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Baroness Buscombe: My Lords, I rise to speak in support of my noble friend Lord Norton of Louth in relation to Amendment No. 31 and to speak also to Amendment No. 36, which is similar to Amendment No. 31. Indeed, in Committee, the noble Lord, Lord McIntosh of Haringey, pointed out that an amendment tabled by my noble friend Lord Norton of Louth was based on criteria laid down in the Cabinet Office code of practice on written consultation exercises. The noble Lord, Lord McIntosh of Haringey, went on to say that he would be prepared to consider whether a provision should be included in the Bill specifying that the Minister should comply with the code of conduct which is issued from time to time. I have taken that as an invitation to table this amendment so that the noble Lord, Lord McIntosh of Haringey, can now tell us the result of his considerations and his reasons for coming to whatever conclusion he may have come to.

I sincerely hope that he has come to the conclusion that the right course is to impose an obligation on the Minister to observe the criteria laid down in that code of practice as issued from time to time so there can be no doubt that the consultation exercise envisaged in the Bill is conducted properly.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Norton, and to the noble Baroness, Lady Buscombe, for the care that they have obviously given to this matter since the Committee stage and for the way in which they have not simply come back with existing amendments but have thought through the issues involved. I have done the same. The trouble is that it does not lead me to the same conclusion. I am sorry for that because I know that in the end we all want to achieve good consultation.

Perhaps I may deal first with Amendments Nos. 31 and 36, which, as the noble Baroness, Lady Buscombe, said, have very much the same effect. The code does not have any legal status and in that sense it lacks legal force. The effect of including on the face of the Bill a requirement of compliance with the code would be to give it legal force. At the moment, the provisions of the code merely set out what is currently accepted as good

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practice. It is generally agreed that that could change from time to time--possibly for wicked reasons but much more likely for benign ones. If we were to include it on the face of the Bill to give it legal force, we would be giving Ministers, when they were changing the code of conduct, the power to legislate. That cannot be right. Any such power should be subject to scrutiny by Parliament.

Quite apart from that constitutional point, I am of the view that there is no need to place this requirement on the face of the Bill. Ministers are committed to observing the code of practice scrupulously when there are proposals under the Bill. They should depart from it only where exceptional circumstances justify them doing so. I can assure the House that Cabinet Office instructions on these matters are taken very seriously indeed. If it is argued that exceptional circumstances justify them departing from the code, they will give reasons for the departure and they can be challenged on those reasons, both here and in another place. The scrutiny committees decide whether the consultation has been carried out properly and they have not in any way shied away from saying that consultation has been inadequate--whether in terms of the amount of time provided or in terms of the people who are consulted. Therefore, for both constitutional and practical reasons, I really am opposed to having a provision of this kind.

Amendment No. 35 puts the 12-week minimum consultation period on the face of the Bill. However, it rather loses effect by giving the Minister the power to vary the time if,

"he is of the opinion that it is essential to do so".

If the Government were to put such a wide-ranging ministerial power on the face of a Bill, they would be ferociously attacked. In any case, what does the Bill actually say? Clause 6(1)(b) states that the Minister has to give details of any consultation undertaken as required by Clause 5(1) or Clause 5(3). What does "details of any consultation" mean unless it includes the time taken for the consultation; and if that is in conflict with the Cabinet Office code of conduct, the reasons for departing from that. This answer applies also to Amendment No. 43, which concerns the length of consultation in the Minister's report. What else could Clause 6(2)(j) specify, if not the time taken and those consulted?

Given the care taken not to make the provisions unworkable, I do not think that these amendments would add anything to the Bill. I regret that my consideration between the Committee stage and Report has not led to a more favourable result.

6.30 p.m.

Lord Norton of Louth: My Lords, I, too, regret that the Minister has not been able to make my day. I may have to follow in the same vein. A conflicting commitment means that I may not be able to be here to move my next amendment.

I see the force of the Minister's words as regards the legal implications in his response to Amendment No. 31. He has made a valid case. However, I am far less

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persuaded by his response to Amendments Nos. 35 and 43. He used the same argument to respond to both; namely, that under Clause 6(2)(j) the Minister is bound to give details and therefore the period will be stipulated. I do not think it follows at all that the Minister will have to specify the time period. As the Bill is presently drafted, the Minister may choose to do so, but if I were the Minister I am sure that I would be able to think of a great many other details to include here, without feeling that it was necessary specifically to mention the period.

Lord McIntosh of Haringey: My Lords, I, too, can think of many other details to include here, but does the noble Lord really believe that I would be able to get away without specifying the length of the consultation period and those who were consulted? I think not.

Lord Norton of Louth: My Lords, I should like to think that that would be the case. However, if the necessary scrutiny provisions were in place, then that would be the case. It is dependent on us, in a sense, to ensure that that is what will happen. That is the reason why I should like to reinforce the point, rather than simply relying on the hope that the mechanisms will be in place and that the members of the relevant committee will be able to check that it is the case. I see no objection whatever to placing a requirement on the Minister to state the period of consultation. I cannot see what objection could be raised to that.

Obviously the Minister will give other details. I ask only that, among those other details that must be provided, he will also provide the period for consultation. That strikes me as completely unobjectionable. I should like to place on the record that I do not feel that the argument which has been advanced by the noble Lord answers that point. I believe that a case can be made for putting a more precise form of words on the face of the Bill. For that reason, I am disappointed with the Minister's response and hope that there may still be time for wiser counsels to prevail. In the interim, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 36 not moved.]

Clause 6 [Document to be laid before Parliament]:

Lord Goodhart moved Amendments Nos. 37 and 38:

Page 5, line 23, leave out paragraph (b) and insert--

("(b) how the proposals further the object mentioned in section 1(1)(a),").
Page 5, line 24, after ("proposals") insert ("also").

On Question, amendments agreed to.

[Amendment No. 39 not moved.]

Lord Goodhart moved Amendment No. 40:

Page 5, line 35, leave out from ("satisfied") to end of line 36.

On Question, amendment agreed to.

The Deputy Speaker (Lord Allenby of Megiddo): My Lords, before calling this amendment, I should point

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out that if this amendment is agreed, I shall not be able to call Amendment No. 42, tabled in the name of the noble and learned Lord, Lord Falconer of Thoroton.

Baroness Buscombe moved Amendment No. 41:

Page 5, line 41, leave out ("and, if so, either the estimated amount or") and insert (", the estimated amount and").

The noble Baroness said: My Lords, Amendment No. 41 arises from a contribution made in Committee by the noble Lord, Lord Goodhart. The noble Lord pointed out the curious detail in Clause 6(2)(h)--namely, that the matters specified which the Minister has to lay before Parliament include the estimated amount of any savings or increases in costs estimated to result from these proposals, or the savings or increases in costs to be expected, but not both.

I can see no reason why details both of the estimated amount and of the reasons why savings or increases in costs are to be expected should not be laid before Parliament. That said, I am pleased to note on the Marshalled List Amendment No. 42 proposed by the Minister. I look forward with interest to hearing what he has to say in relation to both this amendment and his own amendment. I beg to move.

Lord Goodhart: My Lords, not surprisingly, I, too, am grateful to see that the noble and learned Lord has responded to the point I raised in Committee. I shall be happy to support either of these amendments, but I anticipate that the noble Baroness will feel able to give way to the amendment tabled by the noble and learned Lord.

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