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The Duke of Montrose moved Amendment No. 98A:

The noble Duke said: My Lords, I am glad to have the chance once again to bring this amendment before the House. It is a particular pleasure to find that I am joined by the Minister, who has been able to reconsider the matter. I am acting merely on the advice of the Law Society of Scotland, but the Minister has the benefit of very distinguished advice. It appears that all are now in agreement. I am sure that tonight I shall receive a more positive response than was the case with my last group of amendments.

In my view, the earlier answers I received to my questions raised a fundamental issue as regards what is to happen when legislation is subject to a XSewel Motion" in the Scottish Parliament. The noble Lord responded by making it sound as though the Scottish Parliament merely had to agree to what the government of the day proposed, whereas it is my understanding that the Scottish Parliament would ask for and accept that the Parliament at Westminster will agree the wording that is appropriate. Thus we do have a right to consider the issues.

Speaking, I hope, with some support from the Minister, it would be good to think that the Scottish Parliament does not have a monopoly on consultation and co-operation between the parties, which they so often like to emphasise.

The amendment would ensure that in Scotland only a sheriff and not a justice of the peace would be entitled to grant the search warrants referred to in the clause. I am advised that the power to grant such warrants should extend only to sheriffs. Often a justice of the peace will not be legally qualified and may be unfamiliar with the criteria needed to grant such warrants. In the interests of justice, therefore, this matter ought to remain within the sole ambit of the sheriff. I beg to move.

The Earl of Mar and Kellie: My Lords, I should like to speak in support of the amendment. I certainly prefer the use of the 120 full-time sheriffs rather than justices of the peace. The authorities will find it much easier to get hold of full-time territorial law officers.

Baroness Carnegy of Lour: My Lords, I believe that justices of the peace have a somewhat different role from that envisaged in the Bill, so I support the amendments. On the question of the Scottish Parliament, my noble friend on the Front Bench is right that it asked Westminster to do the job. Although we hope not to do anything that the Scottish Parliament would not want to implement, it has given us the job. It is up to the Minister to keep in touch on what the Scottish Parliament wants. I take it that he has consulted on the amendment.

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Lord Rooker: I do not know whether noble Lords are trying to convince me to accept the amendment. If your Lordships really want a long debate, that is fine, but we listened to what was said in Committee, thought about it, decided that it was a good idea, and had another think about it. I do not know why I am being criticised for that. We heard your Lordships' views, we listened, and we have changed our minds. We do not want to get into a constitutional debate on who likes the measure in Scotland. We like it down here; it is a reserved matter and we accept it.

While I am on my feet, I shall speak to the other two amendments that are in my name. Amendment No. 99 is a technical amendment. It tightens up the effectiveness of the operation of the Bill by removing a potential source of confusion. It could cause confusion if it were not absolutely clear under which provision a search warrant was being sought or granted. Deleting the reference to Xconstable" will remove the potential for confusion.

Amendment No. 104A is a drafting amendment to include Part 6 with those other parts of the Bill that will come into force on Royal Assent. Part 6, which creates very serious offences, should come into force as soon as possible. We intended to have a commencement order and another order relating to Part 6. There was an oversight in the original drafting as Part 6 should have been in the same list as the other parts that come into force on the day on which the Bill is enacted. I hope that that meets with your Lordships' approval.

The Duke of Montrose: My Lords, I am grateful to the Minister for his agreement.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 99:

    Page 26, line 24, leave out Xa constable or"

On Question, amendment agreed to.

Schedule 5 [Pathogens and toxins]:

Lord Rooker moved Amendment No. 99A:

    Page 106, line 26, leave out XWhite pox"

The noble Lord said: My Lords, this amendment is straightforward. On the list of Xnasties" in Schedule 5, white pox is not really necessary because it is a form of smallpox. Although smallpox is not listed, it is covered by the entry in the schedule for variola virus. I beg to move.

On Question, amendment agreed to.

Clause 62 [Information about persons with access to dangerous substances]:

Lord Rooker moved Amendments Nos. 100 and 101:

    Page 30, line 34, leave out X(if any) as may be" and insert Xas is"

    Page 30, line 37, leave out Xand" and insert Xor"

On Question, amendments agreed to.

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Clause 65 [Directions requiring denial of access]:

Lord Rooker moved Amendments Nos. 102 and 103:

    Page 32, line 3, leave out from Xpart" to Xso" in line 4 and insert Xof the premises as is"

    Page 32, line 6, leave out Xand" and insert Xor"

On Question, amendments agreed to.

Clause 80 [Prohibition of disclosures in relation to nuclear security]:

[Amendments Nos. 103A and 103B not moved.]

Schedule 8 [Repeals and revocation]:

[Amendment No. 104 not moved.]

Clause 125 [Commencement]:

Lord Rooker moved Amendment No. 104A:

    Page 73, line 25, leave out X5" and insert X6"

On Question, amendment agreed to.

Viscount Bledisloe moved Amendment No. 105:

    After Clause 125, insert the following new clause—

(1) Subject to subsections (2) to (5), and without prejudice to any other provisions of this Act—
(a) Parts 3, 4, 5, 10, 11 and 13 of this Act shall cease to have effect at the expiry of two years from the date on which the Act is passed; and
(b) Parts 1, 2, 6, 7, 8 and 9 of this Act shall cease to have effect at the expiry of five years from the date on which the Act is passed.
(2) If the Secretary of State considers that it may be appropriate that any Part of this Act should continue in force without amendment beyond the expiry of its specified period, he may consult such persons as seem to him appropriate to obtain their views as to whether that Part can safely and properly continue in force without amendment.
(3) If, following such consultation, the Secretary of State certifies that no substantial grounds have been advanced as to why that Part should not continue in force, he may by order provide that that Part of the Act shall continue in force for a specified period not exceeding five years.
(4) Where any Part of this Act is extended by virtue of subsection (3) it may be further extended in like manner as set out above.
(5) An order made by the Secretary of State under subsection (3) or (4) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The noble Viscount said: My Lords, after that brisk, delightful canter, we now come to the question of sunset clauses. The concern that the Bill has been pushed through with extreme haste has been patent throughout our debates. There has been no time for reflection and discussion, or for interested parties or those who can impart knowledge to input matters into our thoughts, as would happen in more normal proceedings.

It should be a principle that one does not legislate in haste. If one has to do so, the matter should be reconsidered in a relatively short time, and the Bill should be impermanent so that issues can be properly revisited. To that end, two alternative sunset clauses have been tabled, one of which is in my name and the other in the much more distinguished names of two Opposition Front Benchers.

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I shall explain the difference between the two in a moment but, first, I shall deal with the necessity of having such a sunset clause. The Home Secretary said that he would review the Act after a while to see how it was working. I am sure that that should be done, and I have no possible objection to it. If criticisms are made, even if they appear to have some force, the battle will still be whether anyone will find the time to legislate on them. It is necessary to have a provision that the Bill will lapse after a certain time and then the Government can re-enact such parts of it as are efficacious and without problem, and alter those parts that are undesirable.

My amendment specifies two separate periods. The more worrying parts will expire after two years. It is fair to say that that is fairly academic in relation to Part 13 because the House has accepted the Government's earlier sunset clause for that part. Other parts would expire after five years. I readily confess that I have made the split merely to follow the amendment tabled by the noble Lord, Lord Dixon-Smith, and others. I have not applied my own mind to the segregation.

When this matter was debated in Committee, the Minister spoke to certain parts of the Bill which he suggested were unlikely to be objectionable and, therefore, did not need a sunset clause. He may have been right about some of those parts; he may have been wrong. My attitude was ideally summed up by the noble Lord, Lord Bach, last Tuesday, when he said:

    XWe are attempting to deal with the problem. Whether this course provides the right answer, only time will tell".—[Official Report, 4/12/01; col. 744.]

That is the truth of the matter. There may be parts of the Bill which the Minister or, indeed, some noble Lords, think are unlikely to be objectionable; they will probably turn out to be the ones that give rise to the worst problems. There are parts of the Bill about which people have expressed great concern; it may be that some of those concerns will prove to be unnecessary. But we do not know—and that is the product of hasty legislation.

My amendment differs from the one proposed by the Opposition Front Benches in that I have suggested that if the Secretary of State wishes a particular part or parts of the Bill to continue in force, and, as far as he is aware, there is no reason why that should not be done without amendment, then he shall, if he wishes to pursue that course, consult the appropriate people to obtain their views as to whether that part of the Bill can safely and properly continue in force without amendment. By pure chance, that ties in very well with the proposal for a review, because the review will constitute the consultation and reveal whether or not there are objections to that part of the Bill.

If, following that consultation, the Secretary of State is in a position to certify that no substantial grounds have been advanced as to why that part of the Bill should not continue in force, he may continue it through secondary legislation. On the other hand, if there have been any substantial objections to it, he will have to proceed by way of primary legislation. So the contentious will come back to Parliament through primary legislation—as is intended in the amendment

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of the Opposition Front Benches—but, in an attempt to satisfy the point made to me by the Minister, my amendment would give the Government power to continue without primary legislation those parts of the Bill to which, after experience, no one takes any real objection.

I hope that this will accommodate the points made by the Minister when we debated sunset clauses on the previous occasion. I see the force of the argument that there is no point in Parliament re-enacting measures which have proved to be wholly unobjectionable. I hope that my amendment will prove to be a suitable compromise and will appeal to the Minister. I beg to move.

7 p.m.

Lord Dixon-Smith: My Lords, the noble Viscount has advanced the cause of Amendment No. 105, with which my Amendment, Amendment No. 106, is grouped.

The essential difference between the noble Viscount and myself is that he believes that following an informal review—which may or may not produce a fully valid answer—where no questions are raised about certain parts of the legislation, those parts may be continued by affirmative order. He believes that that may be a satisfactory conclusion. We, having filleted the Bill slightly differently, if I may put it that way, have concluded that, because of the emergency process we will have to go through to put the Bill on to the statute book—which is what we are all determined to do—the only way this legislation should continue is through the full parliamentary process.

I do not need to speak for long on this matter. We have always made it plain that this is an emergency Bill, the principles of which we accept and agree. We have disagreed with the detail that was inappropriate for such legislation and we have disagreed with the process. Even now, after seven consecutive days, with a one day interval, this is still an ill-considered piece of legislation. We go to Third Reading tomorrow, for which amendments have to be tabled by midday. After seven solid days of debate on this matter, if we have time to think seriously of what we are about I would be extremely surprised.

Whatever happens after the Bill leaves the House, the chance of any further detailed consideration is remote. We believe that a more severe examination, in due time, is appropriate. That is our reason for tabling Amendment No. 106, which, in relation to the more controversial parts of the Bill, requires a short sunset clause. The less controversial parts of the Bill, in common with the noble Viscount's amendment, could last for a somewhat longer period.

The principle of Xsunsetting" the Bill is, in effect, accepted by the Minister's right honourable friend the Home Secretary. The concessions that he has made in this area are welcome but they do not go far enough. It is with that in mind that we have tabled the

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amendment. I hope that it will be supported when it comes to a vote and that the noble Viscount will not press his amendment.

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