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The noble Lord said: My Lords, as many noble Lords have remarked as the Bill has passed through the House, this is a monster bill. Equally, it is only a skeleton so far—there is much flesh to be put on the bones by means of statutory instruments. Details of those will be critical to the working of the Bill, or the Act, because conflicting claims and interests have to be balanced. We have seen that earlier today and on previous occasions.
As I understand it, Clauses 251 to 256 and Schedules 19, 20 and 21 of the Enterprise Bill amend Part IX of the Insolvency Act 1986. Delegated legislation under Part IX of that Act is subject to the negative resolution procedure according to Part XV of the 1986 Act. Given that maintenance of proper standards of personal and corporate financial behaviour is an essential part of maintaining confidence in the free market economy, the rules must be given the maximum possible ventilation so that they are discussed and dealt with as appropriate.
Therefore, I do not believe that it is right they should be subject only to the negative procedure. Given the importance of the rules, that is not appropriate, as evidenced by a number of our debates today. The amendment seeks to insert a clause to reverse that and requires the rules to be dealt with by the affirmative procedure. I beg to move.
Lord McIntosh of Haringey: My Lords, I agree that it is of great importance that we should maintain
The first power in Section 412 of the Insolvency Act 1986 allows the Lord Chancellor, in agreement with the Secretary of State, to make rules giving effect to the bankruptcy provisions contained in that Act. Those words, "giving effect to" are important in terms of restricting how the power can be used. They mean that the power can be used only to put flesh on the bones of the primary legislation, not to alter it.
For instance, the Act may say that a meeting of creditors should be called and what its purpose is. The power then allows rules to be made setting out where it should be held, who should be the chairman, who could come and vote, and so on. That is what a negative resolution procedure is about.
That does not mean that the Government can bring forward rules without giving careful thought to their content. Under Section 413 of the Insolvency Act 1986, the Lord Chancellor must consult the Insolvency Rules Committee before making any rules. That is a knowledgeable committee, chaired by a High Court judge—Mr Justice Evans-Lombe—and made up of individuals with a considerable understanding of insolvency law and practice. One of the committee's key functions is to ensure that rules work properly in practice. It has been in place since 1976 and has the confidence of all parties involved in insolvency. In light of the scrutiny of the rules by the Select Committee, it is the Government's view that it is not necessary to change the current arrangements for parliamentary consideration of the rules.
Section 418 allows the Secretary of State to set certain monetary values in the Act. For example, the financial parameters for deciding what is a small bankruptcy for the purpose of Section 273. That power provides an important flexibility allowing for the increase or decrease of monetary sums in the Act to take account of changing factors in future years, which indicate that the existing financial limits are no longer set at the appropriate level. Those are matters that require debate only if there are concerns that the Secretary of State has got it wrong. Section 418 provides for such circumstances because any order setting monetary limits under the section is subject to the negative resolution procedure.
Neither of the powers referred to in the amendment allow the Lord Chancellor or the Secretary of State to replace, add to, or detract from the primary legislative provisions of that Act. Both are entirely normal procedures—not what is often called a Henry VIII power. If matters such as this had to come before Parliament on a regular basis, it would severely affect our ability to get things done. I urge the noble Lord, Lord Hodgson, not to press this amendment.
Lord Hodgson of Astley Abbotts: My Lords, I am getting into deep legal water. I am grateful to the Minister for his assurances of the importance of preserving the appropriate fabric and that those
Amendment, by leave, withdrawn.
Schedule 24 [Transitional and transitory provisions and savings]:
Lord McIntosh of Haringey moved Amendment No. 289:
The noble Lord said: My Lords, this is a large set of government amendments to the transitional, consequential and repeal schedules. Perhaps I may deal first with sectoral enactment. The vast majority are consequential amendments to various sectoral enactments—the electricity Acts, the gas Acts, the airports Acts and so on. These enactments incorporate a mechanism whereby licence modifications proposed by the relevant regulator, but disputed by the licensee, can be referred to the Competition Commission. References currently rely on procedural provisions in the Fair Trading Act and the Competition Act 1998 which are being modified by the Enterprise Bill. The relevant provisions include time limits for reference inquiries, the voting rules for reporting panels, and the information-gathering powers available to the commission. A consequence of the Enterprise Bill is that these procedures have to be inserted into the various sectoral enactments as stand-alone provisions.
The necessary amendments to the Telecommunications and Broadcasting Acts were made at an earlier stage in the passage of the Bill. My noble friend Lord Sainsbury said in Committee that they provided a template for consequential amendments that will be required to the other utilities Acts that are similarly affected. They have been well flagged and they should not cause the House any difficulty.
There are a handful of other amendments in the group. Amendments Nos. 303 and 304 will have the effect of including a reference to the Office of Fair Trading as one of the bodies which has power to take remedial action under one or more of the sections of the Enterprise Act which are to be specified in Section 144 of the Copyright, Designs and Patents Act 1988 by virtue of paragraph 18 of Schedule 25. This corrects a technical omission.
Amendment No. 305 will amend Section 238 of the Copyright, Designs and Patents Act 1988. It will make identical provision to that made by paragraph 18 of Schedule 25 with regard to copyright, but with regard to design rights.
Amendments Nos. 295 and 297 repeal provisions in the Consumer Credit Act 1974 and the Estate Agents Act 1979 which require local weights and measures
Amendments Nos. 326 and 327 add the repeals referred to in Amendments Nos. 295 and 297 to Schedule 26. Amendment No. 289 is required to allow the Secretary of State to fulfil the consultation requirements imposed by Clause 15 prior to making the rules of the Competition Appeal Tribunal.
Amendments Nos. 292 and 293 are required to ensure that the records of the new competition service are treated as public records under the Public Records Act 1958. This brings the service into line with other competition authorities. I beg to move.
On Question, amendment agreed to.
Clause 272 [Power to make consequential amendments etc.]:
Lord Kingsland moved Amendment No. 289A:
The noble Lord said: My Lords, telegraphically, the amendment refers to the,
"Subordinate Legislation (Part XV, Insolvency Act 1986)
(1) In section 412(3) of the Insolvency Act 1986, leave out "subject to annulment in pursuance of a resolution of either" and insert "a draft of which must have been laid before and approved by resolution of each".
(2) In section 418(3) of the Insolvency Act 1986, leave out "subject to annulment in pursuance of a resolution of either" and insert "a draft of which must have been laid before and approved by resolution of each"."
Page 326, line 23, at end insert—
"(2) The Secretary of State may treat any consultation carried out with the President of the Competition Commission Appeal Tribunals (before the appointment of the President of the Competition Appeal Tribunal) as being as effective for the purposes of section 15(1) as if it had been carried out with the President of the Competition Appeal Tribunal."
Page 193, line 26, at end insert—
"excepting that no order made under this section may amend or alter or in any way affect Part 6"
"Power to make consequential amendments etc.",
under the Bill. The power is granted under Clause 272. We seek to exclude Part 6 of the Bill from the scope of the clause. Part 6 deals with the cartel offence; that is the offence which has criminal consequences. We believe it inappropriate for a power such as that contained in Clause 272 to affect criminal provisions. I beg to move.
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