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The Deputy Chairman of Committees (Baroness Lockwood): I should point out to the Committee that if Amendment No. 17 is agreed to, I cannot call Amendment No. 18 under the pre-emption rule.

Baroness Byford moved Amendment No. 17:


The noble Baroness said: These are important amendments which may take a little while to discuss—perhaps an hour—by which time the dinner debate will be totally out of line. Would it be possible, with the Committee's permission, to leave consideration of the amendments until after the dinner break?

Baroness Farrington of Ribbleton: The rules of the House state that we may break before 7.30 p.m. only when all noble Lords taking part in the debate are present. They are not here. Given that noble Lords have expressed concern about the amount of time

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available for the Bill, I am loath to allow an hour and 10 minutes for the dinner break business. It would be better to proceed with the debate on Amendment No. 17.

Baroness Byford: In that case, I am quite happy to proceed.

In moving Amendment No. 17, I shall also speak briefly to support Amendment No. 18. Amendment No. 17 would remove the Secretary of State's power to amend by order a class of exempt hunting. An order made under this clause would be subject to affirmative procedure of parliamentary approval—

The Countess of Mar: I am sorry to interrupt the noble Baroness, but there seem to be an awful lot of sub-committees going on in the House. May I ask the noble Baroness, Lady Farrington, to ensure that the noble Baroness, Lady Byford, can be heard?

Baroness Farrington of Ribbleton: I am grateful to the noble Countess. I am seeking not to appear too heavy-handed with the House, but I was conscious of the difficulty the noble Baroness had in being heard.

Baroness Byford: I presume the noble Baroness wishes me to continue, although I see her colleague, the noble Lord, Lord Sainsbury, in his place. I apologise to noble Lords if I was not heard—I normally have a loud voice, and will make sure that I am heard now.

The amendment would remove the Secretary of State's power to amend by order a class of exempt hunting. An order made under this clause could be subject to the affirmative procedure of parliamentary approval for delegated legislation. This, I believe, is a Henry VIII clause that allows the Secretary of State to change the very heart of the Bill which Parliament approves. That should not be acceptable, as it would allow a Secretary of State to expand or restrict the application of this Bill and could, in effect, render a parent Act a nonsense.

This is another probing amendment, designed to establish beyond any doubt that any change to Schedule 1 could take place only if both Houses of Parliament, not just the Commons, and independent of one another, approve this change.

As I have said, I support the amendment in the name of the noble Baroness, Lady Mallalieu, to which I will return later. I beg to move.

Baroness Mallalieu: Amendment No. 18 is really a tidying-up amendment, which would insert the words "add or" in the clause. It would enable the Secretary of State to add, as well as to vary, the classes of exempt hunting. This is proposed not for any draconian or sinister purposes, which seemed to be suggested with regard to my earlier amendment, but simply to bring this part of the Bill in line with the other parts of the Government's original Bill. By adding to the classes of exempt hunting, the Bill is made consistent with what the Government had set out earlier.

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For example, Clause 17(5)(b) of the original Bill, which dealt with the determination by the registrar, stated that the registrar may,


    "add to or vary the conditions specified in the application".

Clause 19(4)(b), which dealt with determination by the tribunal in the Government's original Bill, stated that the tribunal may,


    "add to or vary the conditions specified in the application".

Clause 29(a), which dealt with the amendment of automatic conditions in the Government's original Bill, stated that the Secretary of State may "add a condition" to the group registration licence.

There seems no reason that I am able to see why the change has been made in this Bill. I would be grateful if the Minister could explain why those words are not used. It seems to me that by adding them, one gives scope for alterations which may become necessary later. I should have thought that, notwithstanding all that the Minister said earlier, it is surely desirable to give some flexibility within the system which would not require amendment either by subsequent order or, indeed, by subsequent legislation.

The amendments would increase the powers of the registrar. Given that the House has voted for registration, I should have thought that that was, in this context, desirable.

Lord Renton: The amendment moved by my noble friend Lady Byford raises a matter of parliamentary principle. It is suggested in Clause 2(2) that the Secretary of State may, by order—that means by secondary legislation—amend Schedule 1, which is fundamental and is primary legislation. The way in which it could be amended is something that we should avoid. For example, if merely foxhunting is to be dealt with in the primary legislation, the clause would enable other forms of hunting, such as stag hunting, to be dealt with as well. I really do not think that is the sort of thing we should delegate to the Secretary of State to enable him to deal with the matter by secondary legislation, so I support the amendment.

Lord Carlile of Berriew: I, too, support what has just been said and the objection in principle to the introduction of a Henry VIII clause which would give the Secretary of State power to determine what should be in the schedule, if that is what is meant by Clause 2(2). Will the Minister tell the House what really is meant by Clause 2(2)? It says:


    "The Secretary of State may by order amend Schedule 1".

That is reasonably clear. However, it then appears to limit the amendments the Secretary of State may make by providing the purpose,


    "so as to vary a class of exempt hunting".

Schedule 1 contains several classes of exempt hunting, each of which is given a title which presumably defines the class. For example, paragraph 6 is headed "Falconry". What can the Secretary of State do under Clause 2(2) to vary that class of falconry? Is it the Government's intention that the

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Secretary of State should have the power to remove that class from exempt hunting? If so, they have not provided for that to take place in Clause 2(2), because it does not allow the Secretary of State to remove a class, but only to vary the class. If they want to allow the Secretary of State to vary the classes of hunting by removing or adding, they should say so in the text of the Bill. It is a completely obscure provision.

What is meant by varying a class in relation to the example that I chose—falconry, in paragraph 6 of Schedule 1? Does varying falconry mean, for example, that the Secretary of State could remove paragraph 6(a)? I doubt whether that would be permitted under the provision in Clause 2(2). I cannot see what the Secretary of State can do under Clause 2(2). It looks to me like a piece of legislative nonsense that would be of benefit only to people such as myself and the other lawyers in the Chamber, who would welcome the opportunity to earn substantial brief fees from whoever cares to pay us under the cab-rank rule—which, as the Committee knows, we always follow.

Noble Lords: Oh!

Lord Carlile of Berriew: I think I rather resent that titter from my left.

There is an important and serious point here. The legislation that we introduce must have a meaning that those who adjudge upon it can understand. This seems to me to have no useful meaning whatever.

7.30 p.m.

The Countess of Mar: In view of the speech just made by the noble Lord, Lord Carlile, I wonder where the Minister stands and where his integrity stands, given that he has said that he will not recommend to the Committee that an amendment is accepted.

Viscount Bledisloe: As another lawyer, I share the views expressed by the noble Lord, Lord Carlile, as to the extreme difficulty of knowing what subsection (2) means by,


    "so as to vary a class".

Would the provision entitle the Secretary of State to remove a class completely—to say that rat hunting was no longer exempt at all? Even if the provision does not allow the Secretary of State to do that, it allows him virtually to do that, because he could say that all he was doing was varying the class by saying that rat hunting was exempt, provided that it takes place between 2 a.m. and 4 a.m. on Christmas Day. That would considerably remove the exemption. It cannot be right that, whether directly or in that sort of indirect way, the Secretary of State has absolute power to take away exemptions that Parliament has given.

Lord Whitty: It might be helpful if I explained the point of the measure, which is to ensure that we do not have to return to primary legislation if, in practice, the clauses prove difficult to interpret. We could vary exemptions, but not delete them. That would be subject to the affirmative procedure anyway, but an

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over-interpretation of "vary" so as to completely undermine the exemption would not be allowable under the clause.

The second amendment suggests that we could add to the exemptions. Again, that would be a significant variation of primary legislation. It is better that we are able to vary but not to add to or subtract from the classes of exemption. It may be helpful if I spell out the provisions in writing between now and Report, so that the kind of situations that might arise are clearer. If the noble Baronesses, Lady Byford and Lady Mallalieu, were prepared not to press their amendments, we might have a debate on the basis of that information at a later stage. There could be qualifications to variation rather than deletion of variation.


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