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Lord Sainsbury of Turville: The amendment of the noble Lord, Lord Jenkin, would remove the provisions to give the Government power to repeal the remainder of the outdated provisions in Part II. It would also prevent the Government from making any amendments consequential to those repeals in any other legislation.
The noble Lord should take some comfort from the Delegated Powers Select Committee, which noted that,
- "much of Part 2 is now likely to be of limited practical effect".
It would perhaps be helpful if I outlined the intention behind Clause 2(3). As Members of the Committee know, Clause 2(2) gives the Government the power to repeal the remainder of the provisions in Part II of the Electricity Act 1989—apart from Sections 72 and 74, which are repealed outright. Clause 2(3) therefore gives the Government an essentially limited power to amend other legislation only so far as their effect is consequential, transitional or saving to any repeal of the provisions of Part II of the Electricity Act 1989. I re-emphasise that the power to amend Clause 2(3) is already narrow and can be used only to make amendments in some way consequential on using the power in Clause 2(2). It is a narrow power to repeal provisions from the Electricity Act 1989.
The effect of Amendment No. 10 is superfluous, as the Government's powers in this regard must be read within the context of Clause 2, which deals primarily with the repeal of Part II of the Electricity Act. In accordance with all usual principles of interpretation and administrative law, the power would not be construed as an unfettered one. If we added the words proposed, which go further than the usual principles of interpretation and administration, the courts would be inclined to look behind that to see why.
I know that the noble Baroness, like myself, takes seriously the views of the Delegated Powers Committee. On Clause 2(3) it said:
- "we accept that much of Part 2 is likely to be of limited practical effect, and consider that clause 2(2) and the Henry VIII power to make consequential, transitional or saving provision at clause 2(3) are justified".
Lord Jenkin of Roding: I wish to speak to Amendment No. 10. I am still worried by what the noble Lord has just told us. I fail to see why we cannot insert "affected by this section" after the second "Act". The current provision is very wide. The insertion of those words would be entirely in line with what the noble Lord said was the Government's intention. I fail to see why the addition of those words should confuse
the judiciary. They are fairly skilled people and would understand that what we are talking about is not any other Act but any other Act affected by the section.
Lord Sainsbury of Turville: The judiciary does not regard the usual principles of interpretation and administrative law as a frivolity; it has regard to how the law should be interpreted and interprets it according to those principles. Given those rules of interpretation and administrative law, if we insert in legislation a further statement that is not usually included, the judiciary will ask why. That might have consequences that we do not seek.
Baroness Miller of Hendon: The Minister invited me to withdraw Amendment No. 10. As he knows, we must withdraw all amendments in Grand Committee.
The Chairman of Committees (Lord Tordoff): With all due respect to the noble Baroness, Amendment No. 10 has not been moved and, therefore, cannot be withdrawn. We are speaking to Amendment No. 9. The noble Baroness is entitled to speak to Amendment No. 10 because it is in the same group. At the appropriate time, Amendment No. 10 will be called as not moved.
Lord Jenkin of Roding: As I moved Amendment No. 9, it is for me to respond. I recognise entirely the advice that the noble Lord has been given by his legal advisers. I received much the same advice in various departments, and I recognise the force of it. One should try to remain within the normal canons of construction. The words proposed in Amendment No. 10 may not be appropriate to achieve our purpose.
However, I still feel that to leave the wording as "any Act" is to go too wide. I am not certain that it would be appropriate. I have no doubt that the purpose is clear in the Minister's mind and that, if he were to make such an order, he would ensure that it fell within the terms he described to the Committee. But that does not necessarily apply to subsequent Ministers or administrations or even to new personnel of the department drawing up the order. I am grateful for what the Minister said in a pre-emptive strike about Amendment No. 11. No doubt, we shall discuss that in a moment. I do not feel that the wording should be left so broad.
I shall conclude with a story. There is a case that appears in all legal storybooks about the Local Government Act, which was a private Act of Parliament hundreds of pages long that provided a huge amount of power to the local authority promoting it. It was so long that nobody read it the whole way through. The town clerk had successfully slipped into the Act, where nobody would look, a provision that the town clerk's marriage shall hereby be dissolved. The Bill was enacted, and he got his divorce. That happened before the Divorce Act. Such incidents could happen; therefore, the wording of Bills should be limited so that a permanent secretary cannot get a divorce by inserting a provision in the order without anyone noticing.
I accept entirely that the Minister's intentions are honourable in how he described the intention behind the Bill. My unhappiness is that that is not what the Bill says. We shall return to the matter. I beg leave to withdraw Amendment No. 9.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 11:
- Page 2, line 24, leave out subsection (4) and insert—
The noble Baroness said: I apologise to the Chairman for attempting to withdraw Amendment No. 10. I made the mistake simply because the Minister asked me to withdraw my amendment. I assumed incorrectly that he referred to Amendment No. 10.
Amendment No. 11 is virtually self-explanatory. The Minister mentioned that there would be a change from negative to positive resolution, which is half the purpose of the amendment. However, I shall not alter my amendment until that happens—not that the Minister would say so if it were not the case. I shall, therefore, speak to my amendment.
In Clause 2(2), the Secretary of State seeks power to repeal any of the key provisions of Part II of the Electricity Act 1989. We have already heard much about that. In Clause 2(4), she asks to exercise that power by statutory instrument. That is a request that Parliament increasingly receives. Not only do the Government ask for that power to be exercisable by the negative procedure, which is bad enough; they also want a requirement that sanction be given by just one rather than two Houses. With the Government's overwhelming majority in another place, it is not difficult to guess which forum the Government will use to rubber-stamp any statutory instrument—not just rubber-stamp an order, but allow it to slip through by default or sheer inactivity.
One of the duties of your Lordships' House is to protect the constitution from an over-powerful executive. If the pressure on the parliamentary timetable is such—and I acknowledge that it is—that Secretaries of State need the power to legislate by statutory instrument, there must be constraints on how and when such power should be exercised, particularly when the relevant provision is so wide.
I shall not try to give a comprehensive definition of when such powers should be exercised. But I can say for certain when they should not be exercised without a positive resolution of both Houses of Parliament. That is when an Act that has passed through three stages of both Houses is amended by what is, in effect, a ministerial decree. I cannot conceive of any plausible reason that the Minister can give us why what is likely to be a purely administrative order should not be brought to both Houses, nor why it should not be
Lord Sainsbury of Turville: Perhaps I may briefly explain the rationale behind our decision to take a delegated power to repeal Part II of the Electricity Act 1989. Essentially, Part II outlines transitional arrangements for privatisation of the electricity industry. The intention behind this legislation has long since expired and, as the electricity industry has developed over time the provisions contained in Part II of the Act have become increasingly irrelevant.
In effect, Part II of the Electricity Act is, to a large degree, spent. The Government have decided to take a power to repeal the remainder of Part II—apart from Sections 72 and 74, which are repealed outright. That is so that the Government have the opportunity to explore fully the effect of the repeal of existing provisions.
Given the fact that the provisions contained in Part II of the Act are largely spent, we do not believe that there would be any potential repeals that would be particularly controversial. For that reason, we suggested that a negative resolution procedure would be the most appropriate for this particular power.
However, we carefully considered the recommendations made by the Select Committee on Delegated Powers and Regulatory Reform. The committee points out that there is potential to repeal a provision which is both live and significant. Our view is that we do not expect any future repeals under this provision to be significant or controversial, and will not, as a matter of policy, seek to repeal live provisions. However, given that the impact of this change from negative to affirmative resolution is likely to be very small in practice, and as we cannot be certain that there will be nothing significant or controversial until the work is done, we are content to take the advice of the Delegated Powers and Regulatory Reform Committee and have written to the committee stating as much.
On that basis, we should like to accept in principle Amendment No. 11, tabled by the noble Baroness. I hope that she will not object when I say that we should like to make sure that the technical drafting of the amendment is sound. I should be grateful, therefore, if she would withdraw her amendment at this stage on the basis that a similar amendment will be tabled on Report.
"(4) No order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of both Houses of Parliament."
5 p.m.
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