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A noble Lord: You have to move it first!
Lord Campbell of Alloway: I thought I had.
A noble Lord: No, you did not.
Lord Campbell of Alloway: I apologise to the Committee. I understand that I may move the amendment and then beg leave to withdraw it. In that case, I beg to move.
Lord Falconer of Thoroton: I am not going to reply to the amendment, on the basis--
Lord Kingsland: If the Minister does not propose to respond to the amendment, it places me in a difficult position because I wanted to ask him a question about it.
Lord Falconer of Thoroton: I do not propose to respond because I understand that the noble Lord, Lord Campbell of Alloway, is suggesting that, in the light of our debate, he wishes to return to the scrutiny issues with a different amendment. In those circumstances, there does not seem to be much point in replying to that which has not yet been formulated.
Lord Campbell of Alloway: I wholly accept that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Viscount Goschen moved Amendment No. 11:
- Page 1, line 23, after ("Act") insert (", save for this Act,").
The noble Viscount said: This amendment is extraordinarily simple. It is connected to subsequent amendments, particularly Amendment No. 13 standing in the name of my noble friend Lady Buscombe, which would make my amendment unnecessary.
Fundamentally, the debates that we have had on earlier amendments have stressed the concern that Members of this Committee have about the breadth of the powers that are being sought. As the Minister has said, there is a very valid argument about limiting the scope of those powers. The effect of my amendment is extremely simple. It proposes that this Bill, when it becomes an Act, should not be able to be amended under its own provisions. It avoids the question of circularity. I can find no reason why the Minister might come forward with "resist" written on the top of his piece of paper, apart perhaps from the fact that he prefers my noble friend's amendment.
Surely if even a fraction of the concerns that Members of the Committee have put forward about the scope of this Bill are valid--I certainly believe that they are--it is absolutely necessary to have in place a measure ensuring that this Bill could not be amended by itself. That would be tantamount not only to giving the Minister the key to the room where the statue book is held and a fresh supply of biros to change it as he wishes, but also to allowing him to cut a new key. That would be wholly unacceptable. I hope that the Minister realises that the intention of my amendment is to help him to make his Bill more palatable. I beg to move.
Lord Kingsland: There are two amendments standing in my name and in the name of my noble friends Lady Buscombe and Lord Northesk; namely, Amendments Nos. 12 and 13, both to page 1, line 23. The effect of those amendments would be to make Clause 1(2)(a) read,
- "'legislation' means the law contained in any provision of ... any Act which was passed before this Act".
No doubt that is its precise aim, but it fails to maintain one very obvious safeguard which appears in the 1994 Act. That Act applied solely to pre-existing legislation. As Members of the Committee are well aware, this Bill applies not merely to pre-existing legislation but also to future legislation.
No one can say--not even, with great respect, the Minister--what the future holds, not least the extent to which future legislation may deliberately be framed in order to take advantage of a power exercisable subsequently to impose regulatory reform by subordinated means.
Let us suppose, for example, that it were thought desirable that a particular form of human activity, while not demanding outright prohibition, should be made the subject of a system of licensing and regulation. That activity might be one upon which feelings ran high on all sides of the political spectrum. Primary legislation might be passed whereby that activity became the subject of what is sometimes described as "light touch" regulation.
Then, two years later, the responsible Minister forms the view, or is of the opinion, that light-touch legislation is no longer appropriate and that firmer measures are required. The freedom that was envisaged by the former legislation passed by primary means is now turned on its head, not by the same means as it was passed but by subordinate means.
For example, as the Committee is well aware, one of the options proposed by the Government for hunting with dogs is that that activity should become the subject of regulation and licence. If that option were to become law, enshrined in primary legislation, then, instead of having to face the rigours of primary legislation to amend the licensing of fox hunting, a Minister intent on a regulatory reform would be able to use the subordinate procedure proposed by this Bill to add substantial burdens.
As presently framed, this clause will permit the passing of primary legislation with a view to its amendment by way of subordinate legislation within two years, whether or not that primary legislation has ever come into force. It will apply to legislation the form or content of which not one of us is able at present to predict.
I am well aware that at some future time there is likely to be a change in the complexion of the government of the day. None the less, when pondering this clause, the words "hostage" and "fortune" or, possibly, "blank" and "cheque" spring to mind.
Lord Norton of Louth: My Lords, I rise to speak to Amendment No. 14 which has been placed in what, in many respects, is a slightly strange grouping. I have no problems with Amendments Nos. 11 and 12. Indeed, I very much support the amendment moved by my noble friend Lord Goschen, which ties in with my Amendment No. 26, as regards ring-fencing measures that cannot be dealt with under this legislation.
I shall direct my comments to Amendment No. 14, which provides that an order under this measure cannot be applied to any Act of Parliament passed in the three years prior to the day upon which an order is made. As the Bill stands, the period is two years. As I said earlier, I appreciate that the purpose of this Bill is to get rid of unnecessary and unworkable regulations. There is no disagreement as to the desirability of that goal. I realise that there is a case for saying that it should be possible to get rid of a regulation as soon as it becomes apparent that it is burdensome beyond the extent intended, or has ceased to be necessary. Quite clearly, that reasoning would appear to justify the two-year provision in subsection (2).
However, I believe that there are two persuasive reasons why the period should be longer. First, there is the danger that the existing provision for two years may encourage laxness in legislative drafting. Ministers and their officials may be tempted to rush through measures, knowing that if there is a problem it can corrected a few years down the road. As we have already seen, the drafting of Bills can be rushed, resulting in the Government re-writing legislation as it goes through Parliament. Indeed, the Political Parties, Elections and Referendums Bill stands as a notable example in that respect.
We should be wary before doing anything that may encourage that tendency. The example that the political parties Bill suggests is not that we should introduce provision for correcting mistakes two years after the event; but rather that we should strengthen the capacity for parliamentary scrutiny of Bills to ensure that poorly drafted provisions are not passed in the first place.
The second reason for extending the period is that it will usually take a couple of years before the full effects of a measure can be seen. On occasion, we legislate in haste. Government and Parliament sometimes succumb to a moral panic and very quickly pass legislation. The most cited example of a measure resulting from such a panic is the Dangerous Dogs Act. I realise that some may argue that it is particularly apt to make provision to change such a rushed measure two years after it has been enacted. But the counter-case is that there is a danger of rushing into change before the effects are seen. Indeed, it is always possible that government may be subject to a moral panic favouring change.
Under the provisions of the Bill it is possible that a regulation may be introduced--possibly in haste--and then removed two years later, only to be re-enacted a year or two subsequently when it is realised that, after all, some regulation is necessary. It may not be realised, but the potential is there for chopping and changing. If that occurs, the likelihood is that the law will be brought into disrepute.
For those reasons, I believe that there is a case for extending the period under Clause 1(2)(a) from two to three years. This is a modest amendment. The reasons that I have given would support an amendment for four or five years. I am undertaking a balancing act of the sort that the noble and learned Lord would no doubt approve. I see the argument behind the existing provision and do not want to build in too excessive a barrier to introducing orders. However, I believe that problems will arise if the period after which orders may be introduced is too short--hence my amendment. I readily concede that I may not necessarily have got the balance right, but I believe that my amendment is a move in the right direction.
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