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Lord Sewel moved Amendment No. 205A:

Page 49, line 10, at end insert--
("(5A) But a power to modify enactments does not (unless otherwise stated) extend to making modifications of this Act or subordinate legislation under it.").

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

Schedule 7 [Procedure for subordinate legislation]:

Lord Sewel moved Amendment No. 206A:

Page 93, line 3, at end insert--
("Section 52(2) Type G")

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 206B:

Page 93, line 4, column 2, leave out ("I") and insert ("C").

The noble and learned Lord said: My Lords, Amendment No. 206B is grouped with another six amendments which seek to make amendments to the provisions of Schedule 7 of the Bill, which, as your Lordships will recall, was introduced into the Bill not so long ago when the Government helpfully amended

2 Nov 1998 : Column 123

the provisions dealing with subordinate legislation and made them more intelligible for the lay reader and the lawyer reader too.

I seek to make a number of amendments as to the kind of procedure that ought to be followed when dealing with seven of the order making powers. Amendment No. 206B deals with the order making power under Clause 54 of the Bill, which your Lordships will appreciate is an important order making power. It gives to the Secretary of State power to take action by means of an order when he believes that an,

    "action proposed to be taken by a member of the Scottish Executive would be incompatible with ... international obligations".
Equally, he has an order making power when he has,

    "reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive"
has not been taken. He has power to direct that,

    "the action shall be taken".
Clause 54(3) on page 24 of the Bill states that "action" can include,

    "making, confirming or approving subordinate legislation",
or introducing a Bill into the parliament.

As presently drafted, the Bill would allow that order to be made by Type I procedure; namely, that,

    "The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament".
Having regard to the significant nature of the order making powers under Clause 54, I believe that if they are used or are threatened with being used, they could give rise to a major dispute between the Secretary of State on the one hand and the Scottish executive on the other. It seems appropriate that that should be done by Type C procedure, the affirmative resolution procedure. I refer to Amendment No. 206B.

It may be convenient to discuss the next two amendments in the group together. They deal with Clauses 84 and 85, which touch on the subject of cross-Border public authorities, their initial status and also the power to adapt them. I propose that in the first of the two amendments, the Type I procedure should again be replaced by a Type C procedure; namely, the approval by affirmative resolution. In the latter amendment I propose that it should be replaced by Type A procedure, that is an Order in Council, that requires a draft of the instrument to be approved by resolution of each House of Parliament and also approved by resolution of the parliament itself. One suspects that while these cross-Border public authorities may be a useful device to enable the British Government, the Scottish executive and other public authorities to co-operate for the benefit of all, they will nevertheless give rise to some sensitivities. I believe it is sensible that the order making powers should be subject to the alterations of procedure I propose.

I turn now to Amendments Nos. 206G to 206K. These deal with the order-making powers to be found in Clauses 94, 97, 98 and 99. We have discussed these in relation to earlier amendments. They deal with the

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power to make subordinate legislation when it is thought necessary or expedient in the circumstances set out in the clauses.

As presently drafted, these proposals would be subject to Type G procedure: the instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House. I suggest that no Minister of the Crown is to make the legislation unless a draft has been laid before and approved by a resolution of the House of Commons.

I readily accept that these amendments go somewhat further than the views expressed by the Delegated Powers and Deregulation Committee. However, I propose them having spent a number of hours preparing for and taking part in debates in this House in relation to these various order-making powers. I put them forward as appropriate and, to quote the terms of Clause 94, "necessary or expedient". I beg to move.

Baroness Ramsay of Cartvale: My Lords, this set of amendments is clearly aimed at requiring subordinate legislation under certain provisions in the Bill to be subject to affirmative rather than negative resolution procedure.

The general thrust of the amendments is to require a higher level of procedure than in this Parliament for various orders. We gave careful consideration to the procedure which should apply to each order under the Bill. That is one of the reasons why both the original provisions governing procedure and the new provisions substituted at Committee stage are so complex. It is also worth recalling, as the noble and learned Lord himself pointed out, that the Delegated Powers and Deregulation Committee--the body set up by this House to consider the appropriateness of the degree of parliamentary scrutiny given to delegated powers--has reported on both the Bill and the amendments we have made to it and did not suggest the sort of changes of procedure that are sought by these amendments.

The committee did suggest that affirmative resolution procedure should be used for orders which amend primary legislation--a recommendation that we were pleased to take on board and which is manifested in paragraph 3 of Schedule 7.

There is no doubt that many uses of the powers dealt with in these amendments will be important, but that does not mean that affirmative resolution procedure is necessary on every occasion. In some cases a requirement for affirmative resolution procedure could be harmful. As we explained in the memorandum to the Delegated Powers and Deregulation Committee, we do not think it appropriate that the orders under Clause 54 should be subject to affirmative procedure, as would be required by Amendment No. 206B. Such orders would need to be made quickly to avoid uncertainty and possibly damaging effects. It would be very difficult for an affirmative instrument to be drafted, laid, debated by both Houses of Parliament and made quickly, even assuming that Parliament was sitting. Drafts of an affirmative instrument can be laid only when Parliament

2 Nov 1998 : Column 125

is sitting. That could give rise to difficulty if, say, subordinate legislation had been made by a member of the Scottish executive at the time of the parliamentary Recess at Westminster and the Secretary of State wanted to make an order under Clause 54.

I know that the noble and learned Lord has faith, as we all do, in the work of the Delegated Powers and Deregulation Committee. The committee deliberated on four occasions before producing its report on the Bill. I believe that we should rely on and accept the results of that detailed scrutiny as we have done in bringing forward our suite of amendments at Committee stage.

I also suggest to the noble and learned Lord that he may have inadvertently chosen a type of procedure in Amendment No. 206C that is applicable to ministerial orders and not Orders in Council. However, that is a side issue. I hope that, in view of what I have said, the noble and learned Lord will feel able to withdraw his amendment.

Lord Mackay of Drumadoon: I am grateful to the noble Baroness for explaining the Government's position. I would be more persuaded of the argument about following the advice of the Delegated Powers and Deregulation Committee had the Government been prepared to follow that committee's advice about the Human Rights Bill on Thursday afternoon. However, as the noble Baroness had no responsibility for that, I will not pull her leg too unmercifully about it.

I have a concern about Section 54 orders. I accept that there may be a need for urgency, but they are of a highly sensitive nature and in five, 10 or 20 years' time it may be interesting to look back and see how many of these are made in the parliamentary Recess and how many when Parliament is sitting.

I recognise that the committee would not accept these amendments as necessary and, for that reason, I beg leave to withdraw Amendment No. 206B.

Amendment, by leave, withdrawn.

[Amendments Nos. 206C and 206D not moved.]

Lord Sewel moved Amendments Nos. 206E and 206F:

Page 93, line 13, at end insert--
("Section (Agency arrangements)Type H")

Page 93, line 13, at end insert--
("Section (Assistance for opposition parties) Type A")

On Question, amendments agreed to.

[Amendments Nos. 206G to 206K not moved.]

Clause 110 [Subordinate instruments]:

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