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Baroness Buscombe: I thank the noble and learned Lord for his response. If it is correct that this amendment, which he proposes to accept, has been tabled by the noble Lord, Lord Borrie, and if the committee is to decide the division between the two categories, that is a helpful concession. However, perhaps the noble and learned Lord will clarify whether, in the event that the committee takes a different view from that of the Minister, the Minister will be bound to accept that view.

Lord Falconer of Thoroton: The position would be as it is at the moment. The Minister is entitled to propose the terms of a statute or an order. Both committees then give advice on those terms. The Minister in either House is not bound to accept the views expressed by the committee. My experience is that as a matter of practice we almost invariably accept the advice of the committee, but if the Minister was minded to reject the advice, it would then be for each House to decide whether or not it was prepared to accept it. I make it clear that the provisions of the Bill do not require acceptance. If a draft Bill proposes a delegated order-making power, the Delegated Powers and Deregulation Committee will give advice on it, which the Minister is not bound to accept, though he almost invariably will. If he does not accept it, the House must decide whether or not to allow that provision, where the Minister is acting against the advice of the Delegated Powers and Deregulation Committee.

Viscount Cranborne: I apologise for intervening at this point. The noble and learned Lord will be aware that this has been an important matter of interest to your Lordships' House ever since the establishment of the Delegated Powers Scrutiny Committee, as it used to be. This matter was raised in the margins of the central argument of yesterday's debate, initiated by the noble and learned Lord, Lord Simon of Glaisdale. I was most interested to hear the reply of the noble and learned Lord the Attorney-General to that debate, who substantially echoed what the Minister has just said.

To what extent do the Government say that we are developing a new constitutional convention, which, in practical terms, would mean that any government would be forced to accept the strictures of the Select Committee on Delegated Powers and Deregulation, and that the performance of this and the previous government would make it impracticable for governments to resist the strictures of those committees, since certainly this House is increasingly disinclined to encourage the government of the day to buck that particular recommendation?

Lord Falconer of Thoroton: I am loath to discuss the question of constitutional convention. I am, however,

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keen to describe what the practice has been. Constitutional conventions do not arise from what people say but from what institutions do. All one can do at this stage is consider what this House, interacting with the committee, has done. I am not in a position to say that it has never overridden a view of the Delegated Powers and Deregulation Committee. I expect that on occasions it has done so, albeit rarely. I do not want to comment on whether or not there is a constitutional convention. I simply direct the attention of the Committee to what the practice has been.

Perhaps I may make one point that I omitted to mention in my speech, which has nothing whatever to do with the question that we have just discussed. On Tuesday this week I referred to paragraph 26(2) of Schedule 2 to the Financial Services Act. I said that that was an example of the statement-type provision for subordinate provisions frequently used in parliamentary drafting--the Minister making a statement that the order contains a statement. However, I am advised that I may have overstated the position in saying that it was frequently used in parliamentary drafting. I therefore wish to correct that impression. I apologise for misrepresenting the position on Tuesday.

Lord Campbell of Alloway: Before the noble and learned Lord sits down, if we are not to discuss the constitution, we can put it aside for a moment. As I understand it, the noble and learned Lord agrees that he proposes to introduce a procedure that has not previously been introduced. That is common ground. It is also to be implemented in a manner in which it has not previously been implemented. Having listened very carefully to the noble and learned Lord, I understand that the Minister is not bound by this procedure. Does the noble and learned Lord agree that it appears to require a fairly high degree of scrutiny?

Lord Falconer of Thoroton: With respect, I was not suggesting that I was not prepared to discuss the constitution. It is very important that I should discuss the constitution. In answer to the noble Viscount, Lord Cranborne, I said that I shall not say whether or not there is a constitutional convention but that we should look to it.

With regard to whether this is a new procedure, the super-affirmative order process has existed since 1994. We have taken it pretty well lock, stock and barrel from the 1994 Act. What is new is that under an RRO it is now possible to have a provision which states that they are subordinate provisions. It is a matter for the Minister, when proposing that order, to decide whether it is negative or affirmative, and the committee will then look at that issue just as it would in relation to a piece of primary legislation. To that extent, it is new, but it is a process in primary legislation with which the committee and the House are familiar. It is on that basis that the House must make a judgment about its appropriateness.

Baroness Buscombe: I thank the Minister for his response. I also accept his apology with regard to the

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paragraph in the Financial Services Act that was mentioned in debate earlier in Committee. I shall not pursue this point further at this stage. I shall listen with care to what the Minister says in response to Amendment No. 45 standing in the name of the noble Lord, Lord Borrie. We may well return to this point on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Phillips of Sudbury moved Amendment No. 39:

    Page 3, line 34, at end insert ("subject to such amendment or amendments as both Houses shall agree upon in respect of any order under section 1(1)(b) or (c)").

The noble Lord said: Perhaps I should start by acknowledging that my amendment, if agreed to by the Committee, would represent a fundamental change to the structure of the Bill. I also accept that it can be justified only if I can establish a real need for it. I beg your Lordships' indulgence in endeavouring to do that.

I say at the outset that my amendment does not constitute a novelty. At least 10 previous Acts of Parliament have incorporated a right of Parliament to amend any secondary legislation flowing from them. In a nutshell, this amendment is designed to restore to ordinary Members of this House a real, as opposed to a phantasmagorical, power over a limited range of statutory instruments, by allowing Parliament to amend, rather than only being able wholly to reject, an order which imposes a new burden on any citizen under the powers in Clause 1(1)(b) and (c).

The backdrop, of course, is that more and more legislation is effected by secondary legislative measures. Were it not for the excellent work of the Delegated Powers and Deregulation Committee, for which I have very high praise, there would in recent times have been passed a whole series of skeleton Bills, the guts of which would have been left to legislation by secondary means.

The scale is immense. About 3,000 statutory instruments are enacted every year, divided roughly half and half between negative instruments and those requiring affirmative approval. That represents a doubling of negative instruments every 15 years or so and a 50 per cent increase in those requiring the affirmative procedure in the same time-scale. Those are crude statistics.

In a most learned and enlightening annual lecture given to the Statute Law Society last May, the Clerk to the Delegated Powers and Deregulation Committee--note that position--Philippa Tudor, asked, "Is secondary legislation second class or crucial?" She answered both questions in the affirmative. She noted that there was,

    "widespread agreement that Parliament's consideration of secondary legislation is second rate".

She pointed out that there is,

    "a huge democratic deficit in current parliamentary scrutiny arrangements".

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I may say that her lecture was given after the main report of her committee on this Bill, since when the Government have made changes to their draft Bill.

Those are words that one could find echoed far and wide among the limited community of those who give close attention to secondary legislation, which community, if we are honest, does not include anything like the majority of Peers and MPs. At present, as the Government have not ceased to repeat, either House of Parliament has the theoretical power to reject any secondary legislation. However, the simple fact is that that has happened only once in the past 30 years, during which time more than 50,000 statutory instruments have flooded through this Palace, hugely swollen, of course, by European Union requirements.

Why are we apparently so supine? First and foremost, many--I would be one--would have to admit that even the primary law-making functions of this House are, if not out of control, on the very brink of overload. That, I hasten to add, is not for lack of interest or conscientiousness, but a function of the amount and complexity of legislation and the many other duties which we are invited to shoulder.

I do not think that there can be any doubt but that the main reason why secondary legislation is not turned back is that, with most Peers already preoccupied with main Bills and committees, it is not in practice possible to get enough of us into the House when secondary legislation is being considered--often on a Friday--to have any chance of defeating the Government. The stark fact of only one turn-back in 30 years speaks for itself.

Secondly, the all or nothing rule--only outright rejection but no amendment--invariably serves to kill off any residual possibility of successful opposition to an instrument. Legislators in this House are reluctant to contemplate adopting such a drastic strategy, by which I mean outright rejection, especially if, as would often be the case, one would be throwing out the baby with the bath water. The debate on human embryology last Monday was a quite exceptional event and illustrated, if one needed it, that governments have no scruple about introducing highly contentious and fundamentally important matters via secondary procedures.

But, the Government tell us, we have the Delegated Powers and Deregulation Committee to deal with these problems. On Tuesday, the noble and learned Lord, Lord Falconer, more than once took us through the stages by which consultation and committee scrutiny must proceed before any parliamentary consideration takes place. I accept that the super-affirmatory system is a real protection against breach of ultra vires or more general compliance. But, if I may say so, the Government are more easily satisfied with the committee than I am, and as I believe Back-Benchers in this House should be. To paraphrase the infamous saying, "They would be, wouldn't they?".

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I call in aid of my concern the main 15th report of the Select Committee last May on the Bill. It said:

    "We are conscious that the Government regards two Parliamentary Deregulation Committees as valuable protections against the abuse of this unprecedently wide power. In particular, it contemplates the two Committees deciding whether the use of the power is appropriate. Clearly the Committee would provide some protection. But from our own standpoint we do not consider--however flattering it might be to do so--that the fact that we carry out this work to the best of our ability within the existing framework is lasting protection against the misuse of the extremely wide powers now proposed".

In the same paragraph--paragraph 39--the committee went on to point out that although to date governments have acted on the committee's recommendations, they are,

    "not obliged to do so, but only to take account of our reports".

It then went on to point out that although this Government say that they intend to continue that practice, that,

    "is a promise given only on behalf of the present Government, and not its successors".

It thus concluded, in paragraph 45, that,

    "the main issue which the present draft Bill raises--the considerable widening of the powers to legislate by order--is one for the House as a whole to decide".

But there are other considerations too. The Delegated Powers and Deregulation Committee is made up of no more than eight or nine Peers. However distinguished and however conscientious--and they are--they sit on a cross-party basis, and can in no way be a substitute for the knowledge and wisdom of their 700 colleagues; nor would they pretend to be.

Secondly, although the committee's terms of reference are wide and have, as a matter of government undertaking, been extended in this Bill to include whether or not the provisions of a regulatory order are "appropriate", they do not extend to the policy or political issues. They would allow the committee to look, for example, at whether the order satisfies the requirements of proportionality, necessary protection and reasonable expectation, but not at whether the Bill was politically misconceived or mischievous. In this respect the remit of the committee is seriously delimited. I also doubt whether its judgment on what is or is not "politically controversial"--because we are assured that this legislation will not be used if an order would be--is any substitute for the view of the whole House.

It is also a fact that the committee is almost invisible beyond these walls. It is not therefore a remotely satisfactory focus for public dissatisfaction which may or may not be tapped via the consultation the Bill provides for. The committee's low profile may serve it well in its dealings with government, but prevents it substituting for Parliament as a public sounding board.

The noble Lord, Lord Norton of Louth, commented on Tuesday (at col. 221) that this is, "not a managerial Bill". Unfortunately, I believe that it is likely to be just that. It should not be, but it is only too likely to be.

Finally, the objection will be made that this amendment is not practical, because it does not provide a procedure to resolve any disagreement

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between the two Houses as regards any amendment. Just such a procedure was agreed between the Officers of both Houses pursuant to the Government of India Act 1935 and the Government of Burma Act 1935, both of which gave powers to Parliament to amend statutory instruments promulgated under those enactments. I am indebted to the Library research staff for tracking down--it was tracking down--the protocol agreed between the Officers in 1935, and which served its purpose without any problem, as far as anyone can tell, until 1947.

On Tuesday the noble and learned Lord, Lord Falconer, stated:

    "It is most important that these new provisions are given new scrutiny by both Houses of Parliament because they will have an effect on what can be done by this form of secondary legislation and what must be done by primary legislation".--[Official Report, 23/1/00; col. 173.]

That is very true. The noble and learned Lord also said--he made the point several times--that the Bill is drafted for Parliament to deal with rather than the courts. As he put it:

    "We have faith in the fact that Parliament will appropriately scrutinise the orders. If Parliament does not like what it sees, it will be able to prevent the orders from going through. That is the right approach--Parliament should be the body that determines such matters, not Parliament and the courts".--[Official Report, 23/1/00; col. 208.]

That was in the course of saying that he did not want the protections to be justiciable other than in extreme cases. It means in effect, "If we don't do it, don't look to the courts". That is why I want this Bill to have a chance of working in practice; and that means giving the Members of this House, and indeed the other place, the chance to amend regulatory orders which impose new burdens. I beg to move.

4 p.m.

Lord Norton of Louth: I rise to add my support to the amendment. The noble Lord, Lord Phillips of Sudbury, has made out an important case which needs to be answered. I shall anticipate what objections the Minister may have to it. He may say that when measures are brought forward under this process the Motion in this House will be amendable. But that is not the case in the other place.

The other objection is likely to be the very reason for having secondary legislation. The argument against amending secondary legislation is that it would then become mini primary legislation in terms of procedure. However, as we have discussed previously, ways around that can be found. One is to use the conditional amendment approach which allows the House to reject a statutory instrument, but also to indicate what would be acceptable when it is brought back. There are ways of looking at this in terms of the exact procedure to be adopted, but the principle that has been enunciated in putting forward this amendment is enormously important. The noble Lord, Lord Phillips, has put a strong case which will require a serious response.

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