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Lord McIntosh of Haringey: It is exactly the same in primary legislation. That is politics. The point that must be made is that our procedures have to allow for amendment--and they do. If in a companion Motion an order is amended, the Minister has exactly the same choice in that case as he does in primary legislation. He can decide to accept the amendment and re-lay the order accordingly, or he can decide to tough it out and re-lay the order without the amendment, as can happen with primary legislation, or he can abandon the whole thing. There is no difference between this and primary legislation.
Viscount Goschen: Perhaps I may make a very small point, which may help the argument. Can the Minister tell the Committee what are the procedural implications of such an order being defeated in this House and having to be re-laid, with or without amendment? If the order was re-laid without amendment, would all the same procedures, hoops and timetabling have to be gone through as when it was first laid?
The reason I ask is that on many occasions Ministers pray in aid the fact that if this House were to take a certain course of action great delay would result. An example of this was in the recent cloning debate in this House, when it was said that research would be set back by a certain period of time. I shall be interested in the Minister's reply.
Lord McIntosh of Haringey: The noble Lord, Lord Phillips, described it as a wholly exceptional event; it could happen again next Monday. There will be then another annulment Motion before the House, which will undoubtedly be voted upon.
The difference is that in ordinary secondary legislation, whether affirmative or negative, the Motion before the House can be either a fatal Motion--such as the Motion of the noble Lord, Lord Alton, last Monday or the Motion of the noble Baroness, Lady Young, for next Monday--or it can be a non-fatal Motion. If it is a non-fatal Motion, there are perfectly good precedents of governments simply ignoring it and going ahead and making the order regardless. If not, you have to go back to the beginning.
If on a companion Motion an amendment was proposed and carried by the House, the Government have exactly the same options as for primary legislation. They can re-lay the order, they can tough it out, as I said, or they can abandon the whole project.
I am thinking of Ministers praying in aid the argument that if the House disagrees with the legislation it can have either a small amendment or it can reject it--in which case the whole thing falls and the Lords are doing a terrible disservice to the nation.
Lord Campbell of Alloway: I thank the Minister for the clarity of his exposition on the situation. It is much appreciated. From what the noble Lord said, it would appear that we are wholly dependent upon the Joint Committee for scrutiny. It is the Joint Committee on secondary legislation, as I understand it. Has any thought be given as to the workload of that committee, how it will discharge its functions and whether it will be provided with adequate resources to discharge this mammoth task?
Lord McIntosh of Haringey: That is precisely what I am not saying. I am not saying that it is only the Committee on Delegated Powers and Deregulation which can propose amendments. I am saying that when a companion Motion on a regulatory reform order is presented in the House, any Member of the House can propose an amendment. That is why I am saying that the situation is comparable to that in primary legislation.
As to the issue of the workload on the Delegated Powers and Deregulation Committee, that is a serious matter. My noble and learned friend Lord Falconer acknowledged that on Tuesday. It is a matter for the House authorities to consider. I am sure they are taking it very seriously.
I know that the noble Lord, Lord Campbell, wishes to come back on that point, but perhaps I may elucidate a little bit further for the noble Viscount, Lord Goschen. An order could be laid again without going through the whole procedure. So the argument of, "This is intolerable delay", which might otherwise arise, is slightly weakened. The House would be entitled to take any threat from wicked Ministers--none of whom is in this Government, of course--with a grain of salt.
Lord Campbell of Alloway: I regret to say that the noble Lord misunderstood the committee to which I was referring. I was not referring to the Delegated Powers and Deregulation Committee. I may have expressed myself badly. I was trying to refer to the Joint Committee on secondary legislation. I understood from the very full and clear exposition of
Lord McIntosh of Haringey: I did not once refer to the Joint Committee on Statutory Instruments, of which the noble Lord, Lord Skelmersdale is a member. As he said, that is a committee with very limited responsibilities, and certainly not policy responsibilities.
Lord Norton of Louth: I am sorry to prolong matters but I should like clarification in terms of the procedure outlined by the noble Lord. The Minister indicated that a Member of the House could move an amendment--in other words, it is not simply a recommendation of the committee as to an amendment. Is the noble Lord saying that that practice applies in both Chambers? On my reading of the procedure, it certainly would not apply if the committee in the other place did not divide on the proposal put forward by the Minister; it would just be put to the House without debate. But if the committee divided and it went through the normal processes, would there be an opportunity for a Member to propose an amendment?
Lord McIntosh of Haringey: I am not familiar with the procedures in another place. As they are a matter for that House rather than for the Bill, I do not think it would be proper, let alone possible, for me to respond on that point.
I want to respond, if I may--I am sorry to delay the Committee but these are important matters--to the point made by the noble Lord, Lord Phillips, about the period between 1935 and 1947, when indeed the Government of India and the Government of Burma Acts appeared to provide for amendable subordinate legislation. I make two points. First, it is not clear whether that power was ever used. Secondly, following that, in 1971 to 1972, the committees of this House considered the proposition that we should go for amendable secondary legislation. For reasons which I shall not lay before the Committee now--but they seemed to me to be overwhelming in their power--they decided not to do so.
Lord Phillips of Sudbury: I am grateful to those Members of the Committee who have taken part in the debate. It is an important matter. I hope that the Minister will consider what has been said and that we can return to the matter. The one thing that the Minister has not said--it has been obfuscated unintentionally, if I may say so--is that there is a massive difference between an amendment which has the effect of destroying the whole order and an amendment which has the effect of merely amending that which is amended. That is an enormous difference in practice and in psychology. If the Minister--I am tempted to say, if the Minister meant what he said, but that would have a note of disparagement that I do not
The noble Lord said: Subsection (4) of Clause 4 of the Bill restricts the type of provision that can be contained in a subordinate provisions order. The restrictions here are vital because subordinate provisions orders, as we have seen, are subject only to the negative resolution procedure.
These restrictions, in my submission, must be tightly drawn; and the Opposition are concerned especially about the restrictions in paragraph (b) which refer to provisions which are incidental, consequential, transitional or supplemental to a provision which modifies the subordinate provisions of an order previously made. I think I understand what "incidental" means; and I am not troubled by the word "transitional".
However, I am preoccupied about the words "consequential" and "supplemental". What are their limits in this context? Banning shooting and fishing might be regarded as consequential to banning hunting. There seems to me to be very little limit to what the word "consequential" might mean. Similarly, "supplemental" has no limit. Almost anything can be supplemental to something else. A supplementary question in another place is a good illustration of what this word might mean.
I would have thought it quite sufficient for the provisions falling within paragraph (b) to be solely those provisions incidental or transitional to a provision modifying the subordinate provisions of an order previously made.
There may, of course, be some implied specific and identifiable limits as to what provision could be regarded as consequential or supplemental which the noble and learned Lord may be able to clarify. I beg to move.
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