Criminal Justice and Courts Bill

Lord Deben Excerpts

Wednesday 30th July 2014 Lords Chamber

[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.

[Lord Pannick]

My Lords, I added my name to the amendment in the name of the noble and learned Lord, Lord Woolf. I entirely agree with the observations made by the noble Lord, Lord Deben. My concern is that the power the Lord Chancellor has under Clause 73(1) extends not only to “consequential” provisions, which is understandable, or to “incidental”, “transitional” and “transitory” provisions—again, entirely understandable —but to anything that is supplementary. That is an extraordinarily broad power: a power to make supplementary provisions.

In other words, as I understand it, if the Lord Chancellor believes that anything falls within the scope of the general area or subject matter of the Bill, he may, by subordinate legislation, make provision to supplement that which Parliament has anxiously debated and may have amended and approved. Under Clause 73(2), this power extends to repealing and revoking legislation. That is a remarkable power. I can see no reason whatever why such a power should be enjoyed, far less in the context of the very sensitive and delicate issues addressed by the Bill—including, but not only, those in Part 4.

--- Later in debate ---

[Lord Faulks]

I am not saying that they would not. This form of words is sufficiently wide, including the various adjectives that it does, to cover a variety of situations, and if one particular adjective does not serve, another will serve. There will be an overlap between the two. I do not accept that the word “supplementary” is as offensive as has been suggested.

[Lord Deben]

My noble friend, rightly, points to the fact that similar, or the same, wording has been used in other Acts. Surely that does not mean that it was right to use it in those Acts. Here is an opportunity for the Government to take seriously the real concerns of people about the way in which this House and the other place control the legislation that goes through them. We have a system that is not very elegant. Therefore, unless there is something about the word “supplementary” that is different and is necessary, it might be better not to have it. If all those other things cover all the points that the noble Lord raised, then “supplementary” is otiose. If it means something more than that, then I would like to know what “supplementary” would cover that none of the other words would. If we knew that, we might well be willing to help the Government by supporting them. If we do not know that, we have a reason to say that perhaps it is better not to have it.

[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.