HL Deb 19 March 1991 vol 527 cc519-21

2.43 p.m.

Lord Campbell of Alloway

My Lords, I ask this Question at the request of my noble friend Lord Renton, whose voice has disappeared, although he has not.

The Question was as follows:

To ask Her Majesty's Government whether they will cease to use secondary legislation to amend Acts of Parliament and ensure that no power to do so will be given to Ministers in government Bills from now onwards.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I am sure I speak for all noble Lords when I express the hope that the voice of the noble Lord, Lord Renton, will speedily return. In reply to the Question, the exercise of powers under secondary legislation to amend Acts of Parliament can on occasion be a useful means of effecting consequential amendments or repeals of an entirely subsidiary character without the need to require Parliament to consider yet further primary legislation. The Government will continue to propose such powers where they seem appropriate.

Lord Campbell of Alloway

My Lords, I thank my noble and learned friend for his reply. Is he aware that, for example, the Highways Act 1980, which had a Henry VIII clause to enable amendment by statutory instrument, was so amended and was the subject of considerable concern? Is he further aware that this point was raised on the New Roads and Street Works Bill? Does he agree that it would be appropriate to knock Henry VIII on the head, so to speak, and put an end to these rather tedious and time-consuming discussions about that type of clause?

The Lord Chancellor

My Lords, I am doubtful whether doing anything to Henry VIII's head would be likely to obviate time-consuming discussion. One of the consequences of not having such power is that time would have to be taken up with what I described in the principal Answer as dealing with consequential amendments or repeals of an entirely subsidiary character. Obviously this is a power which has to be given with discretion. I am sure that Parliament will use discretion in giving such powers and, when given, that they will be used with discretion by the Minister to whom they are committed.

Lord Mishcon

My Lords, I join from these Benches in the good wishes to the noble Lord, Lord Renton, and offer them also to the other noble Lords who wish to participate in this Question. Is the noble and learned Lord not covered with some shame at the fact that the Bill which he is sponsoring and which will be dealt with this afternoon contains 92 regulations to be dealt with by resolutions, as subordinate legislation, of which only 12 are affirmative resolutions?

The Lord Chancellor

My Lords, noble Lords may not be surprised to hear that I am not all covered with shame. I believe that the powers given in the BIll that we shall be discussing further this afternoon are entirely appropriate. I am willing to discuss each and all of them in the context in which they have been given with a view to reaching the right answer.

Lord Rippon of Hexham

My Lords, bearing in mind the increasing use of Henry VIII clauses—which not least has been pointed to in legislation introduced by my noble and learned friend the Lord Chancellor —will the Government give consideration to setting up—as happens, for example, in Australia—a Select Committee to scrutinise legislation and report on the extent to which it involves constitutional issues or excessive use of delegated powers?

The Lord Chancellor

My Lords, I believe that the question of what powers are appropriate in relation to a specific Bill is best considered in the context of that Bill. At the moment I see no advantage in having the kind of remit to which my noble friend has referred. I believe that these discussions can be useful in the context of particular Bills but, on the whole, that the Government's proposals in this connection have been found by Parliament to be justified.

Earl Russell

My Lords, I am glad that the noble and learned Lord used the word "occasionally" in his Answer. Has he remarked that the noble Lord, Lord Renton, in his Question has taken a much more fundamentalist attitude than the Donoughmore Committee, which distinguished between the use and abuse of those clauses? Does he agree that their more frequent abuse might lead to a denial that they have any legitimate use?

The Lord Chancellor

My Lords, the phrase that I used in the principal Answer was "on occasion". Obviously very good things can be abused. I do not believe that the mere possibility of abuse is necessarily an argument against not having these powers. If that were a good argument it would apply to a great number of things from which a good deal of enjoyment and utility has been obtained.

Lord Airedale

My Lords, can the noble and learned Lord the Lord Chancellor at least assure the House that instruments of the kind that we are discussing will be introduced by the affirmative procedure so that at least a Minister has to stand at the Dispatch Box and justify what he proposes rather than slipping it in under the negative procedure?

The Lord Chancellor

My Lords, it is difficult to make generalisations about that. In a discussion on a similar matter in a Bill introduced in a previous Session I agreed that in the circumstances of that Bill a power of this kind should be subject to the affirmative resolution. However, there may well be more important matters for parliamentary attention than some of the instruments effecting consequential amendments or repeals which these powers are designed to introduce.

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