AS AN AMENDMENT TO COMMONS AMENDMENT No. 129 (Hansard, 7 November 1989)

§ Lord Williams of Elvel
My Lords, I beg to move Amendment No. 129C. It relates to Commons Amendment No. 129. At the outset, Amendment No. 129 states: Leave out Clauses 83 to 94 and insert 15 pages of material. Therefore, Amendment No. 129C has nothing to do with the discussions which the noble Lord, Lord Lloyd, and I have had with the Minister. This morning I discussed the groupings at length with the Government Whips' Office because it is impossible to discuss amendments to Amendment No. 129 without grouping them together.
The object of Amendment No. 129C is to leave out the proposed new clause dealing with the power to make further provision by regulations. It appears on page 36 of the Marshalled List of Commons amendments and it is a new Section 413 of the Companies Act 1985. If the Bill is passed as the Commons wish us to pass it, provision is made that, The Secretary of State may by regulations make further provision as to the application of the provisions of this Part in relation to charges of any description specified in the regulations. Nothing in the following provisions shall be construed as restricting the generality of that power". In other words, the Secretary of State can change the whole ball of wax as and when he wishes. He can change the Act, the nature of the charges, the memoranda and the nature of the registrar's certification. In fact, he can change anything he wishes under negative procedure. Leaving aside the point argued ad nauseam and ad infinitum by the noble Lords, Lord Rippon and Lord Lloyd, and myself, that appears to be extraordinary. In the whole registration charges why not have one simple clause providing that the Secretary of State can say what he likes, when he likes?

§ Lord Trefgarne
My Lords, I recognise the concern expressed about the inclusion of enabling powers in the Bill. But the Government have sought to include such powers only where they are thought to be appropriate. The powers in new Section 413 are not remarkable. They follow the example of other similar provisions in statutes that establish registers. The noble and learned Lord the Lord Chancellor has very wide powers to make rules in respect of the land register under the Land Registration Act. Other registers, such as those for aircraft mortgages and fishing boats, are largely set up by secondary legislation. The use of secondary legislation recognises the fact that there are many detailed 670 provisions relating to registration systems that are properly dealt with outside primary legislation. These mainly concern matters of procedure, not fundamental principles of law.
We have been careful in drawing up the power in as narrow a manner as possible. The Secretary of State will be able to make further provision only as to the operation of the primary legislation. Unlike other powers he cannot amend, repeal or replace the primary legislation. He will not be able to make wide-ranging amendments to the legislation as it affects all categories of charge.
It is interesting to note the view expressed by the Inspector of Companies when the original provisions on the registration of charges were introduced as far back as the Companies Act 1900. The inspector then said: Considering the complicated character of this clause, and the inconvenience which may arise should it be defective, would it not be well to give power to modify the machinery of registration and the Acts incidental to it by rules". Unfortunately, that suggestion was not taken up; but it reinforces the point that we are not suggesting anything radically new in recommending that the House approve the provisions of the new Section 413. Indeed, the power in that new section does not go so far as that suggested by the Inspector of Companies. I hope that your Lordships will agree that it is entirely appropriate for the Secretary of State to be able to complement legislation which establishes a machinery of legislation by additional provisions made by regulations.

§ Lord Williams of Elvel
My Lords, I am grateful to the noble Lord for his explanation of what this is about. That does not seem to me to answer the point which I am trying to make. If this amendment is accepted, the Secretary of State may make regulations as to the application of the provisions of this part. As we have already discussed, the whole part dealing with the registration of charges is fairly vague in its application at present. A number of lawyers, companies and banks still do not know quite how it will all work. Either we have primary legislation which sets out what will happen and sets out the basis on which it will happen or we have an alternative; namely, that there is a one clause part which says that there will be a registration of charges and regulations will be made by the Secretary of State to define what those are.
To be honest, I do not believe that the powers of the noble and learned Lord the Lord Chancellor in respect of the registers which the noble Lord cited are quite as important as the registration of charges in the corporate sector, if I may speak without disrespect to the noble and learned Lord on the Woolsack.
This is a very, very important matter. Banks can live or die by registration of charges. For the Secretary of State to be able to make regulations when he feels like it about the provisions and applications of this part seems to me a very curious way of going about the business.
671 However, yet again we are up against this brick wall that the Government wish to regulate everything in sight. They do not know how they will do that and so they say that they will have a sort of Henry VIII system whereby they can do whatever they like. I am afraid that I shall continue to protest every time that this matter comes before your Lordships. 672 However, I shall not divide the House and I beg leave to withdraw the amendment.