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Lord Jenkin of Roding: My Lords, I sense a division in philosophy in the speeches made so far. Most noble Lords have concentrated on the desirability of getting more effective deregulation, but some have said that that must not be at the expense of proper parliamentary scrutiny. I align myself firmly with the second group, as my brief remarks will show. The noble Lord, Lord Whitty, pointed out that we want to do two separate things that are in conflict with each other: to deregulate and to ensure proper scrutiny. That is what this debate is about.
I shall make two points. First, when the Bill was originally introduced, it was not the first time that a Labour Government attempted to circumvent the
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parliamentary process by the use of a general enabling Bill. As originally introduced, it was such a Bill. I share the view of the noble Lord, Lord Holme of Cheltenham, that it is astonishing that it was ever allowed to see the light of day. Secondly, we are all familiar with the aphorism that "the price of liberty is eternal vigilance", and the Bill will provide textbooks with a copper-bottomed example of how that can work. A start was made in another place, but more needs to be done.
A less familiar aphorism, but one that I have long believed, was contained in a remark made by a former colleague of mine in another place, Sir Derek Walker-Smith, who became, for a brief while, Lord Broxbourne, a Member of this House. In debate, he used to say that liberty is often to be found secreted in the interstices of procedure. I cut my teeth on the 1965 to 1970 Labour Finance Bills and a great deal of the debates on those Bills was about procedure. Sir Derek's intention was to rebut the Government Front Bench's defence that something was only a matter of procedure and therefore not important. This Bill is a classic example of that.
Like my noble friend Lady Wilcox, I approach this Bill with the "deepest suspicion"I quote her wordsbecause Labour has tried to bring in such provisions before. With the help of the Library's excellent researchers, I have been able to clarify my recollections and run them to earth. The notion of general enabling Bills as a means of bypassing parliamentary processes originatedas so many mischievous thoughts didwith the late Richard Crossman, when he was Leader of the House in another place. He recorded this in his diaries. I will read it because it is worth recollecting. He said:
"I had Wedgy Benn in to discuss his legislative plana really useful meeting because I found that in the next Session he wants five Bills for his new Department. Since this is impossible I asked him whether he couldn't have a general enabling Bill".
"I said I'd much prefer to give him the power to deal with these things by Order in Council. Tony won the first round in Cabinet, which committed us to the White Paper he wanted . . . then he had a meeting with the First Secretary"
"and the CBI where it could not be denied that the CBI was utterly opposed to this kind of Government action. If we were to get the Bill past them we should have to make clear that it was for assistance to private industry and not an enabling act for the extension of socialism".
Labour lost in 1970. It was re-elected in 1974, and the idea of general enabling Bills was resurrected this time at the instance of the new Leader of the House of Commons, Mr Ted Short. The Times stated that:
"Senior ministers strongly believe that the forthcoming review of parliamentary procedures will have to include a detailed examination of the possibility of allowing governments to bring in general enabling Bills".
When the matter came before the Select Committee on Procedureinterestingly, a number of very distinguished Members of this House served on that Select Committee, including my noble friends Lord Baker, Lord Lamont and Lord Renton and the noble Lord, Lord Radice, from the Labour PartyMr Short gave extensive evidence, in which he made the case for enabling Bills. I do not have time to read it. By the time the committee reported, Mr Short had become Lord Glenamara and was in this House. What the committee said about the proposal was brief and to the point. In paragraph 2.30 of its report the Select Committee said:
"We would not welcome such a development. The control of delegated legislation by means of Motions for annulment has already broken down, and the fact that Statutory Instruments are incapable of amendment by the House means that they are no substitute for defining the will of Parliament in statutes".
As was pointed out in the excellent report of the Delegated Powers and Regulatory Reform Committee published last week, it is now clear that there are of course appropriate cases where the misnamed Henry VIII clause has become part of our usual process. In paragraph of its report the committee quotes the statement of my noble friend Lord Waddington when he was Lord Privy Seal:
"The Government has set out its position on 'Henry VIII' provisions in several debates . . . Its view is that in a limited range of circumstances a power to amend primary legislation by order may be justifiable".
So what do we do about it? If we accept that there is a case for legislating in these circumstances by order, one comes back to my aphorism: liberty is often to be found secreted in the interstices of procedure. This House will now have to examine that. As my noble friend pointed out, the government amendments in another place were produced at a very late stage and had totally inadequate consideration. We will now have to do that.
Anyone who has studied the report of the Delegated Powers and Regulatory Reform Committee, to which I referred a moment ago, and the admirable report of the Constitution Committee, to which the noble Lord, Lord Holme of Cheltenham, referred, will have been impressed, as I have been, by the complexity of the detail of the procedures now embodied in the Bill as it was introduced into this House. Who is entitled to do what and at what stage? Within what parameters and
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subject to what constraints and timetables? All this will require the closest scrutiny if we are to get it right. It is in the detail of those proceduresthe "interstices", to quote again Sir Derek Walker-Smiththat the safeguarding of Parliament's role and the liberty of the subject must lie.
I want to mention only one example, because it has been mentioned by many speakers. It is entirely unclear how the power of veto, resting with appropriate committees in each House, will work. Let us suppose that an order comes here first and is vetoed. It will not go any further. There can be a vote in the House, but if the vote supports the committee, that will be the end. If an order is introduced in another place and the committee imposes its veto, it can be overturned in the Commons on a general Motion. The Government can then proceed with their order. But what happens if this House again imposes the veto and the House upholds it. The order will have passed through the House of Commons and will have been frustrated in the House of Lords. There is nothing in this Bill to say what should then happen. That is one example, but there are many others where the details of procedure have to be looked at.
My noble friend Lord Sainsbury of Preston Candover rightly said that everyone wants simpler, clearer regulation. Everyone knows that much past regulation needs to be pruned and simplified. Most people now accept that in thisagain, I quote my noble friend Lord Waddington"limited range of circumstances" a specific enabling Bill is probably unavoidable. But this has to be carefully circumscribed if the Bill is not to become the Abolition of Parliament Bill, as some have described it. Given earlier attempts by past Labour Governments to introduce general enabling legislation, it behoves us to look at this Bill very carefully.
"Dictatorships do not emerge overnight; they creep up on those who are not concentrating. So far in this country we have avoided the worst excesses of dictatorship by a relatively happy tension between the legislature (Parliament), the executive (Government) and the judiciary . . . but we cannot take this for granted".
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