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Lord Whitty had given notice of his intention to move Amendment No. 13:
[Amendments Nos. 14 to 20, as amendments to Amendment No. 13, not moved.]
Lord Whitty moved Amendment No. 21:
The noble Lord said: This amendment and the others in the group deal with the procedure of making regulations. I believe that the principle of my amendment has been widely welcomed and, in my view, it would meet the suggestion of the Delegated Powers and Deregulation Committee that regulations we bring forward should be subject to the affirmative procedure when they are first made, rather than as specified in the original Bill, and that the affirmative procedure should apply to any amendments in the future to regulations which create new offences or increase penalties for such offences.
The Delegated Powers and Deregulation Committee also called for the affirmative resolution procedure to apply to any regulations which amend primary legislation. As I understand it, that is the aim of Amendment No. 23 (an amendment to my amendment), tabled in the name of the noble Lord, Lord Jenkin of
It is always possible that some impacts may only arise from subsequent changes to regulations. If these are minor and consequential, I am sure that most noble Lords would agree that it would not be proper use of parliamentary time for them to have to follow the affirmative procedure. Therefore, Amendment No. 21 gives the Secretary of State discretion in those circumstances to use whichever procedure seems appropriate--a choice which will in fact be available for any type of amendment to the regulations or any new regulations.
If we were required to use the affirmative procedure in every case, the pressures would be substantial and would inevitably lead to delays in parliamentary procedure. I should point out that the amendments tabled in the name of the noble Lord, Lord Jenkin, would lead to some slight difficulty of interpretation in terms of the drafting. As it stands, I hope that the use of the word "But" at the beginning of subsection (5C) of my amendment helpfully indicates that this subsection qualifies the choice of procedure provided for in subsection (5B) by introducing the important exceptions where the affirmative procedure would still apply. The deletion of the word would remove that clarification.
Once again, because we have two amendments tabled to my amendment, it might be appropriate for us to look at the implications involved to which noble Lords may wish to speak shortly. Thereafter, because the principle of Amendment No. 21 is broadly acceptable, perhaps we may proceed on the basis that we will actually vote on it on Report, having taken into account any remarks which other noble Lords wish to make today in pursuit of the two amendments to my amendment. I believe that that would be a tidier way to proceed. Incidentally, it would enable me make clear on Report the totality of our response both to the report of the Delegated Powers and Deregulation Committee and to any subsequent discussions which we might have on the basis of that report, as we discussed when dealing with the first group of amendments earlier today. I beg to move.
Lord Jenkin of Roding moved, as an amendment to Amendment No. 21, Amendment No. 22:
The noble Lord said: In moving the above amendment I shall speak also to Amendment No. 23. Amendment No. 22 seeks simply to remove the word "But" from subsection (5C) of Amendment No. 21. One of the things that I was always brought up to believe is that you do not start a sentence with the word "But". I understand what the Minister said, but I wonder whether it really does help with the understanding of the clause. It would be better English and provide exactly the same meaning if the sentence started with the word "However", followed by a comma. It is rather unusual to find that in primary legislation and I suspect that the right answer is not to have what I believe to be an
Amendment No. 23 is infinitely more important. It is aimed at the Henry VIII clause. I understand what the Minister said; namely, that he hopes that all the substantive matters will come in the first set of regulations, which will be covered by the affirmative procedure. He also indicated that new offences and other such matters would also be subject to the affirmative procedure. He then invited us to agree that minor and consequential changes in Acts of Parliament that have passed through the whole process should be undertaken by the negative procedure. It is well known that this Chamber has always objected to that procedure. Indeed, there have been votes in that respect: sometimes they have gone one way and sometimes they have gone the other way.
This is a matter which is eminently suitable for discussion in the forum suggested by the noble Lord, Lord Shepherd, some time ago. I ask Members of the Committee to recognise that the Government seek a power to amend parliamentary legislation by statutory instrument, subject only to the negative procedure. I believe that that requires a very substantial justification. Indeed, if I may say so, in a week during which Members of the House of Commons have been sent home, I find arguments about there being insufficient parliamentary time to be a bit thin. If the matter is sufficiently important to require a debate, time must be found. That is absolutely at the heart of our parliamentary constitution holding the Government to account. It is part of the checks and balances to which I referred earlier. However, let us discuss it in the forum.
I very much welcome what the Minister said about not moving his amendment at this stage. We can look at it in the round at another stage. However, I warn him that I shall wish to press this matter fairly hard in any discussions that we may have that I may be privileged to attend and when we return to the matter again. There may be others who take the same view. I beg to move, as an amendment to Amendment No. 21, Amendment No. 22.
Lord Renton: I have such admiration and respect for my noble friend Lord Jenkin of Roding and such a friendly attitude towards him that it is with the greatest diffidence that I dare to express a doubt about anything that he has ever said or done. However, on this occasion when he is proposing a Henry VIII clause which does not appear to me, nor so far to the Government, to be necessary--
Lord Jenkin of Roding: I am not proposing it.
Lord Renton: What about Amendment No. 23?
Lord Jenkin of Roding: I beg my noble friend's pardon. I seek to insist that the affirmative procedure should apply to any Henry VIII clause. That is the effect of my amendment. If it does not do that, I am afraid my drafting is singularly inauspicious; it is not right.
Page 2, line 11, at end insert--
("(4A) Before making any regulations under this section, the Secretary of State shall consult--
(a) the Environment Agency if the regulations are to apply in relation to England or Wales;
(b) the Scottish Environment Protection Agency if the regulations are to apply in relation to Scotland;
(c) such bodies or persons appearing to him to be representative of the interests of local government as he may consider appropriate;
(d) such bodies or persons appearing to him to be representative of the interests of industry as he may consider appropriate; and
(e) such other bodies or persons as he may consider appropriate.
(4B) Consultation undertaken before the passing of this Act shall constitute as effective compliance with subsection (4A) as if undertaken after that passing.").
5.45 p.m.
Page 2, line 12, leave out subsection (5) and insert--
("(5A) The power to make regulations under this section shall be exercised by statutory instrument.
(5B) A statutory instrument containing regulations under this section, if made without a draft having been laid before, and approved by a resolution of, each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House.
(5C) But no regulations to which this subsection applies shall be made unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.
(5D) Subsection (5C) applies to--
(a) the first regulations to be made under this section which apply in relation to England;
(b) the first regulations to be made under this section which apply in relation to Wales;
(c) the first regulations to be made under this section which apply in relation to Scotland;
(d) regulations under this section which create an offence or increase a penalty for an existing offence.").
Line 8, leave out ("But").
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