Joint Committee on Statutory Instruments Thirtieth Report


Memorandum by the Home Office


1. The Home Office submits this memorandum in response to the request dated 25 October 2000 on the point set out below.

    Having regard to (a) the requirement in section 3(4) of the Football (Disorder) Act 2000 that textual amendments of Acts or affirmative instruments by orders made under section 3 may only be made by the affirmative procedure, and (b) the nature of the amendments to the Legal Aid Act 1988 and the Legal Advice and Assistance (Scope) Regulations 1989 (an affirmative instrument) made by articles 4 and 5 of the Order, explain why these amendments are not made as textual amendments.

2. Section 3(4) of the Football (Disorder) Act 2000 was framed as it is with this order specifically in mind. The memorandum to the House of Lords Select Committee on Scrutiny of Delegated Powers spelt out (in paragraph 5) the importance that the department attached to making every effort to ensure that legal advice and assistance should be available from the date of commencement of the Act to those potentially affected by the Act. That need was also explained by Lord Bassam in his closing speech in the House of Lords Second Reading debate on 20 July 2000, where he said that "we need to be sure that we can make provision for legal advice and assistance to be available from commencement" (Lords Hansard column 1257). In the committee stage debate on 24 July Lord Bach again stressed the Government's "desire to ensure that there is no obstacle to the availability of legal advice and assistance to those who may need it from commencement" (column 193).

3. The understandable desire of the House of Lords to make amendments to Acts and affirmative instruments subject themselves to affirmative resolution procedure was ultimately reconciled with the need to make legal advice and assistance available from commencement of the Act by the amendment introduced at report stage on 25 July. Lord Bach explained that the amendment had been framed "to ensure that it poses no obstacle, as it was feared it might, to the availability of legal advice and assistance to those who may need it" (column 328). The view had been taken that the small consequential amendments needed to ensure that legal advice and assistance was available from commencement of the Act could be achieved without textual amendment and that section 3(4), as amended by the Lords on report, could be accepted without impeding that objective.

1 November 2000

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