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Lord Dixon-Smith: The amendment goes to the heart of our earlier debates on the way in which the Bill has been drafted. That gives me no satisfaction. However, it must be said that there will be less likelihood of the other place correcting a fundamental matter in the Bill. For that reason, I support my noble friend's amendment. Legislation should be clear, readable and supervisable by Parliament.
The problem with going down the regulatory route is that we can either approve or reject a regulation, but we cannot amend it. That may appear to be satisfactory; by convention we have operated in that way. However, when one sees this kind of primary legislation being
Lord Whitty: I understand the strength of feeling expressed by the noble Lord, Lord Renton, both in Committee and privately about this aspect of the Bill. However, words such as "unconstitutional" and "unprecedented" are not historically appropriate. I see that the noble Lord, Lord Alexander of Weedon, if not in his place is at least present in our proceedings here. Perhaps I may remind your Lordships that although the Delegated Powers and Deregulation Committee noted that we were replacing primary legislation by regulations it did not comment on that aspect of the Bill.
I also note that the provisions introduced within the amendment I have made today go a long way not only to meeting the objections of the Delegated Powers and Deregulation Committee, but also in making it absolutely clear that there is parliamentary sovereignty over proceedings under the Bill.
Lord Pearson of Rannoch: I thank the Minister for giving way. He may have implied to anyone reading Hansard that the noble Lord, Lord Alexander of Weedon, was present in the Chamber and therefore perhaps lending strength to his comments. I do not see the noble Lord.
Lord Whitty: If noble Lords read Hansard carefully they will note that I was not indicating that. I made no such contention. I rely entirely on the wording of the Select Committee report in this respect.
As regards breaking a principle by replacing primary legislation with regulations, that is not unprecedented. I agree that it is unusual, but it is not unprecedented. My department examined what its predecessors had done in this respect. I admit that I could not find an example when the noble Lord, Lord Renton, was in government, but I did the next best thing and found an example when the noble Lord, Lord Jenkin, was in government. It occurred in respect of the Local Government Act 1972, which removed whole swathes of legislation and replaced them by regulation. And quite rightly, too, because, similarly the area needed to respond to differing circumstances and to technical and other changes.
We are not debating the principle of regulation, therefore; we are debating regulation in an area of rapidly changing technology. That is an important aspect of government activity. It gives a more flexible instrument than a piece of primary legislation. It deals with evolving issues.
In this case, it also deals with a situation in which we are trying to produce a coherent regime which incorporates European legislation and makes it compatible with legislation already on the statute book which received multi-party support. The objective of the
The noble Lord, Lord Renton, says that potentially we are creating new offences under the regulations. Clearly, as in my Amendment No. 12, to which we have agreed, any new offences would be subject to affirmative resolution, as in many other areas of offence-creating law. I believe that grouping together the various regimes and the regime we are now required to apply under European legislation so as to provide flexibility and clarity is a better way of proceeding than having a rigid piece of legislation on the statute book. That will put everything in one place rather than creating a piece of legislation which might subsequently need amendment in the light of changing circumstances, either technologically or as a result of scientific knowledge or changes at European level.
If the amendment were to be adopted, we would pass on to another place a piece of incoherent legislation. The only choice which the other place would then have would be either to reject it or to create legislation which was utterly rigid and which in subsequent years would require parliamentary time to change it. I believe that all parties in this House, all noble Lords who have spoken and all the interested groups which have presented their opinions, require some degree of flexibility. That flexibility, under existing pressures on parliamentary and other time, requires these issues to be dealt with under regulations and not on the face of the Bill.
That is why we have taken this step. I accept that it is unusual. It is also unusual to try to apply European legislation alongside and make it compatible with existing regimes with which British industry is already familiar. It is not usual but it is desirable. It has been recognised as desirable throughout this House, throughout this debate and throughout British industry as a whole.
If we were to do anything else, we would create a costly muddle of possibly contradictory regulations. We therefore accept the concerns. In making substantial changes to subsequent regulations subject to the affirmative procedure--and I accept the comment of the noble and learned Lord, Lord Simon of Glaisdale, that the House has powers in relation to the affirmative procedure, although I am not encouraging it to use those powers--parliamentary sovereignty is safeguarded, which meets the fears expressed by the noble Lord, Lord Renton.
I ask the Committee to recognise that the objectives of putting this part of the Bill and what was pre-existing legislation into regulations are not sinister and in no way challenge the authority of the House or Parliament. They are intended to provide coherence, clarity and the ability of Parliament, the legal system and industry to comply with what we all recognise as an important step forward
Lord Renton: The Minister has done his best in reply to the arguments but I am sorry to say that his replies are not valid. Of course, there are precedents but there is no precedent for a Bill of national and international importance on this scale to be replaced by regulation. As to incorporating European Union directives, we have incorporated some of a minor kind by regulation but those of a major kind have been incorporated in our statute law--as on this occasion. One could go on to answer every point that the Minister made but I shall not weary your Lordships. I seek the opinion of the Committee.
Resolved in the negative, and amendment disagreed to accordingly.