HL Deb 21 December 1982 vol 437 cc930-8

3.15 p.m.

The Earl of Avon

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Avon.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 30 [The Commission's functions]:

Lord Kennet moved Amendment No. 97: Page 17, line 19, leave out subsection (4).

The noble Lord said: The Committee will remember that this Bill has two main purposes: the first of them is to change the governance of a large number of museums, and the second is to set up a new commission at present enjoying the cumbrous title of "The Commission for Historic Buildings and Ancient Monuments for England". At its last two sittings, the Committee concluded those parts of the Bill dealing with the museums. They are now behind us and we have begun on the second section, setting out the new commission. The proposed commission tears up a hundred years of English law in this matter and transfers many governmental functions and duties out of Whitehall to the new quango, to be known as "the commission". My amendment seeks to leave out the subsection before the Committee which gives that commission its powers and functions. It paves the way to a later amendment which seeks to leave out the whole of Schedule 4, setting out the powers and functions of the new commission.

May I say by way of preface that this is not a party matter in any way; the Bill itself is not a party matter and this amendment is not a party matter. May I say also that I am moving this amendment to test the will of the Committee not because I or, so far as I know, any noble Lord is against the commission or because we are against the commission having the powers and functions which, so far as we can make out, it is proposed to give it. My purpose in this amendment resides in the words, so far as we can make out".

Last week we had a debate on the need for less and clearer legislation. I think many of your Lordships will remember the speech of the noble and learned Lord, Lord Denning, during that debate—one of the clearest, shortest and most passionate pleas for clarity of legislation one could wish to hear anywhere. They will remember also the speech on Second Reading of the noble Baroness, Lady Birk, regarding Schedule 4, when she claimed it was incomprehensible and asked that it be dealt with by the device of a Keeling schedule. Your Lordships may remember also the speech of my noble friend Lord Hutchinson on Second Reading, when he stated that the schedule was incomprehensible and asked what the Government proposed to do about it.

Earlier during the Committee stage an amendment had been moved by the noble Lord, Lord Sandford, who sought to carry into the Bill a very short, modest and clear clause which set out the general purposes of the new commission in positive terms. The Committee did not divide and the amendment was not accepted; but the Government promised that they would look at that proposal sympathetically and they did not by any means come down against having a short clause setting forth the purposes.

My purpose now, in trying to get rid of the subsection and the entire schedule, is to make room for a clear and positive statement of the powers, duties and functions of the commission. Besides general purposes, they will, of course, have legally defined powers, duties and functions, and it is my contention that in the schedule, as it stands, they are not comprehensibly defined. The positive part of the Bill which deals with the new commission is one and a half pages of large print, and it says: Let there be a new commission; let it be called this, that and the other; let it be composed of 13 members and so on—various useful and general things. Then, when you come to subsection (4) which I seek to delete, it says in effect: "For a definition of their powers, duties and functions turn to Schedule 4." Schedule 4 is 20 pages of small print, compared with one and half pages of large print. It has already attracted, at the last count, 85 amendments to the one schedule; there may be more by now.

My complaint is that the schedule is nowhere positive and direct in its statements. It endows the new commission with their functions, duties and powers solely by reference to the repeal of portions of earlier enactments, and the substitution of those portions by new little bits of text which are set out in the schedule. It will be enough if those of your Lordships who are interested simply turn to Schedule 4 and dip in anywhere. You will see that certain words are left out of an Act of 1971, an Act of 1968 and so on and replaced by other words, and there is no rhyme nor reason in a direct reading of that schedule. It is no more or less than a cat's cradle of repeal provisions. It would serve very well as a repeal schedule to a Bill, if there were a positive statement of the powers and duties of the new body elsewhere in large type. It is, in fact, a repeal schedule, and that is the role to which it should be relegated.

If I may change the image, it is a black blob of stuff which makes no sense. It is like looking at the outside of a founder's mould before the metal is poured in. We know that on the inside there is a hole precisely shaped to a negative version of the statue which is desired to be cast, but from outside one cannot see it. The parliamentary draftsman can see the inside of that negative cast in the schedule, but it is quite beyond the wit of man to see it. In my submission, it is bad legislation and bad practice for Parliament to send forth to the people a bit of law which it does not understand itself, and I do not believe that there is one noble Lord here present who could get up and give a coherent and positive account of the powers and functions of the new commission.

These points were made on Second Reading and they did not fall on deaf ears. Various remedies have been canvassed and the Government have been helpful as regards the passage of the legislation itself. On Second Reading, the noble Baroness, Lady Birk, asked for a Keeling schedule to be prepared. As noble Lords will know, a Keeling schedule is a straightforward reading of the Acts which are being altered, with the new bits that are moved in printed in a different way, in heavy type or underlined or something like that, so that you can see at a glance what change is being made to the old Acts. It would be useful to have that before us during the passage of the Bill through both Houses of Parliament. But it would not in any way be a substitute for the clear, forthright and positive clause which I seek to get the Government to produce.

Unfortunately, the Government did not see their way to go even that far. They said that there would be too much work, that the resulting text would be too long and so on. What they have done—they have not done nothing and we must give them credit for that—is to provide a document called A Guide to Schedule 4. This is what I might call a kind of kippered Keeling. It is split open like a kipper and laid out on two pages, so that down the right-hand side you see all the bits of the old enactments which are to be altered, and down the left-hand side you see the alterations, and by following the ribs of the kipper across you can see where each bit goes into the other side. It is very arduous to read, and I will only say that it is a little less arduous to read than the original schedule itself.

It has already been of help to many people in understanding this schedule. Indeed, without it, it would have been impossible for people to formulate amendments to the schedule. But I repeat that this will not do for the layman outside. How are trustees to understand their duties when faced with a negative schedule? How are local authorities to understand their duties? How are all those who exercise ordinary functions in the business of planning and preservation to understand their duties under the new law, without a positive statement of the powers and functions of the proposed new commission?

This is my argument. I hope the Committee will agree with me that it is unacceptable to create a powerful new quango which, as I said, tears up 100 years of law and practice, without a clear, positive statement of their powers and functions; and that the best way to make sure that the Government provide this positive statement at a later stage of the Bill is, at this moment, to leave out subsection (4) of the clause, and later on to leave out the whole of the schedule, the way to which is paved by subsection (4). I beg to move.

Baroness Birk

As the noble Lord, Lord Rennet, referred to the efforts that I made to try to get clarification, I feel I ought to say a word. It is perfectly true that on Second Reading I asked for a Reeling schedule, as that appeared to be the best way to deal with a problem like this. Unfortunately, the problem that has arisen is far greater than could be dealt with even by a Reeling schedule, as I think has become apparent as the Bill has progressed.

The noble Lord, Lord Rennet, was absolutely right when he said that the relevant part of the Bill is one and a half pages long and the schedule is 20 pages long; in other words, the tail that wags the dog has knocked the dog right out of the ring and quite unconscious. When we talk about two Bills, we are absolutely right, because what we have before us is a composite thing. We have two separate Bills, one dealing with the devolution of museums, and the other dealing with the setting up of this commission. So they are completely separate Bills which are gathered together, presumably, to save parliamentary time and so as to put as much legislation in one package as one can.

With the help of the guide, I have tried to go through the amendments with which we shall be dealing later this evening. Considering that it was done very much at the last moment, the amount of work that was put into it by the Minister and by the officials is very much appreciated. Nevertheless, I am already in difficulties. It is extremely difficult to follow and I am completely lost on some of the amendments. Without any doubt, it will have to be "refreshed" between each stage of the Bill. As amendments are either passed or accepted, the whole thing will change. The only answer is that, almost simultaneously with this legislation, there will have to be a complete consolidation: not just a consolidation of Schedule 4, but a consolidation of all the heritage legislation up to date. That is the only answer. We have now reached the stage where we need a promise from the Government that consolidation will take place.

We have support for this point of view. The noble and learned Lord, Lord Simon of Glaisdale, raised this matter. He told me that if he could have been here today he would have supported this point of view. The Government have agreed to publish this guide. I do not know, however, whether they realise that this means that the guide will have to be completely updated at each stage. It will have to be updated when it leaves this House; it will have to be updated when it reaches the other place; and it will finally have to be updated when it becomes legislation. It means that, hanging on to this very unsatisfactory arrangement there will be another document which will be separate from the statute itself but which will explain it.

More and more do I feel that this is a very bad second best. I believe that we must get the Government to agree to consolidation. If the Bill is to make sense this is the only answer. This must happen if people are to understand the Bill and if the duties and powers which are to be vested in the new commission are not only to be understood but carried out. We have reached a very serious stage. With all the goodwill in the world it will be extremely difficult to make the legislation work effectively and to put through legislation which is comprehensible and sensible.

3.32 p.m.

The Earl of Avon

This amendment would, if accepted, wreck this part of the Bill. I assure the Committee that we recognise the strength of opinion which lies behind the amendment, and which has made the noble Lord, Lord Rennet, bring it forward. I hope, however, that in the light of our discussions so far on the commission and the assurances I have been able to give, the noble Lord will feel able not to press his amendment. We have sought as much as possible to assist the Committee's discussions through the provision of explanatory material. We intend to give the most careful consideration to the points raised by noble Lords and to accommodate them where we feel this would help the running or the work of the commission.

I should like to draw the attention of the Committee to Amendment No. 99, standing in the name of my noble friend Lord Sandford, which lays down the functions of the commission in the body of the Bill. In particular, I hope that we shall be able to improve the overall concept of the commission set out in the Bill. Enabling the commission to do its job well and defining the job properly is the chief concern of us all. During the Second Reading debate, and afterwards, a number of noble Lords made representations about the complexities of Schedule 4 to the Bill and requested help to assist ready comprehension. Since then, Notes on Clauses—a term in itself—have been made available. We have also provided a special reference booklet setting out, side by side, the paragraphs of Schedule 4 and the relevant sections of existing legislation. But the schedule is amended. Both the noble Lord, Lord Rennet, and the noble Baroness, Lady Birk, made mention of this.

I have been asked whether this reference booklet can be made available, suitably updated, and when the Bill becomes law. The Government wish to be as helpful as they can about this. We therefore propose that the booklet should be made readily available as a departmental publication, and that this should be done before any of the provisions of Schedule 4 come into force. The format of the publication and any question of change will be decided nearer the time, but noble Lords can be assured that a suitable reference document will be made available and that, to answer the noble Baroness, it will be updated whenever we feel this to be necessary. That will obviously be between this stage and the next stage. If we had a Reeling schedule it would be equally as voluminous and would equally have to be amended all the time, so the extra amount of work involved does not raise its head too much.

In the light of this two-pronged attack—the fact that we are doing all we can to produce a reference document, to have it readily available and to keep it updated, and the fact that we are also looking as sympathetically as we can at my noble friend's amendment which is to be dealt with later—I hope the Committee will join me in hoping that this amendment will not be pressed.

Baroness Birk

I wonder whether the noble Earl would comment on a point about which I feel very strongly; namely, the consolidation of all this legislation. This is a most important and vital point. We should like the Government to agree to consolidation; otherwise, years and years will go by. The updating of the schedule will not make the legislation all that more comprehensible. Nothing will be done, and the heritage legislation will be left in this very awkward, complicated and difficult state. Consolidation of the legislation is essential. Unless we can obtain a promise during the passage of this Bill that consolidation will take place, I feel it will be pushed into the background and that nothing will emerge for generations.

Lord Beaumont of Whitley

I should like to support the arguments which have been produced by the noble Lord, Lord Kennet, and the noble Baroness, Lady Birk. The noble Earl, Lord Avon, has, as usual, been extremely helpful to the Committee. However, this is long-term legislation and the noble Earl has not yet succeeded in dealing with the objections we have to passing the Bill in this particular form. By the time we reach the Report stage I hope that the Government will be able to come forward either with agreement to a consolidation Bill or with some equally constructive suggestion.

There is a widespread feeling in the Committee that a pamphlet to be produced by the department is not a suitable answer. The noble Earl and the Government will, of course, want to look carefully at this question of producing a consolidation Bill, and will possibly need a little time to consider the matter. Nevertheless, we ought to have something a little better than a pamphlet. Therefore, I hope the noble Earl will be able to give a commitment that the Government will have a look at this suggestion. It is an important point. We cannot just let it go by on the assurances which we have had so far.

The Earl of Perth

I, too, feel that despite all the help we have been given by the noble Earl, Lord Avon, who has tried to explain what the Bill is all about, the general public—and in the last analysis it is the general public who are going to count—will not know what is to replace the Historic Buildings Council for England and the Ancient Monuments Board for England. We are told that there is to be a commission, but as it stands the commission is such a hotch-potch, because of all the amendments, that people will not understand what it is all about and will not give it the proper help and respect which it ought to have.

Subsection (5) of Clause 30 says: The Commission may receive voluntary contributions towards the cost of any expenditure incurred by them.".

I do not think that there will be any voluntary contributions because people will not understand what the commission is all about. It will take years before the commission, if it is floated in the form in which it is now, is recognised as something worthwhile and as doing a worthwhile job. Therefore, I very much hope that the noble Earl the Minister will give a great deal of thought to what has been said by others, and will try, somehow, to make the commission understandable and something which the public as a whole will want to support.

The Earl of Avon

Before we go any further, may I reply to the point on consolidation? I understand that this is a matter for the Law Commission, but I shall certainly take it back to my right, honourable friend and find out whether he is prepared to take into account the terms of this debate and approach the Law Commission.

Lord Kennet

Answering to this amendment the noble Earl, Lord Avon, laid a good deal of weight on the possibility of publishing a guide. He referred also to a forthcoming amendment, Amendment No. 99, to be moved by the noble Lord, Lord Sandford, which, it is true, would throw further light on the definitions of the purposes of the proposed commission. What it does not do is positively state the powers and duties of the commission. It does not say anywhere that the commission shall have the power to do certain things, or that it shall do certain things in certain circumstances. In common with the noble Lord's earlier amendment, which was an excellent one, Amendment No. 99 deals with the commission's general purposes, and so it does not help.

The noble Baroness, Lady Birk, has spoken about consolidation. So did the noble Lord, Lord Beaumont of Whitley, and the noble Earl, Lord Avon. We did not secure any pledge on consolidation. The noble Earl said that he would draw the attention of his right honourable friend to the desirability of consolidation, but in ordinary parliamentary Committee language, that is no sort of pledge and is nothing upon which this Committee should base its future actions. All that leaves us with the question, will the reference booklet, or kippered Keeling, save us? I am very willing to agree that it will help Parliament a good deal in its work—it has done so already. But can we imagine that the public—and particularly trustees in the situation mentioned by the noble Earl, Lord Perth, who are thinking of giving something to the commission—will find the reference booklet sufficient? It is extraordinarily complicated to read and I believe that people will not find it to be a sufficiently good guide. We shall not be doing our duty if we permit legislation to go forward with only that booklet as a guide.

Let us consider what will happen if this amendment were accepted by the Committee now. The Bill would be without a subsection of one clause and it would be without a schedule until the next stage. The next stage cannot be until after the Recess. I do not know whether the Government have any date in mind but it has not yet appeared in the details of future business. We are now nearly at the end of December and it will be six weeks before we could possibly come back to it at Report stage; five weeks if one deducts one week for holidays.

We could give the Government five weeks in which to draft a positive clause, and I believe all noble Lords know in their hearts that a positive clause is what this Bill ought to have; a positive clause laying down the powers and duties of the proposed new commission. That would not be so terrible because such a clause need not be more than one page long. If I am right, the schedule is already a perfectly good repeal schedule which could be moved back into the Bill as a straightforward repeal schedule in the ordinary way.

On the strength of what the noble Earl, Lord Avon, has said so far (and I observe and welcome the fact that he has plunged into discussion with his noble friends) I am not sure that it would be right to withdraw this amendment. I shall welcome any further expressions of opinion from members of the Committee and, above all, will welcome anything more that the noble Earl can say beyond what he has already said—which was that the Government will give careful consideration and will ensure that the reference booklet will be "readily available as a departmental publication". I do not know quite what that means. What does "readily available" mean? Does it mean, on sale everywhere and obtainable as readily as and at the same time as the Act of Parliament which it seeks to clarify? Unless it does mean that, it is of no interest to the people for whom we are legislating.

Viscount Eccles

Before the noble Lord sits down, would it not be wise to hear discussion on Amendment No. 99 rather than to divide the Committee on this amendment?

Baroness Birk

There is a great deal in what has been said by the noble Lord, Lord Kennet. He has done a service to the Committee by initiating this very important discussion. However, in view of what the noble Earl has said, I feel that he has gone as far as he can at this stage. I did not expect the noble Earl to say, "I will bring forward legislation to consolidate all heritage legislation at this point". Yet, if he had left it that it was purely the business of the Law Commission, I would have been very doubtful and unhappy and I would have supported the noble Lord, Lord Kennet, if he were pressing his amendment to a Division. But as the noble Earl has undertaken also to speak to his right honourable friend, and as he is aware of the expressions of opinion from all parts of the Committee—that the Committee feels very seriously and strongly about this matter—I feel that we ought to give the noble Earl that opportunity.

It is for that reason that, at this stage, we cannot support the amendment of the noble Lord, Lord Kennet. I hope that he will reconsider this because the amendments we are going to discuss today are not irrelevant to any part of the Bill. In fact, most of them deal with matters of finance, conservation and principle which will have to be dealt with whatever form the Bill takes. So long as we make it our business—as I am sure the Committee will—to keep the noble Earl and his right honourable friend on the ball so far as this question of consolidation is concerned, that is the most important point.

As I and many others have said already, this Bill falls into two parts and could quite naturally and easily be divided into two Bills. The first part could still go ahead even if it happens that this matter has to be held up because of consolidation; it would not affect the devolution of museums covered in the first part of the Bill. There is a great deal of ease of manoeuvering and I hope that we shall see some results a long time before we reach the next stage.

The Earl of Avon

If I may respond very briefly to the noble Lord, Lord Kennet, so far as publication of the guide is concerned, it is our intention to follow the will of your Lordships. If it is at all practicable, we will do exactly what the Committee wishes. There is no question of hiding anything and we will do this in the best way that we can with the agreement of the House; this is on the question of publishing the added guide. So far as timing is concerned, I am sure the noble Lord, Lord Kennet, will not need me to remind him that this Parliament need not go on for all that length of time. Therefore, while I am not trying to push the Committee in any way, we do not quite know when the next general election might be.

I feel that the noble Lord, Lord Kennet, slightly forgot what was said by the noble Lord, Lord Sandford, when he spoke to his amendment to Clause 29. It is his intention in that amendment to put the aims and functions of the commission in Clause 30—and as my noble friend Viscount Eccles said, we can discuss that when we come to Amendment No. 99.

Lord Kennet

I am grateful to the noble Earl for giving us a foretaste of possibilities to come, if not of certainties. Can the noble Earl say anything about the possibility of even now drafting a short clause giving the powers and duties of the commission, because neither of the amendments of the noble Lord, Lord Sandford, do that? They simply set out the commission's general purposes. It seems to me that it should not be beyond the wit of man to do what I ask. If the noble Earl will say that he will take a look at the possibility of drafting a positive clause between now and Report stage, then our present delays may disappear.

The Earl of Avon

We are pre-empting Amendment No. 99 a trifle. We have already discussed this a little when debating Clause 29, and I believe that this is what we are going to do on Amendment No. 99.

Lord Kennet

I shall read those cloudy words with great care in Hansard tomorrow. Subject to due warning to the Committee that we may have to come back on this matter at Report stage if we do not find that Hansard is clear on this point of publication of the guide and the desirability of a positive clause, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

I believe that this would be a convenient moment to resume the House for the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.