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Baroness Ashton of Upholland: I am entirely sympathetic to the intention behind the amendment. The Public Guardian should, of course, be accountable to Parliament and to the public for the exercise of his functions, and it is right that we should know how well he is carrying them out.
We fully expect the Public Guardian to report annually on the exercise of his functions, the extent to which the objectives of his office have been met and any other matters of interest. We would, of course, want to lay that report before Parliament, so I would like to consider more fully how we can make those expectations explicit in the Bill.
"Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than regulations under section 39 or an order under section 64 . . . is subject to annulment in pursuance of a resolution of either House of Parliament".
The Order in Council that enables a convention to be given effect to in England and Wales ought to be subject to the negative resolution procedure. But since it is not a rule or a regulation, nor is it an order made by the Lord Chancellor or the Secretary of State under the Act, it appears that it is not subject to any parliamentary procedure under Clause 61. It is probably appropriate that it should be subject to the negative resolution procedure. I beg to move.
Baroness Andrews: I am grateful to the noble Lord for his magnificent job in introducing his amendment. He is right. Amendment No. 200 would make any Order in Councilto confer functions on the Lord Chancellor, the court or another public authority, but only for enabling the Hague Convention on the International Protection of Adults to be given effect in England and Walessubject to the negative resolution procedure.
I understand that there are concerns that an Order in Council made under this authority would not be subject to any parliamentary procedure. Looking at the relevant provision in the Bill, I sympathise with the principle behind the amendment. I am certainly prepared to revisit the issue at Report and bring forward an appropriate amendment. It is very useful to have had that short debate. The Delegated Powers and Regulatory Reform Committee already thought that this power was subject to the negative resolution procedure; we intend to make that so.
Amendment No. 201 would make any regulations under Clause 39 to adjust the role of the independent consultee service subject to the negative rather than the affirmative resolution procedure. It is unusual for Members of the Committee to ask the Government to move from affirmative to negative procedures.
Lord Goodhart: If it is convenient, perhaps I may deal with Amendments Nos. 201 to 203. Amendment No. 201 probably got there in error, so it can be disregarded. Amendment Nos. 202 and 203 deal with a question that was raised by the Delegated Powers Committee. As a former member of that committee I of course always support, in principle, its recommendations.
"Schedule 3 gives effect in England and Wales to the Convention on the International Protection of Adults . . . There are delegated powers at paragraphs 32 and 33 of the Schedule, each subject to negative procedure".
"In addition, paragraph 33(1) enables the Lord Chancellor by regulations to make provision: (a) giving further effect to the Convention; or (b) otherwise about the private international law of England and Wales in relation to the protection of adults. By paragraph 33(2)(b) the regulations may amend Schedule 3 to the bill. So this is a Henry VIII power, albeit a very limited one.
So far as the power in (a) is concerned, we consider the fact that the provision must be to give further effect to the Convention to be a sufficient limitation to justify the negative procedure. But the power in (b) is not restrained in a similar way, nor is there a satisfactory explanation of this power in the memorandum . . . We suggest therefore that the house may wish to invite the Government to explain more fully the purposes for which the apparently wide power in paragraph 33(2)(b) is needed; and we recommend that, in the absence of a satisfactory explanation, the affirmative procedure should apply".
Baroness Andrews: I am sorry that the noble Lord continued reading to that point. I can give him a solid answer on what we are going to do but I do not have briefing on why we are doing it at this point.
Amendments Nos. 202 and 203 would make any regulations giving further effect to the Hague Convention or otherwise about the private international law of England and Wales in relation to the protection of adults made under paragraph 33(1)(b) of Schedule 3 subject to the affirmative resolution. As the noble Lord said, currently the negative resolution procedure would apply. Again, these amendments have been prompted by the report of the Delegated Powers and Regulatory Reform Committee.
The committee recommended that while the negative resolution procedure was the appropriate level of scrutiny for regulations made under paragraph 33(1)(a) of Schedule 3, the affirmative resolution procedure might be more appropriate for the regulations made under paragraph 33(1)(b) of Schedule 3, given the wide powers it entails. We accept that paragraph 33(2)(b) regulations may indeed amend Schedule 3 and that therefore this is a Henry VIII power, although quite a limited one.
We intend to revisit the regulations under paragraph 33(1)(b), taking into account the recommendations of the Delegated Powers and Regulatory Reform Committee, and bring forward the appropriate government amendment on Report. However, the negative resolution procedure already afforded under paragraph 33(1)(a) is sufficient; we do not have a problem there.
I am tempted to say that I will write to the noble Lord and explain a little more about why we need the power but I am not entirely sure that I would get much support from my officials. Anyway, I will advance that promise.
The noble Baroness said: In moving Amendment No. 204, I shall speak also to Amendments Nos. 205 and 206. As it is the last grouping I shall be very brief. One can think of dreadful puns about enduring debates and lasting for ever and other horrible things, but I shall be quick.
The amendments concern the transitional arrangements in regard to enduring powers of attorney and lasting powers of attorney. They seek to ensure, first, that attorneys under enduring powers of attorney should come under the provisions of the Bill and should have the same obligations to follow its principles as anyone else. There is concern that Section 1 does not apply to EPAs.
The second point is that, given the long lead-in once the Bill receives Royal Assent, individuals will be unsure whether they should continue to use an EPA or wait until the LPAs come into force. We are dealing with people who have full capacity when they appoint someone and then lose their capacity afterwards, perhaps many years later. Where a person has not lost capacity, there should be a simple way of converting the enduring power of attorney into a lasting power of attorney to encourage more people to come into the new system. I beg to move.
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