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Exclusion Of Certain Proceedings From Schedule 4

Volume 24: debated on Friday 21 May 1982

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I beg to move amendment No. 2, in page 10, line 19, leave out subsection (4) and insert

`An order in Council under subsection (2) shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament'.
I am grateful to the Solicitor-General for Scotland for the hint that he threw out in an earlier debate, which may shorten our proceedings.

The amendment is similar to one which I moved in Committee. It relates to certain powers which the Bill gives the Lord Chancellor to say that, in relation to certain classes of proceedings, the Bill shall not take effect to change the law and that the existing law shall continue to apply. So in effect it says that after the Bill reaches the statute book the Lord Chancellor may alter what it says. He may change the law back to what it was previously. In its present form the Bill provides that he may do so in regulations which shall not require the affirmative approval of either House.

The Solicitor-General and I discussed the matter in Committee. We largely agreed that there was no simple answer to whether a power to make regulations should be subject to the negative or affirmative procedure. I think that the Solicitor-General agreed that where it is subject to the negative procedure, the prospects for obtaining a debate on a Prayer to annul regulations must depend on the good will of the Government's business managers. I do not suggest that they are lacking in good will. But we know the pressures under which they have to work. They may not share the passionate feelings of the Opposition, still less the passionate feelings of individual Members, about the importance of a matter which they see primarily as one more constraint on parliamentary time. I agreed that it was not appropriate to insist on the affirmative procedure for all regulations. That necessarily takes up a little of the time of the House. Where regulations relate to technical matters which give rise to no controversy, the negative procedure is adequate.

But we are discussing a power to alter the law. We begin from the proposition that normally the power to change the law should be subject to effective parliamentary control. At the end of our debate in Committee the Solicitor-General invited me to reconsider the matter in the light of his arguments. And he fairly offered that if I wanted to persist he would invite his noble Friend the Lord Chancellor to reconsider the matter.

Subsequently, I tried to formulate a general criterion to enable us to tell whether a power should be subjected to the negative or affirmative procedure. I confess that I did so without success. There is no criterion. The test has to be pragmatic on each occasion. However, I was led to persist by an argument which the Solicitor-General used to justify the negative procedure. He said that the power would probably be used in relation to a number of localised jurisdictions. The Lord Chancellor may wish to preserve a particular jurisdiction for a particular county court or specific sheriff court.

I understand that we do not want everlastingly to bring to the Floor of the House local matters which are not in dispute. I do not believe that, normally, the Government, in exercising their powers under the clause, will have any difficulty in securing acceptance on the nod. But in matters relating to localities, on the odd occasion local feeling may run high. That is the sort of case in which an individual hon. Member should have an opportunity of presenting his case to the House if he thinks it right. I doubt whether it will happen frequently.

I do not propose to repeat all the arguments which we deployed in Committee, but I should be grateful if the Solicitor-General would tell us whether, since I tabled the amendment, he has had a opportunity to discuss it with his noble Friend, and if so, with what result.

I have had an opportunity to consult my noble Friend on this matter. The answer to the question asked by the right hon. and learned Member for Warley, West (Mr. Archer) is that we are content to accept his amendment.

We had a fairly full discussion on this matter in Committee. I share the right hon. and learned Gentleman's view about the difficulty, if not impossibility, of finding criteria that would cover every case. In the Bill there are many instances which everyone will agree should fall into the negative resolution class. In the Bill, instances that readily fall into that class are subject to negative resolution. Likewise, there are many which we would say should fall into the affirmative resolution class.

The matter that the right hon. and learned Gentleman raised falls somewhere in the middle. There are arguments both ways. I have considerable sympathy for the argument that he put forward, having put it forward from the Opposition Benches often myself. Therefore, I welcome the fact that the argument prevailed. I am happy to accept the amendment.

I am grateful to the Solicitor-General. On Report I have knocked on his door only once and he has readily opened it.

Amendment agreed to.