Lord Dahrendorf (Liberal Democrat)
rose to move, That this House takes note of the third report of the Delegated Powers and Regulatory Reform Committee on Henry VIII powers to make incidental, consequential and similar provision (HL Paper 21).
Lord Dahrendorf (Liberal Democrat)
My Lords, the special report by the Select Committee on Delegated Powers and Regulatory Reform on Henry VIII powers is in one sense highly technical. It is concerned with the proper wording of certain enabling clauses which appear in many Bills before this House. In another sense, however, this technical report goes right to the heart of the key constitutional question of the limits of executive power, and of the ability as well as the duty of Parliament to prevent the unchecked extension of these limits.
Let me remind the House of the immediate reason for the Delegated Powers Committee report. In the course of the Third Reading of the Nationality, Immigration and Asylum Bill on 31st October 2002, the Government introduced an amendment to the effect that,
"The Secretary of State may by order make provision which he thinks necessary in consequence of or in connection with a provision of this Act".—[Official Report, 31/10/02; col. 417.]
The Delegated Powers Committee happened to meet on the day between the tabling of this amendment and the Third Reading debate. It reacted with the promptness which the House has come to expect of it. While the committee accepted the thrust of the amendment which it found had numerous precedents, it commented adversely on the late tabling of
"a significant Henry VIII power"
which made effective scrutiny impossible, and also on the vagueness of the reasons given for the amendment. Your Lordships were less charitable in the ensuing debate and used strong language to express their feelings. For example, the noble and learned Lord, Lord Mayhew of Twysden, said,
"I regret to have to say this, but I should feel ashamed if I were a member of any government who brought forward a provision of this character at any stage of a Bill, let alone at Third Reading".—[Official Report, 31/10/02; col. 301.]
The noble Lord, Lord Renton, at col. 302, added for good measure:
"I have been in Parliament for 57 years and I have never known any provision that went as far as this one".
The right reverend Prelate the Bishop of Guildford, also at col. 302, concurred for his own reasons:
"A wide-ranging and general power of this sort is open to deep question when it relates to people with the sort of vulnerability who are dealt with by this legislation".
"The Secretary of State may by order make consequential or incidental provision in connection with a provision of this Act".
The amendment, in this more specific and restricted form, the House found acceptable. In the course of the debate on Commons amendments on 6th November 2002 which led to this conclusion, I promised the House a report on the precedents and arguments for Henry VIII clauses of this kind. The noble Lord, Lord Filkin, speaking for the Government acknowledged this intention and added:
"No doubt the Government will want to reflect on [the Delegated Powers Committee's] comments and give their views on any report that it produces".—[Official Report, 6/11/02; col. 766.]
Here, then, is the opportunity to do so.
The report is brief but it has a long history. After all, Henry VIII's infamous Statute of Proclamations—enabling the king to legislate by royal proclamation rather than due parliamentary process—was issued in 1539. It had a relatively early sunset as it was repealed on the king's death in 1547. The statute was not then called a Henry VIII power. In fact, I had some difficulty tracing the origin of this intriguing "nickname" as the then Chairman of Committees, Lord Donoughmore, called it in his 1932 report by a committee on Ministers' powers. When our legal adviser asked the omniscient Internet about Henry VIII powers, the ever mysterious Web came up, lo and behold, with our own report, which we are debating today, which was flattering for your Lordships' Delegated Powers Committee but less than wholly informative. Fortunately, it is clear what the powers in question are about.
The first report by the Select Committee on the Scrutiny of Delegated Powers, as it was then called, in 1993 stated:
"A 'Henry VIII' clause is a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further Parliamentary scrutiny".
In an address to the Commonwealth Conference on Delegated Legislation in 1989, the first chairman of the Delegated Powers Committee—the late Lord Rippon of Hexham—cast the net wider and defined the "so-called 'Henry VIII' clause" by referring to,
"the way in which primary legislation includes clauses providing that the Minister may amend or at times even repeal not only the primary legislation by order but sometimes other Public or even Private Acts".
It is worth reminding the House that in 1989 Lord Rippon emphasised how rare such clauses had been after the first one appeared in the Local Government Act 1888. Between that Act and 1932—in other words, in 44 years—there were only nine instances of such clauses, all of limited scope and validity and usually coupled with a sunset clause. Lord Rippon deplored the fact that by the late 1980s Henry VIII clauses were used,
"in Act after Act on a scale that would have been absolutely unthinkable until recently".
He explained this sprouting of executive powers by insufficient,
"forethought in drafting the legislation"
"Ministers now take power to amend and even repeal primary legislation almost as a matter of common form . . . In effect we are continually passing legislation which virtually permits Governments to make new laws as they go along".
I have already referred to the Donoughmore Committee set up 60 years earlier, in 1929, which reported in April 1932. To the present day, that report is the most detailed and trenchant analysis of delegated powers, of their origins and their less than felicitous effects. Lord Donoughmore commented on the growing number of laws and the shortage of time for parliamentary scrutiny, on the curiously unsystematic growth of delegated powers and on the need to heed what the Select Committee called the two "distinguishing characteristics" of delegated legislation,
"one positive and the other negative".
I quote from the committee report:
"The positive characteristic is that the limits of the delegated power are defined so clearly by the enabling Act as to be made plainly known to Parliament, to the Executive and to the Public, and to be readily enforceable by the Judiciary.
The negative characteristic is that the powers delegated do not include power to do certain things, namely—
(i) to legislate on matters of principle or to impose taxation;
(ii) to amend Acts of Parliament, either the Act by which the powers are delegated, or other Acts".
I shall not dwell further on the parliamentary history of Henry VIII powers except to emphasise that today, as three-quarters of a century ago, it is important to resist what Lord Donoughmore called, "executive autocracy" even if one agrees with him that the comparison of current governments with Henry VIII "is certainly far-fetched".
In the light of these reminiscences, however, it will be clear to the House that its Delegated Powers and Regulatory Reform Committee has produced a measured and modest report, although there should be no doubt in your Lordships' minds that we shall endeavour to live up to the high standards set by earlier guardians of parliamentary rights.
The Delegated Powers Committee, in producing its report, was well-served by its new legal adviser, Mr Allan Roberts, who examined precedents and consulted widely, not least with the parliamentary draftsman. The result of his labours can be seen in Annexes 1 to 12 to Appendix 2 of the report. Perhaps I may draw the attention of the House also to the helpful letter by first parliamentary counsel to the legal adviser, which is reproduced in Appendix 3.
The core of our report and the recommendations are simple and largely self-explanatory. In our first recommendation we recognise that,
"there are occasions when Henry VIII powers to make incidental, consequential and similar provisions are justified".
Such occasions arise above all from practical considerations such as the length of the Bill or the need to accommodate unforeseeable technical adjustments.
The second recommendation tries to deal with the fact that standard Henry VIII clauses on,
"incidental, consequential and similar provisions"
are nevertheless worded in varying ways. First parliamentary counsel has given some reasons for such variations. There is possibly a risk that the "one clause fits all" principle would in some cases lead to a wider empowerment of the executive than is either necessary or desirable. Still, I would note that even in 1932 the Donoughmore committee referred to,
"opportunist considerations, peculiar to the occasion"
leading to an "accidental" choice of terminology, as a result of which,
"the nomenclature of delegated legislation is confused".
Your Lordships' Select Committee suggests therefore that the Explanatory Notes sent to the committee with each Bill should include reasons,
"why a particular form of wording has been adopted in each case".
A more systematic approach is desirable also with regard to our third recommendation which concerns the level of parliamentary scrutiny. That is a major issue to which the House may well wish to return on another occasion. The present report merely states that in the case of Henry VIII powers there may be cases in which the negative procedure is sufficient, but there should always be a presumption in favour of the affirmative procedure. That means that whenever it is not adopted reasons must be given in the Explanatory Notes accompanying Bills why this should be so.
I must resist the temptation to return once again to my hobby horse—sunset clauses. It is all the harder to resist the temptation in view of the fact that the Donoughmore committee in 1932, to which I have made many an appreciative reference, recommended that all Henry VIII clauses should,
"be subject to a time limit of one year from the passing of the Act".
Were I to add such a revolutionary proposal to the recommendations in the committee report, I should be transgressing my chairman's remit considerably. Let me stick therefore to the present text and invite the House to take note of the special report by the Select Committee on Delegated Powers and Regulatory Reform. I beg to move.
Moved, That this House takes note of the third report of the Delegated Powers and Regulatory Reform Committee on Henry VIII powers to make incidental, consequential and similar provision (HL Paper 21).—(Lord Dahrendorf.)
Lord Temple-Morris (Labour)
My Lords, it is a pleasure for me, as the new boy on the committee on which I am pleased to serve, to follow my chairman, the noble Lord, Lord Dahrendorf. The committee is specialised, it tends to be legalistic and it is extremely important. Its subject matter is very much business for your Lordships' House: it is a specialist area which down the corridor in another place would not attract much attention. I leave out the question of Whips, control and so forth. In judging these matters the noble Lord, Lord Dahrendorf, in the leadership of the committee, appreciates more than anyone the importance of the subject.
I was party to the report and agree with every word of it. In following the noble Lord, Lord Dahrendorf, I want to emphasise his words that the duty of Parliament is to prevent the unjustified extension of Henry VIII powers. I also underline his interesting observation that historically they have been rarely taken up. However, as Lord Rippon of Hexham pointed out, their use has recently become more frequent and therefore they must be monitored. Your Lordships' House must take care.
I turn to the cause of the report and the debate: it was the Nationality, Immigration and Asylum Bill. I must plead guilty to your Lordships because I was not in the Chamber during the debate on the legislation. It has proved illuminating to me to read the debate; perhaps more so than had I been in the Chamber. It was an outstanding debate; one in which legal expertise was displayed around the House. The Minister answering, the noble Lord, Lord Filkin, took a reasonable attitude, but it transpired that his legal advice was, if anything, inferior to that given by noble Lords in this Chamber.
To me, as a new boy, it was interesting to see that and to realise—I cannot resist saying this because of the facility for appointment rather than election—that we can field various people who are qualified to "out gun" the government department of the day. I was delighted that in the Commons the Government gave way on the proposal and that throughout the attitude of the noble Lord, Lord Filkin, was that it was extremely reasonable.
If anyone checks the voting list, they will see that I voted, as ever, with the Government. Many years ago at the beginning of my career in another place, a deputy chief whip said to me, "You don't want to worry, Temple-Morris, about knowing anything about what's going on in the Chamber. The more you know about it, the more difficult you are as far as we are concerned". Having gone into the Chamber and voted on an issue without knowing what it was about, the process was made more illuminating after having read your Lordships' debate.
I have to say that had I been in the Chamber and listened to every word, I would have congratulated those who drew the Government's attention to the particular facet of the clause. I am sorry that the noble Lord, Lord Kingsland, who is a long-standing friend of mine across the divide—formerly we were not divided—is not in the Chamber. His contribution to the debate at all stages was outstanding and I want to pay him a small compliment. I do not need to go into the detail of the clause, but it was draconian. One facet was gripped by various Members present and the Government sensibly surrendered on it.
I return to the report. The overall power to make consequential and secondary legislation is necessary. No government of the day can foresee everything and legislation is complex enough. If in such an atmosphere one tells the draftsmen that it is necessary to cater for everything, there will be no end to the legislation concerned. Such a power is therefore necessary in order to conserve parliamentary time, particularly in this day and age when it is under increasing demand.
The emphasis must therefore be on control and scrutiny on three levels. I pray in aid my chairman, the noble Lord, Lord Dahrendorf, because he heads the special services in this regard. The Delegated Powers and Regulatory Reform Committee is the first into the breach. Although I am a new member, I have been most impressed by the way in which it works. It is totally non-party political and works for the benefit of servicing this House. It is unique. I congratulate the noble Lord on his leadership of it and it has a valuable job to do.
Furthermore, it is indicative of the balance, which we seem to have got right and the government of the day—not just this Government—tend to go along with its observations. Indeed, tomorrow we shall consider sensible responses that have been made by the Government. We do not abuse our powers, but it must be said that we will not hesitate to take them.
That leads me to the second level of control, which is your Lordships' House. If we get into difficulty, we must depend upon this Chamber, and the debate on the Nationality, Immigration and Asylum Bill was an outstanding example of how that can be displayed. The Select Committee reports and the House must then use its experience to sort out aspects that have gone wrong. It did so excellently in regard to that Bill. Ultimately, at the third level we can turn to the law and the courts; they are the end of the line in any challenge of constitutional abuse. However, I would have thought that your Lordships' House should be available, willing and capable of dealing with such matters.
Finally, there is the question of whether we should have a standard form for the legislative expression "delegated powers". The Select Committee considered the matter in detail and with a certain expertise. I believe that it is unnecessary. It will lead to more complication and is impractical. It will lead to my legal colleagues having a field day, applying lengthy, all-embracing formulae. It will also lead to more powers, not fewer, being taken.
In conclusion, I want to refer to the excellent response by the first parliamentary counsel. It deserves quoting, but I shall mention only paragraphs 4, 5 and 6 of the letter contained in the report. They say it all and I shall paraphrase them for the sake of brevity. As regards the various kinds of delegated powers, we have mention of "consequential provisions"—that is the one to which we always refer. We also have mention of "incidental or supplementary provisions" and "transitional, transitory or saving provisions". In addition to that, and coming to dear King Henry VIII, we must decide whether the power should be given to amend primary legislation and also to amend the very Act itself.
As is said by the first parliamentary counsel, all those issues cross borderlines but all have different ingredients. Ultimately, it is an art form—he suggested that in his letter—as regards the necessary blend and choice which befits any Bill or Act of Parliament. I do not believe that it should be put into some kind of great big formulae which will not work.
I turn to the best answer that we can put forward. It emerges from the report and it is up to us to demand it; that is; a sufficient explanation from the department. As regards the Nationality, Immigration and Asylum Bill, we had that; it was astonishing that a department of state should come forward and say, "We ain't got time here. This is too late. We have to take all these enormous powers because we haven't got time to bring it before you chaps". That was what, in effect, was going on and therefore there was a frankness which was commendable in the circumstances.
We must have a sufficient explanation from the department—and it is the duty of the Select Committee to ensure that it is sufficient. Above all, we must have scrutiny from the Select Committee under the wise leadership which presently prevails and with the support and help recently shown by your Lordships' House.
Baroness Carnegy of Lour (Conservative)
My Lords, it seems to me an extremely good thing that the House is considering this important matter outside the discussion that takes place during the passage of a Bill. We can thus stand back and ask ourselves about the principle at stake. Is it really right and proper for the government of the day so frequently to take powers to enable them to alter in the future any part of a particular Act of Parliament that they feel like altering, and to do so simply by order and possibly by negative resolution?
With 12 examples of such provisions in recent Acts of Parliament before us in the report—nine introduced by this Government and three by the previous government—we can ask ourselves whether such clauses should be acceptable at all to Parliament. If they are acceptable—or, at least, if they seem unavoidable—should Parliament insist on parameters limiting their use? It is a point of democratic principle, and an important one for the future.
In introducing the debate, the noble Lord, Lord Dahrendorf, reminded the House of how the committee came to report. He gave a very interesting historical account of how we got to where we are. He explained how the committee accepted that it would be difficult to ban these clauses altogether and what the conditions for acceptability set by Parliament might be. Like the noble Lord, Lord Temple-Morris, as a member of the committee I congratulate the noble Lord, Lord Dahrendorf, on his admirably clear explanation. The House can see for itself—if it has not seen already—how fortunate the committee is to have the noble Lord as its chairman and how worthy a successor he is to his predecessor, my noble friend Lord Alexander of Weedon.
From a personal point of view, I should like to add a word about what the committee did not say. This was touched on in a subtle, sideways fashion by the noble Lord, Lord Dahrendorf, and by the noble Lord, Lord Temple-Morris, perhaps in a more friendly way than I feel is possible. The committee did not say it because it eschews, as far as possible, what it sees as politically controversial points.
It did not say this: that the problem is a good deal more than the fact that this most extreme form of Henry VIII clause is of itself undemocratic; the problem is also, perhaps primarily, the way that governments—at present this Government—use such clauses and the way in which future, less responsible, governments might use them.
We were reminded by both noble Lords of the latest example of this in the Nationality, Immigration and Asylum Bill. I am sorry that the timetable for the House was changed at very short notice and that my noble friend Lady Anelay, who was deeply involved in the Bill, is not able to speak today. That Bill, after months of Home Office research and a White Paper, had been through all its stages in both Houses. At the last moment, at Third Reading in this House and with no time left before the end of the Session, the Government introduced a very wide-ranging Henry VIII clause, stating quite openly that the Bill was still incomplete and that they must continue to amend it after it became law.
The Home Office had not done its work in time and the Home Secretary felt justified in using this device to get it out of the hole it was in. That is what happened, as I think the noble Lord, Lord Temple-Morris, agrees. Both opposition parties here expressed deep concern, as did the noble Lord, Lord Clinton-Davis, from the Government Benches. It should be emphasised that no Member of this House, apart from the Minister, argued in favour of this particular clause and, on a Division, the House removed it from the Bill. But, as the noble Lord, Lord Dahrendorf, reminded us, the Government amended it slightly, the House of Commons reinstated it into the Bill, and it is now the law of the land.
That is what I mean when I suggest that it is the way in which governments use such clauses, as well as the clauses themselves, that is dangerous. The Nationality, Immigration and Asylum Bill was urgently needed—the asylum problem was acute and is still mounting—and the Government knew that this House was therefore unlikely to refuse to give it a Third Reading because, in the very last days of the Session, that would have meant the Bill falling and having to be reintroduced in the current Session. I do not believe that anyone wanted that to happen.
So the Government forced through a Henry VIII clause—— it is still very much a Henry VIII clause—which, until then, had not been considered necessary. At the very last moment the Government forced it through simply to enable them to go on making outstanding amendments by order. In doing so, they have opened the way for changes to the Bill which may be much less innocent and go quite beyond the reasons they gave at the time. Indeed, another government might do the same.
There have been, and doubtless will continue to be, many proposed clauses used for good and less good purposes, each of which may have a different effect and different wording but which open the way to the kind of changes we are discussing. The least Parliament can do is to establish the kind of parameters the report suggests, or perhaps stronger parameters, before it accepts such clauses. I shall be extremely interested to hear what other speakers have to say on this matter.
Lord Roper (Liberal Democrat)
My Lords, like other speakers, I am grateful to my noble friend and to the committee for this valuable report. Although I am not a member of the committee, I am speaking in the debate because I believe it to be an extremely important one, not only in regard to the incident which provoked the study but because the whole question of the balance between primary and secondary legislation is central to the way in which we in this House scrutinise the process of government.
The report is brief and is a model of how a short report can be extremely useful. It says all that needs to be said. Other Select Committees may learn from this report, which will have more impact because of its length.
In his magisterial introduction, my noble friend Lord Dahrendorf set the scene, and I shall return to some of the points he raised. Clearly there were particular problems with the late introduction at Third Reading of the clause in the Nationality, Immigration and Asylum Bill, but it is extremely useful that, as a result, the committee has had an opportunity to examine the issue and we now have an opportunity to debate it.
Annexes 2 to 9 of the report, which were compiled by the staff of the committee and its new legal adviser, set out in detail different Henry VIII clauses and explain why, in different contexts, they are needed and important. These will be important documents for all those considering legislation and its preparation, in this country and perhaps well beyond in other countries which follow similar procedures in drafting.
As has been said, Henry VIII clauses are important because they deprive Parliament of its power to legislate directly. They enable primary legislation to be altered without a full opportunity to debate and, particularly, to amend. Any changes which are made by regulation under a Henry VIII power can be debated if they are brought forward under an affirmative order, but they cannot be amended. Therefore it is a significant restriction on the powers of Parliament and of parliamentary scrutiny.
Secondly—I raise this issue as a Back-Bencher, because I may have a slightly heretical viewpoint on the matter—why are Henry VIII clauses necessary in general terms; and why have they become more frequent over the period so well described by the noble Lord, Lord Dahrendorf? The noble Lord said that nine such clauses had been introduced between 1888 and 1932; and since then an accelerating number, growing at an exponential rate over recent years. Why does legislation now contain so many Henry VIII clauses?
One of the reasons—set out in detail in the annexes—is to provide a certain degree of flexibility, to enable us to deal with changes that could not be foreseen when the primary legislation was prepared; or, for example, in such matters as the pay-as-you-earn legislation, where it would be inappropriate each year to return to the Finance Bill and deal with the detail of the legislation and all the consequential changes. Those examples are relatively straightforward.
But there is a further point which presents a dilemma for parliamentarians—the point on which I suspect I may be considered by many of my noble friends to be presenting a slightly heretical or unusual point of view. There is a dilemma as between the pressure—with which I have engaged, like members of most Opposition parties—to press for as much detail as possible on the face of the Bill, at the same time probably generating a need for more Henry VIII type powers. The more one insists on detail on the face of a Bill, the greater is the risk of including ephemeral matters which may subsequently have to be changed. Therefore, there is a dilemma in our arguments: as between the relative importance of primary and secondary legislation, the kind of detail that should appear on the face of the Bill and how we wish to have it altered. Provision of a detailed kind may in itself generate the need for Henry VIII type powers. So there is a fundamental dilemma in regard to the drafting of legislation.
The committee or this House may need to return to this matter in considering issues of statute law and how it is prepared. I put the issue forward for consideration. I am not sure what the right answer is, but the problem needs to be considered.
I take the point, which was raised in the report and mentioned in the debate by the noble Lord, Lord Temple-Morris, that a standard form of words, as explained by the first parliamentary counsel, would possibly create more problems than it would solve. None the less, the committee recommends that, where it is necessary to have a particular form of words, the reasons should be made clear in the Explanatory Notes, as well as in the memorandum to the Delegated Powers and Regulatory Reform Committee; and that the committee should, as a matter of course, when it receives a note on the matter, report to the House on the reason why a particular form of Henry VIII clause has been necessary.
I return to the issue raised in paragraph 6 of the report—which was mentioned by my noble friend Lord Dahrendorf; namely, the question of the negative or affirmative procedure. As the committee states, whenever a Henry VIII clause is used, the presumption should be that the affirmative rather than negative procedure will be used. If in the future a scrutiny committee comes into existence—the sifting committee on statutory instruments derived from the work of the noble and learned Lord the Leader of the House and those of us who served with him on the working practices committee—I believe that it will want to give attention to this matter as part of its sifting process in reporting matters to the House.
Like my noble friend Lord Dahrendorf, I am tempted to return to the idea of sunset clauses. The model that he gave—of an automatic period of a year being imposed by means of a sunset clause—may be considered somewhat excessive by some, particularly by those on the other side of the Chamber. None the less, we shall need to re-examine the issue of sunset clauses in relation to Henry VIII powers.
As I have said, this is an extraordinarily valuable report. Together with the debate that we have been able to have today, it will be invaluable for the future scrutiny of legislation.
Lord Desai (Labour)
My Lords, as the fifth speaker on a fairly short report, it is difficult to say anything that has not already been said. So I shall be brief.
Why do governments use Henry VIII clauses? As has been argued by the noble Lords, Lord Dahrendorf and Lord Roper, it is for convenience. It is obviously hard to foresee everything that might happen, go wrong or change. Therefore, some such provision is necessary.
The more complex Bills become—as has happened even in the brief time that I have been in this House—the more one needs Henry VIII clauses. Indeed, I believe that every Bill should have a standard Henry VIII clause—it would save us all time and effort!
At the same time, although governments may require such clauses for their convenience, we as parliamentarians must be suspicious of all governments, of whatever party. We cannot allow governments to get away with Henry VIII clauses without giving a proper explanation of why that is being done. That battle will continue.
It is always a good thing to be able to spot a Henry VIII clause in all its various forms and then to hold the Government to account in explaining why they have introduced the clause. Although the explanation may not vary too much from Bill to Bill, it is still good to have it.
Unlike the noble Lord, Lord Roper, I believe that it is good to have as much detail as possible on the face of the Bill, even though it complicates matters. In my personal activity, I find it difficult to concentrate on instruments when they occur later, negative or affirmative. It is very hard to keep track of what is going on.
I should like to see a study of how often, in relation to a particular Bill, the Government return to the House with instruments, negative or affirmative. If we had such a study, we might be able to understand whether it is necessary for governments to do this. We may have a belt-and-braces provision in the form of a Henry VIII clause, but how often do we use it? Having made a great deal of fuss about a Henry VIII clause during the stages of a Bill, has the House been able to discuss what has come subsequently by way of amendments? It is inevitable that Bills will command more attention than subsequent instruments. That is a law of life. Therefore, there is a tension in terms of how often we allow governments to do this.
It was all right to regard Henry VIII with great suspicion in terms of what he was up to. When governments are democratically elected, we can be slightly kinder; but we must still maintain vigilance and make sure that governments do not get away with what they want to get away with.
I want to make a further point which is not germane but is somewhat relevant. I find the language of legislation very complex. I have been a Member of the House for 11 years but I still do not understand Bills. I must wait for either a probing amendment or a Minister's explanation to find out what certain clauses say. They are written in English, but not in plain English. This is not a controversial remark: the Maastricht Treaty is much easier to read than any legislation I have read in this House. I was told that that is because it must make sense in 12 different languages so it cannot be obscure. But, believe me, I do not understand legislation. Something must be done about it—I do not know what. Having said that, I thank the noble Lord, Lord Dahrendorf, for his excellent introduction to the debate.
Lord Dixon-Smith (Conservative)
My Lords, I met the noble Lord, Lord Dahrendorf, in the corridor shortly after this debate was reintroduced to the Order Paper late last week. I asked whether he would mind if I introduced a subject closely related to Henry VIII clauses but not specifically in the committee report that we are considering. I apologise to the noble and learned Lord the Leader of the House for not raising the matter with him, but I was not sure whether he was making the winding-up speech on this debate until I saw the list of speakers today. If, at the end of the debate, he says only that he will consider further the issue that I have raised, I will be pleased.
The issue I raise, which is a slightly different aspect of the same subject, is what I regard as Henry VIII Bills. They are skeleton Bills that consist of nothing but powers to make regulations. The first Bill I had to introduce on the Front Bench of this House was such a Bill. I was exercised as to how to introduce it. I am afraid that I hit on the slightly dubious wheeze of using the main part of my remarks to quote the report of the Delegated Powers Scrutiny Committee, then under the chairmanship of my noble friend Lord Alexander of Weedon. After I introduced the debate from our side, I knew what it was like to be an infantryman in a landing craft approaching the beaches on D-day; because, having quoted the report, such was the depth of its criticism of the Bill, there were salvos from the battleships behind me. One could see them scoring on the shores opposite. It was an interesting experience.
I am now dealing with a second skeleton Bill—the Waste and Emissions Trading Bill. The first was the Pollution Prevention and Control Bill. The noble Baroness sitting next to the noble and learned Lord the Leader of the House will recognise it. The point about both Bills is that there is almost nothing in them to discuss. We do our best; we debate it in detail. But the Executive action in those Bills is wholly dependent on regulation. We must debate the Bills without any sight of that regulation so that we are flying blind with few instruments to guide us. Is that an appropriate procedure?
Both skeleton Bills—the first is now an Act—were responses to European directives. It is normal procedure to deal with European directives as far as possible by regulation. But, are those procedures satisfactory with regard to primary legislation? That is why I raise the issue.
A second related matter—it is not essentially part of the report—is that, as a consequence of our approach, this sort of legislation is the subject of three levels of discussion in the United Kingdom. As the United Kingdom Parliament, we discuss the framework Bill in such detail as we can. We try to probe from the Government what lies behind the legislation and what its meaning is. The Bill then goes to Scotland where, within the framework that the United Kingdom Parliament has defined, the Scottish Parliament can have full discussion and debate and pass its own laws, provided that they are consistent with the framework law that we have passed. The National Assembly for Wales has a different function. Its function is very much to consider the question of regulations. So, the regulations receive detailed, careful consideration there.
Here, in England, regulations that require the positive assent of the House are none the less take-it-or-leave-it regulations. One cannot amend them. They must be accepted or rejected. In many cases, the need to pass the good elements of the regulation mean that one cannot deal with the flaws. Whether that is a satisfactory procedure is a serious question, particularly when under the Pollution Prevention and Control Bill one of the regulations brought forward was 150 pages long. Despite that, it had to be passed on the nod.
This is a serious aspect of our legislative process. I accept entirely that it is not the sort of subject that we could, or should, deal with hastily. It needs careful consideration. I wish to see the matter referred to a Select Committee. The Delegated Powers and Regulatory Reform Committee would be an appropriate forum for dealing with it, so I would be happy to see it referred there. I am grateful to the House for allowing me to raise the issue, which, although appropriate, cannot be dealt with today.
Lord Wedderburn of Charlton (Labour)
My Lords, I apologise to the House for not having my name on the list. I intervene merely to make one point. I am happy to follow the speech of the noble Lord, Lord Dixon-Smith. I do not criticise the report, certainly not the important and erudite opening speech of the noble Lord, Lord Dahrendorf. It may be one of the most important reports since the Donoughmore report of 1932. One is tempted to reflect on the increased need for measures such as Henry VIII clauses arising, at any rate at the same time as, and possibly as a result of, the increase in social legislation. One need only look at social security Bills to understand the need for more and more detail.
My point may fall outside the examples in the report's annexes. We have had recent examples not exactly of skeleton Bills but of those purporting to tell the legislature what they are about. They contain Henry VIII-type provisions that allow the Minister, by order or regulations, to change the very core of the Bill, and thereby the Act. They are, I suppose, not skeleton Bills but what might be called narcissistic Henry VIII clauses.
" (a) amend, repeal or replace any of subsections (2) to (4);
(b) amend Schedule 4".
Those were the very core of the provisions that limited access to justice for workers whose rights had been infringed and whose complaint would go to an employment tribunal.
That section was largely conceived out of a genuflection and response to employers' complaints that workers' complaints to employment tribunals were too costly. In the nine weeks in which my noble friends and I sought to retain that Bill in the Grand Committee to which it was sent without many people knowing what was going on, we got no alteration of that particular response from the Government at all. The CBI, quite naturally, thought that that was the Bill's most important clause. Your Lordships' Joint Committee on Human Rights had two whole sittings on that section and the Bill and eventually concluded that it was valid as being proportionate. Yet, what the Human Rights Committee judged was valid and proportionate could be totally changed by the Minister by order. If ever there were an example of the correctness of the report now before us, surely that was it.
I make no apology for raising this point. It was a matter of principle for some of us but was ultimately ignored by both Houses. The Government knew what they were doing. Indeed, in the debate on the Bill's Second Reading, my noble friends and I suggested that the Minister, in proposing Part 3, should come forward, as I put it on 26th February, with a spirited rendering of that grand old Harry Champion number, "I'm Henry The Eighth, I Am". We got no such rendering. Nor did we get a clear explanation of why the Minister should have power to amend by order the core of the Bill.
My time is up. However, if ever there were a recent example justifying this report, it is that.
Lord Goodhart (Liberal Democrat)
My Lords, I am most grateful to the Select Committee on Delegated Powers and Regulatory Reform for producing this excellent report. My noble friend Lord Dahrendorf has, through this report and his speech in introducing it, shown himself to be a worthy successor to his predecessor, the noble Lord, Lord Alexander of Weedon, who I am extremely pleased to see in the Chamber to listen to the debate. I was a member of the committee when the Nationality, Immigration and Asylum Bill was going through your Lordships' House, but I have since been rotated off it. I have therefore played no part in the drafting of this report.
Henry VIII powers have become increasingly common. It should, I think, be particularly noted that the Regulatory Reform Act 2001 provides for regulatory reform orders that use Henry VIII powers on an exceptionally wide scale. They will need to be monitored very carefully to see that they are not exceeding the legitimate purposes for which they were created.
Today's debate, however, concentrates on one particular type of Henry VIII power—the power to make consequential provision orders. I say "consequential provision" as a type of shorthand to include orders that cover matters which may be described also as "incidental", "supplementary", "transitional" or by one or two other adjectives as well. Such powers are, of course, not included in all Bills or even in all major Bills, but they have certainly become quite common in major Bills. They have been used, as Appendix 2 to the report shows, at least nine times in the past three years. The reasons, as explained in this debate, are uncertainty about whether the schedules amending or repealing existing legislation are complete, and uncertainty as to what consequential powers will be needed.
There is, however, one lacuna in this debate, identified by the noble Lord, Lord Desai, which is that we do not know how these powers have in fact been used. I should be very interested to know whether any or all of the powers listed in the second appendix to the report have been exercised, for what purpose, and how long after the power came into force. While I do not expect the noble and learned Lord the Leader of the House to be able to provide that information now, I should be most grateful if he could obtain that information and provide it in a letter to all noble Lords who have spoken in this debate.
These consequential provisions clauses have been going through the Delegated Powers Committee on a regular basis without attracting a great deal of attention. Sometimes the affirmative procedure has been used, and sometimes the negative procedure. It may be that the committee should have paid a little more attention to these clauses than we did. The situation changed because of the late introduction into the Nationality, Immigration and Asylum Bill of an amendment introducing wide consequential powers. Those powers were wide but were not unprecedented. Several of the other clauses set out in the annexes to Appendix 2 to the report contain rather similar powers. However, the fact that that particular clause did not appear in the original Bill, but was introduced at a very late stage, did indeed concentrate people's minds.
Some speakers have attributed sinister motives to the Government which I do not believe exist or existed. However, the challenge to that clause not only resulted in the modification of the clause itself, but performed what I believe is a very useful service in making your Lordships' House think again about the role of consequential provisions clauses.
I believe, with some regret, that such clauses are sometimes justified. Legislation is now so complex that we cannot be sure that everything in previous legislation that should be changed has in fact been changed. It would be a waste of time to have to introduce primary legislation to correct a minor oversight. However, I believe that the report is absolutely right in saying that there should be a presumption in favour of affirmative procedure when a Henry VIII power is created.
There are, I think, sometimes circumstances in which, even for a Henry VIII power, the negative procedure might be adequate. For example, the Act may create for some purpose an express time limit and then give power to extend that limit by statutory instrument. Depending on the circumstances, that may be a case in which the negative procedure would be sufficient. However, I think that there should be something close to an absolute rule that a consequential provisions clause should require the affirmative procedure in so far as it modifies or repeals primary legislation.
Consequential provisions clauses are, of course, limited by their wording. The changes must be generally "consequential" or "incidental"—or whichever adjective is used. If not, then an order made in purported exercise of that power will be ultra vires and can be challenged in a court. However, within the bounds of that wording, the Government are effectively being given something of a blank cheque. By definition, more or less, they do not know why or when that power is going to be used. In those circumstances, I believe that we should not rely on someone checking all statutory instruments which may be adopted under the negative procedure to determine whether it is an order that deserves to be prayed against. There should be actual parliamentary approval of any change to primary legislation made in exercise of a consequential provisions clause, which means that the affirmative procedure should be used more or less as a matter of course.
I also support the proposition that the consequential provisions clause should be exercisable for only a limited time after the power comes into force. A time limit sunset clause concentrates the mind. If anything is truly consequential or incidental it must be capable of being identified in a fairly limited time after the Bill becomes an Act and comes into force. Speaking for myself, I would not dissent from the one-year time limit proposed by my noble friend Lord Dahrendorf, although that is, of course, a matter for debate.
The debate has been useful. I hope that the Government are listening carefully to what is being said. I look forward to the speech of the noble and learned Lord the Leader of the House.
Lord Strathclyde (Conservative)
My Lords, I am grateful for the opportunity to intervene in this short but important debate. I would like to thank the members of the Delegated Powers and Regulatory Reform Committee and, in particular, their chairman, the noble Lord, Lord Dahrendorf. I am told that the noble Lord was recently honoured by the President of Italy. I hope that that is right, because it attests to the wide respect in which he is rightly held in this country and overseas, not least for his observations on constitutional matters.
The problem of how to make incidental changes to primary legislation is not only encountered in the UK. Indeed, to return to Italy for a moment, the legislature there spent a great deal of time, until recent reforms, passing so-called leggine, "little laws", that served to clarify, amend or explain main legislation. There we now see greater use of ministerial decree to make such changes. I am not sure that that is the way I would want to go. We should not be under any illusion but that secondary legislation is, in effect, rule by ministerial decree. "Take it or leave it", as my noble friend Lord Dixon-Smith said, but one cannot even give or take a dot or comma. That is why the power is so attractive to departments, and why we should be careful that what masquerades as a convenience should not become a contrivance to avoid scrutiny.
Neither House can amend legislation made under Henry VIII powers, which can have far-reaching effects. The affirmative procedure, while offering some safeguard, does not really address the problem, as any noble Lord who has missed his kidneys and bacon to listen to dinner-time orders can testify. The Wakeham commission wrestled with that problem but its proposed delaying power offered no solution—indeed, it would have stripped Parliament of a power that it does have to threaten rejection.
The rejection power is a nuclear one. It is unwise to threaten to use it or actually to use it too often, but it can serve, as it did in the context of the Greater London Authority Act 1999 when this House successfully vindicated the right of electors to receive a free election address from all candidates. Far greater thought needs to be given to that problem. It is one task for the Joint Committee of both Houses in the next stage of its deliberations on the future of this House.
The number of statutory instruments is now immense. There were 3,264 in 2002 and 4,150 in 2001. Those figures do not include Welsh and Scottish orders that once came before us. That compares with some 2,279 statutory instruments in 1987. The House is examining ways of improving scrutiny of the use of secondary powers, and I welcome that. But today we are considering an aspect of what is, in essence, the front line of defence—namely, the framing of legislation.
Few will doubt that the institution of the Delegated Powers Scrutiny Committee, as it was called when set up by my noble friend Lord Cranborne, was far-sighted. Since then, it has carved out a place of great authority, and is being emulated in another place. Despite one or two unfortunate waverings at the Dispatch Box, no government have yet rejected warnings from the committee over attempts to take excessive Henry VIII powers, and I hope that it stays that way. It will when there is again a Conservative government, and no doubt the noble and learned Lord the Leader of the House will give an assurance to cover the short intervening period before that.
I strongly support the specific recommendation of the report, which I hope the noble and learned Lord will confirm will be put into operation on all future Bills presented to Parliament. I understand the point made by parliamentary counsel that wording may need to vary from Bill to Bill, but it is a sensible suggestion that Explanatory Notes should lay out in each case why a form of wording has been used. I also agree with a presumption in favour of the affirmative procedure, and that government should specifically explain with a Bill why they do not consider that to be necessary when seeking a Henry VIII power. Some say that use of the affirmative procedure might take too much time on the Floor of the House, but impatience about time rarely makes for good law. Would it not fit with the radical nature of the noble and learned Lord's leadership of this House to stage some debates on orders in the Moses Room?
All that said, I confess to the very faintest sense of disappointment with the limited scope of this report—at least, the scope is limited at this stage and in this particular report. I hope that we will see more special reports from the committee, reaching beyond the merely responsive reports that comment on specific Bills. It may be a function of the stretched clerking resources of the House that the report was unable to drive into deeper detail about the examples it cites and the nature of the use made of Henry VIII powers. I agree with the noble Lords, Lord Desai and Lord Goodhart, on that point.
There is a perception that Henry VIII powers are being increasingly sought and increasingly used, but I do not know if that is right, and this report did not set out to answer that question. Perhaps it should, and perhaps Henry VIII powers should be subject to a five-year life; if unused, they would fall. The report does not test the extent to which unamendable legislation is used to change the lives of our citizens and whether it is beyond the extent acceptable in a free society. People affected by primary legislation are able to bring their case to this House and seek change, other than by pleasure of Ministers and their civil servants. We are seeing that exercise in train in the fascinating debates on the Licensing Bill, now in Committee in your Lordships' House. In the case of secondary legislation, that is simply not possible.
Until the parliamentary settlement that will follow the work of the Joint Committee, we should be doubly cautious about allowing a doctrine to grow up that Henry VIII powers enabling unamendable legislation are a given in our constitution, as this report does. The precedent book is a dangerous thing. Something that first time round is highly controversial, the second time round becomes of interest only to constitutional anoraks and the third time round becomes part of the acquis gouvernementaire—if I may use that phrase.
That is the nub of the problem. Is that the seductive road down which we are being tempted to stray? If so, the executive are the winners and a Parliament that has never been weaker is once again the loser. Most noble Lords can recognise when government oversteps the mark, but it is no good crying foul, if one cannot also say "No" from time to time. I hope that the committee will review firmer guidelines to prevent encroachment by executive fiat.
I tentatively suggest two approaches. First, no Bill that is primarily a skeleton Bill should be passed by the House. I recall the deplorable example of a pollution Bill a few years ago, which consisted of a couple of pages of Henry VIII powers that would have given the Secretary of State power to do almost anything. My noble friend Lord Dixon-Smith is right on that point. I would like Bills of that kind to be considered in a future report and ground rules laid down which might serve at the pre-legislative stage.
Secondly, when a Bill contains Henry VIII powers, which are claimed on the basis that they cover detailed matters better dealt with in regulation, the House should not agree to proceed with that Bill until final draft guidance on the use of the powers or draft regulations has been published. The current Licensing Bill may be a case in point. Perhaps in a memorandum to the committee the department should explain why it is impossible to publish such draft regulations alongside the Bill.
The whole House owes the noble Lord, Lord Dahrendorf, a debt of gratitude. The report is a useful step forward. There is a major constitutional issue lurking in this undergrowth that we cannot solve tonight. I very much hope that the House, the Joint Committee and the noble Lord's committee will soon return to the matter of the use of secondary powers.
Lord Williams of Mostyn (President of the Council, Privy Council Office; Labour)
My Lords, I do not want to introduce any jarring note. I begin by saying what a personal pleasure it is to see my old friend and colleague, the noble Lord, Lord Alexander, in his place and I to pay tribute to the work of the noble Lord, Lord Dahrendorf, and his committee. As I have said on previous occasions, the committee has made its own authority and has therefore become extremely authoritative with all governments. That remains the case.
The indefatigable energies of Mr Daniel Greenberg from the parliamentary counsel office have produced a report that has not yet been mentioned. It is therefore incumbent on me to mention it. The report, from October 1953, contains an extremely good encapsulation of our problems by that radical parliamentarian, Aneurin Bevan, who said:
"There is now general agreement about the necessity for delegated legislation; the real problem is how this legislation can be reconciled with the processes of democratic consultation, scrutiny and control".
One always needs a Welshman to put it economically. I was pleased to hear the noble Lord, Lord Strathclyde, using a European language, but I think we pronounce it differently in Swansea.
The debate has demonstrated a general feeling that our procedures and processes for dealing with legislation are inadequate. I agree with two propositions. First, European legislation is not sufficiently scrutinised. We know that the committee of the noble Lord, Lord Grenfell, is attending to that. Secondly, the vast body of secondary legislation, which may affect the individual citizen more than does the primary legislation, is not properly attended to.
I hope we shall soon start with the sifting committee. That is a very important step forward for this place. In some ways it is easier to do that here, because we do not have the partisan politics that I am told there are in the other part of the Palace—although I have been fortunate enough never to be an ignoble denizen of that end—and the Whips have far less power here. I think we are capable of doing that work well. Having listened carefully to all the contributions that your Lordships have made and re-read the committee's report, it is interesting how little difference there is between those who have spoken, from whatever side. I take the point made by the noble Lord, Lord Dixon-Smith. I understand the difficulty in trying to deal in a legislative context with what he described as a skeleton Bill, giving the example of the Waste and Emissions Trading Bill. The Delegated Powers and Regulatory Committee looked at that Bill with some care and said:
"We appreciate that the highly unusual structure of the bill was to some extent dictated by the different legislative procedures under the devolution arrangements".
The noble Lord touched on that point.
In many ways, this is our opportunity, as the noble Lord, Lord Strathclyde, said. The Joint Committee ought to return further not simply to composition, but to precisely how we use the powers and functions that we already have. We do not do the work sufficiently well.
Without undue complacency, I think that the Nationality, Immigration and Asylum Act 2002 showed that our procedure is capable of working. In his masterly exposition, at the outset of his speech, after the historical review, the noble Lord, Lord Dahrendorf, pointed out that the Government were made to think again. An amendment was brought forward and the Bill was improved. To that extent, it worked well. If I may be absolutely candid, on the basis that this is not being recorded, the real mischief there was that the matter was brought forward too late. A number of your Lordships have referred to that. This is a legitimately proud House. It does not wish material to be brought forward late. That lesson may be capable of being well learnt.
We have sunset clauses quite often. The noble Lord, Lord Shutt, and I were looking at one the other day in the Grand Committee on the Police (Northern Ireland) Bill about 50:50 recruitment in the post-Patten proposals. That is quite a useful scheme, providing for statutory review not more than every three years and a requirement for renewal not more than every three years. That is a device. I cannot be quite as nuclear as the noble Lord, Lord Dahrendorf, because the sunset clause would become, by and large, eclipse legislation and we would spend a disproportionate amount of time every year looking at sunset clauses.
Some specific questions have been put. The noble Lord, Lord Roper, dealt with the sifting committee. That is an extremely important way in which we could do work well without clashing with the entrenched privilege and superiority of the Commons.
The report posed three questions. First, is there a case for using Henry VIII powers to make incidental, consequential and similar provisions? I do not think that anyone has dissented from that. The real approach, with which I join, is that we must be proportionate in the use made, we must be meticulous about the occasions and we must always consider scrutiny. The noble Lord, Lord Goodhart, said that he would not be surprised if I were not able to give all the material to him. It will take some little research, but I shall undertake to have that done. That ought to inform our discussions. Are these Henry VIII powers properly sought on a particular occasion? If so, how well do they work and should there be any further scrutiny? I do not regard this as a party political or partisan matter.
Secondly, should there be a presumption that the same form of words should be used in every case? Proper tribute was paid to the thoughtful letter from chief parliamentary counsel. I do not think that the case is made that we ought to have a standard form of wording in every case. That would be disproportionate and we ought to be much more selective.
A number of your Lordships made the extremely important point that we now have an opportunity to use pre-legislative scrutiny in a way that it has not been used at the other end of the Palace. The package that your Lordships have approved says that eventually virtually all significant government Bills should have pre-legislative scrutiny. I think that is an accurate paraphrase. That is a significant way forward. I have no doubt that that general approach could be accommodated on appropriate occasions to deal with the sort of matter that we are looking at at the moment. There would be an opportunity at a much earlier stage—that is crucial—to identify the areas of concern, sometimes profound concern, about the nature of prospective legislation. If that is done and we are then able to use Grand Committee and carry-over, that would be a way of doing our work better. The noble Lord, Lord Strathclyde, said that some of these orders might usefully be debated in the Moses Room. I know that his deputy leader does not really like the Moses Room, but a committee, which might not be called Moses, is certainly a possibility.
The third question was about the appropriate level of parliamentary scrutiny. I agree with those who have said that one size will not fit all. There are aspects that do not require the heavy artillery brought out. It is better to go forward case by case, not because that is a particularly English approach, but because it is a pragmatic approach that has proved of virtue and value under the chairmanship of both noble Lords who are here present.
This has been a short debate.
Lord Maclennan of Rogart (Liberal Democrat)
My Lords, before the noble and learned Lord leaves that point, the committee made a clear recommendation on the level of scrutiny. It said that there should be a presumption in favour of affirmative legislation. In saying that it should be on a case by case basis, is the noble and learned Lord rejecting the argument in favour of that presumption?
Lord Williams of Mostyn (President of the Council, Privy Council Office; Labour)
My Lords, it is better to rely on the committee, which has the expertise and is non-partisan. Our experience has been rather successful. Rather than having an overall presumption, I suggest that it is better to rely on the specific, distinct expertise of the committee in any particular case. We are certainly more than happy to follow that line. As I have said in the past, in my experience since 1997, I do not believe that we have ever gone against a recommendation from the committee of the noble Lord, Lord Alexander, and now that of the noble Lord, Lord Dahrendorf. We should move forward in that way.
I was about to say that this has been quite a short debate, but surprisingly and hearteningly well attended—a double first!
Lord Dahrendorf (Liberal Democrat)
My Lords, it remains for me to thank all noble Lords who took part in this short but well-attended debate, including those who are members of the committee, who were members of the committee, and those who may one day advance from their present Front Bench positions to membership of the Delegated Powers and Regulatory Reform Committee. I do not want to miss out my old friend—by the customs of the House I cannot call him my noble friend—the noble Lord, Lord Wedderburn, a colleague from LSE days who may not fall into any of those categories.
I am naturally particularly pleased by the friendly comment by the noble Lord, Lord Strathclyde. I hope if I say that I agree with his comments on Italian legislative practice, as I do, that will not lead to the withdrawal of the honour recently bestowed on me by the President of Italy.
I am sure that I am right in saying that the committee will on the whole feel encouraged by the debate. It is also clear that there is more work of a specialised kind to do. Like others, I am delighted to see my predecessor the noble Lord, Lord Alexander, here. I know that he agrees with me that every now and again the Delegated Powers Committee should produce special reports for debates of this kind. I therefore take the point made by the noble Lord, Lord Strathclyde, and the question left open by the latest exchange in the Chamber as an encouragement to look further at what is really behind the extraordinary process over the past decades by which what we call Henry VIII powers have become almost an automatic part of legislation.
Before I moved the Motion for this discussion I was told to avoid one thing above all, which was to end by saying, "I beg leave to withdraw the Motion standing in my name". That is quite often said at the end of such debates, but I will do exactly the opposite. I beg leave to move that the House takes note; in many ways it should do more than take note—it should act on the report from the Delegated Powers and Regulatory Reform Committee.