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Lord Sharman moved Amendment No. 262:
- Page 56, line 38, leave out paragraphs (c) to (e).
The noble Lord said: The purpose of this amendment was very substantially the same as that of Amendment No. 261 moved by the noble Baroness, Lady Turner. Having heard the debate and the Minister's reply—which left me, too, very dissatisfied—I wish to return to it on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 262A not moved.]
Schedule 7 [Minor and consequential amendments]:
Baroness Miller of Hendon moved Amendment No. 263:
- Page 80, line 15, at end insert—
The noble Baroness said: In congratulating the Minister on what was happening in respect of the Bill, the noble Lord, Lord Wedderburn, said that in his opinion that was the last major amendment which would be debated tonight. Although my amendment is very short, I believe it is very important. Indeed, I hope the noble Lord, Lord Wedderburn, might afterwards agree with me on that, even if he does not agree with the amendment.
This small amendment would remove two totally redundant words from Section 23(5) of the Employment Relations Act 1999. The Government themselves are amending an earlier subsection in Section 23. Section 23 is entitled,
On 4th December 2001, at Question Time, I asked the Minister—I apologise for quoting myself:
First, I congratulate the Minister on his usual frankness in admitting that he had no more idea of what "or otherwise" meant than I did. However, his researches into the debates in your Lordships' House and in the other place will have revealed, as did mine, that the topic was never raised. I will mention that again later. Secondly, I thank him for having honoured his promise to write to me to explain what "otherwise" meant.
I would now like to read to the Committee the substantive part of his reply, which I quote verbatim so that Members of the Committee get the full flavour of it. He wrote:
Cutting through the jargon, it is perfectly clear that the words "or otherwise" mean that the Secretary of State is seeking the power to amend legislation by some means other than by primary or secondary legislation. In other words, the phrase "or otherwise" is either a piece of unnecessary verbosity or there is some significance in it. In so far as the words mean anything—despite the noble Lord's assurance to me that they do not extend the Secretary of State's power—I regret that I do not agree with him. If the Secretary of State can amend the legislation by an Act of Parliament or by statutory instrument, or otherwise, then "otherwise" has got to mean something. Perhaps it means that she could do so by stroke of the pen, by putting an announcement in the London Gazette or some other obscure local paper or even by sending out leaflets to be distributed by sandwich-board men parading along Whitehall.
This is not a trivial matter. The provision, if left unaltered, would set a dangerous constitutional precedent that Parliament should not accept. I apologise for the fact that I did not pick up this point during the passage of the Employment Relations Act, but toiling alone as I do in this House, amidst a welter of never-ending DTI legislation, I certainly cannot catch everything that comes my way, but it is far better late than never. I beg to move.
Lord Sainsbury of Turville: With all respect to the amendment tabled by the noble Baroness, Lady Miller, which we take very seriously, the lengthy debate on this Bill is liable to end with a whimper rather than a bang on this basis. The measure is very simple. All it means is that you can introduce a new
The noble Baroness's amendment would simply take away the current flexibility for the Secretary of State to extend rights in a way that is best from a drafting point of view. I assure the Committee that the words currently used in the Bill do not extend the Secretary of State's power in any substantive way. On that basis I am unable to convince myself that this important point would materially improve the Bill and I ask the noble Baroness once again, and finally, to withdraw the amendment.
Baroness Miller of Hendon: I do not know about once again and finally, I think that this is the first time that the Minister has asked me this evening. Does he mean to withdraw the amendment?
Lord Sainsbury of Turville: Yes, to withdraw the amendment.
Baroness Miller of Hendon: If the term "or otherwise" simply means another regulation to amend a regulation, that should be in a definition clause of what "or otherwise" means. However, it is not. It could be interpreted in any way that any Secretary of State chooses. The Minister referred to introducing another regulation. That should be on the face of the Bill, or there should be a definition of "or otherwise". Of course I have no choice but to withdraw the amendment, but I shall certainly look at it again and I hope that the Minister will also do so. We seem to have been having a nice little debate about this matter, but it is serious. I do not wish to leave those powers unfettered as it were in the hands of anybody to use in a way that might not be appropriate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 264 not moved.]
Bill reported with amendments.
"( ) In section 23(5), the words "or otherwise" are omitted."
"Power to confer rights on individuals",
and subsection (5) states:
"An order under this section may make provision in such way as the Secretary of State thinks fit, whether by amending Acts or instruments, or otherwise".
The two words, "or otherwise", are the subject of this amendment.
"Can the Minister tell the House what the word 'otherwise' means in this context? Does it mean that the Secretary of State would be able to bypass Acts of Parliament or statutory instruments?".—[Official Report, 4/12/01; col. 702.]
In his reply, the Minister said,
"I am sure that this point was debated at great length between the noble Baroness and myself . . . when the Bill passed through this House. However, I cannot remember exactly what 'otherwise' referred to",
and he undertook to write to me on the subject.
"The use of the words 'or otherwise' were intended to ensure that an order made under section 23 could also apply rights to individuals by means of a 'free standing' provision rather than by an amendment".
He continued:
"This was simply to give the Secretary of State the flexibility to extend rights in the way that seemed best from a drafting point of view. The words do not extend her powers in any way".
Well, in so far as I can make head or tail of that reply, the Minister was saying that the words are to enable the Secretary of State to alter an Act of Parliament or a statutory instrument not by another Act of Parliament or by another piece of secondary legislation—so far as I know, those are the only two constitutional ways to amend the law—but by what he now euphemistically calls a free-standing provision. What on earth is "a free-standing provision"? What new legislative device have the Government invented to circumvent Parliament?
The Committee adjourned at fourteen minutes past five o'clock.
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