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Lord Brooke of Sutton Mandeville: My Lords, until this evening, in my own experience the greatest case of retro-history was the competition in 1937 in the newsroom of the Chicago Herald Tribune for the most sensational headline that anyone could write. It was won by a sub-editor with the headline:

But I have to say that, in fact rather than in fiction, Amendment No. 121 overtakes that.

In his opening speech, my noble friend Lord Kingsland referred to the remarks of the Home Secretary in the other place about getting this Bill right. I am a veteran of Finance Bill discussions in the other place, both in government and in opposition, on various aspects of retrospective legislation. The debates went on for hours and hours and were extremely passionate. In this instance, we are not dealing with a particular amendment but with a generic one.

I have great sympathy for the noble Lord, Lord Filkin. I understand why, in terms of the timing of the Bill, the Home Secretary would not have the opportunity to bring this amendment forward. But I am inclined to think that, had it been the Home Secretary who had to bring it forward, even though he

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has of course approved it, he would have had difficulty in doing so with a straight face in view of what the other place would be likely to say about it.

Lord Dahrendorf: My Lords, it is somewhat unusual for the chairman of the Delegated Powers and Regulatory Reform Committee to speak at this stage. I merely want to clarify the position of the committee. The remit of the committee is entirely clear. We are supposed to examine whether the provisions of any Bill inappropriately delegate legislative power or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny.

In examining this amendment, we were informed by our own advisers—perhaps I may say in parentheses that it appears that, without much joining up, different parliamentary draftsmen use slightly different phrases in different Bills or Acts—that, in substance, a near-identical amendment was contained in Clause 143 of the Adoption and Children Bill. We were also informed that there are similar provisions in the National Health Service Reform and Health Care Professions Act 2002, in the Health and Social Care Act 2001 and in a number of other Acts of Parliament.

In the circumstances, we did not find it possible to reach any conclusion other than the one in paragraph 12 of our report—that is, that provision of this sort is not unprecedented. At the same time, and perhaps somewhat unusually, at paragraph 13 we made the point that there has been no opportunity to examine this matter in detail and that we were surprised—I cannot put it differently—that the Government argued in terms of the imperfections of the Bill and the lateness of the amendment rather than in terms of precedent. But that is not for the Delegated Powers and Regulatory Reform Committee to judge. I hope that we have properly discharged our duty to the House. In the circumstances, if there is a Division on this issue it is obvious that as chairman of that committee, I will not vote.

4.30 p.m.

Lord Filkin: My Lords, as the noble Lord, Lord Brooke of Sutton Mandeville, stated—he has made many helpful and wise comments during debates—the Government would be reluctant to take powers of this kind at this stage if there were any sensible, practical alternative. But, as the noble Lord, Lord Dahrendorf, stated, the power is neither unprecedented nor particularly unusual. I shall not repeat the Acts to which he referred. The House will be well aware that he could have gone further back in time and identified other uses of such powers. However, I do not think that that would help our debate today.

I assure noble Lords that we would not seek to introduce such a power if we believed it was avoidable. However, we believe it is vital to have this power to ensure that the Bill functions properly when it comes into force and in the way that this House and another place intend. It was originally hoped that we would be able to include all the necessary consequential and incidental provisions within the Bill. But, as the House is aware, the large amount of complex material which

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has been added to the Bill—sometimes that has been by the Government in response to representations by both opposition parties, which we have been pleased to do—necessarily meant that it has not been possible to be certain that every consequence has been identified at this stage. For reasons of prudence and caution rather than adventure we believe that it is right, proper and necessary to have a limited power of this type in the Bill.

I stress that this power concerns only consequential and incidental provisions. It would not allow the Government to make provision which was not purely consequential on or incidental to something already in the Bill. To try to do so would be ultra vires and unlawful. Clearly, the Government have no intention of so doing.

It may be helpful to give the House examples of the sort of consequential provisions we have in mind. First, yesterday an amendment was tabled in my name to Clause 150 for today's Third Reading which makes clear that the term "Immigration Act" in the 1971 or 1999 immigration Acts includes a reference to this Bill. We identified the need for this consequential provision only at a late stage. However, it is highly desirable that the amendment is passed otherwise there will be a contradiction between the 1971 and 1999 Acts of Parliament (which state, for obvious reasons, that the term applies only to previous immigration Acts not to ones which could not be foreseen) and this Bill, which states that the term as it appears in those Acts covers this Bill.

It will be apparent to the House that that merely gives effect in law and clarity to what this House intends if that clause is passed. If we had not tabled that amendment yesterday, we would have needed this consequential power to do that. It is right and sensible that we have such a power so that the legislation is good and sound for the purpose for which it is to be enacted. We fear—it would be good if we were wrong—that there may be other similar examples which we have not yet identified. Hence the need for this power.

Secondly, as regards Part 5 of the Bill, as the House knows, we recommitted the Bill to allow the House a full day to consider late changes introduced by the Government. The House was rightly concerned at the need for recommittal but my own judgment was that the recommittal process worked well and the House conducted that scrutiny process with its usual care and thought.

The reasons for introducing the late changes are that events in the wider world are moving fast in that respect. This is not a static world. The world we envisaged when the White Paper was written in February looks slightly but significantly different in a number of important respects. We debated the need for those amendments and I am glad to say that at least some of the Opposition Benches have been unswerving in their support for them. We thank noble Lords and commend that support. However, we would be foolish if we thought that we had necessarily spotted every consequential or incidental amendment. If the

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measures are right, it is right to ensure that they are put into legislation in a way that is without doubt and does not create lacunas or other problems.

Lord Clinton-Davis: My Lords, can the noble Lord give any other example where the rights of an individual are as affected as they are in this legislation?

Lord Filkin: My Lords, I shall not repeat the words of the noble Lord, Lord Dahrendorf. He gave a number of examples of Bills. If he had gone further back in time he could have listed many more where powers of this type bear significantly on the rights of individuals. That is why the powers are so limited and circumscribed as to be consequential and incidental.

I thank the noble Lord, Lord Dahrendorf, and the Delegated Powers and Regulatory Reform Committee. The care and expedition they gave to the proposals was much respected and appreciated. We have made clear also that any order which amends an enactment will be subject to affirmative resolution. Thus, in such cases there will be an opportunity for parliamentary scrutiny of any changes made to the Bill as a result of this provision. Indeed, the Delegated Powers and Regulatory Reform Committee found the delegation and level of scrutiny sufficient. Finally, we have agreed that regulatory impact assessments will be provided, where appropriate, on particular consequential amendments.

I turn to a number of questions raised. The noble Baroness, Lady Carnegy of Lour, did her usual vigorous job in terms of scrutinising the provisions for their impact on Scotland. We shall consult with the Scots before proposing any rule change under this provision. It will be difficult to consult them about any rule change that we do not yet know about. However, I give the clear undertaking that we shall consult with them if we intend to bring measures before the House.

Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. In making the interim alterations to the Bill, have the Government consulted the Scottish Parliament? Do they know that the Scottish Parliament are happy that the interim changes should be made? Otherwise, this measure should not be in the Bill now.

Lord Filkin: My Lords, I am advised that we have consulted Scotland on the measure. I turn to the point raised by the noble Lord, Lord Kingsland, that this would allow the Home Secretary to make any change he thinks necessary. I shall not be tedious, but that is not so. This refers only to consequential and incidental amendments.

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