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The Lord Bishop of Portsmouth: My Lords, there are occasions when the soupcoon offered by the noble Lord, Lord Avebury, is to the taste of these Benches, and this is one example. I hope that the Minister—who has, and continues to show, such commendable patience in the passage of this Bill—will consider this amendment seriously.
Earl Russell: My Lords, I have come to the conclusion that, in supporting this amendment, I must declare an interest. The amendment directly affects one of my pupils, whose son is now a rising journalist on the Financial Times and may well be following these proceedings with rather more even than his usual high standards of attention.
Lord Brooke of Sutton Mandeville: My Lords, when I feel some sympathy—as I do on this occasion—for an amendment moved from the Liberal Democrat Benches, I reflect, in a manner perhaps suitable to the matters giving rise to this amendment, that of the six
members of my family who have sat in the House of Commons since the Great Reform Bill, the first four were Liberals and only my father and myself were Conservatives. I have sympathy for Amendment No. 2A. I state that to indicate that there are other corners of the House that support the noble Lord, Lord Avebury.
Lord Filkin: My Lords, as the House will well know, the noble Lord, Lord Avebury, has made repeated and powerful representations on these issues. Indeed, he made them so persuasively after we announced the change in the summer that we have moved Amendment No. 2. We have carefully considered the points that he has made to us in his representations today and previously. I regret that, for the reasons that I gave in moving Amendment No. 2, we believe that the 1961 cut-off date is reasonable. One can go only so far back in seeking to right the wrongs of history and of previous generations. Therefore, with regret, I cannot accommodate him on this occasion.
Lord Avebury: My Lords, I can see no objective reason why the Government cannot go back to 1948, just as they went back to 1961 in the previous legislation. However, after so many rounds of discussion both on the Floor of the House and outside it, I am clearly not going to be able to persuade the Minister to accept this amendment at this late stage. I can only hope that, when another place comes to consider the Bill and sees the general support for this amendment from both the right reverend Prelate the Bishop of Portsmouth and the Conservative Party, it will be minded to make this small change to the Bill. By that time, the Government will have had plenty of opportunity to look into the issue and to agree to the change. Meanwhile, I beg leave to withdraw the amendment.
Amendment No. 2A, as an amendment to Amendment No. 2, by leave, withdrawn.
On Question, Amendment No. 2 agreed to.
Lord Kingsland moved Amendment No. 3:
- After Clause 14, insert the following new clause—
The noble Lord said: My Lords, in moving Amendment No. 3, I shall also speak to Amendments Nos. 20, 55, 80, 106, 114 and 120, which are ancillary to it.
The purpose of these amendments is to raise some questions about the Government's own Amendment No. 121. The Opposition have three concerns with this amendment. The first is timing. The second is scope— in our view it goes way beyond the scope that one usually finds in a consequential and incidental clause. The third is the menace that such a clause, if it found its way into the Bill, would pose to the future business of your Lordships' House if it became a precedent relied upon by Ministers.
I should like to pay a warm tribute to the Select Committee on Delegated Powers and Regulatory Reform and to the noble Lords who serve on it. The committee has managed to produce a report for your Lordships' House on the Government's late amendments at less than two days' notice.
I must confess to experiencing real astonishment at the new clause tabled in the name of the noble Lord, Lord Filkin, so late in the Bill's passage. As the Delegated Powers and Regulatory Reform Committee stated at paragraph 5 of its report:
The White Paper, on which the Bill was based, was published at the beginning of this year after months of research by the Home Office. The Bill itself began its passage in another place nearly seven months ago. Second Reading in your Lordships' House was in June; and the Government had more than two clear months to consider the matter over the summer Recess. Indeed, the noble Lord, Lord Bassam, observed:
The Home Office's memorandum to the Delegated Powers Committee stated at paragraph 2:
Worse, the clause is not only being proposed "just in case". The Government plainly know what many of the amendments that they seek to make, using the proposed powers, are. Indeed, some of them are listed in the memorandum submitted to the Delegated Powers Committee. The memorandum states:
In moving the Second Reading of the Bill in another place on 24th April, the Home Secretary remarked:
In my submission to the House, it is unacceptable for the Government to maintain the impression to your Lordships' House, right up to the final week of these proceedings, that the Bill is in order—then come to your Lordships' House, less than a week before the end of the Bill's passage, and ask the House to accept this amendment. I can do no better than to quote the Delegated Powers Committee's conclusions at paragraph 13 of its report,
The Government could not have sent a clearer signal to your Lordships' House about what they really think of the parliamentary process. Moreover, quite apart from the timing and merits of the clause itself, accepting it at this stage would create a precedent which would be relied upon by future governments to treat your Lordships' House in exactly the same way. I beg to move.
Lord Dholakia: My Lords, we on this side of the House support the amendment. We do so because it
The Minister has been generous with his time in briefing us on the amendments that the Government propose. Some major government amendments have required recommitment in your Lordships' House. We do not object to that. However, the amendment we are discussing goes much further. One wonders whether there are fundamental defects in the Bill which make the Government want to assume such substantial powers. I do not dispute that such clauses are found in other legislation, including wide-ranging Acts. I refer to the Financial Services Act and the Adoption and Children Bill. However, in other cases where such a clause has been introduced, it has been part of the Bill from the beginning, not brought in at such a late stage. The Government have made so many changes at such a late stage that they cannot be sure they have not made a mess of the Bill.
The new clause is being placed in a Bill which already contains numerous extremely wide regulation-making powers. The clause is being placed in a Bill which is already a poor substitute for a consolidating Act. The need for consolidating legislation in this area—rather than yet more provisions amending other legislation—is desperate, and orders made under this section can only add to the confusion.
These clauses are objectionable in any Act. They increase the plethora of delegated legislation and decrease Parliament's ability to look at major legislation in the round. This clause in this Bill at this late stage is a step too far. We certainly support the amendment.
"DISAPPLICATION OF SECTION (CONSEQUENTIAL AND INCIDENTAL PROVISION) IN RELATION TO PART 1
Section (Consequential and incidental provision) shall not apply to this Part."
"We note that these new clauses were tabled very shortly before Third Reading".
Timing, however, is not my only preoccupation, for this clause is a true Henry VIII clause. Not even the Home Secretary considered the insertion of such a clause during the Bill's passage through another place. So why has it been tabled now?
"We shall have a long, hot summer discussing the details of this legislation".—[Official Report, 29/7/02; col. 737.]
Despite all that, the Government now come to your Lordships' House at Third Reading and admit, for the first time, that the Bill is not in good shape and that they require a Henry VIII clause.
"We are seeking to insert this clause due to the large number of government amendments made at a late stage of the Bill. . . . There will not be adequate time before Third Reading to identify all the possible consequential and incidental amendments that may be necessary to deal with these late amendments. . . . Therefore we consider . . . that there needs to be a power to deal with consequential and incidental amendments to the Bill that may only come to light in due course".
The paragraph I have quoted could not be clearer. It is an admission, out of the Home Office's own mouth, that it is legislating with no clear grasp of the consequences of doing so.
"We are also aware of a number of consequential amendments that will need to be made to a number of previous enactments on the subject of nationality, for example, British Nationality (Hong Kong) Act 1990, and the British Nationality (Falkland Islands) Act 1983".
And that is not all. The Government also wish to use the power in the new clause to make transitional provision amending,
"the time limit for appeals against carriers' liability under the civil penalty regime ... This regime is being revised by virtue of amendments to Part II of the Immigration and Asylum Act 1999 under Schedule 8 to the Bill".
Yet Schedule 8 to the Bill was added in another place as long ago as June. The Home Office has had four months—indeed, more, as the schedule was doubtless some time in preparation—to ensure that issues such as this were covered by the Bill. In any case, the Bill already includes comprehensive transitional provisions on other matters, such as those in Clause 111 on the procedure for dealing with unfounded asylum claims. Why, then, is this power required?
"it is important that we get the legislation right".—[Official Report, Commons, 24/4/02; col. 341.]
The Government's new clause before your Lordships' House today, together with the Home Office memorandum, prove, in my submission incontrovertibly, that they have failed to achieve that objective. Indeed, as I read the new clause, it would even allow the Home Secretary to make any amendment he deemed necessary to the Bill, if it is enacted. Your Lordships will notice that the power in subsection (2)(a) of the new clause is drafted in such a way as to allow the Secretary of State to "amend an enactment", not to "amend an enactment (other than this Act)". Why is the provision so worded? The answer is plain: it is because the Government realise, as I have already portrayed, that the Bill contains, at this very late stage, serious defects.
"the Committee is concerned about the tabling of a significant Henry VIII power at a stage when effective scrutiny of the power, either by this Committee or by the House, is impossible. We are also surprised that, instead of referring to precedent, the arguments in favour of this power put forward by the Government include the lack of time to identify all the possible consequential and incidental amendments that may be necessary, and the need to make consequential and incidental provision, the need for which 'may come to light in due course'".
4 p.m.
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