HL Deb 20 December 2004 vol 667 cc1544-7

(1) The Minister may by order make provision for any of these purposes—

  1. (a) to transfer an existing function of the Minister to another person;
  2. (b) to direct that an existing function of the Minister is to be exercisable concurrently with another person;
  3. (c) to direct that an existing function of the Minister exercisable concurrently with another person is to cease to be exercisable by the Minister;
  4. (d) to modify an existing function of the Minister;
  5. (e) to abolish an existing function of the Minister.

(2) An order under subsection (1) may in particular—

  1. (a) amend or repeal any of the following—
    1. (i) an enactment other than one contained in an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
    2. (ii) subordinate legislation other than subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
    3. (iii) any other instrument or document, including a prerogative instrument;
  2. (b) include—
    1. (i) any supplementary, incidental or consequential provision, and
    2. (ii) any transitory, transitional or saving provision,
    which the Minister considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to, provision made under subsection (1).

(3) The amendments that may be made by virtue of subsection (2)(a) are in addition to those made by or under any other provision of this Act.

(4) An order under subsection (1) may not include provision that may be made under section 1(1) of the Ministers of the Crown Act 1975 (c. 26) (power to transfer functions to other Ministers etc).

(5) An order under subsection (1) may not be made in relation to any function of the Minister that is within Schedule (Protected functions of the Minister).

(6) An order under subsection (1) may amend Schedule (Protected functions of the Minister) so as to include any function which, by virtue of provision in the order—

  1. (a) becomes exercisable by the Lord Chancellor concurrently with another person, or
  2. (b) is modified.

(7) An order under subsection (1) may not, to the extent that it amends Schedule (Protected functions of the Minister), be revoked by another order under subsection (1).

(8) In this section— existing function" means any function other than one that is conferred by—

  1. (a) an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed, or
  2. (b) subordinate legislation made under an Act passed, or Northern Ireland legislation passed or made, after the Session in which this Act is passed;
prerogative instrument" means an Order in Council, warrant, charter or other instrument made under the prerogative.

The noble Baroness said: My Lords, Clauses 106 and 108 deal respectively with the protection of certain functions of the Lord Chancellor and with the power to make supplementary provision. As noble Lords will know, changes are necessary to these clauses to ensure that they continue to apply for functions which are no longer covered by the Bill as a result of changes following the decision of the House on 13 July.

The details of these proposals are set out in the memorandum sent by the Government to the Select Committee on Delegated Powers and Regulatory Reform, which is set out in annex A to its fifth report. Accordingly, I shall be brief.

In essence, these provisions protect judiciary-related and other functions of the Lord Chancellor, so that they cannot be transferred to another Minister by a transfer of functions order and they permit the spirit of the Bill to be effective in relation to functions of the Lord Chancellor that are not dealt with in the Bill.

The Delegated Powers Committee has commented on these amendments that the power can be used for purposes which need not be supplementary or incidental to the Bill; that though limited to existing functions the power is not limited in the time of its exercise; and that it could be used in the future for purposes other than those arising from the current redistribution of the Lord Chancellor's functions.

I shall of course be replying formally to the committee, but I thought it appropriate to give an initial response. While I understand the case for a time limit, in some respects the time limit could be inappropriate—for example, where a function of the Lord Chancellor has been missed and comes to light which needs to be abolished, modified or transferred to the Lord Chief Justice or to another judge, or where a function, perhaps in relation to a tribunal, is transferred from another Minister to the Lord Chancellor and would better be carried out in a shared way through consultation and concurrence in accordance with the concordat.

I shall look again at the provisions in the light of the committee's comments on the use of the affirmative resolution procedure and we will bring forward suitable amendments in another place.

Finally, I should add that one effect of Amendment No. 79 is to remove the incorrect reference in Clause 109 highlighted by the noble Lord, Lord Henley, on Report. I beg to move.

Baroness Carnegy of Lour

My Lords, as a member of the Delegated Powers Committee, I was present at the discussion of the amendments which the noble and learned Lord the Lord Chancellor kindly sent to the committee for comment. I am very glad to hear that the Government intend to bring forward amendments in another place. There is no question that these provisions, as drafted, could be used for a considerably wider purpose than exists at the moment in starting from the status quo in future. I think that that is the problem, although I am sure the committee will be very grateful for that.

Lord Kingsland

My Lords, without wishing in any way to tease the noble Baroness, this is an important amendment to introduce at Third Reading in the view of the Official Opposition. At first blush we thought that it could have dramatic effects on the responsibilities of the Lord Chancellor. However, we have now examined Amendment No. 96 in some detail. We have formed the view during the time at our disposal that the noble and learned Lord the Lord Chancellor is probably properly protected.

The noble Baroness underlined to your Lordships' House that she would be reflecting on the committee's observations. I am sure that if some gap in the noble and learned Lord's armour is discovered between now and the various stages in another place, the noble Baroness will be swift to make sure that that gap is closed. On that basis, we are happy with the amendment.

Lord Crickhowell

My Lords, I am the last person who would want to tease the noble Baroness. But, in the light of comments made before we started our discussion, it is worth noting that these amendments are brought forward to bring the Bill into line with the decision of the House of Lords on 13 July 2004. They could, therefore, have been brought forward on Report. So here we have an example of the Government apparently having acted very late.

Baroness Ashton of Upholland

My Lords, I am grateful for the comments that have been made. We trailed very widely those issues that we intended to address, of which this was definitely one. There is no underlying change in policy. As I said, it is designed specifically to bring the provision into line. I am grateful to the noble Baroness, Lady Carnegy, for her comments about the Delegated Powers and Regulatory Reform Committee. We will consider what needs to be done formally in response and in another place.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendments Nos. 5 and 6:

After Clause 13, insert the following new clause—