§ 3.4 p.m.
§ Lord Rippon of Hexham
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Your Lordships will recall that this Scrutiny Committee was established as an experiment following pressure in the House, over a considerable period of time, for more detailed consideration of the powers delegated by legislation. It was set up as a consequence of the recommendation made last year by the Select Committee on the Committee Work of the House, chaired by my noble friend Lord Jellicoe. The House will also know that the terms of reference set for the committee by the House on 10th November last year are:To report whether the provisions of any bill inappropriately delegate legislative power; or whether they subject the exercise of legislative power to an inappropriate degree of Parliamentary scrutiny".However, before we were to report formally on any individual Bills, the House, on the recommendations of the Procedure Committee, asked us to conduct a general inquiry into the principles which would guide us in our work. That is the purpose of this report.
The committee has taken both oral and written evidence. I must express our thanks to all the witnesses 1220 and perhaps particularly to the noble and learned Lord, Lord Simon of Glaisdale, who has consistently drawn attention to the issues raised in the report. Perhaps I may also thank the Government, who have undertaken to provide the committee with a memorandum on each Bill.
Paragraph 22 of the report states that it would then be open to the committee to seek further information, if necessary, from the department concerned and even occasionally to ask for help from other witnesses. Our aim would be to ensure that the committee's views are available to the House before the Committee stage of a Bill, and in some cases perhaps earlier if possible. The Government's evidence stressed the need not to set out too rigid criteria for when delegated legislation was appropriate. Their evidence stated:The merits of the Government's proposed use of delegated powers need to be considered case by case in each specific context".The committee believes that that is the right view. No doubt the criteria applied in these cases can be considered in detail by the House as the occasion arises. In paragraph 24 of our report we have drawn attention to some categories of delegated legislative power which caused exceptional concern in the past. Thus your committee will pay close attention to any Henry VIII clauses, skeleton Bills and to delegated powers subject to unusual procedures.
I should perhaps add that there might be some misinterpretation of one reference in paragraph 27. That is the reference to delegation which allows fees, charges or levies in the nature of a tax to be determined by subordinate legislation. We do not intend to find ourselves in conflict with the Parliament Acts.
Finally, our aim would be to inform the House with a view to saving time on the Floor. We believe that the terms of reference set out by the House are sufficient to enable us to do the job which the House requires. In order that we may commence without delay our work of scrutinising individual Bills, I beg to move that the report be agreed to.
Moved, That the First Report from the Select Committee be agreed to (HL Paper 57).—(Lord Rippon of Hexham.)
Lord Bruce of Donington
My Lords, I promise not to detain your Lordships long on this particular item on the agenda this afternoon. I draw the attention of the House to paragraph 12 in the report of the Select Committee as regards the scrutiny of delegated powers. It reads as follows:section 2(2) of the European Communities Act 1972 which allows, subject to certain exclusions in Schedule 2, any provision which might be made by Act of Parliament to be made by Order in Council or regulations under that section".That means that there is a mass of delegated legislation incorporated in our statute books which at the moment provides some considerable difficulties in effecting proper scrutiny. I do not intend to enlarge on this particular issue for long this afternoon. It is of constitutional importance. As was pointed out in a recent book issued by the Hansard Society, of which the noble Lord, Lord Rippon, is such a distinguished officer, there is a very real danger of legislation passed by the bureaucracy in Brussels without the 1221 intervention of the Council of Ministers passing its way unencumbered onto the statute books of the United Kingdom. I invite the noble Lord—not necessarily this afternoon but at some convenient time—to say just how the Scrutiny Committee is going to deal with that particular situation.
Later, in paragraph 18, the noble Lord draws attention to the role of this House in the scrutiny of delegated legislation. Paragraph 18 reads as follows:In considering what manner of delegation of powers might be appropriate, the Committee had in mind the differences in the powers available to the two Houses of Parliament to control delegated legislation. It was pointed out to us that the distinction between affirmative and negative procedures was more important in the Commons than in the Lords, as less time was made available for debates. But control was more of a problem in the Lords, where the opportunities to reject instruments of either-kind were, by a `weak convention', virtually non-existent".This is not the first time that I have ventured to draw your Lordships' attention to the infringement on our rights which has sometimes been progressively established not by rules but by conventions which are incorporated in the Companion. It is for consideration whether in future instead of the House, by convention, being faced with the necessity either of affirming a regulation as a whole or approving it as a whole, it should assert its undoubted right actually to challenge individual clauses in the delegated legislation itself. There is nothing save the convention—save the weak convention—that prohibits your Lordships' House from doing that. It may be a matter for consideration for the House as a whole—and possibly for the noble Lord, Lord Ripon, also.
That is all that I have to say, but I venture once again to draw your Lordships' attention to the fact that there is a danger that, by default and by the inactivity of another place, we may allow many of our liberties to disappear into a bureaucracy without effective political checks being made at this political level.
§ Lord Finsberg
My Lords, I should like to ask my noble friend one question arising from both his report and his remarks. I refer to the question of the Government producing a memorandum. Both in his report and in his speech my noble friend said that that would normally be produced in time for the Committee stage, but there was some sort of slight frisson as if it might not be. I wonder whether he can say how he envisages that it might not be ready, bearing in mind the time that has to elapse between a First Reading, a Second Reading and a Committee stage.
§ Lord Rippon of Hexham
My Lords, I thank the noble Lord, Lord Bruce of Donington, for what he said. I am sure that he knows very well that no one is more aware than I am of the implications of Section 2 of the European Communities Act 1972 and I am sure that he would have been very critical if the committee had not referred to it.
On the point about the undertaking to try to bring our reports to the House before Committee stage, perhaps I may say that one cannot give an absolute undertaking. We are not in a position to do that before 1222 the Committee stage of, for example, the Housing and Urban Development Bill, but we are not necessarily precluded from doing it later.
§ The Lord Privy Seal (Lord Wakeham)
My Lords, the House will be grateful to my noble friend Lord Rippon of Hexham for the concise and lucid way in which he introduced the initial report from the Delegated Powers Scrutiny Committee. The House will also be grateful to him and his fellow members of the committee for the work that they put into producing the report.
As my noble friend indicated, it is the general conclusion of the committee that in carrying out its work it needs to consider the proposed use of delegated powers case by case and in each specific context. It is interesting to note that the committee has not felt it possible to set out with precision any test of appropriateness, but the Government note the observations that have been made in the report.
For my own part, perhaps I may simply emphasise one particular conclusion in the report which I welcome. It is that the primary aim of the committee should be to inform debate with a view to saving time on the Floor of the House. I hope that, when the House comes to consider reports from the committee on Bills, it will pay due weight to that conclusion. I also welcome the clarification to paragraph 27 of the report which my noble friend has already made.
Subject to those observations, I commend the report to the House. I hope that the House will now confirm the committee's terms of reference and agree to its proceeding as proposed in the report.
On Question, Motion agreed to.