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Lord Mackay of Clashfern: My Lords, I support the amendment. I am delighted to hear that the noble and learned Lord the Lord Chancellor is also likely to do so. At the previous stage, I tabled an amendment about committee structure. The noble and learned Lord the Lord Chancellor said that it would be considered, but it is not a matter for Third Reading, so I am delighted that this amendment will be accepted.
Lord Kingsland: My Lords, we also supported this amendment on Report stage. I know that the noble
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and learned Lord the Lord Chancellor was to reflect on the amendment. I understand that he has now done so and is about to tell us that he accepts it.
Lord Falconer of Thoroton: My Lords, I am glad to accept it. I am grateful to the noble and learned Lord the Lord Chief Justice for proposing it. It seems a sensible way of ensuring that the judiciary in every part of the kingdom has the ability to make representations in appropriate cases, which as the noble and learned Lord the Lord Chief Justice says may be rare, but it is a sensible way of dealing with the point. Again, I express my gratitude to the Lord Chief Justice for proposing it.
The noble Lord said: My Lords, the reason for tabling this amendment is not to question the substance of Clause 13, but to ask whether it ought to be in the Bill at all. Surely, issues concerning the Speakership of your Lordships' House, whatever your Lordships' views on the appropriateness of such an office or otherwise, should be a matter solely for your Lordships' House in the context of the Standing Orders of the House.
In our submission, it is wholly inappropriate for another place to be invited to consider whether or not your Lordships' House should change the arrangements about who sits on the Woolsack. The amendment is tabled for that reason. I do not ask your Lordships to seek to open a debate upon the substance of the clause. I beg to move.
Lord Campbell of Alloway: My Lords, to save time I shall speak to Amendment No. 95 in the group. It would leave out Schedule 5. It is consequential on Amendment No. 3, which would leave out Clause 13. Therefore, Amendment No. 95 may in due course be dealt with formally. Both these enabling provisions on the transfer of the Speakership were consequential upon the office of Lord Chancellor. On Report, it was common ground that they should be left out. An undertaken was given to table these amendments to give effect to that undertaking.
Lord Maclennan of Rogart: My Lords, I rise briefly to support the noble Lord, Lord Kingsland, on behalf of my noble friends. My reasoning is entirely the same as his. I therefore need not detain the House.
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Lord Falconer of Thoroton: My Lords, the principle expressed in our debates on the Speakership of this House by a number of noble Lords, including the noble Lords, Lord Kingsland, Lord Campbell of Alloway, Lord Goodhart and Lord Maclennan of Rogart, is that the Speakership is a matter for this House alone. I firmly agree with that principle.
I equally firmly believe that the choice of Speaker of this House should not be in the gift of the governing party. The provisions in Clause 13 and Schedule 5 remove the automatic link between the Lord Chancellor and the Speakership of this House in primary legislation. They do not preclude the Lord Chancellor from continuing to hold the office of Speaker, if that is the will of this House. They vest those functions, currently vested in the Lord Chancellor as Speaker, in a generic office of Speaker. They ensure that the House can, under its standing orders, appoint a Speaker who is empowered to carry out all the functions currently attached to the Speakership, rather than having a Speaker imposed on the House by the Executive, as is, in effect, the case now.
That the Speakership is a matter for this House alone is underpinned and underlined by Clause 13 and the Schedule it introduces. The decision we are being asked to make today is not who should occupy the Woolsack, nor whether the Lord Chancellor should continue or discontinue to be Speaker. We are not being invited to agree todayas the noble Lord, Lord Kingsland, would have had noble Lords believe on 7 Decemberto,
"a wholesale change that would dispense with the traditions of your Lordships' House and could see us moving towards a full-time Speaker with authority over the House".[Official Report, 7/12/04; col. 886.]
All the provisions do is ensure that, should this House collectively choose, at some future date, a Member of this House other than the Lord Chancellor as Speaker, that person can exercise the whole range of functions that fall to that post without the need for further amendment by primary legislation. The amendments would also work if the House were to decide, against the wishes of the Government, that the Lord Chancellor should continue as Speaker, because it would not be prevented by any of the amendments. That is what these provisions achieveno more, no less.
In doing so, the provisions strengthen this House's powers of self-regulation. They do not diminish them. I utterly confirm what the noble Lord, Lord Kingsland, said. It is our view that this is a matter for this House to decide and not both Houses. I hope that in the light of the reassurance I have given the noble Lord feels able to withdraw his amendment.
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Lord Kingsland: My Lords, we debated this matter at some length on Report. I do not propose to reopen all the questions that were fully discussed then. I remain unconvinced about the merits of leaving this clause on the face of the Bill. But the noble and learned Lord has given an unequivocal undertaking that the Speakership of your Lordships' House remains exclusively a matter for your Lordships' House and that another place will not in any way be involved in our decision. On the basis of that undertaking, I beg leave to withdraw the amendment.
"TRANSFER, MODIFICATION OR ABOLITION OF FUNCTIONS BY ORDER
(1) The Minister may by order make provision for any of these purposes
(a) to transfer an existing function of the Minister to another person;
(b) to direct that an existing function of the Minister is to be exercisable concurrently with another person;
(c) to direct that an existing function of the Minister exercisable concurrently with another person is to cease to be exercisable by the Minister;
(d) to modify an existing function of the Minister;
(e) to abolish an existing function of the Minister.
(2) An order under subsection (1) may in particular
(a) amend or repeal any of the following
(i) an enactment other than one contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
(ii) subordinate legislation other than subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
(iii) any other instrument or document, including a prerogative instrument;
(i) any supplementary, incidental or consequential provision, and
(ii) any transitory, transitional or saving provision,
which the Minister considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, provision made under subsection (1).
(3) The amendments that may be made by virtue of subsection (2)(a) are in addition to those made by or under any other provision of this Act.
(4) An order under subsection (1) may not include provision that may be made under section 1(1) of the Ministers of the Crown Act 1975 (c. 26) (power to transfer functions to other Ministers etc).
(5) An order under subsection (1) may not be made in relation to any function of the Minister that is within Schedule (Protected functions of the Minister).
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(6) An order under subsection (1) may amend Schedule (Protected functions of the Minister) so as to include any function which, by virtue of provision in the order
(a) becomes exercisable by the Lord Chancellor concurrently with another person, or
(b) is modified.
(7) An order under subsection (1) may not, to the extent that it amends Schedule (Protected functions of the Minister), be revoked by another order under subsection (1).
(8) In this section
"existing function" means any function other than one that is conferred by
(a) an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed, or
(b) subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
"prerogative instrument" means an Order in Council, warrant, charter or other instrument made under the prerogative."
The noble Baroness said: My Lords, Clauses 106 and 108 deal respectively with the protection of certain functions of the Lord Chancellor and with the power to make supplementary provision. As noble Lords will know, changes are necessary to these clauses to ensure that they continue to apply for functions which are no longer covered by the Bill as a result of changes following the decision of the House on 13 July.
The details of these proposals are set out in the memorandum sent by the Government to the Select Committee on Delegated Powers and Regulatory Reform, which is set out in annex A to its fifth report. Accordingly, I shall be brief.
In essence, these provisions protect judiciary-related and other functions of the Lord Chancellor, so that they cannot be transferred to another Minister by a transfer of functions order and they permit the spirit of the Bill to be effective in relation to functions of the Lord Chancellor that are not dealt with in the Bill.
The Delegated Powers Committee has commented on these amendments that the power can be used for purposes which need not be supplementary or incidental to the Bill; that though limited to existing functions the power is not limited in the time of its exercise; and that it could be used in the future for purposes other than those arising from the current redistribution of the Lord Chancellor's functions.
I shall of course be replying formally to the committee, but I thought it appropriate to give an initial response. While I understand the case for a time limit, in some respects the time limit could be inappropriatefor example, where a function of the Lord Chancellor has been missed and comes to light which needs to be abolished, modified or transferred to the Lord Chief Justice or to another judge, or where a function, perhaps in relation to a tribunal, is transferred from another Minister to the Lord Chancellor and would better be carried out in a shared way through consultation and concurrence in accordance with the concordat.
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