HL Deb 29 October 1998 vol 593 cc2104-12

26 Clause 10, page 7, line 21, after ("stated") insert ("in writing").

Lord Williams of Mostyn

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 26. I wish to speak also to Amendments Nos. 27 to 31, 33 to 35 and 60.

These are technical amendments concerned with the remedial order provisions of the Bill. In earlier discussions a number of your Lordships indicated that in their view the power to make remedial orders was too wideranging. There was not sufficient opportunity for scrutiny by Parliament. We promised to think about the matter and this series of amendments demonstrates that we have done so. We thought that we should do more to respond to the concerns. Therefore, most of the amendments relate to extending the opportunities for parliamentary scrutiny.

Amendment No. 26 requires persons stating that they do not intend to appeal to do so in writing before the power to make a remedial order can be exercised. This places on a statutory basis what is likely to happen in any event, because the only way in which Clause 10(1)(a) can operate in practice will be for the person making the order, if he wishes to proceed urgently before the time for appeal has expired, to take positive steps by seeking statements from all interested parties to the effect that they do not propose to appeal.

I turn to Amendments Nos. 27 to 30. At the moment Clause 10(2) provides that, if a Minister of the Crown considers it appropriate to amend legislation using the power conferred, he may do so by making a remedial order, introducing such amendments as he considers appropriate. Amendment No. 27 takes that term away from Clause 10(2) and requires there to be compelling reasons for proceedings under Clause 10(2). It limits the amendments to those which are necessary to remove the incompatibility. It is therefore a restriction of the circumstances, responding to your Lordships' concerns specifically, in which a remedial order may be made. Amendments Nos. 28, 29 and 30 make equivalent provisions in Clause 10(3) and (4).

I have seen the further report of the Select Committee on Delegated Powers and Deregulation which was printed yesterday. I shall come to that in a moment. The procedures for making remedial orders are at present in Clauses 11 and 12. Amendments Nos. 34 and 35 remove those clauses from the Bill. Amendment No. 60 inserts a new schedule into the Bill (Schedule 2) which reproduces Clauses 11 and 12, with certain modifications. We thought it would be easier to read and understand them if they were in one place. They are procedural and therefore we consider they should be in the schedule. Amendment No. 31 is simply consequential.

The modifications made in Schedule 2 by Amendment No. 60 are intended to provide greater opportunity for parliamentary scrutiny of draft remedial orders or remedial orders. Schedule 2 describes the different procedures for non-urgent and urgent orders. Essentially, a 60-day period of consideration is provided during which representations on an order or proposed draft order may be made, followed by a further 60-day period after which a non-urgent order may be made if Parliament approves it or an urgent order, which has been made, expires if Parliament does not approve it.

In the case of non-urgent orders, paragraph 3 of Schedule 2 provides for a document containing a draft of the proposed order and certain other information to be laid before Parliament for a minimum period of 60 days. After that, the draft order itself may be laid before Parliament together with a summary of any representations received. Under paragraph 2(a) of Schedule 2, a further 60 days must then elapse.

In the case of urgent orders made before first being approved in draft—this appears in paragraph 2(b) of Schedule 2—the order must, under paragraph 4 of Schedule 2, be laid before Parliament after it is made with the required explanatory information. If any representations are made on the order within 60 days of it being made, a summary of the representations must be laid before Parliament together with details of any changes proposed as a result of those representations. If there are changes, a replacement order must be made and laid before Parliament.

The point of having two 60-day periods is to provide an opportunity for representations to be made on the Government's proposals when laid in the form of a document containing a draft order and then an opportunity for considering the draft order, including any changes made before a Motion to approve the draft order is debated.

The report of the Select Committee to which I referred criticises one of the provisions of the new schedule inserted by Amendment No. 60. That is the procedure for non-urgent remedial orders. It provides for two successive 60-day periods. The report indicates that the second 60-day period differs from what the Select Committee recommended in its previous report, which was essentially to follow the procedure under the Deregulation and Contracting Out Act 1994. The report states that the second 60-day period amounts to an excessive delay and could make a remedial order procedure unworkable. The Select Committee's recommendation is to remove the second 60-day period.

We took the report seriously. I believe that the criticism is perhaps misplaced. We did not need to follow the Deregulation and Contracting Out Act exactly because our schedule provides for two kinds of remedial order: non-urgent (paragraph 3) and urgent (paragraph 4). The Deregulation and Contracting Out Act has only one kind: non-urgent. If there were compelling reasons for amending primary legislation by means of a remedial order and the matter was urgent, we would proceed by way of an urgent remedial order made in advance of parliamentary scrutiny and approval. If the matter was not urgent, we would proceed with a non-urgent remedial order. It would not matter that the process took 120 days. It would still offer an advantage, in a compelling case, over the normal kind of amending legislation for which it might be difficult to find time in the legislative programme.

Therefore, I hope I can make two points. First, we listened carefully to concerns expressed by your Lordships about insufficient parliamentary scrutiny. I think we have attended to that. Secondly, we looked carefully at the comments of the Select Committee, took them into account but believe that the scheme we have is appropriate and acceptable. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 26.—(Lord Williams of Mostyn.)

Lord Renton

My Lords, I believe that a serious matter arises under Amendment No. 60. The noble Lord, Lord Williams of Mostyn, has done his best to explain and excuse the purpose of Amendment No. 60 which inserts a new schedule and, for the first time, makes proposals to deal with remedial orders. It is right that the matter should be dealt with. If only the third paragraph of the new schedule had not been inserted everybody would have been satisfied. But I invite the attention of the House to the comments on this matter by the Select Committee on Delegated Powers and Deregulation. I shall not read a great part of what is said. However, if I quote paragraph 8 on page 4 of the report it will place on record the difficulties that are likely to arise. Having said that paragraph 2 of the new schedule introduces a second 60-day delay by providing that a draft order cannot be approved by resolution until after the end of the period of 60 days beginning with the day on which the draft was laid, the committee states: The consequence is that a proposal which meets with universal approval when laid under paragraph 3 cannot be made until at least 120 days have passed—and paragraph 6 (calculating periods) could make the delay much longer. The Government explains that the procedure was devised in response to concern expressed during the Lords proceedings on the Bill". I do not believe that anything was said during those proceedings to justify the long delay that is now put forward in paragraph 3 of the new schedule. The report continues: While we appreciate this positive response, the procedure set out in Commons amendment 60 is not, however, what we suggested in our previous report—there is only one 60 day limitation in the procedure under section 4 of the Deregulation and Contracting Out Act 1994—and we see no reason for the introduction of a second 60 day period". The committee met yesterday and its report was published only this morning. I confess that I did not see it until this afternoon. The paragraph concludes: We hesitated to draw this matter to the attention of the House at such a late stage in the Bill's passage, but do so because it may be that this exceptionally lengthy scrutiny period will in practice make the procedure so slow as to belie the definition 'fast-track', and will in fact make it unworkable, thus leading to greater reliance on the emergency procedure. The Government and the House may therefore wish to consider a simple amendment to Commons amendment 60 to remove the second 60 day period". Due to the short notice, although I would have wished to table a manuscript amendment I have not done so. I wonder whether the noble Lord, Lord Williams, who is always so sensitive and helpful about difficulties arising on legislation, will seek the permission of the House—I understand that under the rules of procedure such can be given—to delete paragraph 3 of the new schedule. There would be such obvious public advantage in so doing. I wish that I had had the opportunity to alert the noble Lord to the point before the debate. However, he has a full grasp of the situation as he made clear when he invited the House to approve Commons Amendment No. 60. I very much hope that even at this late stage we can put the matter right.

Lord Lester of Herne Hill

My Lords, I support what the noble Lord, Lord Renton, has said. In a sense we are in a Gilbertian situation. The Select Committee on Delegated Powers and Deregulation is one of the most admirable recent inventions of this House. It is there to maximise parliamentary scrutiny over delegated legislation and to ensure that Henry VIII clauses are not abused. It blew the whistle at an early stage. It was the main Opposition party which pressed strongly for adequate safeguards against the misuse of Henry VIII powers. There was also a certain dislike of the fast-track procedure. We on these Benches were strongly in favour of that procedure while we also pressed for safeguards.

The reason for our support for the fast-track procedure was the same as that put forward by the Government; namely, first, that for the procedure to come into force there must be a declaration by a court of competent jurisdiction that there is an incompatibility between the statute and a convention right; and, secondly, that the victim must have abandoned or completed all appeals under our system, or it must appear to the Government having regard to a finding of the European Court of Human Rights that the provision in our statute book is incompatible with an obligation under the convention.

All of those events must have happened before the fast-track procedure can start. When one reaches that situation there has been a systemic failure: that is, the courts have decided that there is a mismatch between our statute and a convention right, and in the background is the victim. The victim cannot make the ghastly long journey to the Strasbourg court. The procedure takes six or seven further years after the fast-track procedure has been exhausted. The victim must have exhausted all effective domestic remedies; and this is one of them. Therefore, the longer the fast-track procedure the more it becomes a slow-track procedure, the worse the injustice to the individual, and the worse the failure to provide an effective remedy under our own legal system.

The Gilbertian aspect is that the admirable committee chaired by the noble Lord, Lord Alexander of Weedon, now tells us that the Government quite rightly, commendably, and in a way that was not always true of the previous administration, are bending over backwards to provide effective safeguards. But by enhancing parliamentary scrutiny they have fallen on their back. The committee believes that the procedure is now so slow that it is no longer fast-track and use will have to be made of the emergency procedure.

I believe that the argument for doing what the committee suggests is quite overwhelming. I very much hope that it is possible—as a relatively new boy in this House, I do not know whether it is—to pursue the suggestion of the noble Lord, Lord Renton, and to table a manuscript amendment even at this late stage. If not, I am concerned that our desire for parliamentary scrutiny will defeat one of the central purposes of the legislation.

5.p.m.

Lord Henley

My Lords, I endorse everything my noble friend Lord Renton said on the report of the Delegated Powers and Deregulation Committee and I endorse part of what the noble Lord, Lord Lester said.

I have two points to add. The previous government introduced the Delegated Powers and Deregulation Committee because, quite legitimately, there were a number of complaints about the use of delegated legislation and, in particular, Henry VIII clauses. I want to inform the House and the noble Lord, Lord Lester, that, having introduced the committee, the previous government always observed the recommendations of that committee.

Lord Lester of Herne Hill

My Lords, the noble Lord is quite right. The committee was setup during the lifetime of the previous government and there was no case where its recommendations were not observed.

Lord Henley

My Lords, I thank the noble Lord, Lord Lester, for that acknowledgment. Since then the current Government have continued with the services of the committee and on a number of occasions have observed its recommendations, but not, I have to say, always with the alacrity with which the previous government observed them.

Like my noble friend Lord Renton, I saw the report at a late stage. Therefore, I was not in a position to put down an amendment to the Bill. Both my noble friend Lord Renton and the noble Lord, Lord Lester, have suggested that, at this late stage, the Government could introduce a manuscript amendment that would deal with the problem.

I propose another alternative. As there is considerable agreement on all sides of the House and a considerable amount of goodwill, which would allow the Bill to be dealt with quickly, we could adjourn consideration of this matter until some time next week. It would not take up time that the Chief Whip values so much and therefore we could see the Bill amended in the way in which the Delegated Powers and Deregulation Committee has suggested. The Bill would then speed to the statute book without further delay.

Lord Williams of Mostyn

My Lords, there is a misunderstanding and a deep irony here. We are doing more to protect parliamentary scrutiny than the committee suggested. It is not a case of a government doing less—for instance, flouting the views of the committee. In fact, we have done more. The noble Lord, Lord Renton, was generous enough to say that the committee welcomed the positive response but thought that the model should be the Deregulation and Contracting Out Act 1994. The important point to bear in mind—I believe that it has been overlooked—is that the 1994 Act does not distinguish between urgent and non-urgent cases. Therefore, it has a single period of time. I cannot repeat often enough that we are offering more parliamentary scrutiny than the Select Committee suggested.

We need to distinguish carefully between the urgent and the non-urgent. If the matter were urgent, and there were compelling reasons, the Government would proceed by way of urgent remedial order, made in advance of parliamentary scrutiny and approval. If the matter were not urgent, the Government would proceed with a non-urgent remedial order and it would not matter that there were 120 days to complete the process, except in terms of the benefit of additional scrutiny. There would still be an advantage to whichever government were in power in terms of amending legislation when there was difficulty finding time in the legislative programme.

I have heard what your Lordships said. Perhaps I can suggest a way forward. The noble and learned Lord the Lord Chancellor and I have said on distinct occasions, as has the Home Secretary in another place, that we would welcome either a joint committee on human rights or a Commons committee or a Lords committee subject to the views of both Houses. This is the sort of question that could usefully be addressed by such a committee. Once this provision has been implemented and we have had a certain amount of experience, rather than conjecture, about how things may or may not work in practice, such a committee could usefully put its mind to see whether or not we should have second thoughts about the matter.

Lord Renton

My Lords, I am grateful to the noble Lord for giving way. There is one problem in dealing with the matter in that way. If we accept the new clause as it stands, it will become part of our statute law and we shall have the long delay of 120 days, and perhaps sometimes even longer, before what may be an urgent and important matter can be dealt with. As the select committee said, it utterly belies the fast track procedure, which is something that both Houses of Parliament presumably favour. Therefore, I have to say that the noble Lord's idea of letting us approve the new clause as it stands, without striking out one paragraph, is unsatisfactory and taking a big risk.

Lord Lester of Herne Hill

My Lords, as the Minister has not yet sat down, perhaps I may ask if he can deal with the points I raised about the victim. The Deregulation and Contracting Out Act 1994 is, of course, not dealing with the same situation. The Bill is designed to give an effective and speedy remedy.

My points relate to the problem that the Government have in being too democratic. They have bent over backwards. I appreciate that they have gone further than the scrutiny committee. They point out that they have gone so far that something very bad will be produced which will mean resort to emergency procedures because everything will have to become an emergency or there will be great and unnecessary delay in securing a remedy. I appreciate the importance of the parliamentary Select Committee and I hope that that will be done swiftly. I am concerned to clarify the consequences if we accept the amendment as it stands.

Lord Williams of Mostyn

My Lords, I understand that. But one needs to put it into context and into proportion. Here we are introducing two different types of orders, quite different from the Deregulation and Contracting Out Act. I repeat that if the matter is urgent, and if there are compelling reasons—that takes into account the concern of the noble Lord, Lord Lester, about the victim—then we can proceed on the basis of urgent remedial action. If it is non-urgent remedial action, we offer Parliament the opportunity of 120 days.

May I suggest that 120 days, in terms of having a right remedied and an injustice put right, is a very short time indeed if one is considering the balance of having proper parliamentary scrutiny. I am happy that the noble Lord, Lord Lester, accused me of being unduly democratic. A number of your Lordships have said that they are uneasy about the principle of remedial orders and that there is insufficient parliamentary scrutiny. We have bent over backwards, first, to maintain the urgent, compelling remedial route, and, secondly, to have the non-urgent remedial route which gives 120 days for consideration. The period of 120 days is not a vast amount of time for consideration and representations.

Lord Renton

My Lords, surely the greatest problem is that reconciliation—and that is what we are all aiming for—needs to be carried out as soon as possible and indeed failure to do so may lead to grave injustice. Those cases are more likely to have a time factor which is of importance than to be the sort of cases that can be dealt with at leisure.

Lord Williams of Mostyn

My Lords, as always, I listened with care to the noble Lord, Lord Renton. There may well be urgent, compelling cases, which is why we have the urgent, compelling procedure. However, we suggest that for the non-urgent cases 120 days is a decent amount of time for parliamentary scrutiny.

I believe that we have got the balance right. The more I think about it and the more I listen with care to the arguments put forward, I am sure that we have got it right. If we have bent over too far to submit to parliamentary scrutiny and parliamentary will, I am content.

5.10 p.m.

On Question, Whether the Motion shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 48.

Division No. 1
CONTENTS
Acton, L. Irvine of Lairg, L. [Lord Chancellor.]
Ahmed, L.
Amos, B. Jay of Paddington, B. [Lord Privy Seal.]
Archer of Sandwell, L.
Bach, L. Jeger, B.
Berkeley, L. Jenkins of Putney, L.
Blackstone, B. Judd, L.
Borrie, L. Lester of Herne Hill, L.
Brooke of Alverthorpe, L. Levy, L.
Bruce of Donington, L. Lockwood, B.
Burlison, L. Longford, E.
Carlisle, E. McConnell, L.
Carmichael of Kelvingrove, L. McIntosh of Haringey, L. [Teller.]
Carter, L. [Teller.]
Christopher, L Mackenzie of Framwellgate, L.
Clinton-Davis, L. Mackie of Benshie, L.
Cocks of Hartcliffe, L. McNair, L.
Coleraine, L. McNally, L.
Craig of Radley, L. Mar and Kellie, E.
Currie of Marylebone, L. Mishcon, L.
Dahrendorf, L. Molloy, L.
David, B. Morris of Castle Morris, L.
Donoughue, L. Newby, L.
Dormand of Easington, L. Nicholson of Winterbourne, B.
Dubs, L. Paul, L.
Erroll, E. Pitkeathley, B.
Plant of Highfield, L.
Falconer of Thoroton, L. Ponsonby of Shulbrede, L.
Farrington of Ribbleton, B. Puttnam, L.
Gallacher, L. Ramsay of Cartvale, B.
Goudie, B. Randall of St. Budeaux, L.
Gould of Potternewton, B. Rea, L.
Grenfell, L. Redesdale, L.
Halsbury, E. Rendell of Babergh, B.
Hamwee, B. Rodgers of Quarry Bank, L.
Hanworth, V. Russell, E.
Hardie, L. Sainsbury of Turville, L.
Hardy of Wath, L. St. John of Bletso, L.
Harris of Greenwich, L. Sandwich, E.
Harris of Haringey, L. Sawyer, L.
Hayman, B. Shannon, E.
Hilton of Eggardon, B. Sharp of Guildford, B.
Hogg of Cumbernauld, L. Shore of Stepney, L.
Hollis of Heigham, B. Simon, V.
Hooson, L. Simon of Highbury, L.
Howie of Troon, L. Smith of Clifton, L.
Hoyle, L. Steel of Aikwood, L.
Hughes, L. Stoddart of Swindon, L.
Hughes of Woodside, L. Strabolgi, L.
Hunt of Kings Heath, L. Symons of Vernham Dean, B.
Tenby, V. Wallace of Saltaire, L.
Thomas of Walliswood, B. Weatherill, L.
Tordoff, L. Wharton, B.
Uddin, B. Whitty, L.
Williams of Elvel, L.
Walker of Doncaster, L. Williams of Mostyn, L.
Wallace of Coslany, L. Young of Old Scone, B.
NOT-CONTENTS
Ampthill, L. Lindsey and Abingdon, E.
Balfour, E. Lucas of Chilworth, L.
Belhaven and Stenton, L. McColl of Dulwich, L.
Berners, B. Mackay of Ardbrecknish, L.
Biddulph, L. Mackay of Drumadoon, L.
Bridges, L. Mancroft, L.
Brigstocke, B. Massereene and Ferrard, V.
Burnham, L. [Teller.] Mayhew of Twysden, L.
Campbell of Alloway, L. Monro of Langholm, L.
Chesham, L. Mountevans, L.
Cockfield, L. Noel-Buxton, L.
Craigavon, V. Northesk, E.
Cranborne, V. Norton of Louth, L.
Denbigh, E. Onslow, E.
Denham, L. Renton, L.
Elton, L. Skelmersdale, L.
Ferrers, E. Soulsby of Swaffham Prior, L.
Harlech, L. Stockton, E.
Harrowby, E. Strathclyde, L. [Teller.]
Henley, L. Sudeley, L.
Holderness, L. Torrington, V.
Kintore, E. Trefgame, L.
Kitchener, E. Vinson, L.
Lauderdale, E. Young, B.

Resolved in the affirmative, and Motion agreed to accordingly.