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8.30 pm

I do not intend to take up the Committee's time on the other amendments, other than to say a word about amendment No. 32, which is extremely short. Although it would only leave out the word "such" in line 17, it is one of those small amendments that has a compelling purpose. Clause 4 provides that:

but surely that should read "transitional provision", not "such transitional provision". Why is the word "such" there? The only possible purpose for its being there--at this stage, conspiracy theories begin to surface in my mind--is to limit in some way the entitlement of the Leader of the House in making that transitional provision. The clause should deal with a transitional provision and no more than that. I await with great interest to hear why that word is there.

From past experience of serving on Committees--not necessarily in the Chamber, but upstairs as well--it strikes me as extraordinary how all sorts of funny words creep into legislation, when there is absolutely no reason why they should appear. I remember that in the case of the Public Processions (Northern Ireland) Act 1998, we had foisted on us a provision forbidding the playing of "musical or other instruments", which raised strange ideas in my mind as to what other instruments might be played in a public procession.

Sir Patrick Cormack: Drums.

Mr. Grieve: I think that a drum would probably qualify as a musical instrument, but I shall not be diverted from my main purpose, which is to try to ensure that the Bill before us is comprehensible and straightforward.

The main issue remains that we should proceed by way of primary legislation unless there is a good reason not to do so. There is no good reason in this case. It is well

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within the wit of the House of Commons to provide in the Bill for the rights that hereditary peers will be entitled to when they cease to have the right to represent themselves in the upper House.

Mr. Swayne: The issue before us is one for which I have a great deal of enthusiasm. The matter has been thoroughly dealt with by my hon. Friends the Members for West Dorset (Mr. Letwin) and for Beaconsfield (Mr. Grieve), so I shall not detain the Committee by repeating what they said. However, I shall say that the issue is of monumental importance, for it is the question of the way in which we are governed. It is for that reason that I sought election to Parliament.

This country is being deluged and wrecked by poorly drafted and poorly thought through secondary legislation--some 2,300 such instruments every year, almost 20 for every parliamentary sitting day. From having sat on various Committees, we all know the level of scrutiny that it is possible to give those instruments. It is a nonsense, given that we have in the House an effective and well-oiled machine for passing primary legislation. We should therefore confine ourselves, in so far as it is possible, to enacting primary legislation. Of course, it would give us far less time to deal with such legislation if all the consequent detail of those enabling measures had to be dealt with in each Bill. We would have less law, but that would be to our great benefit because we are over-governed.

It is a matter of great regret that the dreadful principle of enabling legislation, which so pollutes our polity, is now, through this Bill, to be brought to the very heart of our constitution. That a constitutional Bill should contain order-making powers--Henry VIII clauses--is deeply regrettable and offensive. For that reason, I have great enthusiasm for the amendments, especially amendment No. 22. The Committee's attention has already been drawn to the specific respect in which the amendment is defective, but there is a speedy remedy available, and I hope that the Leader of the House will indicate that it is her intention to deal with it, or at least to give good and plausible reasons why she will not do so.

Mr. Graham Brady (Altrincham and Sale, West): Have we not had an illustration this evening of how scrutiny can work in this House? In searching out the defect in our amendment, it might not have been the sole intention of the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) to illustrate the value of having a proper debate in Committee, but in so doing he has applied proper scrutiny to the amendment. However, we are being denied the opportunity to scrutinise the Government's detailed proposals.

Mr. Swayne: The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has done the Committee and, indeed, Parliament, a singular service by drawing to our attention the importance of such scrutiny. After all, that is what Committee stage is for.

Throughout the Committee stage, we are constrained by the opacity of the real agenda behind the Bill and by the monstrous notion that everything is to be changed by an alleged amendment that might or might not be moved in another place. An almost identical amendment,

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tabled by my hon. Friend the Member for Epping Forest (Mrs. Laing), has already been rejected by the Committee, so it strikes me as absurd that our subsequent debate has been constrained by that hypothetical future amendment.

Mr. Letwin: Although the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has done us a real service, since acknowledging to him that his was a fair cop, we have had an opportunity to reflect further and we are no longer quite so convinced that amendment No. 22, as drafted, would override the existing provisions. It might be a matter of intention. I hope that either my hon. Friend the Member for New Forest, West (Mr. Swayne) or the Leader of the House will enlighten us on that point.

Mr. Swayne: With respect, that is what the Leader of the House is for, in her capacity as occupant of the Treasury Bench during this debate. I hope that she will take the opportunity at least to say that she will consider the amendment and that a similar or identical amendment will be tabled on Report. I have noticed that, during these debates, the right hon. Lady has a habit of moving her lips silently, denying the Committee the benefit of hearing her words.

Mrs. Beckett: Be grateful.

Mr. Swayne: Perhaps we should be. On that, I shall conclude my remarks, so that we may hear what the right hon. Lady has to say all the sooner.

Mr. Forth: Here we go again--I think that that is the appropriate phrase to use at this point in our proceedings. I shall resist the temptation to refer to the fact that we are considering clause 4, as that would probably be inappropriate at this stage. That thought crossed my mind when the Leader of the House intervened earlier effectively to say, "Trust me". That is a touching request, but one that I find rather easy to resist. We cannot proceed on that sort of basis in an area this important and this uncertain.

The amendments are important because they highlight an extraordinary part of the Bill. Before I commence my brief analysis of clause 4, subsections (3) and (4), I must make it clear that when we are operating in an environment of such uncertainty, it is perhaps inevitable that the Government should want to build a degree of flexibility into the Bill. For that reason, the arguments advanced by my hon. Friend the Member for West Dorset (Mr. Letwin) have not yet persuaded me totally. He seeks a clean, simple solution, as does my hon. Friend the Member for Beaconsfield (Mr. Grieve). However, I think that there must be some flexibility in legislation of this kind, especially given its background.

As we have often said, we do not know what stage 1 will be or how long it will last. We do not know what might happen to the Bill in another place. No matter how much my hon. Friend would like to see it, it may be a little unrealistic to seek to nail down the Bill at this stage.

Mr. Letwin: Does my right hon. Friend accept that it is bad for an Act to contain bad provisions on the ground that one bad feature necessitates another? Surely the remedy lies in improving the first bad provision.

Mr. Forth: Of course that is so--if we enjoyed the certainty and predictability of knowing where we were

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going and where we would end up. Everyone would like to know that. Unfortunately, we are not in that position. This Bill must be considered in light of the fact that we do not know what lies beyond it or where it is taking us. Nevertheless, I am prepared to concede--as I am in a generous mood, which, uncharacteristically, is not shared by my hon. Friends--that a degree of flexibility is required at this stage. However, I then turn to the provisions of clause 4--which are the subject of the amendments before us--

Mr. Brady: I am grateful to my right hon. Friend for giving way, but I do not follow the logic of his argument. He said that there may be changes later in another place--I fully accept that point, which has been discussed at some length. However, there is surely no reason why the Government should not introduce a contingent amendment that would bring the Bill back into order. I cannot see any reason not to correct the Bill today.

Mr. Forth: That is an interesting and rather persuasive argument. If we were to do what my hon. Friend the Member for West Dorset has suggested, the Bill would become more certain and predictable in the context of our current knowledge. As my hon. Friend the Member for Altrincham and Sale, West (Mr. Brady) points out, it would be possible for the Government to return to the Bill during subsequent legislative stages, and, in light of the knowledge that pertained then, introduce changes to make it more relevant. My hon. Friend is correct in his analysis, which may ultimately persuade me to support the amendment.

I draw the attention of the Committee and my hon. Friends to clause 4(3), which contains a succession of phrases that should alert all hon. Members and make them feel uneasy and nervous. The clause states that our old friend the Secretary of State

That is a double dose of the sort of uncertainty and unlimited powers that we have learned to feel nervous about. That is bad enough, but clause 4(4) says that an order

    "may modify the effect of enactment or any provision made under an enactment".

That is about as broad as it gets. The clause gives the Secretary of State total flexibility, which would apparently enable him to do whatever he thought appropriate at the time. It sets no limitations and gives no direction or guidance. Therefore, it provides no certainty, no guarantees and no encouragement as to what might happen. The provision is completely open-ended.

If we combine that with the legislation's existing provisions, it strengthens one's feeling of unease. We are now entitled to be thoroughly suspicious of what has prompted the Government to include those sorts of provisions in the Bill and what they think might or might not happen or might go wrong in the future. That is worrying at this stage.

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