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Lord Coleraine: I suggest to the noble Lord that there is no real contradiction. Having considered it appropriate to amend the legislation, the Minister might decide that the best course is to introduce a Bill and not use the fast-track procedure.

The Lord Chancellor: I have listened to the argument. I am not persuaded, but I shall take the point away and consider it.

Lord Goodhart: On that undertaking from the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 and 70 not moved.]

Lord Williams of Mostyn moved Amendment No. 71:

Page 6, line 20, leave out subsection (3).

The noble Lord said: In speaking to Amendment No. 71, I shall, with leave, speak also to Amendment No. 77. Both amendments are technical. They provide that the power to make a remedial order is to be exercisable by Her Majesty in Council in cases where the legislation which has been declared incompatible is an Order in Council, whether the order has the status of primary or subordinate legislation. Under the Bill at present the power may be exercised in this way only if the Order in Council has the status of primary legislation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 72 not moved.]

[Amendment No. 73 had been withdrawn from the Marshalled List.]

[Amendments Nos. 74 and 75 not moved.]

Lord Williams of Mostyn moved Amendment No. 76:

Page 6, line 30, at end insert--
("( ) The power conferred by subsection (2) may also be exercised where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with one or more of the Convention rights and the Minister proposes to proceed under section 12(1)(b).").

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The noble Lord said: This technical amendment extends the circumstances in which a remedial order can be made to include those where the courts have quashed a provision of subordinate legislation because it is incompatible with the convention rights and in accordance with Clause 12(1)(b) a Minister considers that a remedial order needs to be made urgently without going through the draft affirmative resolution procedure provided in Clause 12(1)(a). This will only be needed in cases where the incompatible subordinate legislation is itself subject to the draft affirmative resolution procedure. In other cases (for example, orders subject to negative resolution or to no Parliamentary procedure) the Minister would be able to make an order under the parent legislation without first securing parliamentary approval and would not need to rely on the power to make a remedial order. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 77:

Page 6, line 30, at end insert--
("( ) If the legislation is an Order in Council, the power conferred by subsection (2) or (4) is exercisable by Her Majesty in Council.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 78 not moved.]

Clause 10, as amended, agreed to.

Clause 11 [Remedial orders]:

Lord Simon of Glaisdale moved Amendment No. 79:

Page 6, line 41, leave out ("(including") and insert ("(but not").

The noble and learned Lord said: Amendment No. 79 is grouped with Amendment No. 80, which raises the same point, and Amendment No. 81 in the name of the noble Baroness, Lady Williams of Crosby, which covers much the same ground.

Clause 11 states that a remedial order may contain,

    "such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate".

I draw attention to the word "consequential".

Subsection (2) states:

    "The power conferred by subsection (1)(a) includes--

    (a) power to amend or repeal primary legislation (including primary legislation other than that which contains the incompatible provision)".

That obviously goes beyond consequential provisions. The amendment is to substitute for "including" the words "but not".

I can see why the power is desired. The declaration of incompatibility may have repercussions in other parts of the statute book. However, subsection (2) goes well beyond consequential provisions and is far too wide. We cannot have Henry VIII trampling through the statute book in this way.

I can see a difficulty in my two amendments. They may not be easy to reconcile with subsection (1) and, indeed, the whole section may well need to be recast.

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I prefer the amendment of the noble Baroness, Lady Williams, and I shall leave it to her to make her case. I beg to move.

7 p.m.

Baroness Williams of Crosby: If it is convenient to the Committee, I shall speak to Amendment No. 81. Let me add to what the noble and learned Lord, Lord Simon, said, that many of us in this Chamber, and for that matter in another place also, have been concerned about the gradual spread of what are sometimes called "Henry VIII powers". It is noticeable in this Bill.

In the powerful report from the Delegated Powers and Deregulation Committee, paragraph 23 said explicitly,

    "This is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention ... We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".

The purpose of Amendment No. 81 is to constrain, as far as is reasonable, that issue of "potential width". Its phrasing is deliberately more flexible than the wording in the amendments of the noble and learned Lord, Lord Simon, in order to recognise the fact that it is sometimes necessary to amend primary legislation or to amend primary legislation in consequence of subordinate legislation resting upon primary legislation. We would not wish to prevent the Government from exercising such powers.

On the face of the Bill it seems to many of us that the constraints that the Government have to bear in mind in using these powers are not sufficiently explicitly brought out. It is with the purpose of both exploring the Government's intention and urging upon the Government the need to limit the power explicitly in the Bill so far as it may be feasible to do so, that my noble friends and I tabled the amendment.

I know the Committee is sitting late and I do not wish to hold it up. But I want to say that all Henry VIII powers are troubling precedents. In a parliamentary democracy Henry VIII powers are the route towards an executive power unconstrained by adequate discussion and debate in Parliament. It is with a view to balancing those two necessary interests--that of the Executive and that of Parliament--and with all goodwill towards what is proposed in the Bill that I have tabled Amendment No. 81. We look forward to hearing the Government's response.

Lord Henley: Perhaps I may briefly offer a degree of support to the noble Baroness, Lady Williams of Crosby. Like the noble and learned Lord, Lord Simon of Glaisdale, I prefer her approach to that of the noble and learned Lord. We expressed earlier and will express again later our anxieties about Henry VIII powers. It is therefore only right that we support any amendments that seek to limit that power. For that reason I support Amendment No. 81, to which the noble Baroness, Lady Williams, spoke following Amendments Nos. 79 and 80.

Lord Ackner: I too support Amendment No. 81.

Earl Russell: I too add a word in support of this provision. Amendment No. 81 is a tighter drawing of

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the vires for the fast-track procedure. I support it for exactly the same reasons for which I opposed Amendment No. 67B; that the power is necessary for receiving another system of law. It should be clear that it is not necessary for any other purpose.

Lord Williams of Mostyn: I do not believe that there is any difference of approach in principle between those noble Lords who have spoken and the Government's stance.

It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility. As the Lord Chancellor said during the Second Reading debate,

    "the power to make a remedial order may be used only to remove an incompatibility or a possible incompatibility between legislation and the convention."--[Official Report, 3/11/97; col. 1231.]

The Select Committee on Delegated Powers and Deregulation noted the Lord Chancellor's remarks about the strictly limited circumstances under which the order-making powers will be used, and did not express any need for the amendments being proposed.

The Government's intention therefore is perfectly plain. I am bound to say that, having listened to the argument (always fatal) in particular relating to the amendment proposed by the noble Baroness, Lady Williams--which, if I may say without disrespect, is designed to ensure that both the belt and the braces are worn on every appropriate occasion--we do not at present believe that there are inadequate safeguards. If reflection shows that there may be a case for a further safeguard, we will reconsider and return at a later stage.

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