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Mr. Nicholls: Had the Minister done the Committee the courtesy of making that speech at an intelligible rate, we would have been able to probe what the clause means. What the Minister said is not proof that clause 3 is a consequential or necessary amendment. I have heard suggestions that the amendment is obsolete, or redundant, or otiose or tautologous. We simply do not know, because the Minister has advanced no argument for the clause. He has done no more than make an assertion on its behalf.

It is clear to me that the clause is not necessary. As a lawyer and a legislator, I am not in favour of unnecessary legislation. I am in favour of relevant legislation. As my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said, either the Bill is an example of massive incompetence by Ministers who do not bother to read their briefs--and that is not my view of the Minister--or it cannot be taken at face value.

The Chairman: Order. That has been said many times--I do not want to hear it again.

Mr. Nicholls: I hope that even before the debate is finished, we will move beyond rhetoric, beyond assertion, and find out the Bill's hidden agenda. It is clear that the Bill has a hidden purpose which dare not speak its name.

The Chairman: Has the hon. Gentleman now sat down? It saves me making a further point.

Mr. Letwin: Some while ago, reference was made to the Johnny-come-lately type. Having been here for slightly less than three hours, I admit that I fall into that category. At a certain point in this debate, my hon. Friend the Member for Buckingham (Mr. Bercow) referred to the fog of confusion. Having listened to a large part of the debate on the clause, I agree that there is real confusion.

The first issue--I shall not try your patience, Sir Alan, or that of the Committee, by devoting more than a moment to it--is whether a clause that amends something that is itself compatible with the purpose of the first clause

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of the Bill can be regarded as consequential. It would be otiose to talk about that any more. However, the clause is not a consequential amendment in the normal sense.

The second point, which has not come to the fore during this debate--indeed, to my astonishment, it has not been mentioned--is a serious constitutional issue. I draw the Committee's attention to the part of the clause in parenthesis, which has so far escaped the attention of my right hon. and hon. Friends. The words in parenthesis, which refer to section 36(5) of the Northern Ireland Act 1998, are:

"(which has the effect of allowing a member of Seanad Eireann to be a member of the Northern Ireland Assembly)."

That is a most remarkable piece of legislation. I have not had the opportunity to check whether it is literally unprecedented, although I suspect that it may be. It is very unusual for a measure to come before the House--other than the Interpretation Act 1978--that contains a clause seeking to interpret an existing Act.

An oddity exists that would make it improper for the Committee to allow clause stand part, simply as a matter of legislative drafting. With the passage of time, should the Bill become an Act, it will contain a manifest falsehood. By virtue of the words "is repealed" it will make false the proposition, "which has the effect." It should instead read "which had the effect."

I do not want to bore the Committee by dwelling on that piece of legislative misdrafting. It is interesting, however, that it should have occurred, because it illustrates how unusual for the parliamentary draftsmen such an interpretative clause must have been. How can they have made such an error if they were used to producing interpretative clauses of this kind in a Bill? We should tarry and worry before passing into law a clause which will, as my hon. Friend the Member for Teignbridge (Mr. Nicholls) lucidly said, have significance for lawyers in time to come and which may be used as a precedent for future legislation. The Bill seeks to give a particular interpretation to a previous piece of legislation. If we accepted the clause as a precedent for legislative drafting, there could be all sorts of strange consequences. Instead of Bills amending and replacing previous legislation directly, they could come before the House fashioned--as clause 3 is--to reinterpret existing legislation.

Mr. Hawkins: I have been listening very carefully to my hon. Friend. Would he agree that the concern that he expresses is of particular importance since the House of Lords' judicial decision in the case of Pepper v. Hart that debates in the House and proceedings in Hansard can be used for purposes of interpretation? If we are to have debates on a Government attempt to reinterpret their own legislation, how will the courts possibly get to the bottom of that?

1.45 pm

Mr. Letwin: I agree with my hon. Friend. The precise way in which the clause is drafted, leaving aside the lacuna, or deficiency, to which I referred, is calculated--whether it were adopted as a general precedent--or indeed merely in itself--to cause maximum confusion of the type to which my hon. Friend alluded. It would fall to lawyers in court to try to decide whether, if there was a case in respect of

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which it was relevant that, at a time before the passage of the Bill, the 1998 Act had a certain effect, they and the judge should take account of the Act as it was then interpreted according to precedent, or of Parliament's subsequent judgment, expressed in the clause, as an interpretation of what the Act had meant when it did apply.

Mr. Edward Leigh (Gainsborough): Is my hon. Friend saying that clause 3 interprets the 1998 Act in the sense of giving an opinion on that Act, or is it interpretative in the sense that it makes a statement of fact? I believe the latter to be the case.

Mr. Letwin: My hon. Friend is also my learned friend. I bow to him if I am in error, but if the statement in parenthesis is unnecessary--in the sense that it is merely a statement of uncontroversial fact--the legislative misdrafting is more astonishing than I had conceived. In that case, it would have been proper for the words in parenthesis to have been omitted and for the clause to have been a simple repeal provision. There is no need to state obvious facts in a Bill. If all the obvious facts could conceivably have been included in the clause, it would have been of infinite length.

Mr. Peter Bottomley: My hon. Friend is right, but a bit severe. The problem that he illustrates could be dealt with in two ways. The first would be to replace the words "which has the effect" with the words "which had the effect". The second would be to follow the precedent set in clause 1 by leaving out the phrase with the verb. We could omit the words "which has the effect of" and replace them by "allowing a member of" and so on. Those suggestions would not deal with the major point made by my hon. Friend, but they would deal with the minor point.

Mr. Letwin: My hon. Friend may be correct as to the syntax of the phrase in parenthesis. I am not sure whether his suggestions would make a material improvement; they would certainly remove the infelicity of the reference to "has".

I draw his attention to an interesting example of my general point: the great difference between what would then be the effect of the phrase in parenthesis and the effect of the phrase in parenthesis on the third line of clause 1--I am, of course, not debating clause 1--which refers to

"disqualification of member of the legislature".

The difference is that the parenthesis in the third line of clause 1 merely replicates the side heading of the Bill. It is an expansion, or as my hon. Friend the Member for Gainsborough would say, a statement of fact. It is an expansion of the direct reference to the relevant section.

However, I do not think that that is the purport of the phrase in parenthesis in clause 3. The draftsman has emphasised that fact by using the words

"which has the effect of allowing".

I take it that he used those words to draw the attention of the House and the Committee--alas, because he was not used to drafting such clauses, he used the wrong tense,

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but he was making an honest search after truth--to the fact that the measure was most unusual. The measure is an attempt to interpret.

Although I am grateful to my hon. Friends for their interventions, they have diverted me from the main line of the argument that I was pursuing. It is bizarre that at this late hour on a Tuesday--if it is Tuesday--or at an early hour on Wednesday, we should be debating a constitutional point of great significance, which my hon. Friends assure me has not been raised. It certainly has not been debated during the three hours during which I have been in this place. That significant constitutional point will ricochet through our legislation hereafter. If we begin to accept in the Bill the principle of such interpretative legislation outside the context of the Interpretation Act 1978, we shall put our courts in a position of terminal confusion. What my hon. Friend the Member for Buckingham described as a fog of confusion will ensue.

This situation is all the worse because of its connection with the point--which I promised I would not labour, and will not--which has been made by many of my hon. Friends, that this is, in the words of the Second Deputy Chairman of Ways and Means, a tidying-up clause, one that seeks to fit in with clause 1. Were clause 3 a consequential amendment in the strict sense--were it removing something that was inconsistent with clause 1 and the rest of the Bill--of course the courts, in looking at it, might say that we had not created a great precedent of interpretation here, but that we were merely trying to elucidate the effect of an absolutely necessary and genuinely consequential amendment. However, we are contemplating the prospect that a particular individual or group may be affected by a discrepancy between the interpretation now placed on the 1998 Act and the interpretation that was originally placed on that Act, and will look at the clause--which, admittedly, in the words of the Second Deputy Chairman of Ways and Means, no less, is only a tidying-up measure. Therefore, we would be accepting the proposition that it is tidying-up legislation to interpret legislation in subsequent legislation. That is a dreadful principle.

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