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Legislative and Regulatory Reform Bill

I shall come to Clause 9 in due course; it raises a fair point. I have set out the committee’s important point along with our view. Presumably because of these difficulties, the noble Lords, Lord Goodhart and Lord Maclennan, have tabled amendments setting out other ways of affording protection against the Clause 1 power being abused to make major constitutional changes. Amendment No. 62 does this by providing a hurdle over which Ministers and the Speakers of either House must jump: the Speakers of either House can certify that an order is of constitutional importance which has the effect of vetoing the order. Amendment No. 62 would effectively introduce a new precondition providing that orders cannot be used for measures of constitutional importance. However, the existing preconditions have already filtered out the possibility that an order could be used for a matter of constitutional importance. As the noble Lord, Lord Goodhart, explained very clearly, the amendment provides that the Speaker of either House could determine that a matter was of ““constitutional importance”” on application from a Member of that House. If the relevant Speaker determined that an order was of constitutional importance, he would issue a certificate to that effect and the order would be halted in its tracks. The intention of the clause is that the Speaker’s decision would not be justiciable since it would be protected by an ouster clause. We argue that this does not work. There is no comparison with the role of the Speaker of the Commons in certifying that a Bill is a Money Bill—a demonstrable fact. Nor is it comparable to the role of the Speaker in relation to the Parliament Act, where the Speaker’s role relates solely to ensuring that certain procedures had been followed. The amendment risks drawing the Speakers of either House into a highly subjective, highly political debate. I suggest that this is undesirable, not least in your Lordships' House where noble Lords have given no indication that they would support a Speaker having a substantive role of this sort. The noble Lord, Lord Henley, made that point very effectively. Given recent debates, I suggest that the proposition that the Lord Speaker makes this judgment in your Lordships' House would attract a good deal of controversy from the Benches opposite. It is interesting that Amendment No. 62 puts the matter of judgement in the hands of the Speakers rather than the parliamentarians. AmendmentNo. 63, also tabled by the noble Lords, Lord Goodhart and Lord Maclennan, provides a new clause that would prohibit an order made under Clause 1 making any alteration to a range of matters that might be described as constitutional. The list provided in Amendment No. 63 is certainly an improvement on a broader list of constitutional subjects, which would lead to some very difficult issues around judging ““purpose””. But it does not avoid the difficulties of defining what is or is not constitutional change, and in seeking to define a constitutional change or issue, it creates new problems of definition. That also applies to Amendment No. 75 tabled by the noble Lord, Lord Jenkin of Roding. This is a mixture of a few individual statutes and certain subjects. It therefore falls foul of the difficulties identified by the Constitution Committee in listing individual statutes and constitutional areas. On the former, for instance, it does not include the legislation governing devolution for Wales but it does for Scotland. Amendment No. 75A, in the name of the noble Lord, Lord Kingsland, provides, yet again, a different list. It includes the Government of Wales Act 1998 but the very fact that the list is so different from the lists in Amendments Nos. 75 and 63 illustrates the difficulty of deciding what would be an appropriate list. Again, that point was made by the Constitution Committee. Amendment No. 64 of the noble Lord, Lord Norton of Louth, takes a less expansive view of what is ““constitutional”” and therefore might require special protection. It sees ““constitutional”” more in terms of the relationship between the main branches of the state. We might therefore see the proposed new clause as protecting the constitutional relationship under the Bill of Rights from change by the order-making power in the Bill. However, the problem remains that such a list is partial. In addition, the Constitution Committee recognised the difficulties with devising a schedule of exempted areas. It states that a schedule would be ““something of a blunderbuss approach””. That is an adequate description. The committee notes that not all provisions in Acts with constitutional implications affect our constitutional arrangements and concludes that, "““it might be thought wrong to exclude such provisions from the general operation of the bill””." Amendment No. 51 would introduce a new precondition so that the order-making power could not be used adversely to affect the rule of law or the independence of the judiciary. As the Bill stands, I cannot see how any order could do such things. As a matter of course, Ministers have to act under the rule of law. By definition, Ministers cannot do anything for which they have no legal authority. It is therefore hard to see how Ministers could promote an order that adversely affected something they were bound to follow. It is also hard to see how it would be possible adversely to affect the independence of the judiciary. Under Clause 4, a Minister cannot make an order which he considers removes a necessary protection. It is therefore difficult to envisage how a Minister could conclude that an order which adversely affectedthe independence of the judiciary satisfied that precondition. Furthermore, it is hard to see how Parliament would agree to such an amendment, and it is difficult to see how such an order would survive judicial consideration of vires, given that secondary legislation is subject to judicial scrutiny. The Government are satisfied that such fundamental changes could not be made by order under the Bill. The Clause 1 and Clause 2 powers are circumscribed: they can be used only to make sensible reforms removing or reducing burdens or promoting regulatory principles. This is guaranteed both by the preconditions and by the power of Parliament to veto an order. Since the order-making power in Clause 1 cannot be used for constitutional change, these amendments are otiose. There is no need to make any protection against orders being used for that end. The noble Lords, Lord Jenkin and Lord Borrie, and others made reference to the exemption of the Human Rights Act and Part 1 of the Bill from reform by order. It is true that the Government amended the Bill in the Commons to put amendments to the Human Rights Act off limits. This is not, though, because this is a constitutional statute which differs from other statutes, but because secondary legislation must be compliant with the Act. Therefore, it would be an illogical absurdity were the order-making power to be used to amend the Human Rights Act and so remove the safeguards provided by that Act. Similarly, it would be strange if orders could be used to remove the limits on the order-making powers contained in Part 1. For those reasons and others that have been adduced, I cannot accept the amendments. However, I accept that they were moved not only in good spirit but for very good reasons. I hope that I have answered the various points relating to noble Lords’ quite understandable concerns to protect our constitution.