§ 3.47 p.m.
§ Read a third time.
§ Clause 1 [Persons to whom this Part applies]:
§ Lord Simon of Glaisdale moved Amendment No. 1:
Page 2, line 42, at end insert:
("() An order made under this section shall be subject to the affirmative resolution of both Houses of Parliament.").
§ The noble and learned Lord said: My Lords, the amendment concerns the parliamentary control of delegated legislation. It is a matter with which your Lordships have frequently been preoccupied in your role, in a very real sense now, of watchdog of the constitution.
§ There has been an agelong and perfectly understandable tension between the Executive and Parliament. Naturally the Executive wants to minimise as far as possible the interference and control of Parliament, and also of the judiciary although to a lesser extent, but that does not concern us in the context of this amendment though it does in the Bill itself.
§ If possible the Executive very naturally wishes to enact legislation by regulation rather than by statute, and if by regulation, to minimise the parliamentary control; in other words, where possible to have negative resolution procedures rather than the affirmative. The advantage to Parliament of the affirmative resolution procedure has again to be stated in the context of this amendment.
§ Under the affirmative resolution procedure the Minister has to introduce and explain what the regulation means and what it does. Under the negative resolution procedure he has merely to reply to such points as can be raised in the preceding debate. There is another extremely important advantage to Parliament in the affirmative resolution procedure: the Government have to find time for the discussion of the regulation. On the other hand, under the negative procedure the debate frequently never takes place, particularly in the other place, because time has expired for praying against the regulation before an opportunity can be found for the resolution to be tabled.
§ The Bill gives a blanket negative resolution procedure for all the regulations under the Bill, whether they are important, trivial or consequential. Unfortunately, that is by no means unique. In another Bill currently before Parliament—the Criminal Justice 331 Bill—there is again a blanket negative resolution procedure, notwithstanding that the Bill gives the Minister power to create new criminal offences or to remove criminal offences from the ambit of the Bill. Naturally that aroused considerable consternation and there was a promise to reconsider it. So the provision in this Bill must be regarded in the wider context of a continual, executive, bureaucratic aggrandizement at the expense of parliamentary control.
§ At Report stage an amendment was tabled to make all the provisions subject to affirmative resolution procedure. That was a probing amendment because my noble and learned friend the Lord Chancellor was offered the opportunity, as is usual on such occasions, to discuss which should be affirmative and which negative. Unfortunately he did not respond to that opportunity. Not only that, he did not deal at all with the argument that had been put forward in support of the amendment. There was quoted in summary form the perfectly clear criteria laid down by the Joint Select Committee on Delegated Legislation of 1971–72. My noble and learned friend did not even advert to that in the brief that he read out. I can only assume that those criteria had been entirely lost sight of by those advising him.
§ All that my noble and learned friend said was that the similar provisions in the 1981 consolidation Act were subject to the negative resolution procedure. In view of that, after the debate I wrote on 30th October to my noble and learned friend, setting out in full the criteria that the Joint Select Committee had laid down. I ought to add that the report was considered in both Houses of Parliament without a word of demur to those criteria. In each House a Minister, in fact the Leader of the House, replied to the debate.
My noble and learned friend replied to my letter on 9th November, so that I received it two days ago. He accepted that the Joint Select Committee laid down criteria, but so far as concerns the one that is material to this amendment, he said that what the Joint Select Committee was referring to was what is now known as the Henry VIII provision. In view of that reply, I feel that I must read out to your Lordships the short passage in the Joint Select Committee's report. It said that the first thing that should be subject to the affirmative procedure is:
powers substantially affecting the provisions of Acts of Parliament".
The report goes on to say that:
Everything turns on the word 'substantially'. The view of your Committee is that when important issues are involved, whether because of the nature of the enactments which are the subject of the power or the extent of the power to operate them, it is likely to be obvious that the affirmative procedure should be used, if indeed it is appropriate for the amendment to be made by order at all, and not by the Bill. Conversely, there will be cases where the amendment is of a trivial or tidying-up character, or is consequential on provisions expressly agreed by Parliament: in such cases the affirmative procedure need not be adopted".
§ Your Lordships will note, first, that there is not a word in that passage about Henry VIII provisions. The nearest that it comes to it is a reference to whether the regulation should be made at all or whether the provision should not be made in the Bill.332
§ My noble and learned friend's letter further implied that the Henry VIII provision had been current usage in 1971–72. The Joint Select Committee would have used that; it was then current. It had been current before and was repeatedly used in the Donoughmore Committee report of 1932. It had been current ever since. As I said, the nearest thing to it is the reference to whether indeed the provision ought to be made at all by regulation and not in the Bill.
§ But such provisions go far beyond Henry VIII clauses. Indeed, if the Joint Select Committee had wished to restrict its recommendations to Henry VIII provisions, it would not have had the slightest difficulty in making plain what was intended. Indeed, as your Lordships will recollect from what I have read out, it was made quite plain that "substantially" stood in contradistinction to trivial, tidying up or consequential. So the question is this: is the provision trivial, is it tidying up or is it consequential? If so, the negative procedure is appropriate; if not, it should be the affirmative procedure.
The provision in the Bill to which this amendment is primarily directed appears in Clause 1(8):
The appropriate Minister may by order amend ‖ Part of Schedule 1 to this Act by adding offices to those for the time being there specified".
§ In other words, the Minister is given power to amend the schedule.
§ What is astonishing is that that is quite plainly a Henry VIII provision and my noble and learned friend's letter did not refer to it at all. It referred to Clause 26(4), which is indeed a Henry VIII provision but quite an innocuous one. This provision is a very serious one. It adds to the schedule judicial offices to which the Bill applies. The provision allows a Minister to operate by regulation. It was pointed out on Report that it was quite unnecessary to do that by a Henry VIII provision. On the analogy of parliamentary disqualification, the Bills creating the office could have amended the schedule. It seems a piece of gratuitous bureaucratic aggrandisement. In those circumstances, in my respectful submission, the case is perfectly clear for affirmative resolution. I beg to move.
§ 4 p.m.
§ Lord Boyd-Carpenter
My Lords, this is the first of a series of amendments in the name of the noble and learned Lord, Lord Simon of Glaisdale, to introduce the affirmative procedure throughout the Bill. Whether that is a particularly suitable subject matter for debate on amendment on Third Reading is perhaps a matter of opinion. It certainly goes against the view often expressed in this House that amendments on Third Reading should relate only to matters of substance. With great respect, that provision is not a matter of substance.
It is in fact a very sensible provision in the Bill. For example, if a new authority, tribunal or other body is set up, the Minister would be able by order to have those who served on that body treated as existing members of other judicial bodies are treated. That seems perfectly sensible. It is not a dramatic Henry VIII type of clause. It is simply a sensible and practical provision.
333 My noble and learned friend entirely ignores the fact that no one proposes to deprive Parliament of concern with those matters. If such addition is done by regulation subject to the negative procedure, it is perfectly possible to put down what in another place we used to call a prayer, a Motion to annul the regulation. I know enough of the character of your Lordships' House to be aware that if any silly or oppressive regulation is made, it is certain that at least one noble Lord will put down a Motion to annul the regulation. On the other hand, if we are to have every one of those orders taken by affirmative procedure, with all the expenditure of the time of the House involved, dealing very often with matters, such as this, of no very earth-shaking importance, we shall clog the parliamentary machine with unnecessary procedure and thereby diminish its effectiveness over things that matter.
I hope very much that your Lordships will reject the amendment and its successors.
§ Lord Renton
My Lords, although I so often agree with the noble and learned Lord, Lord Simon of Glaisdale, in what he says about Henry VIII clauses and his desire for greater parliamentary control through affirmative resolutions rather than the negative procedure, I believe that in this case we are dealing with a relatively minor matter, as my noble friend Lord Boyd-Carpenter pointed out. We have to bear in mind that any order made under Clause 1(8) would have to be within the terms of the Long Title of the Bill. That relates specifically to "judicial, and related, offices". It is right that the Lord Chancellor should have the opportunity, without troubling Parliament too much, of adding, for example, the chairman of any newly-created statutory tribunal.
§ Lord Campbell of Alloway
My Lords, I am forced briefly to oppose the amendment. It serves as a convenient vehicle for the noble and learned Lord, Lord Simon, to deal with his preoccupation with Henry VIII clauses, to which we have listened with great patience on many occasions in your Lordships' House. However, in this particular context your Lordships may feel that it really is making the proverbial mountain out of the proverbial molehill. It is proposed by virtue of an order to add to a schedule in an Act. With respect to the noble and learned Lord, that is not a Henry VIII situation. He may say that it is; I say, with great respect, that it is not. It makes a nonsense of the argument to require the amendment to be accepted.
§ The Lord Chancellor
My Lords, I am grateful to my noble friends Lord Boyd-Carpenter, Lord Renton and Lord Campbell of Alloway for their view that the amendment should not be supported. Since we are to have a number of such amendments, I should set out in a little detail what I believe the position to be. The Joint Committee, to which my noble and learned friend Lord Simon of Glaisdale referred, concluded that the affirmative resolution would normally be appropriate, first, for powers substantially affecting the provisions of Acts of Parliament; secondly, for powers to impose or increase taxation or other 334 financial burdens on the subject or to raise statutory limits on the amounts which may be borrowed by, or lent or granted to, public bodies; and, thirdly, for powers involving considerations of special importance not falling under either of the two preceding heads. That is paragraph 78 of the report.
The provision to which the amendment is directed, which my noble and learned friend has read out, is a power not to take things out of the schedule but to add offices to the schedule. It does not seem to me therefore that it comes under the first heading. As my noble and learned friend pointed out, the Joint Committee concluded that the affirmative procedure was unnecessary if the amendments that could be made were of a trivial or tidying up character or consequential upon provisions expressly agreed to by Parliament. None of the powers in the Bill, in particular, this one, seems to fall under the second heading.
That leaves the third heading. The minutes of the evidence heard by the Joint Committee contain a reference to "Judicial Rules and regulations" as being a class of instrument not usually subject to affirmative or negative control although it is not clear what might be the limits of such rules and regulations.
The Joint Committee itself recognised that it was not desirable to formulate precise rules for determining the level of parliamentary scrutiny. That aspect was picked up in the government response to the First Special Report from the Joint Committee, 1977–78. The Joint Committee has been critical of the lack of criteria for deciding whether certain instruments made under the European Communities Act 1972 should be subjected to the affirmative or negative procedure. The government response was that it was not practicable to lay down precise criteria for determining the choice between the various procedures. The procedure needs to be determined in the light of the wishes of Parliament and the circumstances of the particular case.
It seems therefore that one has to consider the particular power in question and take account of general considerations. One of those considerations undoubtedly must be, as the Joint Committee warned, the needless consumption of parliamentary time. It seems to me to be an utterly unnecessary consumption of parliamentary time if an office is added to the schedule in respect of which there is no real dispute. As my noble friend Lord Boyd-Carpenter pointed out, the negative procedure would enable a dispute to be aired and considered if it arose.
In my submission, it is not a power which should be subject to the affirmative resolution procedure. I therefore invite your Lordships not to accept the amendment. In the light of the discussion, my noble and learned friend may feel able to withdraw the amendment.
§ Lord Simon of Glaisdale
My Lords, one is bound to ask where we are going constitutionally. We are concerned here with a power given to the Minister to enact a provision which could perfectly well be in a Bill creating the judicial office. But this goes out of its way to allow the Minister to do it by regulation. Moreover, my noble and learned friend appears to be 335 suggesting that a schedule is substantially affected if it is derogated from; if something is taken out of it. Of course that is not the case at all. It is substantially affected—in other words, it has a different operation —if something is added to it.
My noble and learned friend did not deal with the point—nor, with great respect, did the noble Lord, Lord Boyd-Carpenter, in saying that there were powers to deal with the negative resolution procedure—that in the other place the negative motion is more frequently than not never reached at all. I regard it as particularly serious that it should be the Lord Chancellor's Department which is taking this line. One cannot altogether divorce it from the provision which was in Clause 25 and which aroused such constitutional protests. It remained in the Bill until the week before the Report stage; that is the power given to the Lord Chancellor to prolong the position in office of a particular judge thereby enabling him to earn his full pension.
I do not suggest for one moment that the Lord Chancellor's Department is particularly malign. It is merely a repository of power and, like all repositories of power, the power tends to corrupt. The first way in which power corrupts is by creating an avidity for more power. Therefore, the provisions in the Bill demand particular constitutional scrutiny.
However, after some 35 years in Parliament I would be unrealistic to believe that I should get anywhere by pressing the amendment to a Division. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.