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House of Lords

Monday, 29th November 1999.

The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers--Read by the Lord Bishop of Lichfield.

Lord MacKenzie of Culkein

Hector Uisdean MacKenzie Esquire, having been created Baron MacKenzie of Culkein, of Assynt in Highland, for life--Was, in his robes, introduced between the Lord Mackay of Clashfern and the Lord Sawyer.

House of Lords: Powers

Lord Campbell of Alloway asked Her Majesty's Government:

    Whether they acknowledge the right of this House to amend, or to reject, secondary legislation.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, at present neither House has power to amend delegated legislation unless the parent Act provides for that. Few Acts do so. In relation to the rejection of secondary legislation, the Government consider that the House has powers, but since 1968 has chosen by convention not to exercise them. However, as the Companion to the Standing Orders makes clear,

    "Lords can table amendments or motions expressing criticism of delegated legislation, whether an affirmative or a negative instrument, without challenging it directly".

Lord Campbell of Alloway: My Lords, I thank the noble and learned Lord for dealing with the Question. As regards amendment, would the Government favour a divisible Motion to request another place to re-lay a statutory instrument in amended form where, for reasons which were given by the noble and learned Lord, Lord Simon of Glaisdale, a critical amendment or Motion, referred to in the Companion at pages 187 and 188, which has no practical effect whatever, is not appropriate? Do the Government acknowledge that the entitlement to reject has not been abrogated?

Lord Falconer of Thoroton: My Lords, with regard to the ability to amend, whether or not one can amend depends on what the primary legislation states. That is a matter for each House to decide in relation to a piece of primary legislation. With regard to the noble Lord's proposal, there are adequate methods at the moment, as set out in the Companion, which would give the House the power to indicate its position in relation to delegated legislation without such a Motion being effective in the sense of either causing a rejection or an amendment.

Lord Pilkington of Oxenford: My Lords, perhaps I may ask the Minister whether, in the case of a conflict

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of some emotion, the Government would regard it as wrong for this House to refuse to accept delegated legislation.

Lord Falconer of Thoroton: My Lords, the right course is that a convention should be followed; namely, that this House should not reject delegated legislation. The underlying reason for that is that if the House rejects delegated legislation, unlike primary legislation, there is no procedure by which the other place can insist, as it can under the Parliament Act, on its will prevailing.

Lord Avebury: My Lords, does the Minister recall that in the last Parliament we voted, under secondary legislation, on the Government's privatisation measure for the Port of Ispwich? No one told the House that it could not do that.

Lord Falconer of Thoroton: My Lords, I do not recall the specific provision referred to by the noble Lord, in part because I was not here on that occasion. I am told that the last time this House rejected secondary legislation was for the Rhodesia sanctions order in 1968. There have since been occasions when Motions to revoke have been passed in relation to negative instruments, but in fact those Motions to revoke do not have the effect of preventing the passing of secondary legislation.

Lord Swinfen: My Lords, I am not sure that the noble and learned Lord answered the final part of the supplementary question of my noble friend Lord Campbell of Alloway. Does he consider that this House has abrogated its power to reject secondary legislation, even though it has not used that power for some time?

Lord Falconer of Thoroton: My Lords, I thought that there was a constitutional convention that the House would not use the power.

Lord Campbell of Alloway: My Lords, does the Minister agree that in one sense the reply he has given is not entirely satisfactory and that the matter should receive further consideration in this House?

Lord Falconer of Thoroton: My Lords, one matter under consideration by the Wakeham Royal Commission is the attitude of this House towards delegated legislation. It would seem sensible to await the report of the Royal Commission.

Lord Skelmersdale: My Lords, does the noble and learned Lord agree that to amend statutory instruments would cause total and utter chaos and confusion, simply because all pieces of legislation under the constitutional arrangements currently in place in this country--whether that legislation is primary or secondary--must be mutually agreed between the two Houses? For that reason, if one House seeks to amend a statutory instrument while the other House chooses not to, the statutory instrument would

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become null and void. That cannot be a satisfactory arrangement. On the other hand, does the Minister agree that, if a statutory instrument was to be voted down in one House or the other, there is absolutely nothing to stop it being laid, with amendment or indeed as it is, the following day?

Lord Falconer of Thoroton: My Lords, I appreciate the force of the point that the noble Lord has made in the first part of his question. Indeed, I suspect that that is reflected in the fact that 99.99 per cent of primary legislation does not permit amendment by secondary legislation. With great respect, the second matter raised by the noble Lord does not deal with the fundamental point I put a few moments ago; namely, where there is a nominated House and an elected House, is it right that the nominated House should have the power to reject without recourse to the views of the elected House?

Lord Haskel: My Lords, this is quite an important question. Does my noble and learned friend agree that it is always open to Peers to pray against secondary legislation? That is a way in which such matters have from time to time been dealt with in this House.

Lord Falconer of Thoroton: My Lords, I thank my noble friend for making that important point. I repeat that, although there are various means by which this House may--rightly--express its views on secondary legislation, as a matter of convention it has not passed measures effectively to stop a piece of secondary legislation against the wishes of the other House.

Earl Howe: My Lords, in answering a supplementary question, the noble and learned Lord indicated that the practice of not voting down secondary legislation was a matter of constitutional convention. Would he care to correct that phraseology slightly? My understanding is that there is nothing constitutional about it; it is merely a result of an agreement between the parties. To that extent, it is merely a convention to which this House has adhered over many years, but is not enshrined in the constitution.

Lord Falconer of Thoroton: My Lords, there is no written constitution in this country. Constitutional conventions, as I understand them, relate to broad consensus as to what should and should not be done. I believe that there is a broad consensus that secondary legislation should not be voted down in an effective manner by this House.

Lord Pilkington of Oxenford: My Lords, in view of the great change that has occurred in the nature of the constitution, are Her Majesty's Government prepared to consider greater curbs on the Executive by this House, even as a nominated House, if the Wakeham Commission supports that approach? I suggest that the Minister is looking to the past. The situation is different now. We may want to exert curbs on the

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Executive, even as a nominated House. Will the Minister allow that the Government might consider that?

Lord Falconer of Thoroton: My Lords, the questions that I have been asked so far have been directed to describing the current position. As I have indicated, the Royal Commission is examining, inter alia, questions of delegated legislation. I shall say nothing more until the Royal Commission reports.

General Pinochet: Lord Chancellor's Actions

2.51 p.m.

Lord Lamont of Lerwick asked Her Majesty's Government:

    In which aspects of the case of General Pinochet the Lord Chancellor has been involved.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, I apologise to your Lordships for the detail necessary to answer this Question properly. I have not sat judicially in any of the Pinochet proceedings. When the first substantive decision of the Law Lords in these proceedings was set aside, I took the initiative, with the senior Law Lord, to put in place procedures to prevent these circumstances ever recurring. Ministerial responsibility for extradition lies with the Home Secretary, not the Lord Chancellor. I have, however, answered on behalf of the Attorney-General written parliamentary Questions from the noble Lord about the decision to arrest Senator Pinochet and to commence extradition proceedings against him. That was because both the Attorney-General and the Solicitor-General were in the other place and had no Minister in this House. Any questions on these matters should now be put to my noble and learned friend Lord Williams of Mostyn, the Attorney-General, who took office, as we were all delighted to note, on 29th July.

There is, however, an inquiry now being held into whether the judgments of the Law Lords in the second substantive hearing were leaked to the media prior to their delivery. I shall be making a statement on the outcome of that inquiry very soon.

Finally, my department has met Senator Pinochet's costs of the first substantive hearing and of the hearing which resulted in that judgment being set aside through central funds in compliance with an order to that effect by the Law Lords on 8th July.

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