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5 Nov 2002 : Column 231—continued

Beverley Hughes: I will not, because I want to make a further point.

Mr. Fisher: This is a debate.

Beverley Hughes: It is, and if, on listening to what I want to say, my hon. Friend wants to intervene, I will allow him to do so. [Interruption.]

Mr. Speaker: Order. While the hon. Lady is addressing the House, the hon. Member for Stoke-on-Trent Central (Mr. Fisher) should be quiet.

Beverley Hughes: Thank you, Mr. Speaker.

The third issue that was raised in the other place was referred to as Xmenace", which I take to mean precedent. In other words, the amendment was regarded as setting a dangerous and menacing precedent in terms of the way in which business is done in this House. That is the issue that I wish to address tonight and I hope that I will answer some of the points that my hon. Friend has just made.

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Clauses containing exactly the same words as the amendment should be familiar to the House. For example, the previous Administration, in the Local Government Finance Act 1992, produced a similar—if not more wide-ranging—clause to that before us tonight.

Mr. Letwin: Would the Minister read out that clause?

Beverley Hughes: Certainly. It states:

That is from 1992.

We have had examples of similar clauses in more recent legislation, such as the Criminal Justice and Court Services Act 2000 and the Education Act 2002. Only this week, we have had the Enterprise Bill, which included the following clause:

Only last night, we considered the Adoption and Children Bill, which contains the following clause:

That is no different from the provision before us. In fact, the advice given to me suggests that the power in the Adoption and Children Bill is drafted in wider terms than that before us tonight in Lords amendment No. 225. It allows a Minister to make supplementary provision, as well as consequential and incidental provision, that he thinks is

of the Adoption and Children Bill.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) said earlier that the House always pays great attention to such matters. However, I have looked through the Hansard for the Adoption and Children Bill, and in the debate last night not a squeak was heard about the supplementary and consequential provision in that Bill by anybody.

I wish to deal with a point raised privately with me by the right hon. Member for West Dorset about the scope of the Bill, so that I may put my reply on the record. He asked me whether the provision would allow us to rectify a direct conflict of law between the Bill and some previous legislation. I can tell him that it will: rectifying conflicts of law is a real priority for any Act. We hope that we have done most of that in the course of this Bill's passage through the House.

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We may be left with a more common type of problem, involving consequential issues that are of lesser priority than correcting direct conflicts of law. For example, such cases might include references in other legislation that have been superseded by the Bill and which need to be substituted. Where there is no direct conflict, they might involve a possible lack of clarity if the statute book were not tidied up.

My officials have provided me with an example of a consequential amendment that we know we need to make. The power that we are discussing would enable us to make it, but we could not do so without it. Section 12 of the Immigration and Asylum Act 1999 deals with the removal of asylum seekers to safe third countries, and refers to an appeal under section 65. However, the House will know that section 65 of the 1999 Act is being replaced by the appeal provisions in part 5 of this Bill. We will therefore use our consequential power to put that and similar inconsistencies right.

Hon. Members have claimed that the provision is far beyond the scope of any similar provision in any previous Bill. That is incorrect. The House considered a Bill last night that is wider in scope, and no one objected. As to the claim that the provision is without precedent, I hope that I have clarified that there are precedents in previous Tory legislation and in Bills that have been enacted in this and the previous Parliament. Moreover, the Bills that have come before the House in the past few days have all contained this provision.

I hope that I have reassured the House on the specific point about the provision. I am not sure why the matter gave rise to so much heat and so little light, or why people have been misled about the intention of the provision and about what it allows us to do. I do not like to talk of hypocrisy and fraud, but there has not been much enlightening comment from Opposition Members on this matter.

Mr. Letwin: I am not absolutely confident that the Minister has made her case in the best way to achieve a resolution of this matter. I find myself in genuine doubt. It is not the case that I sat in the bath tub to read the provision and imagine its meaning.

Mr. Blunkett: Or the shower.

Mr. Letwin: The Home Secretary helpfully suggests that I took a shower, but I did not even do that. I did not start this inquiry, which began in the House of Lords. I was present for that debate, to which a former Attorney-General, a Labour peer of great distinction, made a contribution, with commentaries being offered by leading counsel. I have consulted administrative lawyers. The Government Benches contain distinguished members of the legal profession. Behind me sits another silk, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), and my hon. Friend the Member for Woking (Mr. Malins) and the hon. Member for Southwark, North and Bermondsey (Simon Hughes) are both lawyers.

Lawyers surround us. Lawyers abound, and these lawyers read the words in the Bill as it used to be. There may have been recent precedents of almost identical wording—I do not know. I did not attend to the details

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of all aspects of the Adoption and Children Bill—we were rather preoccupied with one aspect, as the Minister may have noticed. I do not think that it is a defence of the original wording to assert that, in the words of my right hon. and learned Friend the Member for Sleaford and North Hykeham, this is a serial offence. That does not help us one iota.

9.45 pm

The question here is what is the meaning of the original provision and, much more important, the amended provision. I may have been guilty of excessive generosity. I may have been mistaken. I thought this morning when we saw the Government amendment to the Lords amendment—rather late, I may say—that we had made huge progress. I thought that there was a difference between two statements—certainly there appears to be one in ordinary English. Lords amendment No. 225 states

I take it that the phrase Xhe thinks necessary" then governs the latter part of the sentence—

That seems to suggest that the Secretary of State could deem what was necessary in consequence of or in connection with the provision of this legislation and having so deemed could amend without restriction any enactment.

There appears to this humble philosopher, and to a large number of lawyers whom this humble philosopher consulted, to be a difference between that and the more typical provision, which I have never liked—the Henry VIII clause is prevalent, as the Minister rightly says. There is a difference between the phrasing of Lords amendment No. 225 and the new phrasing suggested by the Home Secretary, which provides that the Secretary of State may by order make Xconsequential or incidental provision" in connection with the provision of this legislation. That seemed to remove or at least constrain the ability of the Secretary of State to judge whether something was consequential or incidental. It seemed to establish a category of thing that was genuinely consequential or incidental and to allow a modification of an enactment only if such a modification were necessary as a matter of it being consequential or incidental. Let us hope that that is the case.

I was hoping that the Minister would give a learned reply to the next question raised across the Floor and that some jurisprudence would be put before us. I hoped that she would tell us not that parliamentary counsel—one set of lawyers among others—took a view but that there were cases that showed on judicial review the meaning to judges in English law of Xconsequential and incidental". I admit that our researches so far have not identified such cases. We may be fallible in this. I had hoped that the Minister would reveal that there was jurisprudence that made it clear to us—or ought to—that we were now in safe territory again and that we were talking about the very things—and I fully accept her intentions in this matter—that she listed.

If the sole purpose of the clause as currently phrased is to rectify a direct conflict of laws, to rectify minor discrepancies of reference and to clarify matters where

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a lack of clarity would otherwise prevail, it is of course harmless. The question is whether, as a matter of fact, it gives not to the present Secretary of State tomorrow but to some Secretary of State in future—establishing a precedent that will extend to a wider range of Secretaries of State in who knows which Administrations—the general ability to use what is, in effect, decree law subject to a 90-minute debate, to modify wild uncharted territory or enactments, or whether it simply provides for those Secretaries of State the ability to rectify discrepancies and conflicts of law. If the narrow interpretation prevails, I do not want to make a fuss about it—I see no reason to do so. If, however, the wider interpretation is correct, I see every reason on earth to make a fuss, because it is the fundamental principle of our parliamentary democracy that legislation should proceed through First Reading, Second Reading, Third Reading and a whole panoply of devices to ensure proper debate rather than 90 minutes' worth somewhere, stuck in a hole in the corner.

No doubt my right hon. and learned Friend the Member for Sleaford and North Hykeham and perhaps even some Liberal Democrat or Labour Members will accuse me of being too complacent, too lacking in doubt and scepticism.

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