Previous Section Back to Table of Contents Lords Hansard Home Page


The Deputy Chairman of Committees (Lord Skelmersdale): In calling Amendment No. 526G, I should inform the Committee that if this amendment is agreed to, I shall not be able to call Amendment No. 526H.

12.15 a.m.

Lord Dixon-Smith moved, as an amendment to Amendment No. 526, Amendment No. 526G:


The noble Lord said: In moving Amendment No. 526G, I shall speak also to Amendment No. 526H. These amendments are probing amendments directed to the same purpose. They illustrate the difficulties of joint authorship against tight deadlines. Those of us responsible for the amendments would have preferred to table only one, but we did not have time to debate which one before the deadline for tabling amendments hit us.

These amendments concern the question of the order which will deal with the powers of conservation bodies. Amendment No. 526G seeks to remove subsection (7), which deals with the making of further provision in respect of supplemental and incidental powers and so on. Amendment No. 526H is more precisely aimed at subsection (7)(b), which states:


    "provide for any enactment which relates to or limits the supplemental or incidental powers...to apply in relation to the conservation board with such modifications as may be specified in the order".

It seemed to me that that might put the conservation boards in a rather privileged position vis-a-vis local government legislation compared with local government itself. I am sure that that is not the Government's intention. However, we felt that we

16 Oct 2000 : Column 821

should ask the question in order to discover precisely what does lie behind the new clause in Amendment No. 526. I beg to move.

Lord Whitty: Acceptance of either of these amendments would make the proposed system of conservation boards inoperable. The Government have not set out to prescribe every facet of the powers of conservation boards in this legislation in order to enable arrangements to be made to suit local circumstances at the time an order is made.

Orders will need to make further supplemental or incidental powers available, for obvious reasons. Without that provision, conservation boards would not be able to operate. It is sensible to allow enactments relating to local authorities also to be applied but to recognise that certain features of them will need modification to match the circumstances of conservation boards, which are intended to be light touch bodies with limited powers and limited budgets. The full weight of procedures applying to a country or to a district will not always be appropriate to such a board, but suitable modification to take account of the board's circumstances will allow propriety to be safeguarded without overburdening the boards with bureaucracy. Once again, there is the point that anything done in an establishment order will be covered through the affirmative resolution procedure.

These provisions are needed to tailor the regulations covering the boards to meet their particular circumstances. I hope that the noble Lord will not pursue his amendments.

Lord Dixon-Smith: I am grateful to the Minister for that explanation. I shall study it with some care. In the meantime, I beg leave to withdraw the amendment.

Amendment No. 526G, as an amendment to Amendment No. 526, by leave, withdrawn.

[Amendment No. 526H, as an amendment to Amendment No. 526, not moved.]

On Question, Amendment No. 526 agreed to.

[Amendment No. 527 had been withdrawn from the Marshalled List.]

Lord Whitty moved Amendment No. 527A:


    After Clause 71, insert the following new clause--

ORDERS ESTABLISHING CONSERVATION BOARDS

(" .--(1) Any power of the Secretary of State or the National Assembly for Wales to make an order under section (Establishment of conservation boards)(1) or (9) is exercisable by statutory instrument.
(2) No order shall be made under section (Establishment of conservation boards)(1) by the Secretary of State unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(3) A statutory instrument containing an order made under section (Establishment of conservation boards)(9) by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament.

16 Oct 2000 : Column 822


(4) If a draft of an order made under section (Establishment of conservation boards)(1) by the Secretary of State would, apart from this section, be treated for the purposes of the Standing Orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
(5) The power of the Secretary of State or the National Assembly for Wales to make an order under section (Establishment of conservation boards)(1) or (9) includes power to make such incidental, supplemental, consequential and transitional provision as the person making the order thinks necessary or expedient.
(6) The power of the Secretary of State or the National Assembly for Wales by an order under section (Establishment of conservation boards)(1) or (9) to make incidental, supplemental, consequential or transitional provision includes power for any incidental, supplemental, consequential or, as the case may be, transitional purpose--
(a) to apply with or without modifications,
(b) to extend, exclude or modify, or
(c) to repeal or revoke with or without savings,
any enactment or any instrument made under any enactment.
(7) The provision that may be made for incidental, supplemental, consequential or transitional purposes in the case of any order under section (Establishment of conservation boards)(1) or (9) which--
(a) establishes a conservation board or provides for the winding up of such a board, or
(b) otherwise has the effect of transferring functions from one person to another or of providing for functions to become exercisable concurrently by two or more persons or to cease to be so exercisable,
includes provision for the transfer of property, rights and liabilities from one person to another.
(8) The power of the Secretary of State or the National Assembly for Wales under section (Establishment of conservation boards)(1) or (9) to provide by order for the transfer of any property, rights or liabilities, or to make transitional provision in connection with any such transfer or with any order by which functions become or cease to be exercisable by any conservation board, includes, in particular, power to provide--
(a) for the management and custody of any transferred property (whether real or personal);
(b) for any liabilities transferred to include liabilities under any enactment;
(c) for legal proceedings commenced by or against any person to be continued by or against a person to whom property, rights or liabilities are transferred or, as the case may be, any board or other authority by whom any functions are to become exercisable;
(d) for the transfer of staff, compensation for loss of office, pensions and other staffing matters; and
(e) for treating any person to whom a transfer of property, rights or liabilities is made or, as the case may be, by whom any functions are to become exercisable as, for some or all purposes, the same person in law as the person from whom the transfer is made or the authority by whom the functions have previously been exercisable.
(9) The power of the Secretary of State or the National Assembly for Wales to make an order under section (Establishment of conservation boards)(1) or (9) includes power to make different provision for different cases, including different provision for different areas or localities and for different boards.
(10) In this section "enactment" includes an enactment contained in an Act passed after this Act.").

Lord Dixon-Smith moved, as an amendment to Amendment No. 527A, Amendment No. 527B:


    Line 13, leave out subsection (4).

16 Oct 2000 : Column 823

The noble Lord said: Subsection (4) of Amendment No. 527A states:


    "If a draft of an order made under section (Establishment of conservation boards)(1) by the Secretary of State would, apart from this section, be treated for the purposes of the Standing Orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument".

I wonder why.

First, let us be quite clear that we have a specific procedure in the Red Book to deal with hybrid instruments. Hybrid instruments are matters which affect the rights of individuals. Where a Bill or an order is judged to be hybrid, special procedures are involved and the individuals affected have the right to petition against the Bill or order. I found myself wondering why it was necessary to write this exclusion in to the Bill, so that a matter that affects individuals is treated as though it does not, and the individuals lose their right to appeal against it.

It was pointed out to me that no one could remember when there was last a hybrid instrument. But that is not a reason for including this provision in the Bill. There might be one, and I should be concerned if in passing this provision we were to deprive individuals of what would otherwise be their rights before Parliament. That is the reason why I tabled the amendment. I am an optimist. I like to think that the Minister will have an adequate explanation as to why the subsection is on the face of the Bill; but I have had some difficulty in trying to dream one up.

Amendment No. 527C, in the same group, deals with a part of the Bill which has too many words. Line 21 refers to such,


    "consequential and transitional provision as the person making the order thinks necessary or expedient".

This is an example of prolixity--the point reiterated by the noble and learned Lord, Lord Simon of Glaisdale. If a matter was not considered expedient, it would not be there. The words,


    "the person making the order thinks necessary",

are not required. The only words required are, "as is expedient".

Subsection (6) deals with a matter that always causes me concern. Paragraph (c) of the subsection contains the words,


    "to repeal or revoke with or without savings, any enactment or any instrument made under any enactment".

This is one of the wonderful catch-all phrases that we see from time to time in legislation. It bothers me every time I see it. Governments persist in doing it. They say that it gives them flexibility for the future. It is wrong in detail and in principle that the Secretary of State can have the power in making an order,


    "to repeal or revoke ... any enactment or any instrument made under any enactment".

That is a slightly strange extension of what is necessary. It should not be necessary to include those words in a Bill. I have seen them before, and have complained about them before. Speaking pessimistically, I suppose that I shall see them again,

16 Oct 2000 : Column 824

and I shall probably complain about them again. However, I hope the Minister will not mind having to explain himself once again. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page