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Lord Macaulay of Bragar: My Lords, these four Bills are greatly welcomed by the legal profession in Scotland. It is perhaps an overdue consolidation of the criminal law to date. I am sure that the Bills will be of great value to practitioners and, perhaps more importantly, to the courts in the efficient administration of justice and to clients who will be able to obtain advice from their advisers without

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the need for the complicated research which has been required up till now in order to establish what the up-to-date law is. This will make great inroads in the saving of time and research in the presentation of cases in the criminal courts in Scotland. All four Bills are welcome.

On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Proceeds of Crime (Scotland) Bill [H.L.]

Read a second time, and referred to the Joint Committee on Consolidation Bills.

Criminal Law (Consolidation) (Scotland) Bill [H.L.]

Read a second time, and referred to the Joint Committee on Consolidation Bills.

Criminal Procedure (Consequential Provisions) (Scotland) Bill [H.L.]

Read a second time, and referred to the Joint Committee on Consolidation Bills.

National Health Service (Amendment) Bill

3.22 p.m.

Read a third time.

Clause 14 [Short title, etc:]

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege) moved the following amendment:

Page 11, line 12, after ("2") insert (", 3").

The noble Baroness said: My Lords, as the Bill stands, Clause 14(5) provides that references to a health authority or authorities in Clauses 2 and 6 shall, until 1st April 1996, be construed as references to a family health services authority or family health services authorities. The intention is to allow those clauses to come into force before the Health Authorities Act comes into force.

However, there is also reference to health authorities in Clause 3. Under the present law only family health services authorities administer lists of practitioners undertaking to provide those services. Family health services authorities are not health authorities within the meaning of the National Health Service Act 1977. Therefore, the effect of passing the Bill unamended would be to make any tribunal directions on disqualification from lists meaningless from the commencement of the Act until 1st April 1996.

It is true that Clause 14(3) of the Bill would allow the Secretary of State to make a separate order to bring the Act into force and to appoint different days for different clauses. If the Bill is not amended and Clause 3 is not commenced until April 1996, the effect would simply be to maintain for the time being a practitioner's unrestricted

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right of appeal to the Secretary of State against a tribunal direction that he or she be disqualified. However, we believe that it is desirable to make the correction now to preserve in full the intention of the sponsors. The amendment merely brings Clause 3 within the ambit of Clause 14(5). I beg to move.

Lord Carter: My Lords, this amendment was obviously required to the Bill as drafted. I dealt with the matter from this Dispatch Box at Second Reading, and I am happy to say that we agree with the amendment. I am grateful to the Minister for her explanation.

On Question, amendment agreed to.

Baroness Gardner of Parkes: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)

On Question, Bill passed, and returned to the Commons with an amendment.

Road Traffic (New Drivers) Bill

4.23 p.m.

House again in Committee on Clause 1.

Earl Russell moved Amendment No. 4:

Page 2, leave out lines 14 to 17.

The noble Earl said: In moving Amendment No. 4, I should like to speak also to Amendment Nos. 23, 26, 29, 33 and 35. This group of amendments is designed to give me the opportunity to make a general speech on the drafting methods of the Bill, which might have been considered in some circumstances as giving me a rope with which to hang myself. However, I shall attempt not to oblige on that point.

It might help the Committee if I draw attention first to the words that I wish to delete. Those words are:

    "If the Secretary of State considers it appropriate to do so, he may by regulations provide for the question whether a change of circumstances is material to be determined in accordance with the regulations".

In querying regulation-making powers, I do not always intend to assert that they should be put in primary legislation. The provisions to which I have referred seem entirely inappropriate for primary legislation. The question that I want to ask is why this is regarded as an appropriate matter for legislation at all. I cannot see how one can regard a change of circumstances as material or immaterial until one knows the facts of the case. If one attempts to set out in advance a list of all the circumstances which shall be regarded as material, the first thing that will happen is that circumstances will arise which are clearly material but which the draftsman, unfortunately, did not foresee. That is another sub-species of the familiar rule that in politics, the unexpected always happens.

I should have thought that the question of what change of circumstance is material should be determined either by a child support appeal tribunal, a commission or by the courts (depending on the fate of later amendments to the Bill) rather than be specified in regulations by the Secretary of State. This is an example of what I described when we discussed the Disability Discrimination Bill as the "mother-hen school of legislation".

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Amendment No. 23 relates to Clause 6(3). It is a central amendment in the construction of the whole Bill because it deals with the grounds on which departures from the formula are to be allowed. The clause states:

    "The Secretary of State may by regulations make provision—

    (a) for factors which are to be taken into account in determining whether it would be just and equitable to give a departure direction in any case;

    (b) for factors which are not to be taken into account in determining such a question."

That is the very centre of the whole Bill.

I have read the report of the Delegated Powers Scrutiny Committee, which argues that this is not a skeleton Bill. I respect that verdict and understand the grounds for it, but this specific provision appears to me to be a skeleton provision because it does not give Parliament any satisfactory means of addressing the grounds for departures. Surely in legislation which has produced as much mess as this—if it had not produced a mess, we would not have had this amending Bill before us—there must be some room for parliamentary input.

I understand why the Government feel the need for flexibility in this area, but they need to understand that their flexibility is our inflexibility. Indeed, the mess has arisen almost entirely because the Government did not listen to advice in 1991. Plenty of advice was offered to the Government by this House. It seems to me that if you have made a mess because you did not listen to advice, it is a rather peculiar response to provide that you shall not be in a position to get such advice or at least for it not to have any forcible effect. That seems to be potentially in conflict with the provision that Parliament makes the law. In fact, the more I look at the Department of Social Security's methods of legislation, the more they seem to be based on the proposition that Parliament's role in making legislation should be reduced as much as possible.

I must declare an interest in not sharing that view, but it is an interest which must be widely shared in this Committee as a whole. We need a chance to look at the grounds for departure to decide whether they are good enough or whether they can be improved in any way. As a revising chamber, that function seems to be denied us by those words.

Amendment No. 24 relates to Clause 6(4) and raises a much smaller point. It is the de minimis rule. I have no objection whatever to such a rule. I do not want the Secretary of State necessarily involved in immense administrative labour in paying back the sum of one penny. However, I object that it is entirely at the Secretary of State's discretion to decide how big the de minimis cut-off point shall be. For all I know, under the vires laid down here, he could decide that it shall be £20,000 a week. I am quite sure that the Minister has no intention of doing that. But the power to fix an upper de minimis cut-off point, and to fix it as high as possible, gives this matter something of the quality of a Henry VIII clause. In effect, it allows a future government the power to repeal the whole provision simply by setting the de minimis level so high that it becomes useless. I can foresee a government, strapped for parliamentary time, using that power on some future occasion to precisely that effect. It is something about which this Committee should hesitate before allowing it.

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Lord Carter: The noble Earl mentioned Amendment No. 24 which has not been grouped with the amendments we are now discussing. That particular amendment is listed separately, but it is on this subject.

Earl Russell: Yes, it is. I am most grateful to the noble Lord. Perhaps we may take that amendment in this group because the issues to which it gives rise are similar, if that causes no inconvenience.

In Amendment No. 26 we are back with our old friend Humpty-Dumpty. It refers to Schedule 2, paragraph 2(2) which states:

    "'Special expenses' means the whole, or any prescribed part, of expenses which fall within a prescribed description of expenses".

In other words, departure may be allowed for whatever special expenses the Minister believes to be suitable. It really is our old friend whereby the Secretary of State may do whatever he likes. If we are to address it and to move amendments to it, we need to know what that means.

Amendment No. 29 deals with debts incurred in relation to a child and,

    "any other child falling within a prescribed category".

Here I am back to the basic principle of Amendment No. 4. I do not believe that it is a proper matter for legislation. There are all kinds of different circumstances in which people are responsible for children who are not biologically their own. For example, one may have a nephew who has been orphaned and for whom one might take responsibility. As often happens, one may have a friend who leaves a will bequeathing guardianship of the children to a friend if he or she should die. I did that myself and, mercifully, it was unnecessary. The person may then die and the child may become the full financial responsibility of someone else.

There is an infinite number of these categories which the Secretary of State may not remember to prescribe because he simply may not have thought of them. Again, it seems to me far better to use a statement of general principle to the effect that this is a child for whose maintenance and welfare the parent concerned is responsible and leave to judicial determination the question to whom that eventually applies.

I do not believe that this Government really understand what is meant by flexibility. They believe that it consists of changing general rules all the time. That is not what flexibility means. It means adapting general rules to particular circumstances. That is the way life happens and that can be done only in relation to a particular case. So if this definition of flexibility is carried far enough we shall end up making a new regulation for every case that arises. That would lead to chaos. I beg to move.

4.30 p.m.

Lord Carter: I shall speak very briefly on this group of amendments. The noble Earl has, as always, explained them extremely well. He said that the Delegated Powers Scrutiny Committee has said that this is not a skeleton Bill. The difficulty is that once the noble Earl begins to remove the references, in order to fit his argument he has to remove all of them throughout the Bill. I am not sure that that is the correct thing to do in every instance. There is a need for flexibility which is given by regulations. I can see the problem which the noble Earl outlined of the

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danger of leaving something out if matters are left to regulations. That is a danger which applies just as much to regulations as to having something on the face of the Bill. The noble Earl has highlighted the real concern which exists and it will be interesting to hear how the Government propose to deal with it.

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