HL Deb 22 July 1991 vol 531 cc580-7

106A Earl Russell moved, That the House do disagree with the Commons in their Amendment No. 106.

Earl Russell

My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 106.

I hope your Lordships will read the Commons amendment with some care. When I read it it caused me a good deal of surprise. The parentage appears to me to be by Henry VIII out of Humpty Dumpty. Even in these permissive days, I have some doubt whether that is a legitimate parentage.

I have no objection to the stated purpose of the clause as it is set out in the Notes on Commons Amendments, which my noble kinsman has very kindly made available to us. The notes state that: These amendments allow for detailed provisions regulating the transitional period until the Child Support Agency is fully operational to be made through commencement orders or other orders". I have no problem with that. I want to know why another place has found it necessary to use quite such sweeping and arbitrary words to bring that provision into effect.

In dealing with the Executive, there are two duties which rest upon Parliament. There is a duty of scrutiny, and there is a duty of control. Until I hear the reply. I am engaged simply on the duty of scrutiny. I want to know why these powers need to be so sweeping. I want to know why all these powers are needed; and I want to know—and this is the most important one for our purposes—could they have been worded in a less arbitrary manner?

This is a new commencement clause which emerged very late in the proceedings. There was not a single word spoken about it in another place. Therefore, we are going to hear today the first full explanation of why the Government want this clause. It may be simply to ensure the central purposes of the Bill. If so, I must say that this House has already approved the central purposes of the Bill. I would regard it as most improper at this stage to do anything to question them. However, I want to understand why it is necessary to have quite so much power to achieve the central purposes of the Bill.

The other idea that came into my mind was that I wondered whether the Government feared that they had left something out of the repealing schedule. There I would find it rather more difficult to help them, because this House cannot really hand over to the Secretary of State the task of repealing statutes. If the Secretary of State has forgotten to repeal a statute, then lie must come back to this place and we would, I am sure, do our level best to be co-operative.

I understand that it will be a complicated commencement; it will be a staged commencement for one thing. There is a process of meshing-in together the agency and the courts. I can see a good many problems in the commencement. I am reminded of the commencement of community care. Therefore, I can see that the powers which are set out in subsection (3C) of the government amendment may well be necessary. I do not intend to query that.

What I am unhappy about in the proposed subsection (3C) is the words, may, in particular, include". The subsection does not state that the Secretary of State nay make provision. It states that the powers, may, in particular, include". That naturally leads me to ask: what else can the Secretary of State do? I looked at the record of the government amendment. In subsection (3A) I found a power to make such modification, as appears to the person making the order to be necessary". That is a subjective judgment. The machinery for any further parliamentary control over the Executive will be very limited. It will only be a matter of the Secretary of State's own judgment whether anything done under that subsection is relevant to the commencement of the Bill.

Powers are also sought to bring about modification of, any provisions of this Act then in force The Secretary of State may amend his own Bill. That makes me wonder what all of us—in "all of us" I include the noble and learned Lord the Lord Chancellor and my noble kinsman—have been doing in using a great deal of concentration and carrying out a great deal of work in trying to make the Bill better. If the Secretary of State can simply amend the Act as he sees fit, I do not see why all our labours have been necessary.

I am even more concerned about the provision allowing the Secretary of State to vary any provision of any other enactment. I have already argued that the Bill puts the Secretary of State into the way of temptation to behave in a more and more arbitrary manner. I do not want to make that temptation more acute by equipping it with these quite extreme powers. In making these remarks, I mean nothing personal to the Secretary of State or indeed to any successor he may have in the future. I believe that these powers should not be trusted to anyone. I am reminded in fact of the comment of one of my American colleagues about a new mortgage. "If I were a banker, I would not lend me that much money". I do not believe that these powers are proper, whoever has them.

We may be given undertakings. If so, I shall accept them absolutely in relation to the present incumbents of their offices. But we are dealing here with the powers of the Secretary of State in 1993. We have no idea who will be Secretary of State in 1993, nor indeed do we have any idea of what undertakings he will feel bound by. The amendment states that the Secretary of State may modify any enactment. I admit that that applies in so far as it is relevant to the commencement of the Bill; but it is only the Secretary of State's judgment of what is relevant to the commencement of the Bill. So far as I can see, if we pass this clause we shall give the Secretary of State power to modify the due process clause of Magna Charta, to modify habeas corpus or the Police and Criminal Evidence Act, to modify the arbitrary imprisonment provision of the Petition of Rights. I could go on, but I shall not.

I do not believe that the Secretary of State intends to do any of those things. But that is something which Parliament in its official capacity cannot presume. If we confer these powers on the Secretary of State, they are gone. We do not want to sound like the Emperor Caligula in what is doubtless an apocryphal story. It was said that he used in a fit of drunken rage to say of his friend, "Off with his head". He would then send for the friend the next morning only to be told, "He is executed". "Oh", the emperor would say, "I did not intend it". If any such use is made of these powers it will not be good enough for Parliament to say, "Oh, we did not intend it". If we grant these powers we must accept the possibility that they might be used.

I know that they are limited to the commencement of the Bill. But that, in a phased commencement, is a long period of time. One of things which worries me very much about the government amendment is there is no time limit put upon it.

I am also worried by subsection (3D) of Amendment No. 106. It states: The Lord Chancellor, the Secretary of State or the Lord Advocate may by order make such amendments or repeals in, or such modifications of, such enactments as may be specified in the order". In other words, the Lord Chancellor—and I do not say the noble and learned Lord because I am referring to any Lord Chancellor for the time being—will at last have achieved the true Gilbertian aspirations of his office: he will indeed embody the law. It is possible that there are good reasons for what is proposed, but I do not see them. However, I shall listen to what is said.

I have one final question which is on a less serious level. Section (3E) refers to a special provision for the Isles of Scilly. I very much doubt that I would wish to object to it. However, I should like to know the reason for it and whether the Isles of Scilly have asked for the provision.

Moved, That the House do disagree with the Commons in their Amendment No. 106.—(Earl Russell.)

Lord Simon of Glaisdale

My Lords, this Bill makes an extraordinary leap forward in the arrogation by the Secretary of State of powers traditionally vouchsafed to Parliament and to courts of law. This is an example of the invasion of traditional parliamentary rights; in other words, to amend legislation. I support the remarks made by the noble Earl. However, there is one other point that I venture to bring to the attention of your Lordships. I have in mind subsection (3C). I am especially concerned about paragraph (a). It gives the Secretary of State power to make regulations providing for, the enforcement of a maintenance assessment (including the collection of sums payable under the assessment) as if the assessment were a court order of a prescribed kind". Apart from the extent to which that provision goes constitutionally, the extraordinary thing is that the provisions of Clause 48 are not subject to the affirmative resolution procedure under what is now Clause 43. In other words, if there is any provision which ought to subject to the affirmative resolution, it is (3C) (a). It falls under both the first and the second headings of the report of the Joint Select Committee of 1972–73. Because it is such a power, it is not trivial or consequential. Moreover, it also falls under the second heading in that it involves a charge on a citizen. It is too late now to make that an affirmative resolution procedure provision. Therefore, it seems to me that the right course for us to take is to remove the whole provision as suggested by the noble Earl.

Lord Stoddart of Swindon

My Lords, I should like to ask one short question. The noble Earl raised some very important points. He also pointed out that Amendment No. 106 went through the other place without any discussion, so there is no benefit of ministerial reply to any amendments or questions. Is there any precedent for such a clause as this?

10.15 p.m.

The Lord Chancellor

My Lords, the clause deals primarily with the commencement of these provisions. As I indicated earlier, the provisions will deal with almost 2 million customers, which represents about 3 million assessments each year. Therefore it is important that the work should be taken on in phases, as is obvious, in order that the arrangements should work. Precisely how that phasing will be worked out must be a matter of experience as we enter the transitional period.

Under the present law there are a number of provisions dealing with maintenance. However, it is not right that they should be repealed because they continue to be effective until the transition is made effective. Due to the nature of the task that the agency will be taking on we cannot be certain during what period a particular burden of work will pass to the agency.

The principles are settled in the Bill. I regard the clauses as clearly subsidiary to the principles. For example, the idea that any of the powers could be used in the way suggested by the noble Earl in relation to Magna Carta would not be correct. Before an order can be made under this provision it must be shown that the order is reasonably regarded as necessary or expedient in connection with: the provisions so brought into force by the order, as is stated in subsection (3A) (a) of the amendment. That includes such adaptations or modifications as are provided for. It is a cardinal principle of the interpretation of a statute of this kind that the powers are given only to effect the policy of the statute. It must be a reasonable exercise of the power before it would be sustained. I suggest to your Lordships that in presenting his argument the noble Earl has perhaps naturally exaggerated the alleged subjective nature of the power. One cannot use the power unreasonably and then attempt to cloak that with the idea that it appeared to the person making the order to be necessary or expedient—

Lord Avebury

My Lords, surely the Government must know which provisions of which enactments they will need to repeal or amend as the Act comes into force. Therefore, instead of providing for any provision of any other enactment, could the provisions not have been put into a schedule and referred to by name?

The Lord Chancellor

My Lords, that might be possible but it depends. For example, some degree of modification might be required before the provisions came into effect. The law contains a number of provisions dealing with maintenance but I believe that this is a reasonable way to deal with the matter as subsidiary to the question of the commencement of the statutory provisions.

We hope that the interim period will be reasonably smooth. In that case it may be possible to bring forward the rest of the work quickly. On the other hand, if difficulties are experienced in carrying out the assessments on the first tranche the matter must be dealt with more slowly. It is therefore right that the existing jurisdiction should be retained and modified only when the agency is ready to take over. It will always be necessary in that situation to make detailed modifications to the force of quite a number of existing enactments to cover different stages in the transition period. I am conscious that the clause ranges widely but the scheme is quite ambitious in order to effect an important change in the way in which the maintenance is collected.

The situation is clearly related to subsections (3A) and (2), which explicitly refer to the order as making provisions supplemental to the commencement of provisions under the Act. I submit that that clearly limits the scope for the detailed provisions that are made.

My noble and learned friend Lord Simon of Glaisdale spoke of the provisions of subsection (3C) (a) as: the enforcement of a maintenance assessment (including the collection of sums payable under the assessment) as if the assessment were a court order of a prescribed kind". Obviously that provision might be required to relate a new maintenance assessment to existing orders. Accordingly, I submit that that is a reasonable provision.

So far as concerns the Isles of Scilly, the purpose of subsection (3E) is for safety. It is unlikely to he needed but the way in which the Bill is to be brought into force may require that special provisions be made for the Isles of Scilly because of their special situation. This appears to me to be a reasonable arrangement.

The nature of the clause is not precisely covered by previous precedents because the nature and the burden of the transition are unprecedented. I believe that the clause has the right balance of flexibility and structure to make it appropriate for dealing with a complicated transition from existing arrangements to the new arrangements. I must emphasise that all along we must have a system which operates the arrangements. We cannot completely stop enforcing maintenance for a period in order to bring in the new provisions. We must effect the change at the same time as keeping a comprehensive and effective system in place. For these reasons, I invite your Lordships not to accept the Motion.

Lord Simon of Glaisdale

My Lords, before my noble and learned friend sits down, he said that he thought subsection (3C) (a) was reasonable. He did not say why it was not subject to the affirmative resolution procedure.

The Lord Chancellor

My Lords, I do not see that these provisions, which are in the nature of transition provisions, need the affirmative resolution procedure. After all, they are supplementary arrangements in a commencement order. That is the purpose. It is a commencement order for the statutory provisions. The idea is that, because of the nature of the transition, the commencement order needs to be somewhat more complicated in this case than in many others. I believe that the negative procedure is appropriate in the circumstances. It goes without saying that the provisions will be carefully considered before they are put into effect by Parliament.

Earl Russell

My Lords, it may be for the convenience of the House if I ask a question of the noble and learned Lord before he sits down. Would he be prepared to take back this clause, maybe only until tomorrow morning, to consider whether it can he drafted in a less arbitrary manner? I am sure that if we were only to sit down round a table we could come to some agreement on this. Is the noble and learned Lord prepared to help to that end?

The Lord Chancellor

My Lords, all I can say is that those who drafted this clause did so conscious of the sort of constraints that this House would wish to see imposed on the clause. I strongly feel that the noble Earl, in making his comments, has not given sufficient weight to the place in which this clause appears and the purposes quite clearly stated in the clause which will govern any exercise of power under it. I honestly do not think that I can do more than abide by the clause as it is. which has passed the other place. Having regard to the advice I have received from those involved in drafting the clause, I do not believe that the time between now and tomorrow morning would be such as to produce any sensible modification of it.

Earl Russell

My Lords, I can only say that I am extremely sorry for that answer. I understand what the noble and learned Lord is saying. I understand the limitation of purpose, that it is only to effect the policy of the statute and only to bring it into force. I do not think I object to what the noble and learned Lord is trying to do, as I understand it, but I cannot feel happy at having words of this sort passed into an Act of Parliament to remain there, to he used in circumstances that we cannot foresee by people whom we cannot foresee.

I am sorry that the noble and learned Lord could not respond to the invitation to spell out in a schedule all the statutes he wanted powers to modify. That was just the sort of suggestion where I was hoping some common ground could have been found, but it has not been. I do not think we can agree to let Ministers change the law as seems to them best. That is not the sort of crust it has ever been Parliament's business to give.

Here I should like to make an apology to the noble Lord, Lord Renton, who put down a Question last spring asking the Government to abandon the use of Henry VIII clauses. I then took a position rather more moderate than that of the noble Lord. I asked for the Government to go back to the position of the Donoughmore Committee. I think that I was wrong and the noble Lord, Lord Renton, was right. Like alcohol, Henry VIII clauses are addictive, and prohibition is the only answer. The only way to bring them under control is to have it known that whenever they are put in Bills this House will divide against them. I urge the House to disagree with the Commons in Amendment No. 106.

10.28 p.m.

On Question, Whether the said Motion (No. 106A) shall be agreed to?

Their Lordships divided Contents. 23; Not-Contents, 43.

Division No. 3
CONTENTS
Avebury, L. Mishcon, L.
Beaumont of Whitley, L. Monkswell, L.
Carmichael of Kelvingrove, L. Morris of Castle Morris, L.[Teller.]
Clinton-Davis, L.
David, B. Peston, L.
Desai, L. Rea, L.
Flowers, L. Rochester, L.
Graham of Edmonton, L. Russell, E. [Teller.]
Hacking, L. Simon of Glaisdale, L.
Hollis of Heigham, B. Stoddart of Swindon, L.
Macaulay of Bragar, L. Tordoff, L.
Mackie of Benshie, L. Williams of Elvel, L.
NOT-CONTENTS
Ampthill, L. Hesketh, L. [Teller.]
Arran, E. Hooper, B.
Astor, V. Howe, E.
Beloff, L. Johnston of Rockport, L.
Belstead, L. Long, V.
Blatch, B. Mackay of Ardbrecknish, L.
Blyth, L. Mackay of Clashfern, L.
Boardman, L. Montgomery of Alamein, V.
Brabazon of Tara, L. Oxfuird, V.
Butterfield, L. Pearson of Rannoch, L.
Carnock, L. Peyton of Yeovil, L.
Cavendish of Furness, L. Quinton, L.
Cochrane of Cults, L. Reay, L.
Craigmyle, L. Romney, E.
Davidson, V. [Teller.] Seccombe, B.
Denton of Wakefield, B. Strathmore and Kinghorne, E.
Elles, B. Thomas of Gwydir, L.
Ferrers, E. Trumpington, B.
Flather, B. Ullswater, V.
Glenarthur, L. Waddington, L.
Henley, L. Wade of Chorlton, L.

Resolved in the accordingly.

10.36 p.m.

On Question, Commons Amendment No. 106 agreed to.