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Legislative and Regulatory Reform Bill

Amendment No. 75, in my name and that of my noble friend Lady Carnegy of Lour, adopts the list approach—my noble friend once again sends her apologies that she cannot be with us. This point was addressed in the report of the Select Committee on the Constitution, and I base my arguments on paragraph 23: "““Constitutional safeguards cannot depend on ministerial assurances…The rule of law and the principle of constitutional government require the security of procedures and limitations which are set out expressly on the face of any enactment which empowers Ministers to change the statute book by order…The legitimate desire of any government to deliver change should not be allowed to undermine the need for careful consultation and scrutiny of proposals that may have the effect of altering basic constitutional machinery””." That committee and the Regulatory Reform Committee considered the suggestion that there should be a list of exempted statutes. It is interesting to note Clause 9, entitled ““Excepted enactments””, which is very short and well worth reading: "““An order under this Part may not make provision amending or repealing any provision of—""(a) this Part, or""(b) the Human Rights Act 1998””." Why pick out the Human Rights Act as one which should not be susceptible to amendment by order? One could argue that a number of very important constitutional Acts should equally have the protection of express exception from Clause 1. My noble friend and I have listed some of them in Amendment No. 75. My noble friend Lord Kingsland has set out a much longer list. Certainly we could discuss which enactments should be regarded as so fundamental to the constitution of this country that they should not be able to be amended by order. That brings me to this question: why does the Bill single out the Human Rights Act 1998? If it is right to exempt it, surely it is logical to look at other issues of significance to the constitution of this country, the rights and duties of its citizens and the rights of Parliament, and exempt them as well. The list in our amendment includes enactments such as the European Communities Act 1972, the Scotland Act 1998 and the Northern Ireland Act 1998, and my noble friend Lady Carnegy specifically asked me to mention its last two proposed exemptions: "““the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal … the continued existence of the Court of Session as a civil court of first instance and of appeal””." The Law Society of Scotland has placed particular emphasis on ensuring that those bodies cannot be affected by the order-making power in Clause 1, which is why our amendment is drafted in this way. My noble friend Lord Kingsland has set out a much longer list, and I shall be interested to hear about it. This debate gives us an opportunity to consider whether something should be done—the Government have already conceded that by specifying the Human Rights Act—and whether by a list or by a generic turn of phrase to include all these provisions, as my noble friend Lord Norton of Louth suggests. It is beyond peradventure that somewhere in this Bill we need a very clear exception so that the order-making power cannot be used to amend fundamental constitutional statutes. The noble Lord, Lord Bassam, in his letter, placed great weight on the report which suggested that this would create a sort of blunderbuss approach and asked what would happen if a new Act needed to be added. We need to address that point, but I do not regard it as a conclusive argument against putting a list in the Bill. Amendments Nos. 75 and 75A are both good ways of approaching this.