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Lord McIntosh of Haringey: It was not intended to.
Lord Norton of Louth: I shall do the Minister a great favour and pretend that I did not hear his last comment. His previous comment at the Dispatch Box is on the record. My concern is not with forcing a Division for the sake of it but to try to engage the Government in discourse on what I believe to be a crucial point. Prompting the Government to do that will be an achievement.
I do not care whether I do so by persuasion, by Division or whatever, but I find the Minister's previous response encouraging. It takes us forward and I look forward to further discussions between now and Report. I believe that I have pushed the Government further forward in a way which I appreciate. On the basis of the Minister's final point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Limitations on order-making power]:
Lord Goodhart moved Amendment No. 27:
- Page 3, line 1, leave out from ("if") to third ("the") in line 2.
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 31. I begin with a few words of explanation. When I saw the draft groupings this morning I noticed that Amendments Nos. 27 and 31 were grouped separately, and that seemed to be appropriate. Subsequently, the revised groupings, which had been settled without further consultation with me, grouped those amendments with others which had only a tenuous link. I therefore asked for them to be degrouped, although I am conscious that as the debate has developed a certain amount of the argument was made by the noble Baroness, Lady Buscombe. I apologise for failing to make clear to her my intention.
The purpose of the amendments is to remove the reference to the Minister's opinion in subsections (1) and (2) of Clause 3. The amendments are central to the Bill because they deal with an important feature of it. The amendments will make the test which must be satisfied objective rather than subjective. In reply to the noble Baroness, Lady Buscombe, the Minister said
that the amendments would lead to judges being given too much power by way of judicial review. It is said that as the clause now stands the courts can intervene if a Minister's opinion is irrational.However, it is said that if the Minister's opinion is rational, it should be for the Minister to decide whether the order strikes a fair balance between the public interest and the interests of the person being subjected to the burden under Clause 3(2). It is also said that it is always open to either House to refuse to approve the order if it disagrees with the Minister.
I do not find that argument totally persuasive but I believe that there is some force in it. If I were satisfied that your Lordships' House would retain a power to block the orders, my reaction might be different. But one must face the shadow of the Wakeham report whose proposals the Government have shown every sign of wanting to enact. If the Wakeham proposals were adopted as they now stand, this House would have no power to block an order; indeed, it would have no power to delay it for a significant period. Any order blocked in this House could be sent back to the Commons immediately and the views of your Lordships would be overridden. As a result, a government with a working majority in the other place would be subject to no effective control by Parliament. That is why I believe that control by the judges is needed.
But there is a further and somewhat different objection to the reference in Clause 3 to the Minister's opinion. Although it does not formally so provide on the face of the legislation, the procedure requires the order to be referred to Select Committees of both Houses. In this House that would be at present the Delegated Powers and Deregulation Committee which, if deregulation became more active, might be required to split into two separate committees. When that committee looks at a proposal for deregulation it does not consider the Minister's views on whether the draft order removes necessary protection, or whether those views are rational or irrational. The committee looks at the question itself and expresses its view. That is what happened in the previous Session with the draft order concerned with Sunday licensing. I and other members of the committee did not believe that the draft order provided necessary protection for local residents where licensed premises were situated in residential areas. As a result, the order was revised to take our views into account and a suitable arrangement was reached. Therefore, the Minister's views do not stand alone and he must persuade the Select Committee that they are correct.
If the committee believes that the draft order removes any necessary protection, or fails to strike a fair balance, the Minister must either amend the draft or risk defeat on the Motion to approve, whatever his own opinion. Therefore, the references to the Minister's opinion in Clause 3(1) and (2) do not really represent what happens on the ground. In reality the opinion of the Minister is not decisive. The position is, therefore, already more objective than that for which the Bill provides. I believe that it would only be to give effect to the true position if that fact was recognised by
removing the reference to the Minister's opinion. The Bill as it stands puts forward an analysis of the situation which does not represent reality, and I believe that it should.I also believe that that has a very important impact on the question of judicial review. If the Select Committee agrees with the Minister that the order satisfies the statutory requirements it is most unlikely that a court will hold that the statutory requirements have not been satisfied, even if it looks at it on an objective basis. Conversely, if there is a division between the two it is likely that the order will not take effect. In practice one would not have a situation in which the Minister forced his own opinion on the House against the advice of the committee. There is no serious likelihood that the courts will intervene here, even if it is stated as an objective matter. Therefore, I believe that to state it as an objective test provides better constitutional protection and reflects the reality of the situation. I beg to move.
10 p.m.
Lord Borrie: The noble Lord, Lord Goodhart, has an uncanny knack of firing at a vital part of a Bill and shooting it dead. It would be most unfortunate if this vital part of the Bill where reference is made to the Minister's opinion in Clause 3(1) were shot dead. For example, I believe that on the matter of determining how to strike a fair balance between the public interest and the interests of the persons affected by the burden being created, it is extremely apt for a Minister to so determine, providing the Minister is adequately accountable to Parliament. At this stage of our debate I need not stress the many parliamentary scrutiny provisions.
It is not suitable that judicial review should go beyond the power to determine that the Minister's view is wholly unreasonable and perverse. If it was possible to ask the court on an objective test, such as that which the noble Lord proposes, to determine what is the fair balance and the various other matters in Clause 3(1), that would not be at all apt.
At one point in the speech of the noble Lord, Lord Goodhart, I was encouraged when he said that he was not totally persuaded by the noble and learned Lord's earlier answers to the noble Baroness, Lady Buscombe. But he went on to refer to particular passages in the Wakeham report on House of Lords reform and the power of the House of Lords to reject such orders as we are discussing in the Bill. The future of the Wakeham report is speculative. The future of one or two of its paragraphs is highly speculative. Here, today, we must deal with issues as they are. It is clear from the provisions in the Bill that the Government's intentions are that there should be adequate parliamentary scrutiny by both Houses of Parliament.
Baroness Buscombe: I rise to speak in support of the noble Lord, Lord Goodhart. The two amendments stand in my name also. It would be otiose for me to repeat the arguments that I made when speaking to the
amendments grouped with Amendment No. 19. I look forward to hearing what the noble and learned Lord says in response, regardless of what the noble Lord, Lord Borrie, said about the Wakeham report being speculative. Its implications are real. There is every possibility that key aspects of the Wakeham report will be adopted by this House. Therefore, it is important that the noble and learned Lord responds to this particular point.
Lord Phillips of Sudbury: I agree with the point made by my noble friend Lord Goodhart about the Wakeham report. I do not see how the noble Lord, Lord Borrie, can rest content with a situation whereby, if my noble friend's worst fears are found to be true, an enormously powerful function in relation to secondary legislation would be removed from this House. Surely, the right course for us is to protect against what would be an unacceptable concentration of power in the House of Commons. Therefore, unless the noble and learned Lord can give us some assurance on this--that might be difficult because he is not the arbitrator of the future consideration of the report and subsequent legislation--caution is the right course.
The issue of an objective or subjective test is one that is dealt with in Amendment No. 29 standing in my name. I do not propose to speak to that amendment, but I am content to support my noble friend Lord Goodhart on his two amendments.
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