Deregulation Bill

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Thursday 20th November 2014 Grand Committee

[Lord Tunnicliffe (Lab)]

My Lords, in moving Amendment 92C, I will also speak to Amendment 92D, and—this may sound peculiar—I will specifically not speak to Amendment 93. What arguments I shall make in speaking to these two amendments should not be read across to our position on Amendment 93, which stands up on its own, and which will be well presented by the noble Lord, Lord McNally, and supported by my noble friend Lady Thornton.

Essentially, the amendments probe Clauses 83 to 86. Once again, we have degrouped from the proposed original grouping the question that Clause 83 stand part of the Bill. We did that because we want to make it clear that we are not against the underlying concept of this group of amendments, providing that they are benign in intent, and that the Government are willing to accept either our amendment or appropriate other amendments which secure the benign nature of the intent.

It is interesting to look at just how important these clauses are. The Minister, Oliver Letwin, who has the wonderful title of Minister for Government Policy, said in another place:

“In that context, clause 61”—

which is now Clause 83—

“which is probably the single most important clause in the Bill, creates a growth duty”.—[Official Report, Commons, 3/2/14; col. 37.]

Therefore the Minister for Government Policy thinks that it is the most important clause in the Bill.

In Second Reading in the House of Lords, the noble Lord, Lord Wallace of Saltaire, was a little more careful. He said:

“Clauses 83 to 86 create a statutory duty for non-economic regulators to consider economic growth when carrying out their functions. This duty will be supplementary to”—

we may come back to those words, perhaps not today, but in the course of the passage of the Bill—

“and will not supplant, the regulators’ other statutory obligations. It will make them take economic growth into account as they exercise their regulatory functions. Guidance on this has just been published”.—[Official Report, 7/7/14; col. 16.]

I will come on to that guidance.

The importance of this clause is a matter for appraisal. It rates the positive value of this set of clauses between zero—which is pretty low—and £240 million per annum. I am reminded of Tesco’s “Every little helps”. However, it is a little. Some £90 million may be a big figure, but it is stretched across the whole gross domestic product of something over £1.5 trillion, and I ran out of noughts while trying to find out what percentage it is of that. A more down-to-earth figure is that it represents £3 per annum, per worker. Therefore this is a push in the right direction, if you believe in all the benefits, but not that significant a push. If it is the most important clause in the Bill, as the Minister said in the other place, it does not say a lot for the other clauses.

The reason I stress the size of the impact is that when we make a piece of law, we have to consider the unintended consequences. This set of clauses could have serious unintended consequences, because they go to the root of the concept of regulation. To quote Oliver Letwin, a right-wing Tory Minister:

“I will begin by saying something that several in the House might find mildly surprising in the context of this debate: regulation is often sensible and necessary. It is no part of the Government’s plans or our view of life to suggest that regulation is never useful. Indeed, like previous Governments, this Government are presiding over an immense amount of regulation, much of which is constructive and helpful”.—[Official Report, Commons, 3/2/14; col. 35.]

I passionately believe in regulation. I believe that it is the essence of what creates a society. It is the process by which individuals are protected from abuse by persons—I draw the distinction in the sense that “persons” includes firms, the state and all different collections and interests—while enabling the flourishing of society in general. It is essential to civilisation and for most people, it is barely noticed. That is one of the problems with regulation: there is little appreciation of how important it is in society. It is as old as history, of course. The first regulations that we tend to learn about are the Ten Commandments, and they go on and on. We call them laws but, in many ways, criminal laws are just as much regulations as regulations which are not criminal laws, and they overlap.

In this House, due to our longevity, one can pray in aid the Clean Air Acts. One has to be fairly old, but the noble Lord, Lord McNally, will remember the 1962-63 smog in London, which brought the city to a halt, a phenomenon which was common.

[Lord Wallace of Saltaire (LD)]

My noble friend is not old enough.

[Lord Tunnicliffe]

We were there together. The regulations that cleaned up the atmosphere totally changed the city of London. It was worth cleaning the buildings afterwards. Nobody knows about the Clean Air Acts, but they are central to our lives.

When I was young, aeroplanes used to crash quite frequently. Being an airline pilot was a dangerous pastime. People used to go on to aeroplanes wondering whether they would get to their destination. People do not think about that now. They assume that it is safe. What makes it safe is a great feast of regulations that governs every bit of that activity to make it incredibly safe. We do not think about regulation when we go into a restaurant; we go in assuming we are not going to be poisoned. Why can we make that assumption? Because there is a raft of regulation that makes sure food is safe; everything from what varieties are allowed into this country in the first place to how it is handled, how it is checked and so on. Regulation is a crucial part of our lives but most people do not notice it.

I notice it because I have been involved in regulation for 50 years. My initial training was as a pilot, and you immediately realise how regulation contributes to the safety of the operation. Over those 50 years I have been a pilot, an air operator, a railway operator, chairman of the United Kingdom Atomic Energy Authority, chairman of the Rail Safety and Standards Board and involved in safety in the MoD. Finally, as a Whip, I had to explain the failure of regulation that caused the Nimrod crash in Afghanistan and killed servicemen unnecessarily. I am a passionate believer in regulation and its protection.

Let us turn to what the clauses do. One of the most useful documents when looking at legislation is the impact assessment. The reason it is useful is that it is usually written by reasonably junior people and they are, putting it nicely, less nuanced than some of the more superior documents. You frequently get to what people are thinking about when they have the legislation in mind. The relevant part of the impact assessment is pages 16 and 17. It is all relevant, but pages 16 and 17 set out the areas of advantage that the impact assessment envisages these clauses will bring about. They include: reduction in duplication costs for information, £28.17 million; reduction of information requirement costs, best estimate, £41.43 million; reduction in time required for inspections, £7.21 million; reduction in unexplained duplication of inspection, £1.01 million; reduced reliance on external contractors, £12.4 million. I remind the Committee that the range is nought to £240 million and the best estimate is £90 million. Those impacts of these clauses are benign. They are about the process of implementing regulations. They are about being sensible with the regulator and making sure there is no duplication, that regulators talk to each other and that processes are efficient. If all these clauses have impacts like those, they are benign, and we support them.

The problem is the clauses themselves. Clause 83(2) states that,

“the person must … consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that … regulatory action is taken only when it is needed, and … any action is proportionate”.

Those words by themselves seem a pretty high test for a regulator. As I tried to illustrate, our lives are made acceptable and benign by regulators acting pretty well as they do at the moment to protect us. So are these new clauses a licence for regulators to approve regulations that kill people to save money? When you put it like that, I am sure everybody will say, “Of course not”. Nobody could believe that the intention of these regulations is to kill people to save money. The trouble is that in my very long career in regulation I have heard discussions about killing people to save money. Nobody uses terms like that. They will say: “The risk of this event is so low and the costs we are having to put in to prevent it happening are so high that it is unreasonable. Why are you forcing us to spend this money for this mitigating measure?”. These conversations go on. They go on in more complex circumstances. They go on in situations where a new regulation is being introduced which, as a consequence, mitigates most of the risk in a particular area as well as mitigating other risks. Other people can then say, “The residual risk is now so small, surely you do not want that regulation to continue in place, costing money, when people only kill other people very occasionally”. In other words, the risk is small enough to be put to one side. Do we intend praying in aid quite strong words such as necessary and proportionate for those sort of circumstances to be envisaged?

--- Later in debate ---

[Lord Wallace of Saltaire]

That is a very interesting point but very wide of the amendment under discussion. I am very happy to discuss that also with the noble Lord off the Floor. Perhaps I could add that the pre-legislative scrutiny committee thought that the clause was a useful part of the Bill. So in recognising all the critical comments that have been made by the opposite side, we are pleased that the committee examined this and thought that it was a valuable addition to a Deregulation Bill. Having made all those comments, and looking forward to further discussions, I hope that the noble Lord, Lord Tunnicliffe, will be willing to withdraw his amendment.

[Lord Tunnicliffe]

My Lords, I thank all who have participated in this debate. I can respond immediately to the point that has just been made. Our concern about these clauses is not about their existence but about their unintended consequences. The general view is that regulators should do their business in a way that aids society. The vehicle here for society is growth, but forget that—what we are talking about is getting regulators to have a wider concern for society. That is not contested; what is contested is whether the wording is safe and does not have grave unintended consequences. As I said at the beginning, and as the debate has proved in its sheer volume, depth and complexity, these clauses go to the essence of regulation, which is so important.

I very much thank the Minister for his offer to have discussions off the Floor. I think we will probably have to have discussions about discussions first, because we would have to try to bring some focus to those discussions. Clearly, with the CQC, we would particularly like its representatives in one form or another to try to explain how these growth clauses might affect it.

Deregulation Bill

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Thursday 6th November 2014 Grand Committee

[Lord Wallace of Saltaire (LD)]

My Lords, I thank the noble Lord for that speech and I am glad that he has so much enjoyed reading the details of Clause 48. I confirm that his understanding of these clauses is by and large correct.

The Government are most concerned, of course, about looked-after children. As I understand it, the change in the 2011 Act was introduced partly as a result of pressure from within the House of Lords, so we were doing our job properly at that time—I do not know who was involved in it; certainly, I was not myself. I am also told that a number of charitable bodies and philanthropists have in some instances added to these new junior ISAs for looked-after children, which seems to us to be a good public benefit and a step forward. That is very much part of where we are. The move to junior ISAs allows for a more flexible system, and it is expected that better-to-do parents and, speaking personally, better-to-do grandparents should contribute to junior ISAs when they can afford to do so. One is therefore most concerned about disadvantaged children.

The remainder of the clause concerns the transitional impact as one moves from child trust funds to junior ISAs; I wrote a note to the noble Lord, Lord Kennedy of Southwark, yesterday. Part of the transition is what happens to existing trust fund organisations, which may include credit unions, as much of the money is taken out. At a certain level, there is a point at which the scheme might become unviable. The Government are very concerned about those transition issues.

Financial education is a particular issue for looked-after children, but it is a broader issue for all children. This is why financial education now forms a part of the compulsory national curriculum in England in citizenship classes, which should teach 11 to 16 year-olds the functions and uses of money. Budgeting, managing risk and financial mathematics are also included in the maths curriculum for this age group. The noble Lord might say—I would probably agree with him—that we all know, and have often debated in this House, the inadequacies of citizenship education so far. There is clearly a long way to go. That is something on which I suspect that, again, the House of Lords in its revising role should keep exerting pressure on schools to make sure that citizenship education continues to improve. Of course, the child trust fund and the junior ISA provide excellent ways of increasing a child’s financial capacity and their capacity to learn about the role of savings, mortgages, trusts and the like.

The second amendment was about junior ISAs and protected child accounts. My understanding is that the reason for using “protected child accounts” rather than “junior ISAs” is that, as we have often discovered, the exact names of financial instruments may change over the years, but they will continue to be protected child accounts even if they are later renamed from junior ISAs to something else. That is the simple reason for that. At the moment, we are of course talking about junior ISAs. The question about the transition from one to the other is well taken. We are of course concerned to provide the maximum amount of competition. If the noble Lord is not satisfied with anything I have had to say on this point, I am happy to write to him further on that. One wants a range of providers. We want, however, to make sure that the providers are viable and have sufficient financial reserves.

The noble Lord asked about the Financial Conduct Authority. I can answer with reference to both of these amendments: the FCA has a crucial role in ensuring that account holders are treated fairly, but its remit does not extend to making detailed changes to the child trust fund account rules. Such changes will be required if the safeguards envisaged in Clause 48 are applied. Changes to the CTF rules are most appropriately brought before Parliament by Her Majesty’s Treasury. I am sorry that the noble Lord is so suspicious of Her Majesty’s Treasury—I picked up on that—which has been responsible for the development of child trust funds and the detailed account rules since the account was created.

I think that the noble Lord was most concerned about Clause 48, which is again about making sure that, as we go through the transition, which he rightly points out will be from 2020 to 2029, we guard against any untoward developments. That is why Clause 48 is there: it is very much precautionary. It is intended to ensure that if things that we have not yet anticipated come along, the Government are able to respond. We consider it prudent to seek these powers, given the background of uncertainty about the impact of transferability on the child trust fund market. We do not know—and I cannot speculate on at the moment—what action the Government may need to take in this area or the timescale for such an intervention. However, if it became necessary to use these powers, the Government would have to act promptly and appropriately. Therefore, we felt that we should include this measure, with the proviso that it would be subject to the usual public law safeguards. The overriding interest would be to safeguard the interests of the trust fund holder.

The Government’s usual approach is to consult on changes to the child trust fund rules where possible. However, while the Government will always look to consult and engage interested groups wherever possible, they must also be free to intervene at short notice in response to market conditions. I hope that provides the reassurance the noble Lord seeks.

[Lord Tunnicliffe]

Will the Minister be kind enough to comment on the parliamentary involvement?

[Lord Wallace of Saltaire]

I had better write to the noble Lord on that. However, I understand exactly what he is asking and can assure him that I will feed back to him precisely what role Parliament will have in overseeing any such necessary interventions. Having said that, I hope that the noble Lord will withdraw the amendment, and perhaps he and I might have a further discussion off the Floor of the Committee about the exact areas on which he would like further reassurance.

[Lord Tunnicliffe]

My Lords, I thank the Minister for that response. I will read it in Hansard with great care and compare our two contributions. I will certainly get back to him if I feel that there are any inadequacies. However, for the moment, I beg leave to withdraw the amendment.

Businesses: Regulation

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Tuesday 19th June 2012 Lords Chamber

[Lord Tunnicliffe]

My Lords, I congratulate the noble Earl, Lord Lytton, on the brilliant wording of his Question. He asked the Government whether they are making progress against the test of coherence, efficiently exercised regulations, and objective assessments of need, risk, proportionality and cost benefits. Will the Minister affirm that these are the criteria that the Government are using in the better regulation exercise? Will he further affirm that where removing regulations from consumers, customers and the general public is being considered, the same tests, particularly the objective assessment of need, risk, proportionality and cost benefit, will be considered before any protections are removed?

[Lord Wallace of Saltaire]

My Lords, I can confirm that. These are close to the five principles of good regulation as set out by Christopher Haskins in 1998 under the authority of the then Cabinet Office Minister, David Clark. We are continuing very much on a course set by previous Governments. There is a constant pull and push between demands for further regulation and the constant need to make clear whether the regulations are still needed. I was very pleased to see that one of the Red Tape Challenge repeals has included the trading with the enemy regulation, which is felt not to be so relevant today as it was perhaps 60 years ago.

Statistics and Registration Service Act 2007 (Disclosure of Pupil Information by Welsh Ministers) Regulations 2011

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Wednesday 9th November 2011 Grand Committee

[Lord Tunnicliffe]

I certainly see that the people of Wales might think that there would be an equal case—and because I am not a brave person, I would support that.

The Explanatory Memorandum refers to a series of outputs. Paragraph 7.4(ii) refers to,

“differentiating migrants in order to improve our understanding of moves within and between local authorities in England”.

Once again, I am not clear what a migrant is. Is it somebody moving from Shropshire to Monmouthshire, or somebody with no connection to the United Kingdom who finds themselves in Wales as the first place they come to? Does it include somebody who comes from outside the United Kingdom who goes first to England and then to Wales? What level of granularity are we talking about when it comes to migration? Are we talking about small movements or larger ones?

Finally, I must say a word or two about confidentiality. The essence of much of the data-gathering law in this country is that it puts barriers between departments so that they cannot look at each other’s data, in order to maintain confidentiality. We then break down those barriers in order to use the data in a richer way. That is an entirely reasonable thing to do, but it is equally reasonable that whenever the barriers are broken down, as they are by these regulations, we should seek assurances that we are moving forward on confidentiality. It is no secret that there were unfortunate lapses under the previous Administration. I am absolutely sure that they were not in any way malicious. We acted in good faith and I am sure that this Administration, too, will act in good faith. However, have they made progress towards being able to assure us about improved confidentiality? Are there any new techniques, audits or penalties that will allow the Minister to say that confidentiality when this barrier is taken down will be even better than it was in the past? With those few comments, we are quite happy to support the regulations.

[Lord Wallace of Saltaire]

My Lords, I thank both noble Lords who have contributed to this brief debate. I feel that the issues of data sharing and data confidentiality are like the issue of the security of the Palace of Westminster. We start off in entirely contradictory directions. We want to bring as many people as possible into the building because we want to be as open as possible, but at the same time we want to maintain the highest possible level of security. It is extremely difficult to combine those aims. We all recognise that it is much the same with data. The Government collect a great deal of data and it is immensely convenient for the purposes of economic and social policy to share as much of that data as possible, but we all know of the problems of confidentiality and of allowing the state to build up a vast database that reveals everything about every individual. The previous Government passed the 2007 Act as part of the effort to reconcile these contradictory directions and to provide an independent authority which would build in the tension between what Ministers want and what is required in terms of the confidentiality of data while attempting to avoid imposing on individuals and businesses the requirement to fill in forms every other day of the week.

Perhaps I may say a little about the Beyond 2011 Programme and the future of the census. A decision has not yet been taken as to what we will do about the 2021 census, but I recognise from the papers I have read that there are a number of question marks over it. First, this year’s census cost £500 million to collect, and it is estimated that the 2021 census may cost around £1 billion. That is an issue that one has at least to consider. Secondly, the accuracy of the census has been going down from one successive census to the next because people move around much more rapidly than they used to. Preliminary estimates of the accuracy of this year’s census are that for each local authority area it is between 94 per cent and 80 per cent. When one has dropped to 80 per cent accuracy, one is into quite severe problems, particularly in terms of social policy, because it is for precisely those vulnerable communities where children do not have good English and where there are new migrants to this country, whether from Pakistan, Hungary or Patagonia, that all the different instruments of local and national government which combine to assist such communities need to be pulled together.

What is going on in the Beyond 2011 Programme is a series of experiments to see how far we can improve the accuracy of data and how far we can perhaps provide, from alternative measures, a rolling programme of surveys and estimates which will substitute for the census in the future. I recognise that the census itself has immense historical value. In our house in Saltaire, which was built in 1863, we have in the hall the five censuses from 1871 to 1911. They tell us who lived in the house, how many people there were, where they were born and so on. The documents provide a fascinating snapshot of what was happening in a mill village during that period. We would indeed lose a very interesting historical record, but resistance to filling in the census form is sadly also growing. This year we ourselves faced questions such as which of our two houses we should put down, and as our younger people come and go, we wondered who we should list as actually resident in the house.

We have been extremely speedy in getting through our statutory instruments this afternoon, and I must say that the expert officials who were going to give me advice in answering all the questions will arrive within the next half-hour. Therefore, in answer to some other questions that were put to me, it would be better for me to write to noble Lords than to offer them my half-informed impressions.

There was a good question about the definition of a pupil’s first language. Again, it is quite right to recognise not just bilingualism in Welsh and English but, as in the part of England in which I do my politics, bilingualism in Urdu and English, or a whole range of other languages; for example, in Bradford and Leeds I am very conscious that the census failed to pick up quite substantial refugee and other communities. In the last election my wife and I canvassed a street that was almost entirely inhabited by people from Burma. I do not think that had been picked up by the authorities at a national level, but the local schools knew what was going on because that was where their children were going. That is part of the reason and justification for this sort of element.

I look forward to hearing from the noble Lord, Lord Wigley, perhaps on another occasion, just how large the migrant flow from Patagonia to Wales is—one of the many flows that are, as we know, going on in all directions at the moment. West Yorkshire certainly has a very large number of different communities and some of them are extremely mobile. A very large number of Poles, Lithuanians and Ukrainians came in the past 10 years. We do not know how many of them are still in West Yorkshire or how many of them have gone home. Again, that is the sort of thing that these sorts of surveys and statistics help us to discover.

I hope that noble Lords will accept that I will write to them about the other questions that they raised. I commend these regulations to the Committee.

Armed Forces Bill

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Thursday 8th September 2011 Grand Committee

[Lord Tunnicliffe]

My Lords, I put my name down as opposing this clause purely as a formality. When I first looked through the Bill, it seemed to me that the clause effectively took away all consultation on the matter of the application of by-laws. This was discussed at a private meeting and I have received a very constructive response from the Minister. However, the procedure that the Minister describes is an administrative one, and I advised him—I hope he has advised his representative today—that I would be entirely satisfied if he were to read the appropriate assurances in the letter into the record. A letter is an ephemeral thing, whereas Hansard is permanent and more effective. I beg to move.

[Lord Wallace of Saltaire]

My Lords, I am happy to do that. Indeed, my speaking note covers one of these points. I respond by explaining that the Military Lands Acts 1892 and 1900 allow the Secretary of State for Defence to make by-laws to regulate the public use of military land and certain areas of the sea used for military purposes. Under the 1900 Act, by-laws affecting public rights of use of the sea and shore also require the consent of the Board of Trade. Therefore, one of these Acts referred to defence, the other to the Board of Trade.

Change is needed because over the years the wide-ranging responsibilities of the Board of Trade have been reduced and redistributed. Following transfers of functions, these responsibilities are currently held by the Department for Transport. The clause therefore amends the Military Lands Act 1900 in order to remove the requirement that the Secretary of State for Defence must seek the consent of the Board of Trade when he proposes to make by-laws in respect of certain sea, tidal water and shore areas that might affect certain public rights. The rights in question relate to navigation, anchoring, the grounding of vessels, fishing, bathing, walking and recreation.

As well as removing the requirement for the Board of Trade’s consent, the clause requires that, before making such by-laws in the future, the Secretary of State for Defence should take all reasonable steps to ascertain whether the by-law would injuriously affect existing public rights. If it would, he must satisfy himself that the restriction is required for the safety of the public or for the military purpose for which the land is used, and that the restriction imposed is only to such extent as is reasonable.

The procedure for giving public notice and allowing and considering public objection to any by-law currently runs under two different provisions: one for the Board of Trade—and so, now, for the Secretary of State for Transport—in the 1900 Act, and one for the Secretary of State for Defence through the 1892 Act. However, the provisions are almost identical in effect and the clause therefore provides for the repeal of the provision referring to consultation by the Board of Trade and leaves in place the provision exercised by the Secretary of State for Defence.

The clause will therefore not affect the consultation that is carried out before making military by-laws. As now, the legislation will require the Secretary of State to publicise his proposals, to give an opportunity for the making of objections and to consider those objections before deciding. The clause also amends the Military Lands Act 1892 in relation to the procedure for publishing by-laws once they have been made. The clause removes the requirement for the Secretary of State to publish the by-laws in such a manner as appears to him necessary to make them known to all persons in the locality, and replaces it with a requirement that he publish the by-laws in such manner as appears to him appropriate. This is because interest in the effect of by-laws is no longer limited to the immediate locality.

As part of this process of consultation, the relevant Defence Minister writes to the MP in whose constituency the site is located to tell them about the forthcoming public consultation. Advertisements are then placed on the Ministry of Defence website, in national and local newspapers, post offices and libraries, and on notices around the site. In addition, depending on the location of the affected site and the interests that are engaged, Ministry of Defence officials may contact the relevant devolved Administration; the county, district or unitary authority; the parish council, community council or parish meeting that covers the site; the police authority for the area, or its successor as agreed under the Police Reform and Social Responsibility Bill; all people who have expressed an interest; and a range of government and other organisations, such as the Health and Safety Executive, the Environment Agency, the Forestry Commission, the Civil Aviation Authority, the Maritime and Coastguard Agency, the Crown Estate and, if church property is likely to be affected, the appropriate diocese.

Consultation normally runs for five weeks, although we would consider objections that were received after the end of the period as long as the by-laws had not yet been made. All comments are considered and, if possible, changes are agreed with the MoD site operator. All representations are summarised together with the department’s response and presented to the Minister before he is invited to sign to bring the by-laws into force. As a general rule, the Ministry of Defence consults more widely than we are required to do so by statute. We have no plans to reduce the amount of consultation that we usually undertake, and the provisions in the Bill will not alter our approach in this area.

In view of this full explanation, I hope that the noble Lords, Lord Rosser and Lord Tunnicliffe, will agree with me that Clause 24 should after all stand part of the Bill.

Before I complete the contribution from the Government to today’s Committee stage, I should like to say a few words on a separate but related issue—the report on the Armed Forces Bill published by the Delegated Powers and Regulatory Reform Committee on 14 July. My noble friend the Minister has written to the committee chairman, my noble friend Lady Thomas of Winchester, with the Government’s response to the report. In doing so, he undertook to speak to one of the powers to which the committee drew attention. This was in relation to Clause 32, which deals with the commencement of the legislation, and in particular the transitional measures with reference to courts martial proposed in subsection (5). In his absence, I hope that the Committee will allow me to do so. The report noted that the House may wish to seek a further explanation and satisfy itself that the provisions of subsection (5) should require no parliamentary scrutiny. As the report notes, it is usual for the standard form of transitional power conferred in Clause 32(4) to be exercisable without parliamentary scrutiny.

Subsection (5) is not intended as an extension of the power in subsection (4) but is considered useful to make it clear that the power in subsection (4) will be needed to deal with particular situations that may arise under new Schedule 3A to the Armed Forces Act 2006. The situation that we have in mind is that, if an accused person elects trial by court martial instead of by his commanding officer, the court’s powers are limited to those of the commanding officer.

The Bill affects, but does not diminish, commanding officers’ powers of punishment, so it will be necessary to provide for the powers that the court martial will have in a trial after commencement of the Armed Forces Act in the case of an accused who had made his election before commencement. This is therefore very much a transitional measure. I reassure the Committee that our intention is to ensure that the court martial will not be able to impose a more severe sentence than that which a commanding officer could have imposed when the accused made his election. For those reasons, I hope that the Committee will accept that it is appropriate that provision under subsections (4) and (5) should be made by statutory instrument with no parliamentary procedure.

[Lord Tunnicliffe]

My Lords, I thank the Minister for his full and accurate response on the matter of consultation and for reading it into the record. I am satisfied that the clause should stand part of the Bill. I shall read in Hansard with great care what he said on the Constitution Committee’s response and we will return to it if there is a problem. However, at first pass it seems that the matter is properly covered.

Armed Forces Act (Continuation) Order 2010

Debate between Lord Wallace of Saltaire and Lord Tunnicliffe

Monday 19th July 2010 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, this continuation order is required as part of the process whereby the sovereignty of Parliament has been established over the Executive’s powers. The noble Lord, Lord Lee, said to me on the way in that he wanted to ask whether we would continue to do this annually after the 2011 Act. The noble Lord, Lord Tunnicliffe, and I had an interesting exchange earlier this afternoon on whether the Bill of Rights had been passed in 1688 or 1689. After a certain amount of chasing around, I discovered that the Act was indeed passed in early March of what, in the old calendar, was still 1688, as the old calendar changed on 25 March. However, under the new calendar it was clearly 1689. That encouraged me to read the English Bill of Rights, which clearly states:

“That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law”.

That is the basis for our annual continuation order. It is better not to read the following paragraph, which states:

“That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”.

It also complains that His Majesty King James II had caused,

“several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law”.

There are many things in our ancient constitutional rights which are not entirely appropriate to where we are now. However, that is the basis for this annual order.

Four years ago, the House passed a major change in the disciplinary orders, the Armed Forces Act 2006, which brought together the separate service discipline Acts. That was intended to last for five years, so that next year we will have another, rather more important, Armed Forces Act. That will be prepared over the next few months and presented to the House in the later stages of this Session. That said, and this being a formal duty to allow our Executive—whom we should all, as parliamentarians, distrust a little—to maintain a standing army with the necessary discipline for a further year, I beg to move.

[Lord Tunnicliffe]

My Lords, we on these Benches have no concerns about this order. I reflect that during the year or so when I used to move orders, I would receive 20 detailed questions, mostly about the primary legislation, after the opener on the opposition Benches had said that they were going to support it. I shall not do that. My only question has been answered. It was about the fascinating fact that our Armed Forces exist only by annual approval of an order and that every five years there has to be a fresh Act. It is a fair question whether that should be debated—I do not have a view on it because this is about debate—when we come to what will be the 2011 Bill and Act. I do not believe that many members of Her Majesty's Armed Forces understand, at least formally, how tenuous their existence is. It is extremely important—I would not dare hint otherwise—that the supremacy of Parliament should be restated now and again, but this is a particularly interesting example.

I shall use this occasion to comment on the bringing together of the various codes of discipline in the Armed Forces, and on any problems that seem to be emerging. However, I am pleased to report, with my limited research capability, that the 2006 Act—which, although it was an Act of my Government, noble Lords approached very consensually in debating, probing and passing it—seems to have worked very well. I have heard of no dissent. The order will not go in front of my friends at the other end until September, and they may unearth some disquiet, but I very much doubt it. It has been a successful Act and I do not expect it to be seriously amended in the 2011 Bill, when we see it. It has brought the forces together in—in the dreadful word of the 1998 defence review—joinery. Having worked for the MoD, I recall that we used to call it “purple”. That sounds rather better than joinery, which suggests woodwork or something. The Act is working well and I am delighted to support this order, which maintains our Armed Forces for a further year. As part of that, it also continues the single service discipline Act that seems to be working so well.