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Lord Higgins: My Lords, I do not think there was any discourtesy to this House. On the contrary, the Government went to great lengths to inform us what they had in mind. The problem concerns the other House. The Minister referred to speed. Clearly this matter could be dealt with expeditiously either by primary legislation in another place or by including it in the Finance Bill. Therefore I do not think that is a sustainable argument at all.
I say with respect, in view of the care that the Minister has given to the matter, that the House may have been a little confused by her reply. An
announcement was made on this issue the other day during the course of discussion on an amendment concerning so-called "phoenix" directors. However, the announcement had absolutely nothing whatever to do with the amendment; it was just that the noble Lord, Lord Haskel, took that opportunity to make the announcement. I suppose he could have made the announcement while speaking to this Motion. At all events the two issues are totally separate. To discuss the point about directors--which I have not mentioned--in reply to the points which I raised may have confused your Lordships.
Lord McIntosh of Haringey: My Lords, I hope the noble Lord will forgive me but we are speaking to the Motion introduced by my noble friend Lady Hollis. I believe that only one speech is allowed from each speaker.
Lord Higgins: My Lords, I ask the House to allow me to comment; otherwise this matter is left totally in limbo, and it will look disgraceful from the Government's point of view. Perhaps I may ask for the leave of the House?
4.30 p.m.
Lord Higgins: My Lords, I am most grateful. As a new Member of this House, the last thing I would wish to do is to impose on the rules of the House. However, I had taken advice and understood that this was the appropriate moment to raise the matter. Clearly, one cannot leave the points raised unanswered.
We may be able to raise the points about directors at some more appropriate moment during the course of our proceedings. However, it is the combination of the two points I am making which seems to be objectionable. At a later stage, the House of Commons may well move certain Motions which will enable them to discuss the position. None of us realistically would be surprised if the Government were to carry such a Motion.
However, certain important principles are raised so far as concerns Parliament. I do not think that it is an appropriate way to deal with the matters. There is no reason why the matter should not be dealt with in the Finance Bill, or by way of other legislation, in the normal way, so that elected representatives in the House of Commons have an opportunity to debate these matters.
Baroness Hollis of Heigham: My Lords, I sought to persuade the House to hear the second response of the noble Lord because I am aware that we are asking the House to do what is not customary or even particularly desirable. That is why I thought we should seek the indulgence of the House to pursue this a little.
Perhaps I may make two brief points. I hope that we can then put the matter aside for the time being. The noble Lord said that it was not a question of courtesy to this House but to another place. I understand that those arrangements have ensured that that position is not
objected to in another place. I was not a Member of the House of Commons, but, if I may say so, it is not my responsibility to ensure the courtesies to the other House. My responsibility is to ensure the courtesies to this House. I hope that we can lay that argument aside.I was anxious to respond to the noble Lord on the substantive point. My advice is that this could not be included in the Finance Bill, despite what the noble Lord has urged, because the Finance Bill can deal only with taxation and this is a social security matter. It has to be dealt with in this way if we are to meet the requests of and obligations to business.
With that, I hope your Lordships will allow us to proceed into the Committee stage of the Bill.
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]
Clause 13 [Appeal to appeal tribunal]:
The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 43 is agreed to, I shall be unable to call Amendment No. 44.
Earl Russell moved Amendment No. 43:
The noble Earl said: With Amendment No. 43, I shall speak also to Amendment No. 54. The amendments both concern the right of appeal. First, I wish to read briefly the clauses which I seek to delete. Clause 13(2) states:
I wish next to draw the attention of the Committee to the verdict of the Delegated Powers and Deregulation Committee on those two provisions. It says that in the case of the provision in Clause 13(2), withdrawing the right of appeal, and the corresponding provision in paragraph 8 of Schedule 2, in the committee's view even the affirmative procedure would not give the certainty required. Members of the Committee may therefore wish to consider amending the Bill to put the vital provisions in the Bill itself and to limit the powers accordingly.
That is an unusually strong recommendation from the Delegated Powers and Deregulation Committee. It has here considered not only the degree of parliamentary control, but whether those provisions improperly delegate legislative power. It has asked us to consider whether the answer to that question might be yes. It does not make a firm recommendation because it is the clear procedure of that committee that it invites the House to make the final resolution; it does not make it itself. That, I think, is right and proper.
It is clear that the legislative power may, where it wishes, limit rights of appeal. Since the legislative power may do whatever it likes, the minor would seem to be included in the greater. But the question is whether this power may be exercised by regulation. In theory, the use of regulation counts as a legislative procedure. But since regulations cannot be amended, and since regulations in this case would be likely to include a long list of individual provisions of which it is perfectly possible that some may be acceptable to the House and some may not, and we could not put down amendments to exclude some of them, and since the regulatory power in this Chamber is subject to such a limited degree of parliamentary control, in practical terms it is probably truer to say that the regulatory power is an exercise of Executive rather than legislative power.
For the Executive to take away rights of appeal is always a questionable procedure. For the Executive to take away rights of appeal against decisions which, according to Clause 1, are made by the Secretary of State, may risk conferring a rather unfortunate appearance of seeming to be judge and party in its own courts. It is no part of my purpose to anticipate what decisions might be reached in the courts. But for a very long time the courts have had a strict regard for the provision of natural justice, among which is the provision that people may not be judge and party in their own courts.
The Government might also consider Section 6 of the European Convention on Human Rights: the right to a fair trial. The restriction of appeal might come in for scrutiny in that quarter. I do not know how the courts might view such a provision, but I draw attention to the words of the noble and learned Lord, Lord Woolf, in the case of Fayed v. Home Secretary. He said that the courts would be guided by the principles of natural justice and where an Act of Parliament appeared to conflict with them Parliament may not confer a right to act unfairly unless it does so in express words. That is a fascinating form of words from the noble and learned Lord.
I do not see here any such conferring of an express power to act unfairly. It is also my view that conflicts between the Government and the courts should be minimised so far as possible. That means that it must be the responsibility of Parliament not to lead the courts into temptation. I cannot help thinking that these provisions lead the courts into temptation and I regret that. I beg to move.
Baroness Hollis of Heigham: I should like to address the concerns raised by the noble Earl in his amendments to Clause 13 and Schedule 2 by referring to the group of government Amendments Nos. 44, 129 and 130. My amendments are tabled in direct response to the recommendations of the report of the Select Committee on Delegated Powers and Deregulation, a report which I found extremely helpful and illuminating.
I put on record my appreciation for the careful consideration that it performed. It had a formidable task. As noble Lords will be aware this Bill is long and complex (81 clauses at the last count--and that is before the Government or noble Lords add any more--and seven schedules).
Fifty-two of those clauses and six schedules contain powers to make delegated legislation.
In the main, the committee accepted our arguments about the need for delegated legislation to provide the detail, with the primary legislation setting in place the framework for decision-making, rights of appeal, and the new appeal arrangements.
However, the committee highlighted areas where it felt the issues were significant enough to warrant further scrutiny by Parliament through the use of affirmative, rather than negative, procedures, when these regulations are brought forward. I am pleased to be able to say that, having studied the report, we feel it would be helpful to the House to have the opportunity for further debate on some of the details that will be set out in regulations and have therefore arranged for those powers singled out by the committee to be made under the affirmative procedure. In other words, we are acquiescing to the proposals of the Select Committee on Delegated Powers and Deregulation.
It may help your Lordships if I explain the issues that will be handled in this way. First, there are three groups of regulation-making powers which are concerned with appeal tribunals. Clause 8(3) relates to the composition of appeal tribunals and the allocation of cases among differently constituted tribunals. Schedule 1, paragraph 11, provides for the delegation of certain functions of appeal tribunals to authorised officers--clerks to the tribunals. My noble and learned friend the Lord Advocate has already discussed these issues in relation to earlier amendments. Schedule 5, paragraph 3, contains the power to provide regulations for striking out of proceedings. My noble and learned friend the Lord Advocate will be debating these in more details when we come to Schedule 5 later today. We recognise that these are important issues, and issues where the detail that is contained in the regulations will be of interest--over and above the debate on the principles we are able to have during the passage of this Bill.
We have tried to give the House full explanations as to how we will use the powers contained in the Bill. We have stated our intentions, and they are on the official record. However, I am aware of the ongoing interest and am therefore happy to agree to the recommendation and make the regulations in all three groups affirmative.
Secondly, the new clause in Amendment No. 130 also makes affirmative the power contained in Clause 13(2) and paragraph 8 of Schedule 2. These are the power that the noble Earl's Amendments Nos. 43 and 54 seek to remove and ones in relation to which the committee, too, expressed concern about their apparent wide range.
The Government have considered carefully the committee's argument that current "outcome" decisions (which are appealable) should be listed on the face of the Bill and that that would ensure that rights of appeal in relation to these decisions could not be denied. We consider, however, that the committee's concerns are best addressed by way of an amendment to clarify the nature and limitations of the regulation-making power in Clause 13(2). That is the purpose of Amendment No. 44. Amendment No. 44 specifically prevents regulations under Clause 13(2) from prescribing any decision that
The power in Clause 13(2) is an important one which we intend to use to secure the concept of "outcome" decisions. It will be important in trying to streamline decision-making. Regulations under this power will make unappealable, as now, minor administrative decisions which are subordinate to the substantive appealable outcome decision. Such minor administrative decisions will cover whether a claim has been properly made, on which day of the week payment should be made, etc., as opposed to a decision as to whether a person is entitled to a benefit.
Paragraph 8 of Schedule 2 provides flexibility to accommodate with a minimum of fuss and delay any future changes to social security--for example, the introduction of a new kind of benefit or new procedures for the administration of benefit, where the interests of effective administration might require certain decisions to be made unappealable; for example, where a claimant received two outcome decisions carrying appeal rights which cover only one substantive issue.
We do feel this will effectively address the concerns of the delegated powers scrutiny committee and of the noble Earl. Though I do not doubt he will tell us it does not. But we have also decided that these powers should also be under the affirmative procedure to enable further scrutiny.
Finally, the Select Committee recommended that the power contained in Clause 70--the power to make regulations to remove the lone parent rate of child benefit for new lone parents--is of such general interest to the House that there should be an opportunity for further debate under the affirmative procedure.
Noble Lords will be aware that the issues in Clause 70 will be discussed by this Committee on Monday. I shall therefore, at this point, say only that we recognise the interest in this issue that noble Lords have and, again, we are content to accept the recommendation of the scrutiny committee.
To summarise, Amendments Nos. 44, 129 and the new clause, fully meet all the concerns of the Select Committee on Delegated Powers and Deregulation and, I believe, address the issues raised in the noble Earl's Amendments Nos. 43 and 54. I therefore ask him to withdraw his amendments and I commend my amendments to the Committee.
Lord Archer of Sandwell: I have shared the concerns of the noble Earl, Lord Russell, as he knows, and I delivered myself of some forthright views on the subject at Second Reading. I am grateful to the noble Earl for having set down this amendment. I agree with the noble Earl--and the Council on Tribunals shares the view--that it is not desirable that rights of appeal should be created or abolished in secondary legislation. That, too, I said at Second Reading.
In a perfect world, it would not happen. However, my noble friend has listened to our concerns, and has made a generous attempt to meet them. I should like an
My noble friend wrote to the committee explaining in response what she proposed to do. Perhaps I should place it on record that she is not the first Minister to respond to an observation of the committee. But, so far as I am aware, she is the first Minister to take the trouble to write personally to the chairman explaining the action that she proposed to take. For myself, I am grateful for that, too.
Page 7, leave out lines 43 and 44.
"but nothing in this subsection shall confer a right of appeal in prescribed circumstances".
As I understand it, "in prescribed circumstances" means that it may be decreed that there shall be no right of appeal. Amendment No. 54 refers to paragraph 8 of Schedule 2. That provides in slightly unexpected words that the decisions against which no appeal lies may include,
"Such other decisions as may be prescribed".
If I may say so, that is a real chemist's provision.
4.45 p.m.
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