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Lord Dholakia: Does the Minister feel constrained in making any promises about seriously considering the views expressed by many noble Lords, bearing in mind that without listening to any of these arguments last week the Prime Minister on a question from the Leader of the Opposition completely dismissed the idea of a sunset clause?
Baroness Scotland of Asthal: I am trying to say as clearly as I can that the Government do not believe that a sunset clause is correct. I also said that we have accepted the necessity for a review of the provisions. That is why review provisions are contained in Clause 11. Of course we hear what noble Lords say about the nature of the review that they would wish to have. The import of what has been said is that the review should be an annual review. Those are matters that will be considered. However, I say to your Lordships that we do not believe that a sunset clause on these provisions is appropriate. That is the current view of the Government.
Lord Kingsland: In the light of all the speeches made by noble Lords, I simply cannot believe that the noble Baroness really believes what she is telling the Committee. The Bill is so contrary, so repellent to our constitutional traditions, that even if we had had ample time to consider it, we would still be asking for a sunset clause. As it happens, the Bill has been pushed through with enormous speed.
I shall give the Committee just one example of why it is crucial that we have a sunset clause as early as possible. The noble and learned Lord the Lord Chancellor has told us that he will be unable to place before your Lordships' House the draft of the rules of court before we cease considering these matters on Tuesday evening. We all believe that putting a judge in the front line of the control order system is only part of the answer. The other part is that the judge should operate within a judicial and not a political context. Until we see the substance of the rules, we shall not know whether the Government have delivered that or not.
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The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 172, I must advise the Committee that if it is agreed to, I cannot call Amendments Nos. 172A, 173 or 174, due to pre-emption.
The noble Lord said: This is a very important amendment. It seeks to shift from the noble and learned Lord the Lord Chancellor to the noble and learned Lord the Lord Chief Justice the responsibility for drafting the relevant rules of court which will contain the substance of the due process framework within which the control order system will operate.
In a previous debate that took place before the dinner adjournment, by accident, many of the issues raised by this amendment were fully discussed by the Committee. So I want to re-emphasise only two issues. First, I believe that it is absolutely crucial that the rules that apply to England and Wales are the same as those that apply to Scotland and to Northern Ireland. There is a difference, as the noble and learned Lord the Lord Chancellor knows, in the way in which the rules will be made. In Scotland and in Northern Ireland, they will be made by the senior judge. At the moment, in England and Wales, they will be made by the noble and learned Lord. Our amendment would relieve the noble and learned Lord of that unnecessary responsibility. Of course, he would be consulted, but the last word would be with the Lord Chief Justice.
Secondly, despite the skilful exegesis of the noble and learned Lord of recent case law in the area of Article 6, I am in no doubt whatever that Article 6 of the European Convention on Human Rights not only ought to provide but does provide a floor of security for any rules that are made. In other parts of our debate this evening we shall raise some of the particular issues that we would like to see protected in the rules. I beg to move.
Lord Mayhew of Twysden: I hope to detain your Lordships briefly in support of my Amendment No. 172A. I agree with my noble friend Lord Kingsland that any rules of court regulating control order proceedings ought to be made by the Lord Chief
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Justice, and not by anyone else. I support the amendment to which he has just spoken, and not simply for the first occasion on which an order is made, as is provided for by the Bill at the moment.
"The memorandum explains the negative procedure provided for these provisions by suggesting that 'As with other rules of court dealing with detailed procedural matters rather than substantive issues, the negative procedure provides an appropriate level of scrutiny'".
the person by whom they are otherwise exercisable. That person is normally the rules of court committee of what used to be called the Supreme Court. There is a mandatory requirement for it to consult such persons as it considers appropriate before making any civil procedure rules. Why should the Lord Chancellor not be required to consult such persons as he considers appropriate? The only compulsory duty to consult binding the Lord Chancellor is to consult the Lord Chief Justice.
If the Lord Chancellor is to be vested with this power, the less disparity between the obligations upon the rules committee and those upon the Lord Chancellor the better. Any disparity should be as slight as possible. That is not at the forefront of our problems in this Bill, but it is one that has its own significance.
I turn to my other amendment. The effect of Amendment No. 176A is that the rules must be subject to a requirement for affirmative procedure for approval. One glance at the hair-raising list of objectives that in some instances must be served by rules of court is surely enough to establish the case for that.
shall be subject to the affirmative resolution. I realise that sub-paragraph (5) relates only to Northern Ireland, and I ought to have made the amendment broader. I will come back to that, if appropriate, on Report. The point, however, is the same. If the Lord Chancellor is to have these powers, it ought to be a matter for affirmative resolution.
"There is also a case for suggesting that because Parliament is being asked to consider the grant of these powers in some haste, the higher level of scrutiny should be applied when the power comes to be exercised. So the negative procedure provides an inadequate level of scrutiny. We consider that an affirmative procedure should apply to the initial rules by the Lord Chancellor for England and Wales and Northern Ireland, and recommend accordingly".
That committee, on which I had the honour to serve for several years, is normally indulged by successive governments with the acceptance of its recommendations. I hope that when the noble and learned Lord replies, we shall find that that practice will not be departed from tonight.
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