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Lord Kimball moved Amendment No. 1:


Page 1, line 9, leave out from ("it") to end of line 11.

The noble Lord said: In moving Amendment No. 1, I wish to speak also to Amendment No. 2. The aim of Amendment No. 1 is to prevent confusion over the possible use of other pyrotechnic devices whose primary use is not as fireworks for entertainment. Various safety and warning devices are used in firework displays. Items such as smoke flares, Very lights, exploding warning caps, alarm guns and gas fired bird scarers could all be incorporated with fireworks in a display. If this was the case and they came under this Bill that could cause confusion when they are required for their normal and primary use. As items of safety equipment their primary purpose must override any secondary purpose to which they are put.

I see a battery of learned QCs to my left and the noble Viscount, Lord Astor, all of whom are much more skilled in dealing with the really important subject of the second amendment, which is designed to safeguard this important Bill from changes which might be made by a future Secretary of State and which, without being brought before this House, might inadvertently change the primary purpose of the Bill. I beg to move.

Lord Campbell of Alloway: Amendment No. 2 gives power to the Secretary of State by secondary legislation to amend Clause 1(1), which is primary legislation. Under paragraph (a) of Clause 1(1) there is a definition of fireworks. Under paragraph (b) of Clause 1(1) there is a definition of would-be fireworks. My noble friend Lord Kimball has already spoken of the confusion in that context.

The definition is for the purposes of Clause 1(3) and governs the fireworks regulations under Clauses 2 and 3 and Clauses 5 to 10. This power to amend primary legislation by regulations under Clause 1(2) and to make regulations in implementation of virtually the whole of this Bill is in no way restricted by the Title, which is merely to make provision about fireworks and other

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explosives. The only constraint upon this extraordinary exercise of power is in Clause 16 by statutory instrument subject to annulment by either House. If Clause 2(1) is to stand, then Clause 16 will require substantial amendment, such as is proposed in Amendment No. 13 of my noble friend Lord Kimball as to the laying of a draft before both Houses and an affirmative resolution.

Clause 1(2) should not stand as part of this Bill. The Select Committee at paragraph 7 said,


    "The fact that the Bill sets no limits on what might be brought within the definition and so within the scope of the Bill caused the Committee particular concern".

Then the committee said that a ministerial undertaking might be given. In my book that is no good at all. This is a matter which has to be dealt with on the Bill as regards the structure of legislation.

As to the regulations, the Committee said at paragraph 9,


    "Again, the Department indicated that the power would in practice be used in limited circumstances".

Then there is a ministerial undertaking. Again, that is wholly inappropriate.

At paragraph 16 of the report the Select Committee draws attention to the most disturbing aspects of the wide-ranging powers conferred. Indeed, it is a most unusual and disturbing feature, as the extensive devolution of power to the Executive as proposed by this Bill is, in my book, wholly unacceptable and, owing to constraints of parliamentary time, scrutiny of regulations when laid is all but perfunctory.

As regards your Lordships' House, as Members of the Committee well know, there is power to amend or to reject secondary legislation, but by custom such power is not exercised. In parentheses, perhaps I may express a personal view that this power and resort to this power may be enshrined when your Lordships' House is reformed and reconstituted. The prophetic warning of my noble and learned friend Lord Hailsham as to the dangers of an elective dictatorship has now all but been fulfilled. This Bill affords an unwelcome and distressing example in Clause 1(2), which should not stand part.

It is one of the functions of your Lordships' House to ensure that there is a curb upon misuse or abuse of executive power. The Government are not in favour of a total ban but, as yet, do not know to which devices the Bill is to apply. They do not know what provisions should be made. It is all left to the Secretary of State, a sort of proverbial firework tsar, subject to wholly inadequate parliamentary control. I support Amendment No. 2.

Viscount Astor: I should apologise to Members of the Committee for the fact that I was not able to be present at the Second Reading debate on this Bill. My noble friend Lord Campbell of Alloway has very carefully and succinctly described some of the problems with this Bill on the legal front. I would like to take it one stage further and say what those problems mean, in effect, on the executive front or, indeed, the political front.

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The powers in the Bill are very wide. Quite frankly, I am not disturbed so much by the powers in the Bill; what I am really disturbed about is the fact that the Delegated Powers and Deregulation Committee said that this House might be satisfied by assurances given in the House. That is not good enough.

An assurance is not worth very much. It describes the thinking of the Secretary of State of the day. We all know that reshuffles happen regularly in government, in any government. If a Bill is passed and becomes an Act an incoming Minister is not bound by any assurances; he is bound by the law. It is not a question of Pepper v. Hart; it is a question of what powers there are in this Bill under which a Secretary of State could say, "This is all very well; my predecessors looked at this, but I would like to go a whole lot further". There is nothing anybody could do. He could do that.

I do not know whether that is what the Government have in mind; I am sure it is not. It is certainly not the fault of the noble Lord, Lord Monkswell, who has taken on this Bill from another place; but this Bill is very badly and dangerously drafted. It gives any government a power to change the Bill almost totally and do anything they wish with it. I believe that the Members of this Committee should not be satisfied by this. I am disappointed that the committee were not firmer with the Government. It seems to have been pressing for debate. I do not think that it is good enough.

A number of amendments stand in the name of my noble friend Lord Kimball. Perhaps the Minister could say whether the Government will consider the proposal in the final amendment. It would make a difference to how we debate the preceding amendments.

8 p.m.

Lord Rees: I, too, apologise that I was unable to intervene in the debate on the Second Reading of the Bill. Having said that, I hope that I may not regard myself as disabled from making some perhaps rather stringent comments on the detail of the Bill.

Perhaps we may start on common ground: that there should be some statutory framework within which the sale, enjoyment and construction of fireworks should be confined. However, that should not disable us from a close and rigorous examination of the detail, in particular in the light of the Select Committee report. In my modest career in public life, I do not think that I have ever read a Select Committee's report which makes quite such damning criticisms of the drafting of a Bill. Indeed, in the final recommendation one notes that,


    "The Committee draws the attention of the House to the more disturbing aspects of the wide ranging powers conferred by the Bill and invites the House to consider whether to seek Ministerial assurances about these. If Ministerial undertakings on all these points"--

all the points raised by the Select Committee--


    "are not forthcoming, the House may wish to consider whether amendment of the Bill is called for".

I have no doubt that the noble Lord, Lord Monkswell, who is sponsoring the Bill is fully armed and prepared to deal with criticisms made by the Select Committee and those implicit in the numerous amendments set

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down to the Bill. So perhaps one reserves one's fire a little until one has heard what the noble Lord has to say. But, in fairness, the noble Lord should be put on notice about our reservations on the Bill which amply justify the amendments put down for debate today. To demonstrate the quality of the amendments, it is interesting to note that every single amendment has been selected for debate.

I look all the time to the noble Lord, Lord Monkswell, for elucidation and assistance in order to understand what the Bill is about and how we are presented with such an extraordinarily slapdash Bill for our consideration. When the noble Lord responds, perhaps he will explain Clause 1(1)(b). It seems to suggest that any device which is intended as a form of entertainment can be regarded as a firework for the purposes of the Bill. I can only conclude that my blurred eye has not fully appreciated the significance of that. In his usual charming and clear way, perhaps the noble Lord will be able to enlighten me. Other noble Lords may have got to the bottom of it. Can the provision really mean that any device which is intended as a form of entertainment can be regarded as a firework? I cannot believe that. There must be something implicit in it. If so, I hope that the noble Lord will set my mind at rest.

Subsection (2) states:


    "The Secretary of State may by regulations amend subsection (1)".

Others of my noble friends more expert in matters of draftsmanship than I am have pointed out the extraordinary width of that provision. Again I hope that the noble Lord will explain it to us. Does the provision really mean that there is no further restriction on the Secretary of State's right: that he proceeds by negative resolution, and beyond that anything that comes into his mind as having some bearing on the framework of the Bill may be dealt with by negative resolution procedure? Taken at face value, subsection (2) will permit the Secretary of State to amend by regulation the very substance of the Bill. These are not just questions of detail or peripheral points. That cannot be right. That is a matter upon which we have touched in many other pieces of legislation. I hope that the noble Lord will apply his talents in explaining whether there are some restrictions which would make such wide-ranging powers acceptable to the Committee.


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