HL Deb 20 December 2004 vol 667 cc1604-8

(1) In this Act "subordinate legislation" has the same meaning as in the Interpretation Act 1978 (c. 30).

(2) In sections (Transfer, modification or abolition of functions by order) and 108 "subordinate legislation" also includes an enactment contained in an instrument made under Northern Ireland legislation."

On Question, amendments agreed to.

Clause 108 [Supplementary provision etc]:

Baroness Ashton of Upholland moved Amendments Nos. 74 to 77:

Page 47, line 27, leave out "in a Session after that" and insert ", or Northern Ireland legislation passed or made, after the Session"

Page 47, line 30, leave out "in a Session after that" and insert ", or Northern Ireland legislation passed or made, after the Session"

Page 47, leave out lines 37 and 38.

Page 47, leave out lines 41 and 42.

On Question, amendments agreed to.

Clause 109 [Orders and regulations]:

Baroness Ashton of Upholland moved Amendments Nos. 78 to 80:

Page 48, line 3, at end insert ", except where subsection (1A) applies."

Page 48, line 4, leave out subsections (2) to (5) and insert—

"(1A) Any power of the Minister to make an order under section (Transfer, modification or abolition of functions by order)(1) or 108 amending an enactment contained in, or in an instrument made under, Northern Ireland legislation is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(1B) A statutory instrument to which this subsection applies may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(1C) Subsection (1B) applies to a statutory instrument which contains any of the following—

  1. (a) an order under section 68(2)(a) or (b) which amends Part 1 of Schedule 11;
  2. (b) an order under section (Transfer, modification or abolition of functions by order)(1) which amends a public general Act, except where the only such amendment is the inclusion in Schedule (Protected functions of the Minister) of a function of the Lord Chancellor;
    3. 1605
  3. (c) an order under section 108 which amends a public general Act;
  4. (d) an order under paragraph 5 of Schedule 9."

Page 48, line 19, at end insert— ( ) A statutory rule made under a power to which subsection (1A) applies is subject to annulment in pursuance of a resolution of either House of Parliament.

On Question, amendments agreed to.

Clause 112 [Extent]:

Baroness Ashton of Upholland moved Amendments Nos. 81 and 82:

Page 48, line 27, leave out subsection (2).

Page 48, line 29, leave out subsection (4).

On Question, amendments agreed to.

Clause 113 [Commencement]:

Lord Kingsland moved Amendment No. 83:

Page 49, line 9, at end insert— ( ) No plans may be approved by the Minister unless a draft has been laid before, and approved by a resolution of, each House of Parliament.

The noble Lord said: My Lords, I did not move Amendment No. 47 on the level of fees—not because I did not think it to be wholly meritorious but because I became aware, between Report and Third Reading, that the Liberal Democrats continued to be unbeguiled by it.

By contrast, I have not had an opportunity to talk to the Liberal Democrat Benches about Amendment No. 83. This amendment has been altered since Report so as to make the approval by Parliament take place not at the stage when the noble and learned Lord makes the final order but when he has to approve the plans.

The vote that took place today on the Supreme Court was on the basis that the court would eventually be physically sited at the Middlesex Guildhall and that the costs of setting it up would be a specified amount. This amendment deals with a situation which might arise if, for one reason or another, between now and the projected year 2008, it is discovered that the Middlesex Guildhall is no longer a suitable site for the Supreme Court and therefore ceases to be the preferred option. In those circumstances, the Government might go for an entirely different building at an entirely different level of cost. It seems, therefore, appropriate that, at such a point, the noble and learned Lord should come back to your Lordships' House and ask for renewed permission from your Lordships to go ahead with the proposal. I beg to move.

7.15 p.m.

Lord Carlisle of Bucklow

My Lords, the proposal of a sunrise clause was, I think, carried without debate on Report because of the hour at which it was taken. The noble and learned Lord the Lord Chancellor shakes his head. I thought that it was taken at the very end of the Report stage and was therefore not debated at the time.

It seems to me that that is in some ways inadequate for this reason: the Lord Chancellor is required only to consult the judges before deciding what plans to implement for the new court. I know that the noble and learned Lord and I disagreed earlier on what the noble and learned Lord, Lord Bingham, said, but if he will be good enough to look at the record, I think he will find that I am right that there was very grave criticism, in principle, of Middlesex Guildhall. Therefore, it is not enough merely to say that it is adequate to consult the Law Lords, when the Lord Chancellor's chosen option may be made despite their views. There should be some other block as well. I support the amendment's proposal to require the Lord Chancellor to bring those plans back to Parliament.

Finally—and I hope that this gives no degree of offence—I am sure that the noble and learned Lord, Lord Falconer, will remember that at the beginning of the Select Committee stage, he was very much opposed to having any sunrise clause at all. I am glad that we have persuaded him that one was necessary.

Lord Falconer of Thoroton

My Lords, I do not regard that as remotely offensive. It just goes to show that one has to listen as a Bill goes through its parliamentary stages.

The noble Lord, Lord Kingsland, makes his point very clearly. He believes that Parliament should have the opportunity to consider, if a new site is chosen, whether the balance of cost and benefit has moved so far away from what was considered during the passage of the legislation that its decision to establish the Supreme Court should be revisited. The intention of the amendment is therefore to allow Parliament to consider again whether or not there should be a Supreme Court.

We cannot accept that approach. First, the amendment is not limited to the circumstances the noble Lord has outlined. It would require an additional approval—that of Parliament—for plans, regardless of the circumstances. One looks in vain in the amendment for any indication of the purpose of requiring that additional approval. It leaves open the possibility that objections can be made to the Supreme Court plans on any grounds at all, regardless of whether the plans accord with the basis on which Parliament agreed to establish the Supreme Court. That contrasts strikingly with the requirements already in the sunrise provision. Subsection (5) of the clause makes it clear that two things are required of the Lord Chancellor before he is able to approve plans. First, he must have consulted the Lords of Appeal in Ordinary. Secondly, he must be satisfied, before he approves the plans, that accommodation in accordance with those plans will be appropriate for the purposes of the court.

The amendment, in striking contrast, sets no parameters for consideration of the plans. There is nothing to prevent those whose objection is on other grounds voting not to approve the plans. They may continue to be opposed to the whole idea in principle. The amendment says, in effect, that Parliament can agree to something but not agree to it at the same time. The noble Lord is in effect asking us to reopen the issue that this House has already debated on a number of occasions and voted on this very afternoon.

Secondly, I would remind the House that the Bill lays upon the Lord Chancellor the duty to provide accommodation for the Supreme Court. For him to be able to do that, he must have access to public funds. Parliament will therefore be able to approve, or otherwise, the expenditure on the building that the Lord Chancellor proposes to provide. If his concern is that huge amounts of money are to be spent, well, the Commons has to approve supply and the Commons is able to say whether the amount is wrong. We have heard in the debate several warnings from noble Lords who have drawn to our attention significant building projects which went massively over budget; I am sorry that the noble Lord, Lord Crickhowell, is not here to remind us of those points today, as he makes them so well. Again, my department has very considerable experience in the construction and refurbishment of court buildings. I am confident about the robustness of the figures that I have presented to the House. I would also point out that this amendment would not have any impact at all in the situation where a project had been approved and then turned out to cost massively more than previously estimated.

The amendment also appears to have something missing in technical terms. It requires the Minister to have the agreement of Parliament before he approves the plans, but it does not say anything about the form in which those plans are to be presented to Parliament. Are the plans to take the form of a statutory instrument? The amendment does not say so; and it would be surprising if it were so, for plans for accommodation can hardly be described as a form of legislation.

The crucial point is that the House has made the decision; the Commons must now consider the issue, and control over expenditure is a matter for the Commons. Therefore, I strongly urge the House to reject the amendment, as it seeks to reopen by the back door an issue that we have just decided.

Lord Kingsland

My Lords, the noble and learned Lord has suggested apposite amendments to my amendment, which would improve its effect, and I wonder whether he proposes to table them in another place. The noble and learned Lord looks completely blank. In those circumstances, I take it that he is not prepared to take such a course of action.

I have had the opportunity to talk to those on the Liberal Democrat Benches about my revised amendment. They do not appear enthusiastic supporters of my draft. In those circumstances, I recognise that the only course of action for me is to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Powers to give directions]:

Lord Falconer of Thoroton moved Amendment No. 84:

Page 55, line 7, leave out "that contain" and insert "to the extent that they consist of"

The noble and learned Lord said: My Lords, I promised to bring amendments to the existing provisions in the Bill on practice directions. At present, Schedule 2 to the Bill provides a mechanism for making practice directions aimed at bringing consistency to the different existing legislative provisions. It transfers the power to make practice directions to the Lord Chief Justice, requiring the concurrence of the Lord Chancellor but only when the practice directions do not relate to the application and interpretation of the law or judicial decisions.

The amendments do not alter that general policy, but make a number of changes to bring consistency between the different legislative provisions and jurisdictions. They ensure that the concordat agreed between the noble and learned Lord the Lord Chief Justice and myself is properly achieved in the Bill.

First, Amendment No. 86 creates one mechanism for making practice directions in the civil courts, replacing the different mechanisms for the different civil jurisdictions. As a result, it amends Section 5 of the Civil Procedure Act 1997 and repeals Section 74A of the Country Courts Act 1984. Secondly, Amendments Nos. 87, 88 and 90 make the mechanisms for making practice directions for criminal and family matters consistent with the mechanism for making civil practice directions. Thirdly, Amendment No. 84 ensures that a practice direction for which part requires the Lord Chancellor's concurrence, but part is made by the Lord Chief Justice alone can be made in the same practice direction. Fourthly, Amendment No. 89 provides that family practice directions apply in the civil division of the Court of Appeal and the High Court.

In addition to these four substantive amendments, technical changes have been made to ensure consistency and clarity. The judiciary have been consulted throughout the process of producing these amendments and has given their approval to the policy behind these amendments. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 85 to 90:

Page 55, line 31, leave out paragraph 6.

Page 56, line I, at end insert—

"Civil Procedure Act 1997 (c. 12)

1 For section 5 substitute—