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Baroness Williams of Crosby: I thank the Minister for that assurance and simply add that, for some of us, the combination of belt and braces is extremely attractive.
Lord Simon of Glaisdale: I do not believe the noble Lord really met the point. We are all agreed that the fast-track provision--the Henry VIII clause--should not go wider than is required. But the noble Lord did not meet the argument that it does in this case, and it is not the only case.
The first way in which it goes far beyond what is necessary is in relation to the aggregation of the rule of implied repeal, to which we have referred on a number of occasions and to which we shall have to return on Report. In the meantime, I ask the noble and learned Lord the Lord Chancellor to bear in mind the famous words of Cromwell to the General Assembly of the Church of Scotland, "I beseech you to consider the possibility that you might be wrong".
I ask him again, with all the powers at my command, to look again at the argument for simplifying the measure--not going at all contrary to his scheme, which in general I support--by dealing with antecedent legislation by the use of the well-established and accepted rule of the repeal of inconsistent earlier
legislation by a later statute. That is entirely consistent with the supremacy of Parliament, which I know my noble and learned friend is anxious to preserve.As for this case, despite the kind and emollient words of the noble Lord, Lord Williams of Mostyn, it goes far beyond what is necessary. What is necessary is what is defined by the noble Baroness, Lady Williams, in her Amendment No. 81, which has now won general support. As I indicated, I prefer it to mine. However, on recommending Cromwell to both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Williams, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 to 82 not moved.]
Lord Henley moved Amendment No. 83:
The noble Lord said: In moving this Amendment, I shall speak also to Amendments Nos. 85, 86, 88 and 89. We come back to the Henry VIII power and, to some extent, we come back to the debate that we had earlier on the amendment in the name of my noble friend Lord Campbell of Alloway. In my noble friend's case, he was going somewhat beyond what was recommended or suggested by the delegated powers scrutiny committee. We have put forward an amendment here which I hope will to some extent allow the Committee to consider whether a new procedure should be developed, as the delegated powers scrutiny committee suggested, to scrutinise such orders, modelled on that for the second stage of parliamentary scrutiny of deregulation orders.
I appreciate that it is not the same as that for those deregulation orders, but it is similar in effect in that the draft of any remedial order will be laid before Parliament for a period of 60 days. During that time anyone can make representations to the Minister about the order. When the order then comes into effect--this appears in Amendment No. 85--it would be for the Minister to make clear what representations he had received and also what changes he had made to the order as a result of those representations.
I have no intention of pressing the amendments to a Division today but it is certainly a matter I would want to come back to on Report, depending on the view taken by the Government. It is important that the House should have an opportunity to consider some process whereby amendments can be made to the orders before Parliament, as suggested by the delegated powers scrutiny committee.
At this stage in the proceedings I would not want to delay the Committee by digging out long quotations from noble Lords opposite when they were in Opposition about how they felt the Government should respond to reports from the delegated powers scrutiny committee. What I can say to the noble and learned Lord the Lord Chancellor is that we always took very seriously indeed the advice given by the delegated powers scrutiny committee. The House was pleased that we did take that advice seriously.
I very much hope that the Government are prepared to take seriously the recommendations of the delegated powers scrutiny committee and that if they do not like our approach they will at least come forward with an approach which would allow the committee's recommendations to be made use of and, while still allowing a fast track procedure to operate, would allow both Houses to express their views on those orders and to make amendments where necessary. I believe that the amendments are relatively straight forward and simple and I do not believe that any further explanation is necessary. I certainly await with interest the Government's response. I beg to move.
The Lord Chancellor: I appreciate the spirit in which the noble Lord, Lord Henley, has moved the amendment. He desires to know what the Government's thinking is. I shall proceed to tell him. But I should also say that we will ponder upon what he has said.
The effect of this group of amendments would be to alter the parliamentary scrutiny procedures for remedial orders contained in Clause 12. The noble Lord referred to the report of the Select Committee on Delegated Powers and Deregulation. He used that as the basis for the amendments because they are modelled on the first stage procedure for considering draft deregulation orders under the Deregulation and Contracting Out Act 1994. In paragraph 24 of the report the committee states:
There, if I may say so, I think the committee slipped. For "second", it should have said "first". The second stage parliamentary scrutiny of deregulation orders does not provide for the amendment of draft orders. It is the first stage that does.
We have considered that paragraph and the whole report with great care. The conclusion we have come to thus far is that Clause 12 of the Bill is adequate. In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention. The incompatibility will have been identified very, very precisely by a higher court or it will have emerged plainly from a judgment of the European Court of Human Rights. The cause of the incompatibility will have been very precisely identified. The remedial order will have the sole purpose of improving human rights by removing a closely defined incompatibility. We have therefore thought thus far that there is no need for an amendment-making mechanism.
In the last resort, if the proposed method of dealing with the incompatibility was considered by Parliament to be unacceptable, it would be able, under the existing terms of Clause 12, to withhold its approval to the order being made, or, in the case of an order made under Clause 12(1)(b), ensure that it ceases to have effect after 40 days. In practice, that would oblige the Government to make a fresh order.
This does, as at present advised, seem to us to be a sufficiently strong form of parliamentary control and one tailored to the needs of the Bill. On the other hand, we will ponder what has been said on the basis that, although it is possible to get the remedial order wrong, the scope for error in the circumstances I have described is really so little that we took the view that the provision for amendment was not necessary in the particular situation we were addressing. Similarly, I doubt whether inserting a minimum period of 60 days before remedial orders can be made under Clause 12(1)(a) would have any beneficial effect. There might well be occasions when a much shorter period for considering a draft order would suffice. What we have in mind is that an unnecessarily long fixed minimum period would unnecessarily delay the making of a remedial order and, accordingly, the removal of incompatible provisions of legislation for the purpose of enhancing human rights. Nonetheless, I have said that we will ponder; and we will.
Lord Henley: I am grateful to the noble and learned Lord for saying on three occasions that the Government will ponder over my amendment. That is the best one can normally hope for from the Government at this stage of a Bill. He seemed to imply that he saw no need to have an ability to amend such an order as the courts themselves had identified precisely what the problem was and that there was no further need to refine the issue. That seems to be saying that Parliament itself is incapable of doing better than the courts. That is something that we would want to consider very carefully because in many cases I believe that Parliament itself could possibly make improvements whether in this House or in another place.
He also seems to be saying that there is no need to have the power to amend such orders because, in the end, this House or the other place could throw out such an order. I believe that the noble and learned Lord--and certainly my noble kinsman Lord Russell would know this very well--that it is not that easy, particularly in this House, to throw out an order. He knows the conventions under which we operate. But the same can also be said to be true of another place with a large majority and the power of the executive. Merely to say that there is no need to be able to amend the order because in the end the House can throw it out, is possibly not good enough.
I did say that I had no intention of pressing the amendment this evening. I also said how grateful I was to the noble and learned Lord for agreeing to ponder this matter. I look forward to hearing what he will say, or what he will communicate, to me between now and Report stage. However, it is a subject that we shall have to return to then. There might be a slightly modified amendment or we might want to deal with the comments about the 60-day period being too long. But it is certainly a matter to which I want to return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 7, line 7, at beginning insert ("subject to the provisions of subsections (1A) to (1D)").
7.15 p.m.
"the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders".
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