---

Legislative and Regulatory Reform Bill

moved, as an amendment to Amendment No. 14, Amendment No. 15: Line 2, at end insert- ““( ) For the purposes of subsection (2)(f), a measure of constitutional significance is one that affects the structures, powers and compositions of organs of the state (the Crown, the executive, Parliament and the judiciary), the relationship of those organs to one another, or the rights and freedoms held by the individual at common law or under the provisions of the Human Rights Act 1998 (c. 42).”” The noble Lord said: My Lords, the government amendment is welcome but runs up against the obvious problem that the Minister has touched upon but not really dealt with: what constitutes a measure of constitutional significance? He says that we will all recognise it when it arrives. I do not think that is the basis for legislating. We have come up against this problem before, not least when debating the then Political Parties, Elections and Referendums Bill, as the Minister will remember, when there was an attempt to provide for referendums on issues of constitutional significance. The problem was recognised in Committee, prompting the Minister’s amendment. If we are to have the government amendment, however, we need to know precisely what it encompasses. The Government have a problem defining what their amendment encompasses. When the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, appeared before the Constitution Committee of your Lordships’ House, he conceded that the Government did not have a definition of a constitution, but also that the one offered by the committee was as good as any. When his successor, the noble and learned Lord, Lord Falconer—Secretary of State for Constitutional Affairs as well as Lord Chancellor—appeared before the committee, he, too, reiterated that the Government did not have a definition of a constitution. Under Amendment No. 14, Ministers are thus precluded from using orders to amend measures of constitutional significance, without any clear definition of what falls within the scope of that term. One cannot rely on each Minister to determine what it means, as the noble Lord, Lord Bassam, seems to imply. Hardly any Minister has any grounding in the subject, and relying on consultations, as the noble Lord suggests, will not advance us any further. What one Minister deems to be of constitutional significance may not be so construed by another. The purpose of my amendment to Amendment No. 14 is to provide a clear stipulation of what the term ““constitutional significance”” encompasses. As the Minister noted, I have adopted what I referred to in Committee as ““the generic approach””. As I argued then, it is not incompatible with the approach of listing measures to be excluded because they are deemed to be of constitutional importance. However, given the Minister’s amendment, I think the generic approach is the appropriate one. I concede that what I propose is not a watertight definition, which is the point the Minister developed. It is impossible to generate such a definition, but I think that it is sufficient to demonstrate what should be out of bounds for the order-making powers in the Bill, and that it is necessary in the light of the government amendment. I am not sure that one can have Amendment No. 14 without Amendment No. 15; it is a case of both or neither. The definition I have employed is not watertight, but it is not too dissimilar to the one that the noble and learned Lord, Lord Irvine of Lairg, said was as good as any he had seen. In Committee, the noble Lord, Lord Bassam, appeared to misunderstand what was embodied in the definition; he then thought it was confined to the relationship of the different organs of the state to one another, which clearly it is not. It is a more encompassing definition. I hope that, on reflection, the Minister will realise that this amendment is helpful to Ministers. It helps to prevent them straying into territory that they should avoid and thus reduces the chances of a challenge to the decision. The noble Lord may argue—as he did in Committee and has already done today—that Ministers will not stray into that territory. However, the amendment he moved is designed to provide in the Bill that that territory is out of bounds, and my amendment helps to define the territory. I can see that the Minister has gone a considerable way to meet the concerns expressed in Committee, and I am grateful to him for his letter on the subject. His amendment is a necessary but insufficient condition if provisions of constitutional significance are to be excluded from the order-making powers of the Bill. I beg to move.