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Legislative and Regulatory Reform Bill

moved Amendment No. 51: Page 4, line 16, at end insert- ““( ) the provision has no adverse effect on the rule of law or the independence of the judiciary”” The noble Lord said: This group of amendments contains a number of alternatives, all with the same objective: to ring-fence certain matters—broadly speaking, those of constitutional importance—so that they cannot be altered by order under this part. The Government have accepted that that procedure should not be used to introduce controversial changes to laws. I hope that they would also accept that it should not be used to introduce significant changes to the constitution because, where constitutional change is proposed, it should be debated in full, even if there appears to be a broad consensus. We therefore want to exclude the use of the procedure under the Bill to make constitutional changes, because the test of what is or is not a constitutional matter is very difficult to define in a statute. An important defence against the use of this procedure to effect constitutional changes will be the powers of Select Committees to recommend that a draft order should not be proceeded with. We will consider amendments later to strengthen that power. I believe it is possible and desirable to give some guidance in the statute on what are constitutional matters. Amendment No. 51 starts by specifically ruling out provisions that have an adverse effect on the rule of law or on the independence of the judiciary. Everyone in the Committee must agree that these are central pillars of the constitution. This procedure should therefore plainly not be used if that provision would have an adverse effect on the rule of law or the independence of the judiciary, even very slightly. I shall move on to the wider aspects of the constitution. The amendments in my name and that of my noble friend Lord Maclennan of Rogart offer three different ways of identifying whether an order gives rise to issues of constitutional importance. The first is Amendment No. 51, which would simply make it one of the necessary conditions in Clause 4 that the provision is not of constitutional importance. It would then be a matter for the courts on judicial review to decide whether that condition was satisfied or that the order was ultra vires because it was of constitutional importance. That is the simplest of the possible alternatives. I recognise that it is perhaps too simple. It is not easy to identify which matters are of constitutional importance. Some are obvious, but many are in the penumbra. It would be a very difficult decision for the judge to take, and it arguably brings the judiciary into possible conflicts with Parliament that are best avoided if possible. The second alternative is provided by Amendment No. 62, which shifts the decision on what is a matter of constitutional importance from a judge to the Speakers of each House. The Speakers will, to a considerable extent, know a great deal about the constitution because they are engaged in it day by day. I assume that they could and would take advice from leading experts on the constitution before taking a decision. A conclusion reached by the Speaker of either House that the order was of constitutional importance would then block further progress. That also has the advantage of getting rid of possible conflict with the judiciary. There might be some uncertainty in the early stages about how the Speakers would apply the test of constitutional importance, but a body of precedent would be built up over time. The third possible course is Amendment No. 63, which is based on a proposal discussed at paragraph 56 of the 11th report of the Select Committee on the Constitution in this Session. That report set out a list of matters of constitutional importance that should not be changed by order under the Bill. I have adopted that list and slightly redrafted it. It starts with the powers of, and succession to, the Crown, which is obviously of the highest constitutional importance. I shall not read the rest of the paragraphs. All these matters are sufficiently important to justify inclusion in the list. There may be others—indeed, I would welcome suggestions of any proposed additions. Amendment No. 64, tabled by the noble Lord, Lord Norton of Louth, would operate on the same principle underlying Amendment No. 63. It is more concise, which is an advantage, than AmendmentNo. 63, which is less complete, which is a disadvantage. The remaining amendments—Amendments Nos. 75 and 75A, which are not in my name and that of my noble friend—use a different system for the same purpose. I shall deal with them briefly now. That purpose is to provide a list of statutes that cannot be altered by the order, rather than a list of issues. It is much better than nothing, but it suffers from the defects pointed out in paragraph 55 of the Select Committee’s report, to which I have already referred. It means, among other problems, that the list would have to be updated every time a new statute of possible constitutional importance was introduced, which might lead to unnecessary arguments about whether the statute should be listed. In many cases—this is an important distinction—statutes contain provisions of constitutional importance alongside provisions that are plainly not of constitutional importance. I have in mind the Constitutional Reform Act 2005, perhaps particularly because I was engaged on it for many months. The Act contains central provisions on the appointment of the judiciary by a judicial appointments commission and on the composition and functions of the Supreme Court, which are plainly of five-star constitutional importance. But there are other provisions in the Bill, such as those relating to the role of the judicial ombudsman, which are much less important and may not be of constitutional importance. I hope there will be a debate on the various alternatives, and I would certainly listen to that debate with interest before I decided which of these various suggested alternatives I might bring back on Report. I beg to move.