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Lord Goodhart: I thank the noble Lord for giving way. This applies to the civil procedure rules. Clause 80, which inserts a new section into the 1997 Act, contains the process for making civil procedure rules. The bottom line on page 30 says:

Lord Hunt of Wirral: The noble Lord, Lord Goodhart, is right. However, Section 2(8) of the Civil Procedure Act 1997 does not contain those words. As the noble Lord has pointed out, we suddenly find "alter" inserted in Clause 80. Until now, it has not been thought necessary. I hope the Minister can explain why the power to alter is suddenly emerging for the criminal procedure rules and the civil procedure rules.

Baroness Scotland of Asthal: I understand why the issue concerns the noble Lord, Lord Goodhart. I hope that I shall be able to quieten his troubled spirit and satisfy the noble Lord, Lord Hunt.

I assure the Committee that there is nothing sinister hidden in the provision enabling the Lord Chancellor to alter the rules made by the rule committee. As the noble Lord, Lord Goodhart, mentioned, the power was in existence for over a century for the county court rules. I do not believe that its restoration would represent a radical change from the current position.

At present, the Lord Chancellor has the power to allow or disallow a set of rules. That means that he does not have the power to change even a minor issue if he agrees with the majority of the rules. If a Lord Chancellor were minded to disallow rules—I stress that this would be an extremely rare occurrence—he would doubtless discuss the matter with the rule committee. I am sure a compromise would be reached on the rules that ought to be made. The same would

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happen if the Lord Chancellor disagreed over a particular rule. He would discuss it with the committee and no doubt an agreement would be achieved.

For all three rule committees, we have provided that the Lord Chancellor is required to consult the committee before he alters the rules. Giving him the power to alter rules after consultation means that instead of having to disallow an entire set of rules, he would only be altering them. We respectfully suggest that that is a less blunt instrument.

The power to alter rules will ensure that any amendment to rules submitted by the committee can be expeditiously completed. For the criminal procedure rule committee, there is a provision in the Bill that rules may not be altered without the concurrence of the Secretary of State and consultation with the committee. These arrangements would facilitate a situation in which, should there be a difficulty on a particular rule, an agreed amendment could be quickly implemented following consultation with the committee. This would not undermine the fundamental principle that it would be the committee's role to make the rules and not the Lord Chancellor's.

The power to alter rules will be particularly beneficial when the committees are required to deal with urgent matters. The power to alter rules would also provide for any instance where the rules made by the committees failed to reflect the intention of Parliament when an Act was passed. Although that would be a rare occurrence, it would allow the alteration of individual rules rather than forcing the Lord Chancellor to disallow a set of rules on a particular matter.

I should also clarify that it is intended that this power would usually be exercised only where a minor alteration to rules is necessary. It is not intended that the power should be used to replace rules made by the committees. It is necessary in order to ensure that in the event of a difficulty being discovered, the rules could be amended rather than having to be returned to the committee to be remade in toto.

I hope that that explanation satisfies the Committee that the power to alter rules is neither novel nor dangerous and that the noble Lord will feel content to withdraw the amendment. I emphasise what I said earlier; namely, that in the past it has always been possible for the rule committee to reach an accommodation in relation to these issues. That has worked well. As I say, we expect the power to be exercised rarely.

Lord Goodhart: I suspect that the noble Baroness will not be entirely surprised to hear that I remain entirely unpersuaded by her advocacy on the matter. She did her best. However, given that there is a requirement on the Lord Chancellor to consult the rule committee before he makes alterations and, as I understand it, the alterations may be made some time after the rules have been made, I see no reason why the Lord Chancellor should not be required to go one step further and obtain the concurrence of the rule

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committee to any alterations which he wishes to make. That seems to be wholly in line with the basis on which the various rule committees operate and I think that it is plainly the right way to handle the matter. I shall withdraw the amendment tonight but it will be high on the list of amendments which I intend to bring back at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 98 and 99 not moved.]

Lord Hunt of Wirral moved Amendment No. 100:

    Page 31, line 24, leave out from "Rules" to third "of" in line 25 and insert "shall not be made unless a draft of the instrument has been laid before and approved by resolution of both Houses"

The noble Lord said: I rise with renewed vigour to move Amendment No. 100 and to speak to Amendments Nos. 112 and 120. If the Lord Chancellor is to make alterations to the rules, particularly if they have been made contrary to the advice of the committees, should there not be an extra parliamentary check on the making of such rules? As was clear from the debate on a previous amendment, up until now civil procedure rules were subject to negative resolution under the Civil Procedure Act 1997, and we were content with that. But given this power to alter the rules and the power to consult the committees, but not necessarily to obtain their consent to the alterations, it is clearly necessary for there to be a further parliamentary check. This amendment would require that procedure rules should be subject to affirmative rather than negative resolution. Amendments Nos. 112 and 120 are similar in effect. I beg to move.

Lord Goodhart: If the amendments to which I spoke in the previous group were to be accepted by the Government, I should be content for the present position to continue; namely, that the negative procedure is adequate for rule changes. I see that the noble Lord, Lord Hunt of Wirral, nods his head. If that was not to be the case, it would be essential that there be parliamentary control over alterations in the rules. In those circumstances, I would fully and completely support the amendment.

Baroness Scotland of Asthal: I am grateful for the noble Lord's indication that the negative procedure is more appropriate for rules, because in that he implicitly recognises the worth of the committee's detailed scrutiny of the rules and the fact that it is unlikely, with the greatest respect to either House, that there will be those here with greater ability to scrutinise the rules and make sure that they work effectively than in the committee. I understand entirely what has been said on negative resolution.

I emphasise that we anticipate that the power to alter will be exercised very rarely and sparingly. Therefore, to subject the rules to the affirmative procedure in our normal expectation would be rather burdensome. Members of the Committee will know the difficulty of finding parliamentary time in both Houses, and we think that that would be too heavy a club to deal with the issue in relation to alteration.

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I listened carefully to what the noble Lord said in relation to the amendment and to what was said by the noble Lord, Lord Hunt. We will look again at alterations, although I cannot tell the Committee that I have any real expectation of material change. However, even if the noble Lord succeeds in relation to other amendments, it would be quite wrong to have required an affirmative procedure in relation to this amendment. We would have to think again.

Lord Goodhart: Speaking for myself and not for the noble Lord, Lord Hunt, I would be content if the affirmative procedure was limited to rule changes made by the Lord Chancellor under his power of alteration, and the negative procedure continued to be used where the rules had been made by the rule committee and allowed by the Lord Chancellor.

Baroness Scotland of Asthal: I am grateful for that indication, which I shall take away and consider. If the issue can be resolved amicably during our meeting between Committee and Report, so be it. We will obviously return to the issue on Report. On the basis of what I have said, I hope that the noble Lord will withdraw the amendment.

Lord Hunt of Wirral: It has been a most useful discussion. The noble Lord, Lord Goodhart, and I have made our position absolutely clear. We are grateful to the Minister for her assurances, and in particular for her promise of further discussion and deliberation. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 67 agreed to.

Clause 68 [Power to amend legislation in connection with the rules]:

Lord Hunt of Wirral moved Amendment No. 101:

    Page 31, line 29, leave out "or desirable"

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 102 and 113.

At the moment, the clause would enable the Lord Chancellor, with the concurrence of the Secretary of State, by order to,

    "amend or repeal any enactment, or amend or revoke any provision of subordinate legislation, to the extent that he considers necessary".

The amendment would remove the words "or desirable", which immediately follow "necessary".

I am not sure in what circumstances an amendment would be desirable if it were not necessary. With such a huge and wide-ranging Henry VIII power in the clause to make amendments to legislation, it would be helpful if the Minister could say why such sweeping powers were necessary. It would allow the Government to rewrite the statute book because they believe that it is desirable to do so to facilitate the making of procedure rules which in the light of previous debates may have been rewritten by the Lord Chancellor in any event. Amendment No. 102 would require the affirmative resolution procedure to be used.

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I am sure that I have no need to refer the Minister to paragraph 15 of the report of the Delegated Powers and Regulatory Reform Committee, in which it was made clear that in relation to Clause 68 and 75 it did not consider that the Government had made out the case for the negative procedure. I hope that the Minister will take on board the amendments that I have tabled. I beg to move.

9.45 p.m.

Lord Goodhart: Amendments Nos. 102 and 113 stand in my name and that of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Kingsland, has added his name. It will probably be unnecessary to discuss them at length because I understand from the seventh report of the Delegated Powers and Regulatory Reform Committee, which deals with the government response to the earlier report of that committee, that the Government intend to apply the affirmative procedure when the Henry VIII powers under Clauses 68 and 75 are used to amend or to repeal any enactment. I hope that the noble Baroness will be able to confirm that that remains the intention of the Government.

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