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Banking Bill

My Lords, Amendment 55 stands in my name and the names of the noble and learned Lord, Lord Morris of Aberavon, and my noble and learned friend Lord Lyell of Markyate. Your Lordships’ Select Committee on the Constitution reported to the House on this Bill on 22 January. I wrote to the Minister that day on behalf of the committee. First, we asked for the Government’s view ahead of Report on whether the currently drafted broad and far reaching wording of Clause 75(3) could be limited in terms of the scope of the envisaged retrospective powers. Secondly, the committee expressed the view that it would be helpful if the Government were to provide the House with illustrations of the circumstances in which they envisage that a retrospective power might be used. I fully understand the difficulties that have prohibited the Minister from providing a substantive reply. Your Lordships’ Select Committee agreed with the assessment of the Delegated Powers and Regulatory Reform Committee that Clause 75, which empowers the Executive by an order laid before Parliament to, "““disapply or modify the effect of a provision””," in any Act of Parliament—other than that which will become the Banking Act 2009—delegated legislation or the rule of common law, is an ““extremely wide power””. It was the view of the committee that our constitution does not include an absolute prohibition on Parliament giving the Executive power by order to repeal, disapply or otherwise amend Acts of Parliament, delegated legislation or the common law. However, we believe that constitutional principle requires, first, that any such power should be granted by Parliament only where there is a compelling justification; secondly, that the scope of the power should be limited to the minimum necessary to meet the pressing need of such an exceptional measure; and, thirdly, that any order made should normally be subject to parliamentary control, either by negative or affirmative resolution. Your Lordships’ committee took the view that there needs to be a compelling reason in the public interest for a departure from the general principle that retrospective legislation is undesirable, that there is a heavy onus on the Government to justify to the House why a retrospective provision of such breadth as that in Clause 75(3) is required in the context of this Bill, and that further consideration should perhaps be given to narrowing the retrospective nature of the Bill. Further, on the basis of the arguments advanced by the Government so far, notably by Ian Pearson, Economic Secretary to the Treasury in another place, we are unpersuaded that this burden has been discharged. On 20 January, your Lordships’ committee welcomed the Government’s indication that they will re-examine the clause to consider whether a more limited and targeted retrospective power could fulfil the public interest. We look forward to the response of the Minister.