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Lord McIntosh of Haringey: My Lords, the 1994 Act applies only to legislation up to and including the 1993-94 legislative Session. Nothing between 1994 and 2001 would therefore be covered. We are dealing with a whole series of statutes over a period of time. If we cut out permanently seven years of legislation, we would cut the heart out of this legislation.
Lord Kingsland: My Lords, I am most grateful to the Minister for that clarification. I shall, in the light of that, look at the amendment again. But I think the
clear thrust of the amendment to the operation of the Bill in future is manifest. If the Minister will address himself to that matter when I reintroduce the measure again at Third Reading, I shall respond more fully. Meanwhile, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 13:
- Page 2, line 4, at end insert--
The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 14:
The noble Lord said: My Lords, this amendment is grouped with Amendments Nos. 20, 23, 29, 30, 32, 33 and 34. These amendments highlight a fundamental difference between the Government and the Opposition in the approach to the policing of the powers granted by the Bill. On the one hand, there is a desire to restrict access by individuals to the courts for the purpose of mounting an effective challenge to inappropriate secondary legislation. On the other hand, there is a desire for openness and a recognition of the fact that no wrong should be left without a remedy.
It was suggested during Committee that parliamentary scrutiny provides a better and more secure form of policing than the courts. With the greatest respect, that cannot be so in this case. When Parliament is required, as here, to pass legislation by secondary means, its ability to exercise its policing powers is restricted. That is why the opportunities for secondary legislation are rightly and properly limited and it is precisely why those affected by such legislation should be able to have effective recourse to the courts.
It was also suggested that, if recourse to the courts were to be permitted, the courts would be inundated with applications, not from those who are required to bear the burden of regulation but from pressure groups intent on using the courts as a soap-box from which to air their views. I was somewhat surprised to hear that said. Regardless of whether a pressure group might have the right to bring a certain matter to court, if the law provides a remedy it does so as a means of righting a wrong. No application may be made to the court in a vacuum.
Furthermore, it is not my experience that the courts will hesitate before dismissing applications which are lacking in merit, particularly in the field of judicial review. The courts are not overrun with unmeritorious applications and even if they were, they have adequate powers to protect themselves. I am therefore driven to conclude that the objection to this amendment, and to
The Bill shifts power away from Parliament and into the hands of Ministers. Parliament's policing powers are limited and yet nothing is offered in the Bill by way of replacement. The courts are the obvious alternative as a policing authority and yet they are being rejected on, in our view, insubstantial grounds. This amendment, therefore, and others like it, redresses the imbalance of power which the Bill will otherwise create. I beg to move.
Lord Borrie: My Lords, under the Bill as it stands, should a Minister do something which no reasonable Minister would do--if he acts perversely--judicial review is possible. The courts may intervene at someone's instance. That, to my mind, is appropriate. But, under the various amendments in the group we are discussing, anyone could go to court to say that a Minister's decision on a whole range of matters was simply wrong on its merits. That seems to me to undermine completely the whole approach of the Bill which is, of course, concerned to give, through the super-affirmative resolution process and through the scrutiny committees and so on, a superior form of parliamentary scrutiny, if I may put it that way.
If, for example, Amendments Nos. 22 and 23 were passed, instead of a Minister accountable to Parliament deciding what in his opinion is a fair balance between the public interest on the one hand and the interests of a person on whom a burden is being imposed on the other, someone could properly go to court to determine that on its merits.
More remarkably still, if Amendments Nos. 29 and 30 were passed, instead of a Minister accountable to Parliament deciding whom he should consider or who might be a representative body to be consulted among affected interests, a court would be entitled to do so. This group of amendments would undermine the superior form of parliamentary accountability which is embodied in the Bill and would raise a wholly extended form of judicial review far beyond anything we understand by that phrase.
My evening yesterday was enlightened by reading an article by the noble Lord, Lord Kingsland, in the journal Counsel of February 2001. As the article is not only written by the noble Lord, Lord Kingsland, but also describes him as the Shadow Lord Chancellor, I take it that it represents something near an official point of view.
Lord Kingsland: My Lords, I may have been described as the Shadow Lord Chancellor but it was not an article written in any official context. My own views on the matters form the substance of the article.
Lord Borrie: My Lords, I am happy to be enlightened on that point. However, perhaps I may quote a passage from the article. The noble Lord will realise that my eyebrows rose a little when he talked a
Lord Skelmersdale: My Lords, the noble Lord, Lord Borrie, should welcome the view of my noble friend. Members of the governing party complain frequently about our inconsistency. My noble friend has been totally consistent in his views today and in the article.
Lord Goodhart: My Lords, I think that it will be appropriate for me to speak at this point because Amendments Nos. 20 and 23 are identical to amendments which I moved in Committee, and which I put forward for Report stage although I withdrew them subsequently.
The argument on which I relied to a considerable extent in Committee was a somewhat double-edged sword. I said that it would be wrong to make the test subjective when that did not represent what happened on the ground. The position is that the Minister states his opinion. In your Lordships' House that comes before the Delegated Powers and Deregulation Committee. That committee does not consider whether the Minister's opinion is rational but whether the proposed order meets the test and conditions in what will be Clause 3(2). In practice, although not on the face of the Bill, the test is objective rather than subjective although the body that tests it in this House is the Delegated Powers and Deregulation Committee rather than the court.
That position is something of a two-edged sword. One could say that in those circumstances it does not matter enormously whether on the face of the Bill the test is objective or subjective. Whichever it is, the committee will consider it. If the committee comes to the conclusion that the Minister's view is incorrect even if not irrational, in practice it is unlikely that that order would be allowed to go forward to the House. If it went forward, it would be unlikely to succeed.
In those circumstances, therefore, I do not regard this group of amendments as being of major significance. In view of the fact that the Government have made what I believe to be substantial and important concessions over the amendments contained in the first group I would not be minded to press this group of amendments.
("(2A) An order under this section must include provision made by virtue of subsection (1)(a).").
Page 2, line 25, leave out ("the Minister thinks") and insert ("is").
"The Human Rights Act engineers a massive shift of power from parliament to the courts where the judges will be confronted, as the Lord Chancellor has accepted, with legal choices which offer immense scope for political moral and philosophical disagreement".
The noble Lord raises the question, very reasonably, about the difficulty of establishing the necessary legitimacy of judges to deal with the important matters in that Act. I readily agree that the Regulatory Reform Act is an entirely different matter. However, does the noble Lord think that some of those phrases are appropriate for the Regulatory Reform Bill? It deals with a balance between burdens and benefits, and such issues as who is a suitable body to be consulted on specific orders. Does he not think that it would be a massive and unjustified shift of power from Parliament to the judges if one rules out the phrase "in his opinion" wherever it appears in the Bill and, according to the amendments proposed by the noble Lord, Lord Kingsland, it was possible to get a judicial decision on the merits of any of those matters which are more appropriate to Ministers and Parliament?
5.15 p.m.
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