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Baroness Byford: I wonder if the Minister would give way on that point? I am slightly alarmed by what she has just said. It is a fact that we are getting legislation coming through to this House which has not been considered by the other place at all. If I could refer the Minister back to the Countryside and Rights of Way Bill, where the whole section on the areas of outstanding natural beauty was never even discussed before the Bill came here; nor was it discussed when it went back. Certainly that is because a timed guillotine is put on legislation in the Commons. That is a fact. Whether we like it or not it is in being.
Baroness Hollis of Heigham: That is a matter for the other House. It is quite improper for this House to say, "You should have done it differently and we will make good your default". We have a role as a scrutiny Chamber, but it is for the Commons to determine how to allocate its time and use its resources, and for the Opposition to hold the Government to account as they see fit. It is not for this House to try to displace or take over the role of Opposition Back-Benchers in the other place.
I am not going to go beyond that, because I am a proud supporter of the role of the House of Lords and I have always spoken up for the quality, integrity and effectiveness of the scrutiny role of this House. I do not want anybody to suggest other than that. However, it is wrong to assume that because there is some belief in this Chamber that the Commons is not doing its job, the House of Lords has to do the same job twice over. I wish simply to dissent from those views that seem to have been expressed here this afternoon.
Points have been raised about child benefit. The noble Lord, Lord Higgins, is right to say that the House of Lords should look at this section of the Bill again. Obviously, I will look forward to any of the amendments that he chooses to table on Report. It is right that this House decides to scrutinise the whole Bill, whatever the previous House has done. That is independent of that activity.
The all-party Social Security Select Committee supported moving child benefit from DWP to the Inland Revenue in its report in March 2001. The transfer was announced in June 2001. No objection was made to it and no press interest has followed. The consultation exercise did not raise any major issues. One reason for the lack of any systematic review of these clauses may be that they aroused no issues of controversy or concern in the other place. Certainly, none of that came up in the consultation exercise with the voluntary groups or at any stages when this issue was discussed by the Social Security Select Committee, chaired by Archy Kirkwood, whom I very much respect.
Finally, I take issue with the view of the noble Earl, Lord Russellthis may not be a proper forum to discuss itthat all Bills should be framework Bills and it should be left essentially to the courts to interpret them through some Oakeshottian principle of growth. That would seem an entire abdication of Parliament's responsibility and of everything that I have been seeking to do for your Lordshipsto produce regulations in time for you to see what the detail of legislation would look like, based on what is inevitably a framework Bill.
Suppose I did not produce those regulations and said that it was for the courts to determine. What would the courts be determining? It would be minor things like income and income determinations, minor things like what counts as remunerative work or minor things like the meaning of responsibility for a child. That is not proper for judges to determine. It is proper for your Lordships and the other place to determine the regulations that flesh out the Bill, as they come through in affirmative or negative procedure, after proper scrutiny. Certainly, it is for the judges to determine whether the Executive is interpreting Parliament's intentas set out in primary and secondary legislationproperly, fairly and decently in the context of British legislation and of data protection and human rights, to the extent that it is consistent with both of those.
It is for the judges to protect the individual citizen if they think that legislation laid down by Parliament has been improperly, unreasonably or unfairly applied in a particular case. That is the judgment and role of the courts, not to determine what the legislation means. That is for Parliament to determine. I hope we would never effectively abdicate secondary legislation for judges to determine through some inchoate Oakeshottian sense of gradualism and development and the like. That would be extremely dangerous and I suggest very strongly to your Lordships that you should not hear the siren call of the noble Earl, Lord Russell, to that extent.
No specific points have been raised apart possibly from any criticism that may have been made of this transferand there have been noneand matters relating to human rights and data protection legislation, which are covered entirely properly by law. I do not think any particular points have been raised so far, but I look forward to your Lordships resuming their scrutiny of these clauses on Report.
Earl Russell: The Minister's remarks about the courts show a remarkable indifference to that part of our law which rests on common law and not statute. It has always been, and remains, the responsibility of the judges to determine the meaning of phrases such as "fraud", "negligence" or "nuisance". I do not see that it can be otherwise.
Quite important developments in our lawsuch as that it was a nuisance to build a new housing estate without providing sewagewere actually made by the courts, in that case at the expense of my noble ancestor who was responsible for building Covent Garden. However, the fact that it was done at the expense of my noble ancestor does not make me think the principle improper. That was a perfectly reasonable way of proceeding.
The needs and values of society have changed and the judges interpreted the law as they have in light of what they saw in front of them. If the Minister intends to put across her plan, she will take away from the law a very valuable way of responding to social circumstances as they change.
The Minister talks about this House attempting to assume control. She knows perfectly well that, in the light of Parliament matters and in the light of our lack of financial privilege, such a thing is quite impossible. Incidentally, if she thinks a brief drafting of legislation is impossible, I advise her to take a good look at the Parliament Act 1911. The whole operative part of the Act is in a page and a half, and I have never found anything omitted in the drafting. Could any present-day draftsman match that?
This is a debate that we must have on another occasion. We are not going to try to control the House of Commons but I believe that we are perfectly entitled to discharge our duty in the light of the way that they have discharged theirs. That is a liberty which circumstances must of necessity give us for as long as we shall continue to exist.
It is not the case that one can simply say that a particular part of the Bill does not look very interesting, very controversial or very difficult. It is only when we start to debate the matter that we discover where the problems arise. That is so time and again. Therefore, we do not accept on this side the point that the noble Baroness made.
Having said that, the dilemma we face is what to do with Bills which come to us, where we would scrutinise them in the normal way after the Commons has done so, when the other place has still not had an opportunity to do so. The question arises whether, if that is sofor example with regard to all these clauses, some of which raise important issues on human rights, data protection or whatever it may bethe answer simply is not to adopt a practice where, if it has not been scrutinised in another place and the view is taken in this place that it may raise important issues, one should simply bounce it back and forth until such time as the Commons does what I believe to be its job. Therefore, in light of this development, we should consider how we should proceed with Bills of this kind.
This is a particularly bad example. Because of the fiasco that took place in the drafting and the failure not simply of Opposition Members but of all other Back-Bench Members in the Commons to deal with it, being under a severe time restraint, the Bill was not scrutinised properly and the whole business about the gross mis-drafting did not come to light. In fact, the Ministernot dealing with it clause by clause herself in another placedid not realise that there were contradictions within the Bill. So this is a very serious matter. I have now had my say on it. We shall have to consider very carefully how to proceed.