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Baroness Anelay of St Johns moved Amendment No. 147:
- Page 52, line 31, at end insert—
The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak to Amendment No. 148 and also to Clause 98 stand part. I appreciate that I shall take a little longer than is usually the case when moving amendments, but I thought it appropriate to group these together and, it is hoped, knock the matter on the head today rather than take up time on Report. I hope to reach a position where I shall not need to return to this matter at the next stage.
I tabled Amendment No. 147 because I was concerned that the Government thought that the negative procedure would be appropriate for future amendments to primary legislation in connection with the Bill. It is important that changes to primary legislation are made by affirmative order. I have raised these matters in the presence of the noble Lord, Lord Bassam, during our previous debates on the Crime (International Co-operation) Bill. I have not done so within the context of this Bill.
The Delegated Powers and Regulatory Reform Committee points out that Clause 98 enables the Lord Chancellor to lay orders to make any supplementary, incidental or consequential provision and any transitory, transitional or saving provision which he believes is necessary or expedient for the purposes of, in consequence of, or for giving full effect to any provision of the Bill. That includes the power to amend or repeal primary legislation. But these orders are only subject to the negative procedure. So the committee's conclusion is that in view of the fact that orders under that section may amend or repeal primary legislation, the Committee may wish to consider whether the negative procedure under this section is justified.
I have concerns overall about Henry VIII clauses. I was very intrigued to note the suggestion of the chairman of the Select Committee, the noble Lord, Lord Dahrendorf, in the debate on 14th January. He spoke not as chairman, but as an individual giving his personal views. He said that the debate on these matters,
My questions relate to issues which arose from that debate. I begin with the last first, which is the matter of sunset clauses. I appreciate that the delegated powers committee has a further special report on such clauses, which would be valuable. I ask the Minister to undertake that the Lord Chancellor's Department reviews very carefully the use of sunset clauses and how it might concentrate the minds of Ministers as regards the proper drafting of Bills. As ever, I do not point the finger of blame at those who physically draft the Bills. They are at the mercy of Ministers who change their minds at the last minute, sometimes with good reason, but sometimes not. Has the Lord Chancellor's Department any intention to review the possible good uses of sunset clauses?
I have two specific questions which relate to the issues raised by the scrutiny committee. The first is as regards the presumption in favour of the affirmative procedure. The committee recommended this. As regards this Bill, it said at that stage that if the Government choose the negative procedure they should give their reasons in full before departing from the affirmative procedure and the Explanatory Notes. Why should these notes precede the comments of a Select Committee?
The question is whether in future the Lord Chancellor's Department will be of good behaviour or be bound over, so to speak. However, I understand now from Europe that we are not allowed to say that. I shall be a recidivist and keep to the old wording for the time being. Could the Government give an assurance that the LCD will follow the committee's recommendation on that matter?
As regards the wording of such clauses, the committee accepted that they could not always follow a standard form, but it was persuaded that when the Government drafted the Explanatory Notes they should offer an explanation of the reasons why a particular form of wording has been used in each case for a Henry VIII clause. Will the Lord Chancellor's Department follow that procedure in future if there is another blockbuster Bill or a teeny-weeny one? I hope that it is going to follow good practice on that. I beg to move.
Lord Bassam of Brighton: We are grateful to the noble Baroness for tabling this amendment, which raises wider issues surrounding delegated powers contained in legislation of which the Government are well aware. The Government are keen to take seriously the views of all those with an interest in powers of this nature, particularly those of the Delegated Powers and Regulatory Reform Committee. Indeed, the report of the noble Lord, Lord Dahrendorf, published on 11th December last year was welcomed by the Lord Chancellor in his letter of 6th January. We agreed to address all of the committee's concerns. We have given
Amendment No. 148 proposes that orders made by the Lord Chancellor for supplementary, consequential and transitional provisions be limited to a period of three years following the passing of the Act.
I do not think that we can be quite so accommodating on this amendment as on the previous one. The provision under Clause 98, as I am sure the noble Baroness will be aware, is necessary for a number of reasons. Given the scale of the consequential amendments necessitated by the Bill, we believe that a clause of this nature is unavoidable. It is impossible to know which other Bills in the current parliamentary Session will receive Royal Assent before the Courts Bill. This could mean that Bills containing, for example, references to petty sessions areas could be enacted before provisions in the Courts Bill, requiring a consequential amendment.
We believe, therefore, that imposing an arbitrary time limit on this provision could impair the effectiveness of the Bill. It is, unfortunately, impossible to ensure that all references to petty sessions areas, for example, are dealt with before the expiry of, say, a three-year period. Noble Lords may be amazed to learn that we have identified some 1,025 different references to petty sessions in primary and secondary legislation, all of which would need to be dealt with, whether by the Bill or by orders made under it. It is not simply a matter of substituting one phrase for another in every case. Some legislation dates back to the 19th century and is not easy to amend. As your Lordships can imagine, guaranteeing that we covered every single reference would be something of a major exercise, and, were one to be identified at a later stage, the amendment would mean that a suitable opportunity would have to be found to amend the relevant statute by primary legislation.
I would, however, like to reassure the noble Baroness that the scope of this order-making power is limited and will be used only to make minor supplementary, incidental or consequential amendments or transitional provisions. It is our intention to be specific in using the power. It would not be possible for an order made under this clause to make amendments to legislation introducing new policy.
In addition, as it is our intention to make orders which amend primary legislation subject to the affirmative resolution procedure, this House will have the opportunity to debate any such amendments whenever made. I hope that that reassurance and the explanation I have given go some way towards satisfying the noble Baroness and that she will feel able to withdraw the amendment.
The noble Baroness asked whether the Lord Chancellor would keep these matters under review. Yes, of course, the Lord Chancellor will keep all the matters relating to sunset clauses and so on under very careful review.
Baroness Anelay of St Johns: I am grateful to the Minister for his helpful and thorough response. I, too, shall keep matters under review, in particular as regards good behaviour on what should or should not appear in the Explanatory Notes.
I am grateful to the Minister for telling us about the scale of consequential amendments necessitated by the Bill. It chills the heart and numbs the brain to think of the numbers that he has thrown at us. How I look forward to them! I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 148 to 148A not moved.]
Schedule 6 [Minor and consequential amendments]:
"( ) An order under subsection (3) shall not be made until a draft has been laid before both Houses of Parliament and approved by a resolution of each House."
"goes right to the heart of the key constitutional question of the limits of executive power, and of the ability as well as the duty of Parliament to prevent the unchecked extension of these limits"".—[Official Report, 14/1/03; col. 165.]
He went on to raise the question of whether there should be sunset clauses on such matters.
"presumption in favour of the affirmative procedure",
for such powers. My noble and learned friend Lord Williams, in response to the report, expressed the view that each case should be looked at individually; and, in this case, we agree that amendments to primary legislation should be subject to the affirmative procedure. To this end, we intend to bring forward a government amendment which will subject all orders by the Lord Chancellor amending primary legislation under Clause 98 to the affirmative resolution procedure. It would clearly not be sensible to subject amendments to statutory instruments to the affirmative resolution procedure. I am sure that that is not the intention of the noble Baroness, although it would be the result were the amendment to be accepted.
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