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Mr. Leigh: I am trying to follow my hon. Friend. Does he propose that we should delete the matters contained within the brackets, that we should delete the whole clause or that we should leave the clause as it is?
Mr. Letwin: My hon. Friend is absolutely right to bring me up short and ask what the consequence of my argument is. There are various ways in which it could be handled. We are in a stand part debate, so I am precluded from suggesting an amendment to the clause. Had I been on the qui vive, which I regret to say that I was not, and had I attended more carefully to the clause some days before the debate, I could have tabled an amendment that would have taken care of the case and restricted the phrase in parenthesis so that it did not have this evil effect and, in particular, so that it avoided the problem of the tense. However, you will undoubtedly tell me, Sir Alan, that I cannot mention in any detail the possibility of amendment. So we are restricted, in a stand part debate, to the binary choice of allowing or not allowing the clause. I
am trying to draw my hon. Friends' attention--to the slight desperation of Labour Members, so many of whom have recently joined us--to serious reasons, of constitutional and legislative precedent, why we should at least consider refusing to accept clause 3 as part of the Bill.
My hon. Friend was right to intervene, because he has moved me on to the final stage of my argument.
Mr. Hawkins:
Before my hon. Friend moves on, would he not say that, because of the complications that he has talked about and the confusion between past interpretations and what may happen if the Bill is passed in its present form, with this obviously weak clause, the matters that the Minister referred to earlier--the particular cases of distinguished Irish politicians who have sought election in Northern Ireland--may be confused by historians, because those politicians were elected under previous legislation in respect of which clause 3 can only muddy the waters?
Mr. Letwin:
I agree with my hon. Friend. In parenthesis, vis-a-vis the parenthetical clause, it should be added that it is particularly bizarre that the Government should be introducing legislation in the House to interpret their own legislation in the House.
I have not sought to verify from the official record whether, when the Bill that became the Northern Ireland Act 1998 was being discussed, the then Minister--whoever it might have been--who was discussing that particular section of it in Committee made reference to a particular interpretation of its effects. Should it turn out on inspection--I use this as an example for the Committee's elucidation--that the official record shows that the Minister's interpretation at the time differed from the interpretation that is now being used in the clause before us, the courts would be in an even worse situation than I had envisaged. That would be the case because, under Pepper v. Hart, the court would need to interpret the Minister's interpretation of his then clause as meaning one thing, and now, presumably, the court would need to look also at clause 3 of the Bill before us and see that the same Minister, or a Minister from the same Government, in an Act of Parliament--one does not, I suppose, doubt that an Act of Parliament overrules a statement made in Committee in a previous discussion--had interpreted it differently. I suppose that this could throw into question the whole Pepper v. Hart doctrine. I say that tentatively, as I would not want to cause trouble irresponsibly for the courts.
What is one to make of a situation in which the courts, of their own volition, have decided that Ministers' statements--and, I suppose, the statements of the movers of amendments and new clauses in Bills--should be read as having interpretive weight under circumstances where a novel device is introduced of bringing into Bills interpretations which may supersede or conflict with those earlier interpretations?
I hope, Sir Alan, that that illustrates that there is a serious issue here, although one does not expect to find a serious constitutional issue embedded in such an ostensibly unimportant clause. I genuinely wonder whether the Minister, his legal advisers and the
parliamentary draftsmen seriously paused to think about what they were doing in introducing this parenthetical phrase.
Mr. Hawkins:
Earlier, the Minister was questioned by hon. Members--including the hon. Member for Southwark, North and Bermondsey (Mr. Hughes)--about whether the Bill had its genesis in constitutional changes in Ireland. Is there an additional complication, in that we may have to look at the way in which the Irish courts interpret the corresponding Irish constitutional changes to which the Minister referred?
Mr. Letwin:
My hon. Friend takes me into deep waters, and he may be right. I have no way of telling, as I do not understand the Irish legislative system or the Irish judicial system. That may be one of the points that my hon. Friends have been making in a tangential sense.
If it is the case, and I think it is, that through the medium of this parenthetical clause, a serious constitutional conundrum, which may have profound and long-lasting effects on the way in which our courts interpret the actions of our House, and hence the meaning of our legislation, is being introduced into the Bill-- I think by mistake, as I do not suggest that the Minister or his advisers intended it--we have to ask whether the necessity for the clause is so great as to overcome the deficiency of introducing legislation with such unintended and possibly harmful consequences.
The odd thing is that I am now in a position to do what I could not do before, as I have heard what the Minister had to say. He was clear that the description of the clause, given in an amateur way by your predecessor Mr. Lord--if I can put it in that way, Sir Alan, without offending the dignity of the Chair--as a "tidying-up measure" has been reinforced by the professional statement of the Minister that it is not a consequential amendment in the direct sense. The new clause is not necessary. It is, as my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said, clearly a compatible but otherwise unobnoxious piece of legislation--that is, section 36(5) of the 1998 Act--that the clause repeals. There is no harm in that, except for the parenthetical clause and its ricocheting consequences. However, there is no gain either.
So long have some of my hon. Friends been here that my hon. Friend the Member for Lichfield (Mr. Fabricant) got himself into a deep fog of confusion when he told us that it neither matters nor does not matter. That is an impossibility, Sir Alan. Something either matters or it does not matter--and I know which is the case here. The clause does not matter at all. It could be torn up and thrown away without the slightest effect on humanity, except the beneficial effect of removing the parenthetical phrase that will cause serious problems for our courts and legislature hereafter. Therefore, we need to tarry long before we pass any such clause.
Question put, That the clause stand part of the Bill:--
The Committee proceeded to a Division--
The Chairman:
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
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