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Schedule 24 : Harmonisation: exceptions
134AA: Schedule 24, page 218, line 15, at end insert-
"Sections (Abolition of husband's duty to maintain his wife) to (Civil partners: housekeeping allowance) (family property)"
134C: Schedule 24, page 218, line 22, at end insert-
"( ) Part 6A (television, radio and on-line broadcasting and distribution);"
Amendments 134B and 134C agreed.
Schedule 24, as amended, agreed.
Clause 199 : Exercise of power
135: Clause 199, page 124, line 3, at end insert-
"( ) A statutory instrument containing an Order in Council under section 82 (offshore work) is subject to annulment in pursuance of a resolution of either House of Parliament."
Baroness Thornton: My Lords, in moving Amendment 135, I will speak to Amendments 136, 135A, 136ZA, 136ZAC, 136ZB, 136ZZZA, 136ZZZB and 136ZCC, which relate to the procedure for parliamentary control of secondary legislation. I am indebted to the Delegated Powers and Regulatory Reform Committee for bringing these points to our attention.
Although it has not been spoken to, I should like to comment on Amendment 136ZZA in the names of the noble Baronesses, Lady Warsi and Lady Morris, which seeks to probe why the provisions for the control of secondary legislation do not currently apply to an order which makes provision in consequence of the commencement of some or all of the Bill, but which is in a separate instrument, as provided for in Clause 200(7). The absence of such control was noted by the Delegated Powers Committee in its third report of the current Session. This was not an oversight. We had already provided that any such orders that made consequential amendments to primary legislation should be subject to the affirmative procedure. However, we did not believe that such control was strictly necessary for other orders because they can contain only minor, consequential and transitional provisions. But equally this is not an issue where we would seek disagreement
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The Delegated Powers and Regulatory Reform Committee in its report on Parts 1 to 5 of the Bill recommended that an "affirmative" parliamentary control procedure apply to any regulations made by Ministers to amend Section 1 that add or remove public authorities subject to Clause 1-the public sector duty regarding socio-economic inequalities. We, the Scottish Government and Welsh Assembly are grateful for the recommendation of the committee and happy to accept that an affirmative procedure should apply to such regulations. The socio-economic duty is obviously novel and innovative, and it is appropriate that Parliament should give careful consideration to any changes we propose to the list of public bodies subject to it. Amendment 135A therefore makes the necessary changes to Clause 200 to ensure that any regulations under Section 2 made by Ministers of the Crown are subject to the affirmative procedure. Amendments 136ZA and 136ZB make the necessary changes to Clauses 201 and 202 respectively to ensure that regulations made by the Welsh and Scottish Ministers under Section 2 are also subject to the affirmative procedure.
The Delegated Powers Committee identified in its second report of this Session an omission in relation to the parliamentary control of Orders in Council, which Amendment 135 rectifies. While the vast majority of secondary legislation in the Bill will be delivered by ministerial order or regulations, Clause 82, headed "Offshore work", uniquely uses an Order in Council to specify where and how the Bill, in so far as it relates to work, applies to offshore workers. An Order in Council is appropriate because Clause 82 concerns the application of the Bill beyond UK territorial waters. Due to an oversight, the Bill does not provide a parliamentary procedure for Clause 82 because it currently contains no reference to "Orders in Council". Such orders should, as with other secondary legislation, be capable of annulment by either House of Parliament. Amendment 135 achieves this.
I am again indebted to the Delegated Powers and Regulatory Reform Committee for bringing to our attention a slight uncertainty in the drafting of Clause 200. As it highlighted, this formulation could be regarded as ambiguous as to whether it includes those special cases mentioned in subsection (3) of the clause which should be subject to the negative procedure. Amendment 136 therefore clarifies that these orders should be subject to that procedure. Amendments 136ZAC and 136ZCC do exactly the same in respect of the powers of the Welsh and the Scottish Ministers. I beg to move.
Baroness Morris of Bolton: My Lords, we are grateful to the Government for tabling Amendments 135, 136, 136ZAC and 136ZCC, which are designed to ensure
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We are also delighted to see that the Government have tabled Amendments 136ZZZA and 136ZZZB, which address the Delegated Powers and Regulatory Reform Committee's concerns raised by our Amendment 136ZZA regarding the exercise of subordinate legislation powers. We are pleased that, after consideration, the Government have decided to accept the recommendation.
Clause 199, as amended, agreed.
Clause 200 : Ministers of the Crown
Amendments 135ZA and 135A agreed.
135AB: Clause 200, page 124, line 16, at end insert "that provides for the omission of an entry where the authority concerned has ceased to exist or the variation of an entry where the authority concerned has changed its name"
136: Clause 200, page 124, line 33, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
136ZZZB: Clause 200, page 124, line 40, at end insert ", and
(ii) is not made in reliance on section 199(7)"
Amendments 136 to 136ZZZB agreed.
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Lord Hunt of Wirral: My Lords, this amendment has again been brought to our attention by the Delegated Powers and Regulatory Reform Committee. It highlighted that subsection (1) of Clause 200 disapplies the hybrid instrument procedure for all the powers subject to the affirmative instrument in this Bill. I am grateful that the Minister and her team have looked into the eight affirmative instruments already in light of the report of the committee. We now see that we were right to table these amendments and raise the concern that perhaps it was not necessary to disapply the hybridity procedure from all these instruments when it applies only to a few. The Government have recognised that and have now limited the disapplication.
We are grateful that that has now been changed but rather concerned that there appear to have been so many drafting errors or broad brush powers contained in a Bill that the Government have had more than enough time to scrutinise themselves again and again. It is concerning that there are so many changes to be made and worrying that there may be many more that have yet to be found. This is a complex Bill and it is vital that the Government's equality legacy is not riddled with errors and omissions. I beg to move.
The Deputy Chairman of Committees: If Amendment 136ZZB is agreed, I cannot call Amendment 136ZZC because of pre-emption.
Baroness Thornton: My Lords, I shall speak to government Amendment 136ZZC and respond to Amendment 136ZZB spoken to by the noble Lord.
Amendment 136ZZB would remove the blanket exemption from the hybrid procedure that Clause 200(10) currently affords the Bill. This has been tabled following the Delegated Powers and Regulatory Reform Committee's decision to draw the House's attention to the provision in its third report of this Session.
As the noble Lord remarked, the Government have been re-examining subsection (10) in light of the committee's comments, and we accept that it would be helpful to clarify on the face of the Bill precisely when we consider the hybrid procedure should be disapplied if it arises. However, we do not think it necessary to remove the exception completely as the noble Lord proposed.
The reality is we think it highly unlikely that powers in the Bill would be exercised in such a way that the House would consider the hybrid procedure to be applicable, but it is a theoretical possibility. In a handful of cases where those circumstances might arise, we consider the hybrid procedure would be unwarranted so we think it appropriate to provide that the procedure should not apply in specified cases.
There are safeguards in these cases. Before adding any new bodies to either of the lists, for example, under the socio-economic duty and the public sector equality duty, and making specific public sector equality
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Government Amendment 136ZZC narrows the exception down to the clauses which could theoretically be subject to the hybrid procedure; for the reasons I have explained, we do not think that would be warranted.
I hope that the House will agree that our proposal is measured and that the noble Lord will feel able to withdraw his amendment.
Lord Hunt of Wirral: My Lords, that reinforces the debt of this House to the Delegated Powers and Regulatory Reform Committee, its chairman, the noble Lord, Lord Goodhart, and the members of the committee-they have done an invaluable job. I hope that the Government will continue to listen to their advice. In the mean time, I beg leave to withdraw the amendment.
136ZZC: Clause 200, page 125, line 1, leave out "mentioned in subsection (2) or (4)" and insert "containing an order or regulations under section 2, 150, 152, 153(2) or 154(5)"
Clause 200, as amended, agreed.
Clause 201 : The Welsh Ministers
136ZA: Clause 201, page 125, line 10, at end insert-
"( ) regulations under section 2 (socio-economic inequalities);"
136ZAA: Clause 201, page 125, line 10, at end insert-
"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"
136ZAB: Clause 201, page 125, line 15, at end insert -
"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-
(a) the omission of an entry where the authority concerned has ceased to exist, or
(b) the variation of an entry where the authority concerned has changed its name."
136ZAC: Clause 201, page 125, line 16, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
Amendments 136ZZD to 136ZAD agreed.
Clause 201, as amended, agreed.
Clause 202 : The Scottish Ministers
136ZB: Clause 202, page 125, line 28, at end insert-
"( ) regulations under section 2 (socio-economic inequalities);"
Amendments 136ZAE to 136ZB agreed.
136ZCA: Clause 202, page 125, line 30, at end insert-
"( ) an order under section 150 (power to amend list of public authorities for the purposes of the public sector duty);"
136ZCB: Clause 202, page 125, line 35, at end insert-
"( ) But a statutory instrument is not subject to the affirmative procedure by virtue of subsection (2) merely because it contains an order under section 150 that provides for-
(a) the omission of an entry where the authority concerned has ceased to exist, or
(b) the variation of an entry where the authority concerned has changed its name."
136ZCC: Clause 202, page 125, line 36, leave out "other than one mentioned in" and insert "that is not subject to the affirmative procedure by virtue of"
Amendments 136ZCA to 136ZCD agreed.
Clause 202, as amended, agreed.
136ZD: Schedule 26, page 223, line 36, at end insert-
"( ) an act which is unlawful because it amounts to a contravention of section 60(1) of that Act (or to a contravention of section 110 or 111 that relates to a contravention of section 60(1)) (enquiries about disability and health),"
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Schedule 26, as amended, agreed.
Schedule 27 : Repeals and revocations
Clause 204 : General interpretation
Lord Low of Dalston: My Lords, I have an unanswerable case to present in support of Amendment 138A, but, recognising that we are extremely pressed for time and all sprinting for the tape, and in the belief that the Government will by now have located the noble Lord, Lord Myners, I will not move the amendment on the understanding that I have reached agreement with the Government that they will facilitate discussions between their lawyers and the lawyers whom I have consulted in order that we may arrive at an agreed way forward with the amendment.
139: Clause 204, page 127, line 8, at end insert-
"(4A) Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic."
Clause 204, as amended, agreed.
Schedule 28 : Index of defined expressions
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