order; it would simply have to declare its incompatibility and that would then lead to a different procedure. I regard that as confusing and unnecessary. I should have much preferred my amendment to be accepted.
I regret that the noble Baroness has not been able to accept Amendment No. 4. However, again, I recognise that at this late stage in the Bill it is undesirable to press what is, on any footing, a pretty technical amendment, so with some regret I shall not move Amendment No. 4. Meanwhile, I beg leave to withdraw Amendment No. 3.
Amendment, by leave, withdrawn.
Baroness Young of Old Scone moved Amendment No. 5:
Page 12, line 29, leave out “the exercise of” and insert “determining any general policy or principles by reference to which the person exercises”
The noble Baroness said: My Lords, this amendment is grouped with Amendments Nos. 6 to 10. There are two issues here, and I shall deal with Amendment No. 5 first. It aims to limit the application of the better regulation principles to issues of policy rather than to individual regulatory decisions. The better regulation principles are fine things. Indeed, many regulators across Britain are
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I believe that being able to challenge regulators on the principles in their regulatory decisions will mean that they will face more litigation. Even if they do not face more litigation, they could behave very defensively and regulatory decisions could take longer and be more costly. Of course, that flies in the face of the Bill and its otherwise excellent intentions to ensure better regulation—not slower, more bureaucratic and expensive regulation.
There are a number of individuals for whom that would be a good avenue through which to challenge regulatory decisions. Vexatious individuals who know that they cannot challenge a case on their compliance or otherwise with the law as to whether they created the nuisance or damage, or whatever the law is aiming to prevent them doing, would instead bring a procedural challenge against a decision either to delay or to have a decision overturned. Defendants who could not hope to succeed in challenging their culpability in a case might still bring that procedural challenge. For example, if a decision were made entirely on the principle of being risk-based, which is a fundamental principle of better regulation, it might be challenged on the basis that it was not consistent, which is another fundamental principle of better regulation.
The two are fine judgments and placing this as a statutory requirement means that we will have to test the fine judgments more often in the courts. I am sure that regulators will be able to defend their actions successfully in such cases, but I am not sure that that is the best use of public funds or that it is in the interests of better regulation to have to do so. Were the principles to apply at the policy level, rather than at the level of individual regulatory decisions, I believe that there would be sufficient spur to the regulators to behave in consistency with the principles, rather than propelling them to be defensive, slower, more bureaucratic and lengthy in the face of the risk of vexatious legal challenge. That is the content of Amendment No. 5.
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