§ 4.45 p.m.
§ Lord Rippon of Hexham
rose to call attention to the case for a Select Committee to scrutinise all Bills coming before Parliament, and to report whether such Bills contain insufficiently defined administrative powers or propose any inappropriate delegation of legislative powers; and to move for Papers.
The noble Lord said: My Lords, before I introduce this debate perhaps I may point out to those who are relying on the list of speakers that I want to discuss inappropriate delegation of legislative powers and not appropriate ones.
Your Lordships will recall that on 31st January the noble and learned Lord, Lord Simon of Glaisdale, initiated a valuable short debate asking the Government to reduce the quantity and improve the quality of legislation. That debate successfully identified the mischief, and in particular the growing tendency for an all-powerful executive to diminish effective parliamentary control and replace it by ministerial legislation in the form of innumerable rules, regulations and orders having the force of law. I hope this debate will provide your Lordships with an opportunity to discuss possible remedies.
The first check should be inside the government machine itself. Unfortunately, there is at least circumstantial evidence, notably in the Bills themselves recently brought forward, that that is not working as well as it should nor, indeed, as I believe used to be the case. Bill after Bill contains Henry VIII clauses; that is to say, clauses giving the Minister power to amend or even repeal primary legislation by order. Moreover, there is an increasing reliance on enabling powers of one kind or another. So I believe that we have to consider what checks Parliament itself can impose.
In 1932 the Donoughue Committee, while it did not disapprove of the use of Henry VIII clauses in all circumstances, said they should be severely restricted and should always be explained and justified in the memorandum to the Bill. For my 1408 part, I see no reason why this should not be done as a matter of course.
Dealing with this issue in the Committee stage of the Courts and Legal Services Bill, my noble and learned friend the Lord Chancellor had the following to say on 23rd January, at col 944 of Hansard:Many things have happened since Donoughmore reported, including the great development of the powers of the court in judicial review and the right to apply in the exercise of powers the underlying intention of the statute as the court gathers it".The first thing that has happened is that there are now many more Henry VIII clauses. They are wider in scope and they are no longer time limited as they were in the cases considered by the Donoughmore Committee.
As for judicial review, I suggest that one of the main reasons for the enormous growth in demand in the courts for such review is that Parliament has lost control over the examination of legislation. If there were better legislation there would be less necessity for judicial review. But judicial review is not a complete remedy. The courts cannot override an absolute power given by Parliament to a Minister.
If I may indulge in a little personal reminiscence, I recall that in 1976 I had the unusual and perhaps unique experience of being briefed by the Inland Revenue to defend an order made in my name in 1973. It was made under the General Rate Act 1967 and was signed by a junior Minister. I never recalled actually seeing it myself. The order was alleged to be ultra vires and void because it rated a hereditament outside the rating area according to a formula which produced double rating and contrary to any previously established principle. The effect was to put the rates up from £4,000 a year to about £55,000.
I did not have too much trouble in the court of first instance before Mr. Justice Bridge, as he then was, but the Court of Appeal tried for three days to find grounds for upsetting the order, but concluded there was no way round the Minister's statutory power to provide whatever code or whatever principles he chose, or to repeal or amend any enactment including the enabling Act itself. Indeed, I recall that Lord Justice Cairns said to me, "Are you saying, Mr. Rippon, that the Secretary of State could if he wished have rated this hereditament at twice the salary of the chief executive?" I said, "Indeed, my Lord, that is exactly what I am saying. Parliament gave the Secretary of State absolute powers and he exercised them".
Your Lordships may note that it could be many years before such a power is exercised by a different Minister in a different government. It may also be noted that in that case the order was subject to affirmative resolution, but although the committees scrutinising statutory instruments do a fine job it is easy for orders to slip through the net, as that order most certainly did. We must bear in mind that there are up to 9,000 pages of statutory instruments a year, and it is all ex post facto. The orders are very frequently lengthy and complex and they do not explain clearly how they are to be used even when, as in the case to which I referred, taxation is involved.
I am grateful to my noble and learned friend the Lord Chancellor for having undertaken during the 1409 Committee stage of the Courts and Legal Services Bill to ensure that in future, where the power to amend primary legislation is conferred even in a limited sense, he will see that the affirmative resolution procedure is followed. As I have already indicated, that is not in itself a sufficient safeguard, as the noble Lord, Lord Williams of Elvel, said when we were debating similar clauses in the Companies Bill. I quote Hansard of 14th February 1989, at col. 113:We should be aware that the Bill is giving the Secretary of State unlimited power to reconstruct Clause 77 by order, which as we know even by the affirmative procedure … is not voted against and is not amended".Of course, that is in your Lordships' House. In the other place it can be voted against but there is rarely even a debate.
In the debate which we had on the quantity and quality of legislation my noble and learned friend the Lord Advocate expressed the view:what occasionally happens is that when criticism is made of the drafting of Bills it is not criticism of the way in which the policy is being expressed but of the policy itself". —[Official Report, 31/1/90; col. 406.]I believe that that shows some misunderstanding of the concerns which some of us have tried to express. Criticisms of excessive delegated powers have come from all sides of the Chamber when we have debated similar clauses in recent years; for example, the Courts and Legal Services Bill, the Children Act, the Companies Act, the Financial Services Act, the Banking Act and the many local government finance Acts which regularly come before us. I doubt whether anybody, even the Minister who supports the policy, knew what would be the result of the community charge or the business rate.
In so far as there is any truth in the view of the noble and learned Lord the Lord Advocate, that only underlines the need for some method of objective scrutiny. As matters now stand, it is certainly true that when those issues are raised in the middle of a Committee stage, there are those who have not listened to the argument who tend to head for the party Lobby as soon as they have ascertained which that is. To my mind, the evidence is overwhelming that parliametary scrutiny is today, by any objective standards, totally inadequate.
Therefore, we need to consider a new machinery to remedy that situation. In France there is the Conseil d' état to which the government have to submit draft Bills. They may then be criticised for bad drafting or for provisions which are deemed to be objectionable in priniciple. The same applies to government decrees and regulations.
From time to time the case has been argued that in this country we should have some form of pre-legislation procedure. I see no reason why draft Bills should not be tabled and when appropriate discussed and considered before governments come to final conclusions. Unfortunately, I feel that there is frequently too short a gap between the publication of a Bill and the Second Reading debate.
All I wish to suggest today is a first practical step which the Procedure Committee or some appropriate body should study. That is what happens in Australia where in 1981 it established a Senate 1410 standing committee for the scrutiny of Bills. The committee consists of six senators —three government and three non-government —with one of the government senators in the chair. The chairman has a casting vote but I understand that that has never been used. Their responsibility is to focus on the structure of Bills and not in any way on their political purpose.
The terms of reference are simply to report whether Bills, by express words or otherwise:(i) trespass unduly on personal rights and liberties; (ii) make rights, liberties, and/or obligations unduly dependent upon insufficiently defined adminstrative powers; (iii) make such rights, liberties, and/or obligations unduly dependent upon non-reviewable decisions; (iv) inappropriately delegate legislative power or (v) insufficiently subject the exercise of legislative power to parliamentary scrutiny".For a detailed description of how the committee operates in Australia I refer your Lordships to an impressive paper by Senator Rosemary Crowley, a past chairman of that committee, delivered last November to the Third Commonwealth Conference on Delegated Legislation held in London. She pointed out how zealous they are in Australia in dealing with Henry VIII clauses, how they can call upon the Minister to justify the powers which he seeks and the way in which they report to the legislature which can then decide whether or not the regulation or order-making power is appropriate. Therefore, the Australian Parliament is enabled to legislate with open eyes. I wish we could say with complete conviction that we are doing the same in this country today.
I believe that to many onlookers Parliament has become a sort of legislative sweatshop whose Members are so overwhelmed by the never-ending stream of Bills that in many cases they seem neither to know nor to care what they are rubber-stamping. I hope that your Lordships may feel that the establishment of a Select Committee on something along the lines of that established in Australia might help us to re-establish the authority of Parliament over the Executive. My Lords, I beg to move for Papers.
§ 4.55 p.m.
§ Lord Airedale
My Lords, I am sure that we are all grateful to the noble Lord for introducing this subject this afternoon, a subject on which he speaks with so much authority and expertise. He mentioned the Commonwealth Conference on Delegated Legislation last November. I suppose that modesty prevented him from mentioning that he fascinated the conference with an address about Henry VIII clauses.
I should like to take four examples from the statutes which illustrate the need for that which the noble Lord seeks. I have not delved deeply into the past. One can always find some absurd example if one digs deep enough, and sometimes that is rather unfair. I wish to take four examples from the 1988 statute book. The Criminal Justice Act 1988 begins by providing, in its first 18 sections, for the matter of extradition proceedings. Section 19 provides that those sections: 1411shall extend to the Channel Islands and the Isle of Man and shall have effect as if each of them was part of the United Kingdom".It then goes on to provide in subsection (2):Her Majesty may by Order in Council direct that any of the provisions mentioned in subsection (1) above shall, in its application to any of the said islands, have effect subject to such exceptions … as may be specified".I am advised that such an Order in Council, far from being subject to any parliamentary proceedings, does not even have to be laid before Parliament. Therefore, Parliament having said explicitly that, for example, the Isle of Man was to be treated for these purposes as part of the United Kingdom, an Order in Council could strike the Isle of Man off the list and Parliament is not even notified that that has been done.
A similar case arises under the Education Reform Act 1988. Section 52(7) provides that an order under that section does not need to be laid before Parliament. I do not wish to go into that matter too deeply because I believe that the department has admitted that that occurred due to an oversight. Nevertheless, a scrutiny committee will be just as useful scrutinising oversights as scrutinising deliberate decisions of a mischievous character.
The British Steel Act 1988 is a good example of bad retrospective delegated legislation. The Act provides for the transition of the British Steel Corporation into a successor company. There is to be an appointed day. The relevant section then continues:and any provision of an order made under this subsection after the appointed day may be made so as to have effect as from that or any later day".We could therefore have a situation where somebody had a cause of action subsisting on the appointed day and subsequently, by an order by the Minister, the cause of action could retrospectively be taken away from the citizen. We all know that no nice kind Secretary of State will behave in that way, but why confer such a power upon him?
The Employment Act 1988 provides that a Minister may make orders, and states that an order may:modify any enactment or subordinate legislation".We then have the words:In this section —`enactment' includes an enactment contained in this Act or in any Act passed after this Act".That led a certain learned QC to make this comment,A power to modify future legislation is remarkable enough; that it should be subject only to negative resolution rather than to draft affirmative procedure leaves me at a loss for words to express my admiration of a Parliament so modestly willing to defer to the superior wisdom of a Secretary of State".I can imagine that Lord Hewart of The New Despotism fame might have used stronger words. I can imagine him saying "Power to a Minister to modify Acts of Parliament that have not seen the light of day; has Parliament gone completely and absolutely bonkers?"
I understand that until recently any order modifying primary legislation always had to come 1412 under the affirmative procedure. It no longer does. I cannot help thinking that it would be a very good thing if it did. The noble Lord, Lord Rippon of Hexham, mentioned slipping things through the net. I cannot help thinking that if there were something which the Minister himself was not quite happy about, he would be much less likely to try slipping it through the net if he knew that he had to stand at the Dispatch Box and defend it.
I know that it would take up valuable parliamentary time, but I believe the extensions of standing committees would alleviate the demands upon parliamentary time, at least in another place. I should like to see orders of that kind again subject to the affirmative procedure in every case.
§ 5.3 p.m.
§ Lord Shaughnessy
My Lords, the noble Lord, Lord Rippon, has done the House considerable service in initiating this debate on the need for scrutiny of Bills to come before Parliament in the interests of eradicating, or at least modifying, the granting of powers to Ministers which could infringe the rights and liberties of citizens and erode the legislative power of Parliament.
As the noble Lord mentioned, a Commonwealth conference was held in London last November and was well attended by parliamentarians throughout the Commonwealth who were concerned with delegated legislation. During the course of this conference it became evident that the legislatures of many of the countries represented exerted more influence and control upon non-statutory legislation than does the Mother of Parliaments from which they largely derive their procedures and customs.
The noble Lord, Lord Rippon, gave a very full description of the Senate scrutiny committee in the Australian Parliament. The same type of scrutiny is afforded in New Zealand and, to a lesser extent —though it does not apply to pre-examination of Bills before they are read a first time —in Canada.
That is not to say that there is a total lack of scrutiny of delegated powers at Westminster. With other Members of your Lordships' House I have the duty and privilege of sitting on the Joint Committee on Statutory Instruments of both Houses. It may be that not all your Lordships are familiar with the duties and powers of that committee, but it will suffice to say that we examine orders, regulations and the like made by Ministers to determine whether they accord with the powers given to government by primary legislation; to determine that they are technically accurate; that they do not exercise unexpected or unusual powers, and that they are framed in language which is understandable to the public.
The noble Lord, Lord Rippon, also referred to the fact that many of these orders and regulations are lengthy and complex. That is perhaps a very careful understatement of the actual case. I will say something about that a little later. In other words, the joint committee is charged with the examination of the technical quality of delegated legislation, but not of its substance. That is a somewhat confining rule. The committee reports to both Houses of 1413 Parliament regularly on its examinations of the delegated legislation. I must say that when I first sat on the committee, about six years ago, I was terribly frustrated by the inability to do anything after the fact, but over a period of time I have become inured to the limits of our competence.
In that sense, to a certain degree we act as a watchdog; regrettably it is a watchdog with a bark but no bite. I suggest that were we to have a select committee as outlined by the noble Lord, Lord Rippon, considerable benefit would result. First, it would complement, in a way, the work of the Joint Committee on Statutory Instruments. Presumably the committee would have the power to invite Ministers to meet with it to explain and defend the authority conferred upon them by the proposed legislation and why such powers should be subjected to either the affirmative or negative instrument procedure. In addition to the obvious benefits for parliamentary control, it would help to eliminate lengthy debate at Committee stage upon whether these powers should be set out in the statute—because that would have been decided beforehand —or whether they should be subject to the affirmative or negative procedure. In that way a certain amount of parliamentary time might be saved.
The famous, or infamous, Henry VIII clauses have been mentioned. There are also other instances which the noble Lord, Lord Airedale, mentioned. There are numerous instances of less proclamatory clauses in Bills which merit greater examination and consideration than the pressure upon parliamentary time —as excessive as it sometimes is—permits under the present system.
Finally, I wish to mention the number of statutory instruments which have come before the joint committee in the past 10 years: in 1979 there were 1,770, and in 1989 there were 2,510 which is an increase of 40 per cent. I revert to what the noble Lord, Lord Rippon, referred to as lengthy and complex instruments, orders and regulations. I wish very quickly to quote from part of a regulation which came before our committee only yesterday. It is in connection with the community charge and it reads as follows —if I can get through it:Where a liability order is made against a co-owner in respect of an amount, and also against another co-owner or a spouse or manager of a co-owner (whether at the same time as the order against the first mentioned co-owner or subsequently and whether in respect of all or part of that amount), the order made as respects all but the relevant co-owner shall not include under regulation 29(6)(b) or (7) of the principal Regulations(a) any additional sum in respect of the costs of obtaining the order against them, but they (with the relevant co-owner) shall be treated as jointly and severally liable for the amount included in the order against the relevant co-owner in respect of costs, and the order against them shall (as regards regulation 29(6)(b) or (7) of those Regulations) be made in respect of the sum outstanding in relation to it; and for this purpose the relevant co-owner is the co-owner against whom the liability order was first made in respect of the amount, or if there are more than one such, such one of them as the court considers appropriate.
§ Lord Shaughnessy
My Lords, it is little wonder that we on the Joint Committee on Statutory 1414 Instruments sometimes feel like sacrificial goats on the altar of prolixity.
§ 5.13 p.m.
§ Lord Diamond
My Lords, we are all indebted to the noble Lord, Lord Rippon, for initiating this important debate. I doubt whether any of your Lordships would disagree with the main point that he made. He said that parliamentary scrutiny was inadequate. He has put before us a proposal for improving that situation. I fully support what he has proposed but it does not go far enough.
Perhaps I may explain why I think that is the case. First, there will be the obvious answer from the Government —which may be forthcoming even today —that we have already the committee on which the noble Lord, Lord Shaughnessy, serves and to which he referred, and that the committee is capable of doing the job. Therefore, I shall first concentrate on the aspect of delegated legislation. We all know that Parliament is the proper body for the purposes of legislation and not others which are not in Parliament, notwithstanding that certain duties have been delegated to them.
Apart from that, we tend to deceive ourselves about the powers we have concerning delegated legislation. For example, where a Bill says that a proposal has to be approved by what we call for short the affirmative resolution, we tend to believe that that means something. It does not. It means nothing. It means that your Lordships can discuss the matter, full stop. We cannot vote on the issue, but I do not wish to go into the reasons for that now. For good reasons, we cannot vote on the issue under that procedure. Therefore, this House has no control whatever on delegated legislation; negative resolutions mean nothing and affirmative resolutions, for all practical purposes, mean even less than that. So one relies on the other place and what happens there.
The joint committee has been referred to. It reports in cases which have not slipped through the net. The noble Lord, Lord Rippon, gave us a very good example from his own knowledge where an issue had slipped through the net, namely, the question of vires. Where a matter has not slipped through the net, the committee reports to the other place and says, "You must discuss so-and-so; this is not right". Of course it is appropriate that the other place should discuss the issue. The other place would debate the issue if it had the time, which it has not. Therefore, time and time again there are reports from the committee which go to the other place and nothing is done about them because there is no time available.
So in terms of delegated legislation, as regards both Houses, we are much less in control and have much less scrutiny than we think we have. The noble Lord, Lord Rippon, has understated the situation when he says that parliamentary scrutiny is inadequate.
How does all this arise? If there is a great deal of legislation going through Pariament, it is natural that as much as possible of that legislation should be taken out of the body of the Bill and put into the 1415 appendix. Then as much as possible of the legislation should be taken from the appendix and put into delegated legislation. There is then a reduction in the apparent volume of legislation coming before Parliament.
I speak from the experience of a mere 20 years in this House plus 25 years in the other place. Notwithstanding the best endeavours of Leader after Leader of the House promising to reduce the volume of legislation, we all know that year after year the volume of parliamentary legislation and Bills put before Parliament increases astronomically. The figures were given in the last debate to which the noble Lord, Lord Rippon, referred. It is pointless trying to imagine that with public pressures continuing as they are, Ministers will be strong enough to stand against the demands for legislation, and that the volume of such work will decrease to a level where we can cope with it.
We have only to consider what happened last week. We were discussing a most important Bill for which any number of your Lordships are specially equipped to deal and to make recommendations. The noble Baroness, Lady Elles, took a leading part in the debates. That Bill was being debated at 3 a.m. and we are still only in the early part of February. The situation will get a lot worse. If anyone tells me that is the proper way to debate that Bill, then I respectfully disagree. We are already in a situation where too much legislation is facing us and it will continue to do so. There is only one way in which we can escape from this problem.
We also know —and I assert it —that this House deals very well with legislation; it is very competent at improving legislation. This House has been shown to do that. This Chamber is also very competent at producing excellent Select Committee reports which is not surprising when one considers the reservoir of ability, experience and sheer brain power which this House possesses. Therefore, I am proposing that this House must get used to affording more time for dealing with legislation, which it is very capable of dealing with, by the simple process of allowing some of the Committee stage of some Bills to be taken away from the Floor of this Chamber. So long as we restrict ourselves to discussing everything in this one Chamber we shall never —I repeat never —be able to cope with the flow of legislation.
Why do I say "never"? What will happen in the future? There will always be sufficient legislation for the Commons to get its teeth into. The Commons does two things in particular. First, it guillotines large parts of Bills which we have then to consider with more than normal care; and secondly, it has many Standing Committees which take the weight off the Floor of the Chamber so that discussion can go on at the same. We have to examine every Bill as it comes from the Commons and we have to examine especially carefully the parts that have been guillotined.
We shall never be able to give Bills full consideration in the hours of the day when we are fresh enough unless we are prepared in appropriate cases to take part of the discussion of some of the Bills off the Floor of the Chamber and deal with them 1416 in Standing Committees. It would be an obvious step forward for us to have not the committee which the noble Lord has proposed but a committee with more powers, comparable to the Special Standing Committees which they have in another place and which the Select Committee on Procedure in this House recommended in or around 1976.
Such a committee could deal with the points to which the noble Lord referred and could also take evidence and examine the reasons for the Bill. It could examine civil servants about the reasons for delegated powers. It could do a thorough job without delaying any of the business on the Floor of the Chamber. It could do that perfectly well. This House is especially good at setting up Select Committees of able people. We have the ability to do it. It would be a great step forward and no time would be lost. It has been recommended by the Select Committee on Procedure. It would do the very things which the noble Lord, Lord Rippon, suggests.
I say to the authorities and to the Government that they should give careful consideration to enabling this House to do its job properly by adding to its scope in time by taking part of the discussion of Committee stages off the Floor of the Chamber. I am grateful to the noble Lord the Leader of the House for being present for this debate.
§ 5.24 p.m.
§ Viscount Dilhorne
My Lords, I am delighted to be able to support the Motion of my noble friend Lord Rippon. He is the head of my chambers and so I suppose that I have a vested interest of some kind in supporting him. It is of no importance really, except that it is delightful to be in his chambers.
Poor draftsmanship leads to bad laws and to the risk of arbitrary government. It is the volume and complexity of legislation which results in statutes which are obscure and poorly drafted and which, when they are construed by the courts, are found not to achieve what their promoters intended. A stark example of this process was provided by the Bromley error —I see lots of puzzled faces —which concerned an allowance to be made in the calculation of the rate support grant for the additional responsibility for highway maintenance taken on by the London borough councils as a result of the abolition of the Greater London Council in 1985. The result of this error was that Bromley and certain other borough councils received no allowance for the additional responsibilities they assumed.
The Secretary of State for the Environment admitted that the rate support grant system was of Byzantine complexity. Perhaps that was the reason why the error was not spotted before it was made. The error was incorporated in an almost unintelligible formula for determining the multiplier to be applied in calculating the rate support grant for 1986–87 in the rate support grant report for that year.
The legislative morass to which I refer began with the Local Government, Planning and Land Act 1980, to which my noble friend briefly referred. The Act set up the rate support grant system. It really cannot have surprised anyone that that Act spawned 1417 litigation. The Act contained 197 sections, 34 schedules and occupied 1,329 pages in the Queen's printer's copy of the Act. The part that dealt with the rate support grant was a small part of that statute but it has proved an immensely fertile source of litigation and further legislative activity.
The saga continues with the Bromley error. The first problem encountered with the Bromley error was at the High Court in the case of Regina v. The Secretary of State for the Environment ex parte Birmingham City Council. It was held that all the multipliers in the rate support grant report for the year were ultra vires because under the 1980 legislation the Secretary of State had no power to use them for the purpose for which he had used the multiplier in question. As a result the Secretary of State introduced a new Bill to make legal retrospectively what he had done illegally. I refer to the Rate Support Grants Act 1986. One of the provisions of the Act sought to limit the circumstances in which a multiplier could be varied once it had been previously determined. The Secretary of State obviously thought that, once that amending Act was passed, he would be able to correct the Bromley error by varying the original multiplier he had previously determined which the Act retrospectively made lawful. The saga still continues, for in the case of Regina v. The Secretary of State for the Environment ex parte the London Borough of Greenwich, Mr. Justice Taylor, as he then was, held that the Secretary of State had no power to correct the Bromley error. He said that the Rate Support Grants Act 1986 was held to have removed that power. Lord Justice Taylor, as he now is, put it this way —the Secretary of State was hoist on his own petard.
That cannot be a good thing. In order to reverse that decision Parliament was asked to legislate again. Section 126 of the Local Government Finance Act 1988 was enacted to reverse what the courts had held to be the effect of earlier legislation which the Secretary of State clearly had not fully understood. Ill-conceived and ill-digested legislation in 1980 led to further ill-conceived and poorly drafted legislation in 1986 and to further remedial legislation in 1988 to undo what was then intended to be remedial legislation. That surely could be defined, if such was needed, as poor legislation.
The result of poor legislation is confusion, obscurity and litigation. Few people are thought ever to have understood the legislation relating to the rate support grant and the Department of the Environment can scarcely claim itself to have mastered it. Yet it is on such legislation that the finances of local authorities depend.
Noble Lords could be forgiven if they thought that that was the end to the saga. Unfortunately it was not, because the Government have now decided to move to a new style of legislation for financial assistance to local authorities. In the Local Government Finance Act 1988 they introduced a new system of revenue support grants. All that the legislature now provides is that the Secretary of State each year shall make a determination of the amount of grant for the year. That is contained in a report laid before the House of Commons. Once the other 1418 place has approved it, that is the amount of grant for the year. Then the Secretary of State makes another report, containing the basis upon which he proposes to distribute the grant among the receiving authorities. Once that report is approved the Secretary of State then calculates and pays the grant accordingly.
What seems to me to be significant about this skeletal legislation is that there is no statutory limitation on the basis upon which this grant may be distributed. Rate support grants used to be calculated as a result of statutory provisions in accordance with principles applicable to all authorities of a relevant class. The same principles had to be applied across the board to all relevant authorities. The present position permits a choice on any basis that the Secretary of State likes, provided that he can secure a majority in the other place. Any challenge made in the courts to such a decision could be doomed to fail. That follows a decision in the House of Lords of Regina v. The Secretary of State for the Environment ex parte Nottinghamshire County Council.
That situation seems to beg the question of whether legislative simplicity has been bought at too great a price. It seems to me that wide discretionary powers, unfettered by statutory constraint or limitation, are not the answer to difficulties created by ill-conceived and ill-digested legislation. Is it not now time to say, "No more to poorly drafted, voluminous legislation"? The answer to this malaise is not to give the Executive unfettered discretionary power over which no effective parliamentary scrutiny can be exercised. That seems to me to purchase simplicity at too high a price and that price exposes everyone to the risk —and, I stress the word "risk" —of arbitary government.
I end this short peroration by repeating something which has not yet been quoted. It was said by my father many years ago, before he became Lord Chancellor, at the Anglo-American Bar Convention in the United States. He headed his discourse with the words, "The Disease of Words". He said:One of the results of a modern education not infrequently to be observed is the stringing together of a mass of high sounding words, sprinkled with adjectives in meaningless or almost meaningless conjunction"—We have heard a very good example of such a case from the noble Lord, Lord Shaughnessy—When I heard one of these lengthy orations, I searched amid the verbiage for one trace of originality of thought —seldom with success. What is the message? What is the meaning? If the 12 Apostles had received a modern education, the world would still be heathen, that is, M'Luds, if they had adopted modern methods.Noise and nonsense go well together. But an omelette of words is a disease destructive of the English language".I suggest that we are already infected with that particular disease. I wholeheartedly support everything that each speaker has said so far in this debate.
§ 5.34 p.m.
§ Lord Simon of Glaisdale
My Lords, it is in no conventional sense that we express our gratitude to the noble Lord, Lord Rippon, not only for his 1419 admirable speech based on wide experience, which was deeply informative and cogent in expression, but also because the matters which your Lordships have under consideration are of high constitutional importance. If legislation is passed which the ordinary citizen cannot understand, or can only understand with great difficulty, that is an affront to the rule of law. Moreover, if the Executive arrogates to itself, in the way that has been described today, powers which are traditionally those of the Houses of Parliament, that is an infringment of parliamentary sovereignity. Therefore, the matters which we are discussing are highly important, and today's debate has mainly concentrated upon the second issue; namely, the arrogation of executive power and how it shall be controlled.
It is alarming to find a recrudescence of an age-long pretension; namely, the claim of the Executive to legislate. It was settled at the Glorious Revolution. There was a slight attempt to revive it in the 1930s but then the Donoughmore Committee seemed to put the stop on the Executive pretensions. The recommendations of that committee were observed for over 50 years; but, then, suddenly during the last Session a crop of Bills was produced with Henry VIII clauses.
During the course of the passage of the Children Bill, my noble and learned friend the Lord Chancellor made a rapid concession and appeared to accept the Donoughmore recommendations. Therefore, it was alarming to find in the Courts and Legal Services Bill, for which my noble and learned friend was responsible, a whole series of new Henry VIII provisions. I see that the noble Lord, Lord Mishcon, who noted it at the time, is nodding his head in agreement. It is therefore incumbent upon us to examine how we can cope with that particular infringement of constitutional proprieties.
There are five ways in which we can do so. The first is the one referred to by the noble Lord, Lord Rippon, with great effect during the passage of the Courts and Legal Services Bill; namely, the restoration of the legislation committee of the Cabinet to its former role which it carried out very efficiently. I do not think that that is exhaustive of all that needs to done; but it certainly would be valuable in itself. The second way is the hobbyhorse which the noble Lord, Lord Diamond, suggested with great enthusiasm in his speech today. He said that your Lordships should set up Standing or Select Committees and take the business out of the Committee of the Whole House. I can only say that that was tried in the Pilotage Bill, but it was found to be unsatisfactory.
The third way is to perhaps look again at the French Conseil d'Etat. That works very well in the French context, especially in controlling secondary legislation. However, it may not be very easy to adapt in this country, although we may well look at it in connection with the noble Lord's suggestion of a Select Committee to scrutinise legislation.
Perhaps I should mention a fourth way, only to dismiss it. When I gave evidence to the Renton Committee, I recommended that the Report stage 1420 in the second House could be used for scrutiny of legislative drafting. I no longer think that that is satisfactory. Indeed it was not recommended by Renton.
So we come to the fifth way, which seems to me to have much to commend it, particularly with the Australian precedent. It is a Select Committee of Parliament, possibly a joint Select Committee with specific terms of reference to look out for such matters as the Australian committee had to watch for. It would be rather on the lines of a remit that is given to the Joint Select Committee on Statutory Instruments.
For years now there have been complaints about the quality and quantity of legislation. No notice has been taken either of public or of parliamentary complaints. A snook has been cocked at the Renton Committee and its main recommendation. However, we have seen this kind of thing before. I remember that after the 1939–45 war there was a tremendous surge of bureaucratic activity, despite all protests that the ordinary citizens' complaints were being dismissed. That was brushed aside and in the end the whole matter exploded in the face of the Government at Crichel Down. A popular and able Minister was forced to resign; several civil servants were moved sideways and for a time the air seemed clearer. I am quite certain that if successive governments pay no attention to the complaints that are repeatedly made, they must expect another Crichel Down in this field.
§ 5.42 p.m.
§ Lord Beloff
My Lords, various important and interesting lines of thought have been provoked by the Motion of the noble Lord, Lord Rippon. Some of them the House may find more agreeable than others. It is clear that we suffer from too much legislation, much of it poor in quality. The blame for this excess in the amount of legislation which is thought to be at the root of our difficulty of controlling it has been put by the noble Lord, Lord Diamond, at the feet of the electorate, the citizens whom we hope to serve. I find this unconvincing. It reminds me of the East German playwright, Bertolt Brecht, who said, "The people have lost confidence in the Government. We must get rid of the people".
As a society we are not very different in the scope of our governmental provision, in the economy, welfare or law and order from other democratic countries. None of them that I know of submits its parliament to the burden in terms of hours and days to which the British Parliament is submitted. The fault must at least in part lie with our institutions; this despite the fact that both our Houses of Parliament and certainly, for practical purposes in the other place, our parliamentary Chambers are unusually large.
What then are the reasons for this legislation being so voluminous and at the same time so poor in quality? Much of it arises —and this explains Henry VIII clauses, delegated powers and so on —from the overweaning ambitions of civil servants, the desire to make their mark by being known not to the public but in the pecking order of Whitehall as the authors 1421 of Acts of Parliament. On the other hand, Ministers have shown themselves not to be loath to increase their powers by giving themselves the power either to amend, in extreme cases, primary legislation or in any event to fill in the details at their own unfettered discretion.
My views on this have been fortified by the example given by the noble Viscount, Lord Dilhorne. Sometimes one wonders whether we may come to have a gracious Speech which merely says, "My Ministers will lay before you a number of measures conferring greater powers on themselves, the purposes of which will subsequently be revealed". Sometimes it is obvious. For instance, it is obvious —this has been referred to by other noble Lords —in the Courts and Legal Services Bill with which we are at present wrestling that the Bill is deliberately designed in some respects to increase the powers of the Executive.
I do not have a particularly conspiratorial view of our situation but there is also the fact that the volume of legislation which Ministers are persuaded or persuade themselves they need to introduce is of poor quality because little time is given to serious preparation. Anyone like myself who has happened to work on the history of this country in the 19th century or the early part of this century—the period of the inauguration by Lloyd George of the welfare state —knows how infinitely greater were the researches undertaken before legislation was presented; how infinitely larger was the amount of parliamentary time given to a single Bill; how much wider in the country were the consultation and debate. We have debased the legislative procedure for the sake of haste.
Perhaps I may give an example from a Bill which your Lordships will consider in a couple of weeks' time. It is a Bill which the noble Lord, Lord Diamond, will not claim is the result of the Government kow-towing to popular demand. I refer to the Education (Student Loans) Bill. So far as I know, it was demanded by no one except one junior Minister in another place. As presented to the House of Commons this was entirely an enabling Bill. It is very short and its content was to give the Secretary of State the power to set up and operate machinery for making loans to students in place of part of the grants they had hitherto received.
It was the intention of the Government, reiterated during the passage of the Bill through the House of Commons —where it concludes its stages tomorrow —that the purpose was to have a scheme which would be administered by the financial institutions, primarily the clearing banks. Therefore in the Financial and Explanatory Memorandum which accompanies the Bill there is the clear statement that student loans would be administered by a private sector company, established and wholly owned by financial institutions. No net increase in public service manpower would result from the passage of the Bill.
While the Bill was going through another place, as noble Lords know and as I repeatedly warned the Government would happen, the banks refused to take part in this lunatic scheme. The Government 1422 were forced to announce that they would set up a publicly owned company. Before the Bill reached your Lordships' House they began to recruit staff for this company.
No one knows whether the staff were to be composed of civil servants or other employees, but they would certainly have been on the public payroll. When it was pointed out that that was in violation of the Explanatory and Financial Memorandum attached to the Bill the Minister said that he would draw up a new Explanatory and Financial Memorandum to make the matter all right. That legislation was so badly prepared that the institutions that were supposed to operate it would not commit themselves to do so. It is legislation of that kind which obviously tempts any government to make legislation as vague as possible and to commit to delegated legislation all the information that the country requires in order to judge a scheme, safe in the knowledge, as the noble Lords, Lord Shaughnessy and Lord Diamond, and others have pointed out, that delegated legislation is virtually untouchable by either House of Parliament.
We have, on the one hand, blithering incompetence and, on the other hand, the urge for power. That combination could be fatal to parliamentary government. What, then, are we going to do? That is the question which the noble Lord, Lord Rippon, has offered to us. He offered his own remedy. The remedy sounds attractive. Perhaps the noble Lord, Lord Rippon, will enlarge on one or two of the points that he made when he replies to the debate. Is the proposed committee to be, as in the Australian case, a committee of the upper House of Parliament or is it to be a joint committee, as is the case with the Select Committee on Statutory Instruments, on which I had the pleasure of serving with the noble Lord, Lord Shaughnessy? That makes a considerable difference.
At what point would legislation be submitted to the committee? Some legislation which begins in your Lordships' House could appropriately be submitted even to a committee of this House. On the other hand, most legislation is presented orginally —that will continue to be the case —to the House of Commons. The House of Commons may or may not feel attracted by the proposal of preliminary scrutiny by a committee not of its own choosing. I should like to know a little more about the form and nature of this committee and in what sense it could report to either House of Parliament and to what extent —this is perhaps the most important aspect of the matter—Ministers would feel able to brush it aside, as they brushed aside in the committee of the House of Commons to which I referred the grave constitutional objections to their handling of the student loans Bill.
We have to remember that another characteristic of this Parliament, as compared with many other democratic parliaments, is the extreme and increasing rigidity of party control. That committee would no doubt be set up, whether in one House or in both, through the usual channels. It would therefore be nominated by the Whips. I have little confidence in the Whips of a governing party when 1423 it comes to providing obstacles or potential obstacles to the legislation of that party.
I am sorry to keep harping on the matter of the ridiculous student loans Bill, but it is the most vivid illustration of my case. The student loans Bill went to a Standing Committee. It has just emerged from a Standing Committee in the House of Commons. When on Second Reading in the House of Commons it became clear that apart from the criticisms from the two main opposition parties there was considerable dissent on the Conservative Benches, not a single Member from the Conservative Benches who had expressed the slightest doubt on the merits of the Bill was allowed to serve on the committee, even though those dissentients included Conservative Back Benchers with the greatest factual and administrative knowledge of the problems before them. The Whips were quite ruthless in that matter and that was noted by other members of the committee.
I wonder whether, given our parliamentary structure and the rule of the Whips and their capacity for abusing their powers, the attractive solution which the noble Lord, Lord Rippon, put before us will work, or whether all we can do is to make it as difficult as possible for Ministers to get through ill-prepared and draconian legislation and to make their life such a misery that they will think again.
§ 5.55 p.m.
§ Earl Russell
My Lords, I was intrigued to read in this morning's paper of the conversion of the communist party of the Soviet Union to the principle of separation of powers. I should like to think that I am a reasonable man. I do not intend to adopt today as extreme a libertarian position as the communist party of the Soviet Union. I believe that Montesquieu rather exaggerated; I believe that the notion of separation of powers depends on an over-exact sense of categories. Although I do not believe in separation of powers I believe strongly in checks and balances. The noble Lord, Lord Rippon of Hexham, to whom I am very grateful for introducing this debate, referred to the formidable nature of the power that is in the hands of those who pass an Act of Parliament. That is a point that cannot be overstressed. The noble Lord will perhaps forgive me for adding one more story to his examples. It is the case of the Bude and Torrington railway.
Parliament passed an Act setting up a company to make a railway from Bude to Torrington. It was then informed that that company had given up work. Therefore a second Act of Parliament was passed taking the power to take the railway away from the first company and giving it to a second company. The first company then appeared in court. It said that it had never given up work and that the second Act of Parliament had been grounded entirely on false information. The courts, inevitably, had to say that they could give no remedy. It was no business of theirs if an Act of Parliament had been grounded on false information. It was still an Act of Parliament and only Parliament could repeal it.
1424 Lord Burghley in Elizabeth's reign was wont to say that he knew not what an Act of Parliament could not do. Therefore, whoever passes such Acts must be subject to considerable scrutiny. That is also important as regards the matter of government by consent. I am sure that many of us, as I have, have explained to our children why they are bound to keep the law and make their protests in a legal manner. However, if we are to make that case convincing we must be able to convince them that the procedures used in the House are ones which, on occasion at least, are capable of being effective.
I also noticed on the ticker tape this afternoon that Czechoslovakia is about to send a delegation over here to study the Westminster method of parliamentary government. If they reach the same conclusion as the noble Viscount, Lord Dilhorne, in his powerful speech when he said that the system exposes everyone to the risk of arbitrary government, will they really feel that our system will give them the kind of emancipation of which they feel in need? The noble Lord, Lord Rippon, said on 31st January that Parliament was in a state of acute malfunction. We have heard today a good deal of further justification for that view. The basic reason for that is that the parliamentary system assumes that the check on the Executive is scrutiny in another place. Ever since Sir Robert Walpole discovered that every man has his price, that has given rise to difficulties. It seems now to be giving rise to more difficulties than usual. It is extremely unusual now for government measures to be checked or significantly amended in another place. Therefore, almost all that stands between us and the will of the prince having the force of law is the revising powers, small as they are, of this Chamber. I should like there to be a little more than that.
Enabling power is a good example of the kind of dangers that we face. The revising powers of this Chamber, the amending powers, are the jewel in our crown. For that reason I am not entirely happy about the proposal of the noble Lord, Lord Diamond, to refer them to a committee upstairs.
Whatever the Parliamentary Under-Secretary of State for Education and Science may suppose, regulations cannot be amended. On the other hand there are precedents —and I have been surprised to find how many —for Divisions on them: 20 Divisions on affirmative instruments and three on negative instruments since 1968. That is not an altogether satisfactory state of affairs. Statutory instruments are not subject to the Parliament Acts and therefore there must be a genuine hesitation about dividing on them.
However, it seems to me that we need restraint on both sides. The principle of the Donoughmore Committee that enabling legislation should be kept for minor matters is a vital one. However, if this House is to restrain itself from dividing on statutory instruments then equally the Government should restrain themselves from using enabling powers for provisions which are not minor matters.
I shall take one example which I did not quote on 31st January because it had not yet happened. Mrs. Gillian Shephard, Parliamentary Under-Secretary for Social Security, said on 1st February in another place that the Government intended to use enabling 1425 powers for the purpose of taking students out of the social security system. That was another part of the package of measures with which the noble Lord, Lord Beloff, dealt so ably. I should like to ask the noble and learned Lord the Lord Advocate when he comes to reply to say, first, under what statutes those enabling powers are granted, and secondly, whether that is really a minor matter within the meaning of the Donoughmore Committee.
In the long term the noble Lord, Lord Diamond, is right. The measures that are proposed are inadequate. In the long term there is no solution but changes in the electoral system which mean that once again the Government have to work for their majority in another place. I shall not develop that point today.
I warmly support the proposal for a committee. I could see it being presided over by a retired judge who might be capable of telling even Whips that they should not disrupt a court. Such a committee could scrutinise the kind of unintelligible gobbledegook which the noble Lord, Lord Shaughnessy, so persuasively recited to us. It could pull up cases where enabling powers are proposed in a way which does not allow adequate parliamentary scrutiny.
I appreciate that there are difficulties in the way of such a procedure. No doubt the noble and learned Lord the Lord Advocate will tell the House about a good many of them. We have to reflect that there are also difficulties in the way of any alternatives. We should consider whether those difficulties are greater. The vital point in dealing with such procedural matters is that we must try to separate form from substance.
On 31st January the noble and learned Lord the Lord Advocate rightly drew attention to the importance of that point. However, if I may say so, I thought that in the process he did me a certain amount of injustice. He said that none of us had spoken on Bills except where we were against the principle of the Bill, or words to that effect. I spoke on the Football Spectators Bill and on the testing powers in the national curriculum in the Education Reform Bill. I was not against the principle of either. In one case I wanted to know what was proposed so that I could decide whether I was for or against it and in the other whether what was proposed could be done at all. However, that illustrates that if we try to thrash out these matters on the Floor of the Chamber allegations of ex parte will rush in both directions across the Floor of the Chamber. That will impede serious consideration of complicated procedural points.
The major attraction of the proposal that the noble Lord, Lord Rippon of Hexham, has offered is that it enables us to consider questions of form in a non-party atmosphere, and I hope also in a legal atmosphere, without the need to accuse everybody of seeking party advantage.
If we are not to do that there are two possible alternatives. One is that we should make more use of the revising powers of this Chamber. I do not believe that that view will commend itself to the Government. However, if we look carefully at 1426 Erskine May we shall find that those powers are a little more extensive than they are sometimes taken to be. I do not believe that that is the best answer, but if we cannot have the committee proposed by the noble Lord, Lord Rippon, it would be a possible answer.
The other possible answer would be simply to accept that what the Executive proposes will pass into law more or less unamended —to accept that what pleases the prince shall have the force of law. That is a principle with a long history, but I hope that there are a good many common lawyers in this Chamber who would find that principle repugnant, as I do. That would be an abandonment of parliamentary scrutiny, a threat to the grounds of government by consent, and unacceptable.
Therefore, I believe that the noble Lord, Lord Rippon of Hexham, has put forward the best proposal that we can think of for the moment. I very much hope to hear when the noble and learned Lord replies to the debate that the Government are prepared to act on it, because they might find that the alternatives are worse.
§ 6.7 p.m.
§ Lord Mishcon
My Lords, it is not only noble Lords who are present in the Chamber at the moment who should be grateful to the noble Lord, Lord Rippon, for opening the debate on this subject. Parliamentarians of every party, and no party at all, ought equally to be grateful to him for dealing with this important matter.
Statistics regarding the growing number of statutory instruments coming before Parliament have been mentioned. Perhaps I may add one more, which is a telling one. In 1976 there were seven volumes of statutory instruments. We achieved the record in 1986 of turning those seven volumes into 10 volumes. That speaks for itself.
Before dealing with the problem and possible solutions, perhaps I may question the wisdom of one of the remarks of the noble Lord, Lord Beloff, if he will excuse me for doing so. He laid much of the blame for this on the:overweening ambitions of civil servants".If we are not very careful such an attack upon those who cannot speak for themselves in this Chamber, like an attack on parliamentary draftsmen, will mean that the eminent people whom we want to be our civil servants and our parliamentary draftsmen will find it easier to avoid attack by taking on other careers. In my view that will not be to the benefit of this nation. If Ministers cannot control civil servants when they believe that they are wrong, they do not deserve to be Ministers. We must face the fact that, if Parliament cannot control the Executive, there must be something wrong with Parliament. Let us place the blame where it rightfully belongs.
I was greatly amused, as were all noble Lords, by the quotation from the statutory instrument made by the noble Lord, Lord Shaughnessy. Perhaps noble Lords will forgive me if I recall the melodious voice of my much lamented friend Lord Elwyn-Jones. In November, 1987, he quoted Lord Justice Harman's words about such a statutory instrument, so well 1427 described by the noble Lord, Lord Rippon, as "frequently lengthy and complex". Lord Justice Harman said:To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at one time, I must confess, as a Slough of Despond through which the court would never drag its feet, but I have, by leaping from tussock to tussock as best I might, eventually, pale and exhausted, reached the other side where I find myself, I am glad to say, at the same point as that arrived at with more agility by Lord Denning, the Master of the Rolls". —[Offical Report, 11/11/87; col. 1438.]The noble Lord, Lord Shaughnessy, might apply those words to the magnificent example he gave.
It is right to reflect that the complaint voiced almost unanimously in the debate, so well initiated by the noble Lord, Lord Rippon, is not new. Many noble Lords have quoted the Donoughmore Committee, which sat in 1932, now 58 years ago. Although it is not strictly relevant to the debate, it is amusing to note that the cost of the committee's 130-page report was, inclusive of printing and publication, £241 8s. 6d. The committee sat on many occasions and that is a great example of economy not so much in evidence these days.
I looked at the committee's report and recommendations and I was interested to note that it dealt with an argument to which the noble and learned Lord the Lord Advocate may refer when answering the debate, although I may be proved to be wrong. In criticising the unexampled plethora of delegated legislation, noble Lords will be asking for something about which they have often complained; it is the length of Bills and the time which must be taken in dealing with them. It is interesting to note that 58 years ago the matter was dealt with by the Donoughmore Committee. At page 60 it stated:It is probable that, if this provision were no longer used, the operation of certain large measures of reform would be somewhat delayed".This is the important point:Bills would take longer to prepare, and once the Act was in operation any defect in its provision could not be remedied until amending legislation had been passed. This price, however, may be worth paying, if there is anything in the view that the mere existence of the power has aroused suspicion and hostility against the machinery of government as it exists, and may well continue to do so in an increasing degree: and that is a standing temptation to Ministers and their subordinates either to be slipshod in the preparatory work before the Bill is introduced into Parliament or to attempt to seize for their own Departments the authority which properly belongs to Parliament".Speaking with a voice uttered some 58 years ago, your Lordships may feel that the price of slightly longer Bills is well worth paying if subordinate legislation is to be reduced.
When talking about the Education (Student Loans) Bill, the noble Lord, Lord Beloff, produced an excellent example of subordinate legislation which ran riot. My only grievance is that I had a note to mention the Bill but the noble Lord, Lord Beloff, got in first. However, I merely add this comment in order to underline the point that we have reached, although his eloquence made that clear. The Bill contains 27 words enabling a ministerial order to be made to establish whatever scheme the Minister chooses. They were preceded by 48 pages of the 1428 White Paper and 68 pages of two successive consultation reports. In 27 words the Minister is given the power to produce any scheme he likes without Parliament having a real opportunity to look at it.
It has been said so often by Ministers that in this House noble Lords have the right to debate an affirmative resolution and to pray against a negative resolution. That has been answered on many occasions but I do not believe that it has been answered as effectively as it was in a paper which appeared in the 1988 volume of Public Law. The article was entitled The Parliamentary Scrutiny of Delegated Legislation and the authors were the late Mr. Hayhurst and Professor Wallington. This is what the academic had to say after analysis of events in your Lordships' House as against the figures that were given for both Houses of Parliament by the noble Earl, Lord Russell. At page 556 the article states:There is a tradition of reluctance to press disagreement to a division in the Lords. The Brooke committee could discover no instance of a division on a prayer before 1971, and we have found none since. Affirmative resolution instruments fared similarly until 1965, when the first (unsuccessful) division occurred. The Rhodesian sanctions issue generated a substantial back bench rebellion in the Lords with several divisions on draft orders and the one postwar defeat of an instrument to occur in the Lords, on the Southern Rhodesia (United Nations Sanctions) Order 1968. This provoked a government proposal to remove the Lords' power of veto and, perhaps mindful of this, their Lordships have not divided since".
§ Earl Russell
My Lords, if the noble Lord will forgive me for interrupting him, the figures that I quoted for divisions on statutory instruments since 1968 were for this House alone.
§ Lord Mishcon
My Lords, I am most grateful to the noble Earl. I am sure that he will agree with me that even those figures, as he said, showed that the debates were few and far between, the Divisions were minimal and the effectiveness of this House in being able to deal with affirmative or negative resolutions without the power to amend them at all is obviously minimal and not a solution to our problems. If it were to be a solution, there would be a challenge from the elected House which might produce that kind of constitutional uproar which as a rule your Lordships are not minded to welcome. I hope that that is a tactful way of referring to what might happen if there were to be such a dispute between the two Houses.
In conclusion, I turn to the very constructive suggestion made by the noble Lord, Lord Rippon, which concerns setting up a committee in line with the one that we already have and of which the noble Lords, Lord Shaughnessy and Lord Beloff, were proud to be members. As we all know, that committee deals with statutory instruments that come before it, not with the origin of the statutory instrument —that is, the Bill or, subsequently, the Act.
The noble Lord, Lord Rippon, suggested that such a committee should, among other things, look at the constitutional implications of Bills, including whether or not there was a proper delegated authority in all the circumstances and whether 1429 matters should be dealt with by primary legislation rather than secondary legislation.
That is an interesting proposal which obviously ought to be considered. I suppose that the alternative —especially as we were reminded that the Australian Parliament has such a committee, but in the Upper House —may very well be that, when one day your Lordships' Chamber comes to be reformed, part of the reformation procedure will be to give that second House, whatever it may be, the very power, right and constitutional defence of our realm of which we have been talking this afternoon.
§ 6.22 p.m.
§ The Lord Advocate (Lord Fraser of Carmyllie)
My Lords, the complaint about the increasing incidence of delegated legislation and the substitution of decisions made privily by Ministers and their civil servants for the considered resolutions of Parliament is a refrain that is as regular as it is loud. As has already been observed during the course of this debate, we went through the first round of discussion on these matters on 31st January.
Noble Lords in some parts of the House may hark back wistfully to a golden age when Bills were expressed in broad general principles and it was left to the courts to determine, within the guidance given by those general principles, what were the rights of the citizens in particular cases. Many of us may wish to look back wistfully to that age; but life is not like that. Regrettably, it has not been like that for a considerable number of years. Dare I say, defensively, that it is not the fault of this Government, or indeed of any government, that life is no longer like that? There is a changing public perception of the role of government and generally as a society we are no longer content with the assumption that persons, whether natural or legal, interact with one another on an equal footing simply because in the eyes of the law they have equal rights. We are no longer content in major areas, such as health care or land use, to take but two examples, to leave these matters beyond the law and beyond regulation.
From time to time there may be an ebb and flow in the tide of regulation for particular economic activities, but we cannot escape from the fact that there are large areas of life which previous generations were content to leave to individual provision. But these are now expected to be covered. Such provision requires considerable legislation because these matters require not only the spending of vast sums of money, but also that new regulations be spelt out in some detail because the public and administrators must know the rules from the outset and how they are to be administered.
I heard what my noble friend Lord Beloff had to say about the overweening ambition of civil servants and what he saw as an arrogation of discretion. I say to the noble Lord, Lord Mishcon, that I have some considerable sympathy for his remarks about civil servants. They are not in a position to defend themselves. Perhaps I may say that it is also my view that by instinct civil servants do not want a vast area of discretion to exercise. If there is a complaint to be 1430 levelled from time to time against the civil servant, it is that he seeks too much detail in the provisions of secondary legislation certainly which spell out for him how that power should be exercised. That is often why, as the noble Lord, Lord Shaughnessy, indicated, one gets some extremely elaborate pieces of secondary legislation which are not for the public at large but for administrators.
Perhaps I may take just one example —that of the National Health Service. Because there are conflicting opinions as to how an agreed purpose may be carried out, it is right and proper that the statute implementing the aim of establishing such a service should specify in some detail what form that service should take and in general terms how the money to be spent should be accounted for, so that the end product should reflect what Parliament intended. Continuing with that example, in any undertaking as large as the National Health Service there will be a multitude of minor decisions to be taken and Parliament is not the appropriate place to take those decisions. No doubt there are experts in this field as in many others in both Houses of Parliament, but I doubt whether Parliament is truly equipped to make such detailed arrangements. Its procedures are not so organised as to make it possible and often it simply does not have the time.
What is required —and that requirement has long been recognised —is a degree of delegation. Indeed, noble Lords may have reconsidered the Donoughmore Committee (which has certainly been referred to more than once in the course of this debate). Reporting in 1932, it concluded (at page 15) that:The delegation of legislative powers is at the present time inevitable".Just after that report there was an uncomfortable parallel drawn with the Tudor period, to which I shall not refer. Nevertheless that was the conclusion reached. It is not unreasonable in relation to a particular piece of administration that the Executive should be given the flexibility to adjust this scheme, not least to accommodate a change of circumstance. I appreciate that it is not considered to be as adequate as some would like it to be, but parliamentary control is preserved by the requirement to place any proposal for detailed regulation before both Houses for approval even if it is in a negative sense. If a matter arises which goes beyond what Parliament had contemplated when the original Act was passed, it will be necessary for the Executive to return to Parliament with fresh proposals for primary legislation.
Therefore I suggest that any debate on the propriety or otherwise of a particular power to make subordinate legislation must start from the premise, which I suspect may have become obscured to some extent, that there is nothing inherently wrong with delegated legislation. Without it, governments simply could not deliver the degree of provision which is now demanded of them. I accept that a matter for concern, which was very clearly spelt out by my noble friend Lord Rippon in introducing the Motion, is this. The question of whether there is a tendency for excessive powers to be sought in some cases and of whether the establishment of a Select 1431 Committee would be of benefit in checking such a tendency, are matters that are very properly for this House.
First, the extent of the powers that are to be delegated to the Executive in any piece of legislation will depend on the legislative proposals that are made. There is no standard form of provision inserted into every Bill to enable subordinate legislation to be made. Each case is decided on its merits. Sometimes the powers conferred on that ubiquitous creature, the Secretary of State, will be limited to specifying the details of a scheme. Sometimes they will extend to the detailed regulation of a new body that is to be set up by the legislation. Sometimes they will enable the Secretary of State to regulate, for example, a particular part of an industry. Occasionally, they will extend to the amendment of existing legislation.
It is quite clear from the course of this debate that it is that last case which gives rise to misgivings. However, in such a case the power sought should be limited to the amendment of that legislation to the extent necessary to give effect to the legislation under consideration. I ask what seems to me to be the crucial question. Is there anything inherently sinister in such a procedure? The intention of Parliament might be that one set of rules should be applied for a purpose for which they were not originally intended. That intention could be implemented by amending those rules so far as was necessary to achieve that purpose. It would of course be possible to achieve the same result by inserting a mass of minor amendments into the legislation. That would probably be done by way of schedules.
However, noble Lords will be aware of the frequent complaints that arise when such a device is resorted to. It is not difficult to envisage that it may not be possible to work out the implications in sufficient detail before the Bill was presented to Parliament if the latter route were to be pursued. Nor, if it were possible, might it be desirable because further adjustment might be required once the new system of regulation had been brought into operation. If the relevant provision were in subordinate legislation, amendment would be straightforward. If it were in primary legislation, not only would there be the problem of waiting for a suitable opportunity in the legislative cycle, but a feeling would very soon grow that Parliament ought not to be bothered with such minor detail.
I appreciate that the noble Lord, Lord Mishcon, considers that that might be a price worth paying. He gave a quotation to the House. However, I am sure that he will appreciate, as will many others, that where there are matters of minor detail that often have to be corrected following complicated legislation, it might be very undesirable if a long period were to elapse. The policy having been agreed, I suggest that it ought to be implemented without further reference to Parliament other than through the procedures for the scrutiny of the subordinate legislation.
The specific question that is addressed in the Motion is whether a Select Committee would assist in watching over any tendency of the Executive to 1432 seek excessive powers. It would clearly be possible to establish such a Select Committee. It would possibly be a joint committee, as the noble Lord, Lord Beloff, requested; or it might be a Select Committee simply of this House alone, rather on a parallel with the Australian example to which the noble Lord, Lord Rippon, referred.
When considering his proposal, I reflected on the piece of legislation for which the noble Lord is most famous, or notorious, for introducing during his long and distinguished political career; namely, the European Communities' Bill. If such a Select Committee had been established at the time that the noble Lord was bringing forward this legislation in another place it would have seemed to me to be entirely appropriate that such a Bill be referred to that Select Committee to consider what was contained within it. I should have thought that the Select Committee would have concluded, after consideration, that it contained some of the most extraordinary and certainly unique provisions of any legislation this century. However, whatever that Select Committee had said, I have no doubt that the noble Lord would have listened to it with the greatest of courtesy and would then have taken the legislation through Parliament without amendment as he so successfully did at the time.
In addition to the Australian example that has been given, I understand that in Sweden there is a special law commission set up to prepare each Bill. A permanent law commission then vets the Bill so prepared for the kind of provision to which noble Lords take exception. It provides an instructive example. The process there, however, is quite different from that which obtains in this country. As I understand the matter, the involvement of the Swedish Parliament is confined to a kind of Second Reading debate. There is no detailed consideration of the Bill on a line by line basis. In that way the time taken by the scrutiny of legislation by the commission is balanced by limiting the time taken by Parliament. That is obviously one way of doing the job, but it would be a remarkable departure for this country.
The various recommendations and constructive proposals for change during the course of the debate indicate, that there has not been any great willingness to surrender time and involvement in the existing stages that we have for the consideration of legislation in both Houses. Perhaps I may say to the noble Lord, Lord Diamond, that I listened with great interest to his proposal on the use of a Committee stage away from the Floor of the House as a way to relieve pressure on the business of the House. I have been in the House for only a year. I have some caution in putting forward any personal view on how effective such a device might be. However, from what I understand of the Pilotage Bill, to which reference has been made, if we were to use that technique more extensively, the relationship between the use of Committee time and the latter stage of Report would have to be more carefully structured and restricted than it was when the experiment was carried out.
Perhaps I may revert to the Select Committee proposal. If such a Select Committee were to be 1433 introduced, would there still be a serious risk of duplication of all the effort that we make? There is the problem of whether such a proposal applies to this House or the two Houses. We would have to consider seriously the timing of the committee's examination of a Bill. Is it to consider matters in parallel, or must it all be concluded before the legislation is introduced? At the present time, we have a legislative programme that is set out at the time of the Queen's speech. Is that scrutiny to be undertaken during the Recess before the Queen's speech, or will this House and the business managers have to await the consideration of that Select Committee before the legislative process can be allowed properly to develop?
There is a further difficulty about this. What is to be done where there are, at a later stage in the course of a Bill's progress, amendments made which involve the conferring of a power to make subordinate legislation? At that point would the Committee stage stop while we referred the matter to the Select Committee, or would we carry on? It may sound a nit-picking point, but what concerns me about it is that if that were to be a possibility, far from it being a device that would improve the legislation which was going through this House or another House it might become a new and further device to block the progress of a Bill. That might be done by anybody —indeed even, rather curiously, Opposition Members—putting down an amendment which conferred excessive powers on the Secretary of State, which would have only the effect of having the matter referred to a Select Committee, and providing a further block or delay in the progress of the Government's legislation.
I am not suggesting that any of these problems are insoluble, but in highlighting what seem to me to be a number of the problems I hope it will be appreciated that they require to be considered very carefully indeed. I suggest that, while there is certainly plenty of opportunity for stimulating debate on this matter, it does not emerge as the only or indeed the immediately obvious resolution of the legislative difficulties.
This House presently has ample opportunity to examine the form and content of a Bill. The nature of any powers sought can be scrutinised at all stages of a Bill's passage. So far as concerns all subordinate legislation, the Joint Committee on Statutory Instruments subjects it to close scrutiny and any instrument can be scrutinised further, whether it is presented on an affirmative or a negative basis. I find it difficult to envisage a Select Committee mechanism which would avoid duplication of the other scrutiny mechanisms and which would retain the non-partisan character appropriate to a Select Committee. I think that the noble Lord, Lord Beloff, has a point in his appreciation of how such a committee might be packed.
I suggest that the only test for the measures in a particular Bill is whether or not they are appropriate for that Bill. I say to my noble friend Lord Rippon, who referred to what my noble and learned friend the Lord Chancellor said over Henry VIII clauses and affirmative resolutions, that it would be right to 1434 regard what he said very strictly in the context in which his observations were made.
There is no general rule as to the appropriateness of delegated powers; it depends on the subject matter. It is possible to say, as the Donoughmore Committee said in relation to Henry VIII clauses, that they should be,abandoned in all but the most exceptional cases.But beyond that it is very difficult, if not impossible, to set what is indeed the test of appropriateness for any such clause; and it will be readily enough appreciated that each Secretary of State will argue that in his particular case it is indeed appropriate.
What it would seem to me my noble friend is seeking in the establishment of a Select Committee is not that the judgment of that committee should be substituted for the judgment of this House, or indeed another place, but that such a committee should strike a note of warning or provide a note of censure where the Secretary of State seeks to secure too great powers for himself.
Before I conclude, I shall deal with a number of other matters that were raised with me. First, I say to the noble Earl that I have indeed received a letter from him, but I received it some five minutes before he rose to speak so I hope he will allow me to extend the courtesy of dealing with the matter by writing to him, rather than attempting to deal with it at this stage.
I say to the noble Lord, Lord Airedale, that while he is critical of the provisions that are contained within the various Acts of legislation which have come before this House in recent years —in particular in 1988, to which he referred —in a sense he undermined his own point. He had not missed what was the extent of the power being sought by the Secretary of State. It would seem to me that there might in a sense have been greater force in his argument if he had shown that, in one way or another, the Secretary of State had managed to sneak in powers which no one had noticed. In respect of Bills to which he referred —further reference has been made to the Children Bill and to the Courts and Legal Services Bill —I must say to the noble Lord, Lord Mishcon, as well as to the noble and learned Lord, Lord Simon, and others, that they have not missed at any stage when a Secretary of State or a Lord Chancellor has sought to take to himself powers which may be described in shorthand as a Henry VIII clause.
In the course of what the noble Lord, Lord Shaughnessy, had to say he read to us what was a very difficult provision in relation to something which the Joint Committee on Statutory Instruments had had to consider. I am sure we are all familiar with some very difficult comparable provisions. What he had to say seemed to me to fall importantly within the ambit of what we had to say on 31st January, and was not quite so closely related or referable to what my noble friend had to say on the appointment of a Select Committee. Nevertheless, the force of what he had to say is, I am sure, appreciated by the draftsmen.
As I have indicated, on 31st January we had one go at this difficult matter, and there has been another 1435 barrel discharged at me during the course of this afternoon and early evening. While there are difficulties over the introduction of such provisions that will take a considerable time to resolve, I give my noble friend this very solemn personal assurance. Being aware of the difficulties that I will encounter if I seek to introduce a clause of the Henry VIII variety, I promise him and others that I will give it personally my greatest and most detailed consideration before I take the risk of coming before the House with such a provision.
§ Lord Shaughnessy
My Lords, before the noble and learned Lord the Lord Advocate sits down, I do not know whether I heard him correctly earlier in his remarks. Did he say that regulations governing the community charge, which is payable almost without exception by every citizen of England and Wales, need not be written in language which is understandable by the general public? I may have got this wrong, but I wonder whether he can clarify it.
§ Lord Fraser of Carmyllie
No, my Lords, I was not saying that. What I was suggesting was that there are certainly circumstances where there is secondary legislation which is, frankly, drafted to enable administrators in one area of activity or another to understand what is to be done by them. I indicated that in the context of saying that sometimes it was not that civil servants wished to have to themselves a broad, ill-defined area of discretion but that often it might be said that they sought too great detail in the arrangements under which they operated, and that sometimes meant that there were pieces of secondary legislation which were extremely difficult to penetrate.
§ 6.49 p.m.
§ Lord Rippon of Hexham
My Lords, the noble Lord, Lord Beloff, suggested that as there might be a little time left at the end of this debate I might expand —I trust briefly —on some of the points that I made. The noble Lord, Lord Diamond, said that I had understated my case. I must say that that is an accusation which has rarely been levelled against me. But having come from the hurly-burly of another place I have been told that your Lordships do not appreciate language that is over the top. I tried to suggest a fairly simple practical solution of the kind which was designed to take this particular controversy out of the political arena, so far as that is possible.
Whatever merits there may be —it is not for me to express an opinion about it —in Standing Committees of the House to deal with certain Bills, that matter is then already in the political arena. Our problem is that we now have a great deal of skeletal legislation, albeit of great length, which is always justified on the grounds that the Minister needs flexibility to bring the Act into operation.
No one suggests that it is not appropriate to have delegated powers in suitable cases. From time to time they must be extensive. The noble Lord, Lord Mishcon, whose wisdom and experience is 1436 unparalleled —I have known him for many years in local government and parliamentary matters —pin-pointed the objection that the Government would make to new procedures: that if we provided more detail in Bills we should have more legislation. As I said in the debate on 31st January, I do not believe that that is true. After the Donoughmore Committee reported in 1932 the Henry VIII clause was never again used until the war. There were Bills such as the Public Health Act 1936 and the Local Government Act 1933 which were detailed and which lasted rather longer than does much modern legislation.
If the 50 local government Acts and 10 local government finance Acts that we have had in the past 10 years had been more carefully drafted we should be better off. My noble and learned friend is correct when he says that each case has to be considered on its merits. He referred to the European Communities Bill. Without any modesty, I should say that that Bill was extremely well-drafted and did not require any amendment, albeit that it needed three three-line Whips in a week in your Lordships' House, which is rather unusual. That of course was a Bill to implement a treaty. The Bill had to give effect to those changes in our national law that were required to give effect to the treaty. There have been other treaties such as the North Atlantic Treaty or the Brussels Treaty where there have been considerable derogations from national sovereignty without any debate in the House, debate being necessary only where the Ponsonby Rules are brought into effect.
If we look, as I suggested that your Lordships might, in great detail, as I hope the Government will, at the Australian procedure and the way in which that committee works, one will see that it is significant that its terms of reference require it to concentrate on certain fairly narrowly-defined aspects of a Bill rather than on the policy underlying it. Its purpose is merely to identify provisions which require further study. It can call upon the Minister to provide justification.
The purpose of the committee is to draw attention to where the delegation appears to go beyond the mere filling out of details. Details can certainly be dealt with in subordinate legislation, but the type of example of where it might intervene and make a report to Parliament, is where a fee, a charge or a levy in the nature of a tax is left to be set by regulations without specifying a maximum level of imposition. In the field of taxation it is especially important that the citizen should know just where he stands in language that he and not just his advisers can understand.
My noble friend Lord Dilhorne referred to local government legislation dealing with the rate support grant. I remember that in the other place as a Back Bencher on the 1980 Bill I used the phrase quoted by the noble Lord, Lord Mishcon: that it was a monstrous morass of legislation. In the event of course there was judicial review, and twice the Government were struck down. So what do they do? In the 1988 Act —I referred to this point then —they took a power which in effect —it was its purpose certainly —enabled the Government to redistribute the rate support grant on any principle they like.
1437 They can decide that only socialist authorities can have it. They can decide that it can go only to local authorities whose members have an average height of five foot six inches. Those are the powers at which we need to look much more carefully, because it will not necessarily, as in the case that I cited, be the particular government or Minister —he may say that he will look at the point with every care and that we can trust him —but a different Minister and a different government, perhaps years later, who exercise the powers in a way that no one foresaw.
My noble friend Lord Beloff asked whether it should be a committee of this place or a joint committee. That is a matter upon which I do not believe that it is necessary for me to express an opinion. I am too new a Member to advise the House on how it should regulate its affairs, but that is a possibility. It does not raise any great difficulty.
The important point is that the committee should be small —it is only seven members in the case of Australia —with its own legal adviser. At what point would the committee operate? It would operate, as in Australia, when the Bill is first presented. There would be no duplication of effort, no impingement on parliamentary time; and it would not act in parallel. The committee, because it is small and has its own legal adviser, makes its study and report. My noble friend Lord Beloff asked to what extent Ministers would feel able to brush it aside. The noble Lord, Lord Mishcon, was right to emphasise ministerial responsibility.
The Minister is responsible. He can be called before the committee. He can be asked to explain before the committee. Perhaps he can defend himself before the committee; but he can say, "I will not accept the report. I ask Parliament not to accept the report. I take my ministerial responsibility for it". Of course the Minister cannot override ultimate parliamentary responsibility. It is at that stage that we have our share of responsibility and where I believe that our procedures do not enable us to fulfil our obligations.
Of course what I suggest is not the final solution; but I hope that your Lordships will feel that the debate has provided a basis upon which we can have a fuller consideration of what the noble and learned Lord, Lord Simon of Glaisdale, rightly said is a matter of high constitutional importance.
Finally, I thank my noble and learned friend the Lord Advocate for his full, if cautious, reply. I am grateful to him for saying that this is a matter which requires further consideration. I thank all noble Lords who have contributed to the debate and those who have listened. I hope that it has at least been useful in throwing up some ideas for improving our procedures. I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.