Criminal Justice and Courts Bill

Lord Woolf Excerpts

Wednesday 30th July 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.

I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.

In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean? Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.

[Lord Woolf (CB)]

My Lords, first, I apologise to the House that I was a little late in arriving; I was giving evidence before the House’s Constitution Committee. I endorse what I heard of the speech made by the noble Lord, Lord Beecham, and I support my noble friend Lord Pannick in what he has said. The situation with regard to judicial review is that it is much more difficult for one to be funded in the way that ordinary civil actions are funded. In the case of ordinary civil actions, it is well established that the conditional fee arrangement, although it has been modified by recent amendments, is working reasonably well. Certainly as far as claimants are concerned, they are in a position to take on responsibilities which they could not otherwise take on.

However, in judicial review, it is very rare indeed that any damages or any form of financial benefit to the claimant are involved, so a claimant in that situation will have much greater difficulty in financing an application for judicial review than he would if he was bringing a claim for an injury in a motor accident, for example. This is just one more difficulty which is placed on the claimant, which makes it particularly important that the possible, very serious, unintended consequences of these provisions are looked at very carefully. It is very important that there should be access to justice, as that goes to the very heart of the rule of law. Access to justice should be easier in the case of judicial review than it is otherwise.

In India, for example, which is not somewhere you would normally look to for expeditious legal proceedings, the Supreme Court can respond to a postcard that is written to it. We have a much more complex process than that, but they thought it very important that the traditional jurisdiction of the Supreme Court of India, which is based on the very same provisions in our system as judicial review, should be available for the widest audience. Therefore they allow that to happen.

As far as I am concerned, one of the most important decisions I gave as a judge of first instance was on an application by the Child Poverty Action Group. I stressed in my judgment—which anybody can refer to—how important it was to extend the rights of audience and to take a generous view of standing. Otherwise, matters that affected the whole of society would not be examined by the courts. Each person entitled to supplementary benefit at that time was going to get only a very small sum of money, but it was a sum of money that was extremely important to them and made the difference to the whole of their existence. However, they could not finance the case themselves. If you take away legal aid in that sort of situation, and then add to the problem as this legislation does, that is something to worry about.

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[Lord Woolf]

Is the Minister saying that the powers the court has now would not have enabled it to obtain information about who was behind the shell company to which he referred and if need be to make an exceptional order for costs against the persons supporting it?

[Lord Faulks]

These clauses will require the court to go through the processes described in them. It is true that a particularly inquisitive court might have been able to find out more than—

[Lord Woolf]

Could an application not have been made by the Crown saying it was seeking orders for costs and asking the court to make the appropriate orders?

[Lord Faulks]

The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.

[Lord Faulks]

The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.

[Lord Woolf]

I really must press the Minister. I know he will forgive me rising again. If we do not want to increase the costs of the ordinary application for judicial review, is it not very important that where you have a special case, such as the one to which the noble and learned Lord, Lord Mackay, referred in his recent speech and the case we are looking at now with the particular circumstances relating to Richard’s burial, applications arise to deal with the particular case rather than putting matters on the general body of applicants for judicial review who receive assistance?

[Lord Faulks]

In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—

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[Lord Faulks]

Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.

We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.

[Lord Woolf]

I am sorry once again to interrupt the Minister in his closing address, but does he agree that it is absolutely essential, if the purpose of these provisions is the limited one that he identified, that those who are preparing proceedings for an application for judicial review, who want to know what they have to do because of the provisions of Clause 65 on funding, need to be told that there will be no requirement in that sort of situation to provide particulars of the resources—to take the example we were given—of all the people in a small village who are making a contribution? Some of them may be wealthy and some may be poor, but someone who is wealthy may have a significant obligation.

[Lord Faulks]

The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.

I hope that I have gone some way to reassure those who have sought—

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[Lord Marks of Henley-on-Thames]

My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.

If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.

The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.

Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.

[Lord Woolf]

My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:

“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.

I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. “Exceptional circumstances” would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.

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[Baroness Lister of Burtersett]

My Lords, I asked a number of practical questions that had been put by Justice. I want to save the Minister from jumping up and down and I do not want to come between your Lordships and lunch, so perhaps he could write to all those who have taken part in the debate with the answers.

[Lord Woolf]

Clause 67 has created a particular type of party, namely a “relevant party”. The relevant party is defined in subsection (8). I have no problem with that definition. However, in his closing remarks the Minister said that if, of course, a person is invited to intervene, as Justice could be invited to intervene, in effect this would not apply. The words are, of course, very specific, because of the presence of the word “must”. I draw attention to the fact that the court could invite people to intervene who are not a relevant party. Would he bear that in mind?

[Lord Faulks]

I shall deal with those interventions in reverse order, I am very grateful for what the noble and learned Lord, Lord Woolf, said. I will bear that in mind and, rather than answer from the Dispatch Box, I will consider it carefully. Similarly, I will answer the noble Baroness, Lady Lister, in writing with details.

As to the remarks of the noble Baroness, Lady Kennedy, I obviously would not comment on the appropriateness of particular interventions in particular cases. However, I am not sure that I would entirely agree with, or that I apprehend, her thrust, which was that litigation belongs to the parties, and there are disputes—whether civil disputes or judicial review, which involves public law—where interventions may be helpful in deciding between the parties. Where I may differ from her is the approach whereby an organisation of which all of us, I suspect, would approve should nevertheless use judicial review as part of a process. There are other processes available, whether it is lobbying Government or informal processes of campaigning, lobbying or taking part in inquiries: that may be a way to do it. Nevertheless, even though these bodies can have valuable contributions in certain cases, there should be some hesitation before simply saying that this is an issue where we might be able to help.

I conclude by saying that I will take into account all the observations that have been made and inviting the noble Lord to withdraw his amendment.

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[Lord Davies of Stamford]

My Lords, in my view there is a lot of mischief in this clause and the best solution would certainly be to leave it out of the Bill altogether. I want to touch on three particular pieces of mischief which lie within it.

Subsection (3) has already been dealt with by the noble Lord, Lord Pannick, in proposing his amendment to remove that subsection from the Bill. No one doubts the great importance and value of having a costs-limiting facility available in judicial review. The Government are not arguing that there should be no such scope for costs-limiting orders, and no one else has argued that there should not be such scope. I think no one would deny that if there were no possibility of getting costs-limiting orders, some very meritorious applications that were very much in the public interest would not be made. That would be a great loss to our legal system. As the Government have not argued against the principle of costs capping, I do not think that I need say more than that.

Equally, I do not think that anyone can deny that if the Bill is introduced in this form and subsection (3) proceeds on to the statute book, an awful lot of the value of costs capping will be negated because applicants will be exposed to very significant financial liabilities—almost certainly incalculable financial liabilities—before they get to the point when a costs-capping order can be considered by the court. Therefore the effect of the costs-capping order would itself have been negated and a large number of potentially meritorious applications will not be able to proceed at all and will not be started. That would be a great loss to the system. If the Government said that that was their intention, they would at least be straightforward about it. In actual fact, however, I think they are again in a state of contradiction, saying on the one hand, “Yes, we do want to have a costs-capping provision”, but, on the other, “We want to introduce a measure that will in practice negate very largely the benefit of that provision”.

My second problem with this clause concerns subsection (6), which states:

“The court may make a costs capping order only if it is satisfied that … (b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings”.

What exactly does that mean? Once again I ask for clarity because the law ought to be clear. This means that the court has to be satisfied that the applicant would actually withdraw the application if a costs-capping order is not provided. Is that based on the applicant saying that he or she would withdraw the application if no costs-capping order is given? If so, does that create an obligation for the applicant to withdraw if the costs-capping order is denied? It is perfectly possible that a costs-capping order might be asked for in very good faith by an organisation with very slender means or by an individual with very slender means who later finds that his or her cause is backed by a rather wealthier supporter. Therefore it is possible that the application could be saved after the denial of a costs-capping order, by some other party coming in to support the application, with all the liabilities attaching to that which we discussed this morning. Would that eventuality be denied by this provision in the Bill? We should be absolutely clear about that, because the word “satisfied” is a very strong word, it seems to me. How do you know that the applicant would withdraw in those circumstances? How can you possibly know such a thing unless the applicant has given such an undertaking? If the applicant has given such an undertaking, presumably that undertaking is enforceable. We are not told that in the Bill, but we ought to be told by the Minister whether that would be the effect that the Government seek.

Finally, I object very strongly to subsection (9), which has already been referred to as a Henry VIII clause. However, it is a Henry VIII clause of pretty extraordinary dimensions. One is used to Henry VIII clauses in legislation. There are far too many of them. There is one later on in the Bill under Clause 73. Clause 73(1) states:

“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.

That is the sort of role that we associate with Henry VIII clauses—that is, adding something that is technical, that fills in some gaps at some point, but that does not change the main thrust of the primary legislation at all and merely makes it perhaps more easily implementable. That is an acceptable Henry VIII clause in principle. However, we are faced with the following in Clause 68(9):

“The Lord Chancellor may by regulations amend this section by adding, omitting or amending matters to which the court must have regard”.

In other words, the Lord Chancellor can rewrite the whole of the clause. That is an extreme form of a Henry VIII clause. It would probably be better described, by using some rather sinister terms from European history, as an Ermächtigungsgesetz or a plein pouvoir. To use a commercial analogy, I suppose that it is rather like a bidder or tenderer in a commercial contract who sends in a bid and says, “The price will be the following, the delivery date will be the following, the specifications will be the following”, and then adds a final clause saying, “The bidder may, at his discretion and without penalty or limitation, change any of the above at will”—in other words, devalue the whole document. The whole thing is complete nonsense because you cannot be certain that any of it will actually remain or that any of the apparent purposes in the text will actually influence reality in the future. The whole of this could be a complete waste of time by Parliament because, as I read subsection (9), the Lord Chancellor could go away and change anything in this clause at all, including the major substantive provisions: the terms, conditions and criteria by which a costs capping order can be considered. For the reasons that I and others have set out in this debate, that is actually a very important exercise.

Again, this is a completely unacceptable clause for government to put forward in any legislative context, and certainly in this one. I hope that the Government will withdraw the provision. I hope, better still, that the Government will withdraw the whole clause.

[Lord Woolf]

This costs capping provision was brought in because the nature of current litigation means that the costs of exercising your rights, whether as a claimant or defendant, are often prohibitive. Perhaps I may refer to one of the first matters where costs capping came before the courts. I was personally involved, so I hope that that does not make it inappropriate for me to refer to it. It was an action against tobacco companies that was brought by those who had suffered as a result of smoking. It illustrates that a situation can arise where, even with the help of conditional costs orders—of which the noble and learned Lord, Lord Mackay, was the original author—it is not possible for proceedings to be brought because the costs can be so great that no law firm could take the risks involved in bringing an action against the tobacco companies, which were going to fight them intensely and had huge commercial reasons for doing so. I suspect that the matter came before me because the precedent for those was, in fact, the litigation across the Atlantic. It is an indication that we have to take care to try to control costs capping orders. I refer to that because it seems to me questionable to regard these provisions as appropriate, if appropriate at all, only in regard to judicial review. I do not think that the reference to public interest proceedings would, for example, cover the tobacco proceedings of which I had experience.

In general, however, I agree entirely with the comments and points that have been made by the noble Lord, Lord Pannick, and others who followed him, which are the basis of the amendments. It is also quite right to say that there is no possible justification for this to be done. I know that I am reiterating what I have argued before in relation to other provisions. However, this is not an example of the Government doing something that Parliament cannot do; it is an example of the Government doing something that they should not seek to do. Bearing in mind the relationship between the judiciary and the legislature, the legislature should not seek to impinge on a judicial discretion where there is no suggestion that there is any need to do so and where the court—in the case to which the Minister referred, the Corner House Research case, in 2005, 1 Weekly Law Reports 2600—set out its views and the principles at that time. Those principles have had to be modified in the light of cases that have come before the court subsequently. Here is a natural process being developed whereby a problem arises—not of great dimensions, but very relevant to the very small minority of cases to which it refers—and the courts react to it.

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[Lord Pannick]

My Lords, Amendment 82 would introduce a new clause to prevent the Lord Chancellor from using the powers which he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—to alter eligibility for legal aid in judicial review proceedings. Amendment 85 would ensure that the new clause comes into force on the enactment of the Bill and so would not be dependent on the discretion of the Lord Chancellor.

Your Lordships will recall that during the debates on LASPO—and they were detailed, anxious debates—Ministers repeatedly gave assurances that restrictions on legal aid in the Bill did not affect and restrict judicial review. Had the Bill contained such restrictions, I have no doubt that Ministers would have found it difficult to secure the approval of this House. Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation, so that they could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. As your Lordships will know, such subordinate legislation receives only limited scrutiny in this House: amendments cannot be tabled and the convention is that we rarely table—far less approve—a fatal Motion, however foolish the regulations may be.

To give one example, your Lordships may recall that on 7 May this House debated a Motion of Regret, which I had tabled, in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014. Those regulations made a fundamental change. They provided that the Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings, or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration. Eleven noble Lords spoke in support of the Motion of Regret. The Minister batted at both ends, bowled and fielded on his own with no support from any noble Lord.

Legal aid for judicial review is too important a matter for secondary legislation. If the Lord Chancellor wishes to reduce legal aid in the context of judicial review, let him bring forward proposals for primary legislation so that they can be properly scrutinised and fully debated. Amendments 82 and 85 would secure that objective and would nullify the regulations that we debated on 7 May.

I have also added my name to Amendment 82A, tabled by the noble Lord, Lord Beecham. I will say something very briefly about it. It addresses the residence regulations that would have confined legal aid to those resident in this country. In our debates today on Part 4 of the Bill, it should not go unrecorded that on 15 July the High Court declared those regulations to be an unlawful exercise of the powers conferred by the 2012 Act. That was because Parliament had identified those services qualifying for legal aid by reference to need, and the regulations adopted a different criterion. Indeed, under the regulations, many people with the greatest need and whose cases are properly arguable would be denied legal aid. The case is the Queen on the Application of Public Law Project v the Secretary of State for Justice, 15 July 2014.

At paragraph 60 of the judgment of Lord Justice Moses, with which Mr Justice Collins and Mr Justice Jay agreed, the court referred to the comments of the Secretary of State for Justice, Mr Grayling, in the Telegraph newspaper on 20 April. That was two weeks after the argument in the case had concluded in court, and before the judgment of the court was given. Mr Grayling, the Secretary of State, said that,

“yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals”.

The High Court commented on this newspaper article at paragraph 60 of the judgment. Lord Justice Moses said that these comments by the Lord Chancellor were,

“unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the Court considers its judgement, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins”.

At paragraph 83 of the judgment, the court added that the Lord Chancellor’s reliance in that case on “public confidence” in his defence,

“amounts to little more than reliance on public prejudice”.

This is a quite remarkable judicial rebuke for the Lord Chancellor, and I hope that he will reflect on what the court says.

This is the last group of amendments that we are considering on Part 4. As this Committee leaves this part, I suggest to noble Lords that that judgment of three judges in the High Court confirms the criticisms that this Committee has heard about the Lord Chancellor’s lack of understanding of the central role of judicial review in maintaining the rule of law, and it provides yet further reasons why this House will want to give the most careful scrutiny to Part 4 of the Bill on Report in October. I beg to move.

[Lord Woolf]

My Lords, I have added my name in support of the amendment that the noble Lord, Lord Pannick, has advanced so elegantly. It is perhaps appropriate that it should be considered this afternoon because it will be recalled that this morning I was gently—but I do not think appropriately—chided by the noble and learned Lord, Lord Mackay, for going too far in my comments about legal aid provision with regard to judicial review and the effect of the action being taken in that respect. I respectfully suggest that what we have just heard indicates that there is real reason to be concerned at the reduction of legal aid in respect of judicial review. The points made by the noble Lord, Lord Pannick, with regard to the shortcomings of regulations being used in respect of this area of legislation are very well founded.

[Baroness Campbell of Surbiton]

My Lords, I speak in support of all the amendments in this group, and in particular Amendments 82 and 85 in the name of my noble friend Lord Pannick. I must say that he has put down some very sensible amendments, which spoke to me—so much so that I decided to change my holiday plans and be here on the last day.

The issue of legal aid is inherently linked to the provisions in Part 4. It is part of a package of reforms that seem to have a very strong common thread—they make it so much harder to challenge public bodies when they act unlawfully. That right to challenge belongs to every citizen, whatever their background or means, but without legal advice and representation it is a truly empty right. That is particularly true of those at the margins of society who may be most affected when public authorities get it wrong—and sometimes they get it very wrong. I am particularly familiar with that territory due to my long career in social care and disability public services.

The legal aid reforms, which restrict its availability for judicial review, are one of the most damaging elements of this package. Coupled with the proposals on the costs of interventions and costs capping, they make it nigh impossible for the vulnerable to bring a claim. I supported my noble friend Lord Pannick in his Motion of Regret on the regulations that came into effect in April—not only for what they said but for the way in which they were introduced. The Joint Committee on Human Rights was highly critical of that. In their response this month, the Government say that legal aid for judicial review does not require a higher level of scrutiny. Honestly, that shows a remarkable lack of understanding of why judicial review is so important to the rule of law and why legal aid is so crucial to its effectiveness. Two weeks, ago the High Court ruled that the Government’s proposals for a residence test for legal aid were unlawful. We all remember that one. The Secretary of State had exceeded his powers and the test was discriminatory. The judgment confirms that the Government have been pushing the boundaries of what Parliament intended.

The Government’s approach to legal aid and their view of its importance to judicial review is deeply disturbing. However much the Lord Chancellor may disapprove, those who campaign for justice are entitled to legal aid to challenge the Government—or any other public body—when they get it wrong. Campaigning is in my DNA, which is why I support these amendments. I am a campaigner; not a left-wing, right-wing, or middle-wing campaigner. I am just a campaigner, who has been involved in judicial review to make society and our communities bigger, wiser and more effective. Again, that is why I support these amendments.

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Moved by

[Lord Woolf]

83: Clause 73, page 71, line 29, leave out “supplementary,”

[Lord Woolf]

I hope to be very brief in my submission in support of the amendments which relate to the consequential and supplementary provisions in Part 5 of the Bill, which is headed, “Final Provisions”. Clause 73(1) states:

“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.

Subsection (2) states:

“The regulations may, in particular, amend, repeal or revoke legislation”.

I am not quite sure of the distinction between “revoke” and “repeal” and would be glad to hear about it and be educated as to the difference. I suggest that subsections (1) and (2) are very wide indeed. The regulations will be made by statutory instrument, and subsection (5) states:

“A statutory instrument containing regulations under this section that amend or repeal”—

it does not mention revoke—

“a provision of an Act (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament”.

So it is true that the consequential provisions have regulations that require approval. Despite that, I suggest that the powers in Clause 73 are too wide. The amendment to delete “supplementary”—and deleting appeal or revoke—is desirable. I would prefer to see the whole power removed, especially in an area that is as important as the provisions covered by the Bill. Noble Lords will be only too well aware of the provisions contained in each part of the Bill, so there is no need for me to recite them again. They all contain very important issues that I suggest deserve to be dealt with by primary legislation rather than delegated legislation of the sort referred to in Clause 73.

The position with regard to Part 4 is particularly acute. Already this afternoon we have heard submissions with regard to the other Henry VIII clauses that are contained in Part 4. In my view those submissions are equally applicable to Part 5. I beg to move.

[Lord Deben (Con)]

My Lords, as the House may be aware, I am always unhappy if we have debates that become either a military-fest or a legal-fest—in other words, that the only people who discuss these things are lawyers. I suggest to my noble friend that we have already had sufficient evidence in Committee that there are in the Bill very serious matters over which the House has had very considerable disagreement. I suspect that he knows that Report stage will not be easy on a number of these issues, which reach way beyond party and which are about the nature of civil liberties and this country’s legal system. Therefore, I look at this particular proposal with a considerably jaundiced eye.

I want to say something that he may find inconvenient. There was a time when the Lord Chancellor was very manifestly not a political figure. Yes, he was appointed by the Government and he sat in the Cabinet, but he was seen very clearly as a legal figure. For reasons that I wholly disagree with and are all about a mistaken understanding of these things under the previous Government—this is not a criticism of him or present company—we now have a different situation.

Parts of the article read by the noble Lord, Lord Pannick, point to the position where the Lord Chancellor feels he is able to make statements that can be seen only in a context that is very strongly political. That means that the natural willingness of this House to accord to the Lord Chancellor a different kind of approach from that which one would to the Secretary of State for this or the Secretary of State for that is very much diminished.

Having debated this Bill in such detail and having shown so many moments when noble Lords of very different political views felt unhappy, we then come to this catch-all clause. My noble friend may explain that it does not really mean what it seems to mean. In that case, can we please write it so that it does seem to mean what it ought to mean? But if it does mean what it seems to mean, the Lord Chancellor and the Secretary of State can—depending on what the situation is—make changes subject to the most exiguous parliamentary control.

Having been a Secretary of State, I know very well that once you get a properly worded document and present it in accordance with the rules, it is quite difficult for it not to pass—let me put it as delicately as that. That same element is in this. I thought the noble and learned Lord, Lord Woolf, was more than polite when he reminded us that there was this “saving” bit, because it does not seem to me to be a “saving” bit at all—that it not what happens. Given the mechanisms of the two Houses, if such supplementary legislation is put properly and is not wrong, it will, in normal circumstances, pass.

If my noble friend cannot give the House the assurance that the wording means something wholly different from what it appears to mean, most of us would prefer not to have it at all. We would therefore want to support the noble and learned Lord, Lord Woolf, in his contention, if not now then on another occasion.

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[Lord Faulks]

As a lawyer, I have a particular regard for precedent. The fact that the word “supplementary” has found its way into other Acts of Parliament is at least some indication that previous Parliaments have approved its inclusion. The fact remains that any provision is worthy of analysis, whether it has been in a previous Act of Parliament or not. None the less, I am sure that the noble Lord would agree that it is important that we give, quite properly, the degree of power necessary to the Secretary of State to implement those parts of the Bill that become law. I can reassure him and the House that such powers are narrowly construed by the courts and are available only for the purposes of implementing what is in the Bill, not what is further to the Bill, not in the Bill or what the Secretary of State might like to have been in the Bill.

Amendment 84 proposes to remove Clause 73(2). This would prevent any provision necessary to give full effect to the Bill being made if it required amendments to any existing legislation, whether primary or secondary. Similarly, with the powers subject to Amendment 83, provisions permitting amendment to primary and secondary legislation for these purposes are commonly found and have been approved, and we are concerned that their absence would hamper the Government’s ability to bring the Bill into force.

Of course I accept that it is right that these provisions should be subject to proper scrutiny. That is why we have provided, in accordance with the expectations of the Delegated Powers and Regulatory Reform Committee, that all provisions made under this clause will be subject to parliamentary scrutiny. Where provisions amend primary legislation, any regulations will be subject to the affirmative procedure. With that reassurance, I hope that I can allay to some extent any residual anxiety that the House may have.

These provisions are not novel and we say that they are necessary to implement the provisions of the Bill properly. During the Recess, among the many other things that I have been invited to reflect on, I will reflect on the precise use of the adjective “supplementary” in this context. At the moment, I do not give any indication of a desire to amend it, but I will of course reflect on it. In the mean time, with the reassurance that I have endeavoured to give the House, I hope that the noble and learned Lord will feel able to withdraw his amendment.

[Lord Woolf]

I am grateful to the Minister for responding with such care and elegance to the speeches that have been made. I am sorry that the noble Lord, Lord Davies, was not present as I am sure that he would have taken great pleasure from hearing how the Minister was comforted by what he said in his speech. I heard that speech and reacted with surprise at the time.

In his response, the noble Lord said that it was of course right for him, as a lawyer, to rely on precedent. I wonder whether the precedent in this context indicates the dangers of a Henry VIII clause of this nature. What happens in practice is that, once you have a precedent, you think that until somebody protests you can go on making better and better precedents to achieve your purpose, meaning that the powers of this House to scrutinise legislation are thwarted—not totally but to a significant degree. It is because of what has happened in the past that Henry VIII clause after Henry VIII clause appears in legislation, so that now it is considered almost a matter of course to put in a provision of this nature, and it is suggested that legislation cannot work without a Henry VIII clause. I respectfully suggest that that is a most unfortunate situation, and I have a great deal of sympathy for the helpful remarks that were made by the noble Lord, Lord Deben, in his very wise comments on this clause.

I suggest that the time the Minister spends contemplating the language of Clause 73 during the coming three months will be very well spent. Bearing that in mind, I beg leave to withdraw the amendment, but I do so while making it clear that I may well come back to the subject on Report.

Amendment 83 withdrawn.