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Lord Hylton: I am sure that this group of amendments is extremely important and I trust the Government will look upon it sympathetically.

I join in the congratulations already expressed to the noble Lord, Lord Williams of Mostyn, and say this. I hope that the Government will succeed in finding a new Minister responsible for prisons of equal calibre and forward-looking attitude. He has been exceedingly helpful on that front and I am sure that his personal qualifications were such as to cut through a great deal of traditional Home Office attitudes and Prison Service difficulties.

Lord Dholakia: I, too, associate myself with the congratulations from this side. It is a great occasion on which to receive such wonderful news. The sheer courtesy and concern about issues that we raised with him, not only in the debating Chamber here, but also privately, were always present. He never hesitated to reply in the most courteous way. Whenever he disagreed, he did so in the nicest possible way. But more importantly, he opened the door of the Home Office to many of us to sit down with him to raise our concerns. That is reflected in the number of occasions when he

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has given way to us. I ask the noble and learned Lord to convey our good wishes to him and we look forward to his success in his new job.

The Lord Bishop of Southwark: From these Benches we, too, add our congratulations and thanks to the noble Lord, Lord Williams of Mostyn. I have probably known him a lesser time than most Members of the Committee, but found him to be a man with a formidable brain, a gracious nature, and a wonderful pained expression when Members of the Committee disagreed with him. We shall certainly miss him. As for the amendments, they seem eminently sensible.

Lord Avebury: I add to the tributes expressed to the noble Lord, Lord Williams of Mostyn. One feature that he has brought to our debates, which we shall very sadly miss, is the touch of humour which he always displays and the nice little jokes he puts into his asides from the Dispatch Box.

I would also like to say how much I have appreciated the noble Lord's willingness to enter into correspondence on the detail of this Bill, which I believe has facilitated our discussions and has helped us to go forward and reach agreements on many issues in relation to which we thought there was a greater division between us. The noble Lord's assiduity and courtesy in always replying so promptly to all the letters addressed to him about the subject matter of the Bill has helped it forward greatly.

Lord Falconer of Thoroton: I am grateful to the noble Lords for their explanation of the reasons for these amendments which flow from the report of the Select Committee on Delegated Powers and Deregulation. I understand their reasons and I respect them. The Government, as your Lordships would expect, gave very careful consideration to the Select Committee's report. We accepted a number of the recommendations, but not all of them.

I deal first with Amendments Nos. 204, 205 and 206. These concern the powers under Part VI of the Bill. We are all agreed in this House that Part VI introduces some important and sensitive provisions. The Government are as aware of this as anyone, and that is only as it should be. I believe that Amendment No. 204 is intended to require all regulations made under Part VI and paragraph 1 of Schedule 8, which concerns interim arrangements, to be subject to the affirmative resolution procedure. For various technical reasons, I do not believe that it achieves that. However, I shall deal with what I understand to be the intention of the amendments rather than take up time on technical points.

It is fair to say that the Select Committee's report left some room for doubt about the extent to which it believed that the affirmative procedure was justified in relation to each of the powers under Part VI. We have given very careful consideration to the nature of the powers in Part VI on the assumption that the committee intended that the affirmative procedure should apply throughout. We do not believe that it is right to use the affirmative procedure solely because of the role which

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a particular group of clauses plays in the operation of a Bill or, even more widely, for every power within a particular part of a Bill. We believe that each power should be judged on its individual merits in order to determine whether the affirmative or negative procedure is appropriate.

On the basis of the report, the Government reconsidered the powers to make delegated legislation in Part VI. Although the provisions in these clauses are important, each of the delegated powers is intended to deal with matters of detail which are generally subject to negative procedure in other, similar legislation.

When one looks at other comparable legislation, most of the provisions on entitlement to social security benefits are made by the negative resolution procedure under the Social Security (Contributions and Benefits) Act 1992. That is one example which, in our view, justifies the use of the negative procedure for the various powers to set out the detail of the scheme. In addition, some of the powers in these clauses might need to be exercised quickly and when Parliament is not sitting, which further strengthens our view that the negative procedure is more appropriate.

If one looks more widely at some of the other powers in Part VI, it is very difficult to justify the use of the affirmative procedure. For example, Clause 114 contains a power to make regulations to enable those recognised as refugees to be able to apply for back-dated benefits to which they might be entitled. The clause is almost identical to the provisions of Section 11 of the Asylum and Immigration Act 1996, which also provided for regulations to be made by the negative procedure. We see no reason to depart from that precedent. Indeed, none has been given, either in the report or in the course of this short debate.

Amendment No. 206 picks up the Select Committee's specific recommendation that the power in Clause 95 to make regulations governing asylum support appeals should also be subject to the affirmative procedure. We again looked at the arguments and the provisions in comparable legislation to help us assess which procedure was more appropriate. The rules to be made under this clause will be procedure rules governing the conduct of appeals. In other similar legislation, such procedure rules are made using the negative procedure. We believe that the same degree of scrutiny is justified for those procedure rules. They will, of course, also be subject to the scrutiny of the Council on Tribunals. We have looked at this matter very carefully. Having done so, we remain of the view that the powers in Clauses 86(5) and 87(3) are the only powers in Part VI which should be exercised by means of the affirmative procedure.

The Select Committee made a further specific recommendation in relation to Clause 87(3) which, as I indicated in our previous session, the Government are considering how best to tackle, and to which we intend to return on Report.

I turn now to Amendments Nos. 208 and 209. These amendments both flow from the recommendation in the Select Committee's report that delegated powers subject to the affirmative resolution procedure should be

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accompanied by a statement confirming compliance with the European Convention on Human Rights. That would be the effect of Amendment No. 209 in the name of the noble Baroness. Amendment No. 208 in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, goes further than that and would require a compliance statement in relation to statutory instruments made under the affirmative and negative procedures. But the amendment is, I believe, deficient, in that it does not specify the convention to which the statement should relate.

The Government believe that these amendments are unnecessary. I should make it quite clear that disagreement with the amendments in no way impinges on the Government's commitment to safeguarding human rights, which is absolute. I invite the Committee to consider my comments in the context of this commitment from a Government who have brought the Human Rights Act 1998 onto the statute book.

Amendment No. 208 relates to statutory instruments subject to the negative resolution procedure. As I have already said in relation to the amendments in this grouping relating to Part VI, the powers are intended to deal with matters of detail. They are not issues likely to raise human rights issues. If any such statutory instrument did raise concerns about compatibility with the ECHR, the instrument could, of course, be prayed against. For those powers subject to affirmative resolution procedure, there is an opportunity for the Minister introducing the debate to comment upon any relevant ECHR compatibility issues or for Members of either House to raise such issues.

In addition, there are already a number of safeguards contained in the Human Rights Act itself to ensure compatibility of secondary legislation. Under the Act the courts can strike down and disapply secondary legislation which they hold to be incompatible with the convention rights. It will be unlawful for public authorities to act in any way which is incompatible with the convention. The Act also establishes a duty to interpret legislation compatibly with the convention rights.

The Government were not, therefore, persuaded that it was right to introduce a new formal requirement of the kind proposed by the Select Committee. But I emphasise that in the case of regulations subject to the affirmative resolution procedure, there will be ample opportunity for Ministers to deal with ECHR matters if appropriate and for others to raise such issues in the course of debate. In those circumstances, I invite the noble Baroness to withdraw her amendment.

Finally, I turn to government Amendment No. 207D, which forms part of this grouping. The effect of this amendment would be to exempt from parliamentary procedure the commencement provisions set out in subsections (2) and (7), as well as subsection (4), of Clause 158. As the Committee will be aware, Clause 158(4) confers the usual power to commence the provisions of the Bill on such days as the Secretary of State may by order appoint. This power is subject to certain specific provisions made by Clause 158. This includes the provision, under subsection (2), that

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Clause 85(1)--the Secretary of State's power to provide arrangements for asylum seekers and their dependants--is to come into force on the same day as Clause 106, which concerns their exclusion from benefits. Subsection (7) enables the extension of any of the provisions of the Bill to any of the Channel Islands or the Isle of Man. That power is conferred on Her Majesty by Order in Council.

Subsections (2) and (7) are currently subject to the negative resolution procedure. However, the Home Office Memorandum to the Select Committee on Delegated Powers and Deregulation made it clear that the Government were considering whether the powers they confer could properly and appropriately be exercised without the need for parliamentary scrutiny, given their very limited nature; and we now believe that parliamentary control is unnecessary in both cases.

The power in subsection (2) will be used simply to commence Clauses 85(1) and 106 simultaneously, a requirement which is set out on the face of the Bill. Subsection (7) simply extends the geographical coverage of the Bill to the islands. Many of the provisions in the 1971 Immigration Act are extended to the islands by Order in Council under Section 36 of the 1971 Act, which does not provide for parliamentary procedure; the amendment would therefore align the power in subsection (2) with existing practice. I should add that all such orders are, of course, made in close consultation with the islands.

I invite your Lordships to accept this amendment, and to reject Amendments Nos. 204, 205, 206, 208 and 209.

Perhaps I may make two entirely separate, unconnected points. First, if what is said on "Sky News" is true and the man who, when he left, was my noble friend Lord Williams of Mostyn has become my noble and learned friend the Attorney-General, perhaps I may make four remarks.

First, he will be the first Attorney-General for over 400 years to be in the House of Lords. I can think of no finer lawyer and parliamentarian to be Attorney-General than my noble and learned friend Lord Williams of Mostyn. Secondly, he is a man whom the Bar will regard as one of the finest lawyers of his generation to be chosen as Attorney-General. Thirdly, I am sure that the House of Lords regards him as one of the finest parliamentarians of this Parliament to become Attorney-General. Fourthly, he is not going away so one should not talk about him as though he has left this House for ever. I am sure that he will be here regularly conducting debates in the same skilful and attractive way that he has for the past two years.

I invite the Committee to reject Amendments Nos. 204, 205, 206, 208 and 209.

11.30 p.m.

Lord Cope of Berkeley: I shall not add to what we have said about the noble Lord, Lord Williams of Mostyn, except to hope that the tape and "Sky News" prove correct, for all the reasons that the noble and learned Lord has just given.

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However, as for this group of amendments, I must say that I regard the Minister's reply with the utmost seriousness. I understand that this Chamber has been extremely attentive to the recommendations of the Select Committee on Delegated Powers and Deregulation in the past, but, in the past hour, the noble and learned Lord has rejected quite a few of its recommendations. He suggested that some of them were not all that strong, especially in relation to Part VI.

Therefore, perhaps I may quote from paragraph 37 of the Select Committee's report, which begins with the words:

    "The Committee has made the following recommendations".

It then sets them out extremely briefly, until it gets to the relevant one, which says that,

    "regulations under Part VI of the bill and the powers in clauses 95 and 143 which are subject to negative procedure should more appropriately be subject to affirmative control".

That sounds to me to be a pretty direct recommendation. Clearly it is a matter which we will certainly wish to consider in the interim before the Report stage. Perhaps the Select Committee will also wish to consider what the noble and learned Lord has said in deciding whether or not to make a further report to the House on the propositions contained in these amendments. However, I shall not pursue the matter further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 205 and 206 not moved.]

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