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Lord Mayhew of Twysden: My Lords, I thank the noble Lord for giving way. What is there in paragraph (1) of Amendment 121 which limits "that which he thinks necessary" to the narrow ambit just specified by the noble Lord? Why may he not think something necessary in order to fulfil a policy objective which

31 Oct 2002 : Column 309

may occur to him to be desirable at that time? What is it in the proposed language that has that narrow ambit?

Lord Filkin: My Lords, I asked the same question of my legal advisers yesterday in preparation for this debate. They drew my attention to the words,


    "which he thinks necessary in consequence of or in connection with a provision of this Act".

The legal advice, which I am sure I should not disclose, is that that explicitly defines "consequential and incidental".

Lord Mayhew of Twysden: My Lords, that does not quite answer the question. If the noble Lord can point to some precedent where that has been established we should all be interested to hear. No doubt if there was one it would have been furnished to him.

The new clause states that the Secretary of State may make provision as he thinks necessary in consequence of or in connection with the Bill that the effect of some other enactment may be modified, or indeed even amended. I do not doubt that the noble Lord is absolutely correct in saying that that is intended only to have a narrow consequential effect in order to meet the difficulties that he has already explained to the House. But where does the wording of the amendment prevent anyone coming along later and venturing to use this in order to fulfil some further and wider policy objective? It is not limited, so far as I can see, to narrow consequential matters.

Lord Filkin: My Lords, I am firm on this point. In order to put the matter beyond any doubt, I shall put what I am confident is the position in writing to the noble and learned Lord. The rule of law limits the Secretary of State's discretion very tightly to consequential or incidental matters. As I said when I spoke earlier, the courts would rule ultra vires any use of the powers wider than that.

Incidentally, the heading of the clause,


    "Consequential and incidental provision",

gives a signpost, if not full legal weight, to indicate the scope that is intended to them. I shall be pleased to put that in a letter to the noble Lord in order to confirm what I have said from the Dispatch Box.

Lord Renton: My Lords, it is very good of the noble Lord to give way again. Here we find that there will be power not only to amend an enactment but to modify the effect of an enactment—that means any enactment. But how can one modify the effect without amending it?

Lord Dholakia: My Lords, perhaps I may also interrupt at this point. I apologise for so doing. The Minister gave the impression that my noble friend Lord Dahrendorf indicated his support. My impression was that that was not so. Am I right?

Lord Filkin: My Lords, I shall respond to the last question as it is easier than the previous one. I shall reflect on the answer to the previous one and hope that inspiration will come.

31 Oct 2002 : Column 310

If I gave that impression, I did not intend to do so. I was quoting from the conclusion of the Delegated Powers Committee on the matter, which was essentially a flat point commenting on whether delegation issues were appropriate. I do not think that it was giving a view one way or the other about what are essentially the political issues which we are now debating.

Lord Dahrendorf: My Lords, it is never the objective of the Delegated Powers Committee, or indeed its remit, to express a view on the political issues.

Lord Filkin: My Lords, that is how I understand the matter. With regard to the challenging question of the noble Lord, Lord Renton, about the exact meaning of those words, I shall not venture anything further from the Box at this stage, but we shall look at that. I do not think that the terminology is different from that used previously on many occasions. If we are wrong on that, we shall reflect on it. But I do not believe that there is anything wrong with the drafting in that respect.

I understand and have some sympathy for the concerns of the House in bringing forward such a measure at this stage. Nevertheless, it is necessary on two grounds. First, as I indicated, the world is moving fast and we have to get legislation in place that is appropriate to deal with the reality of the world outside. Secondly, it would be ideal if we were confident that we had spotted every single consequential change. But, given the volume of the legislation, it is right and necessary to have such a power and to use it circumspectly, as we will only be able to do within the law of the land.

On the point of the noble Lord, Lord Renton, an amendment is different from a modification. The former changes the meaning for all purposes whereas the latter changes the meaning for limited or specified purposes. I cannot think why I did not think of that on the spot previously. For those reasons, the amendment is not appropriate. We shall move our own amendment when we reach it.

4.45 p.m.

Lord Kingsland: My Lords, I shall be extremely telegraphic. The noble Lord, Lord Dahrendorf, and the Minister referred principally to two precedents for this clause. One is contained in Part 3 of the Adoption and Children Bill, a Bill still being considered by your Lordships' House. The other is contained in the National Health Service Reform and Health Care Professions Act 2002. I have had an opportunity to glance at those measures. The text of the two precedents is what one would normally expect to find in a supplementary and consequential provision in a Bill. The power given to the Secretary of State is to make such supplementary, incidental or consequential provision as he considers necessary. That is a recognisable power and a well-established precedent.

If that was the power included in the amendment, I do not go so far as to say that I would be completely relaxed; but I would not be about to respond to the Minster in the way that I shall. The problem with

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Amendment No. 121 is that it does not follow the precedent set down in the Adoption and Children Bill and in the National Health Service Reform and Health Care Professions Act 2002. It does not refer to any supplementary, incidental or consequential provision. It refers to the Secretary of State making an order,


    "which he thinks necessary in consequence of or in connection with a provision of this Act".

That is as broad as any government Minister in the future wishes to make it.

If the Minister had adopted the wording in the two precedents put before the committee of the noble Lord, Lord Dahrendorf, one might have been able to see the point of the many submissions that he has been making in support of the Government's position.

In those circumstances, together with the points made most powerfully by the right reverend Prelate and many of my noble friends on the Benches behind me, that this Act involves—

Earl Russell: My Lords, perhaps I may assist the noble Lord. The Minister has quoted the National Health Service Reform and Health Care Provisions Act 2002. I made a large number of observations on that clause, in the course of which the noble Lord, Lord Hunt of Kings Heath, promised and performed numerous welcome amendments.

Lord Kingsland: My Lords, in view of the intervention made by the noble Earl—the noble Earl's interventions are invariably helpful, especially when made at a late stage—and in the light of what I have just said about the expression "in connection with", perhaps the Minister would like one last chance to respond to my observations before I consider whether this is a matter that I shall put to your Lordships' House.

Lord Filkin: My Lords, it is always a pleasure to respond to the invitations of the noble Lord, Lord Kingsland. The clause is drafted as it is because we think it is necessary and appropriate to the functions to which it may have to be applied in the future. That is clear from the way I spoke to it previously. But it is of course still tightly limited to things that are consequential or incidental to the Bill before the House.

Lord Kingsland: My Lords, the words "in connection" would set a dangerous precedent for the future of your Lordships' House. In the context of a matter that concerns human rights, it would be a disastrous precedent. I have no alternative but to test the opinion of your Lordship's House.

4.49 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

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Their Lordships divided: Contents, 171; Not-Contents, 116.

Division No. 1

CONTENTS

Aberdare, L.
Ackner, L.
Addington, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Brightman, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Burnham, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Campbell of Croy, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Carrington, L.
Chan, L.
Chorley, L.
Clement-Jones, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L. [Teller]
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Darcy de Knayth, B.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Finlay of Llandaff, B.
Fowler, L.
Gardner of Parkes, B.
Geddes, L.
Geraint, L.
Glentoran, L.
Goodhart, L.
Greaves, L.
Guildford, Bp.
Hambro, L.
Hamwee, B.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Hooson, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
Jacobs, L.
Jellicoe, E.
Jenkin of Roding, L.
Joffe, L.
Jopling, L.
Kilclooney, L.
Kingsland, L.
Lane of Horsell, L.
Lichfield, Bp.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Monro of Langholm, L.
Montagu of Beaulieu, L.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Ouseley, L.
Oxfuird, V.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Peel, E.
Perry of Southwark, B.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Portsmouth, Bp.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roll of Ipsden, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Saatchi, L.
St. John of Bletso, L.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Smith of Clifton, L.
Stevens of Ludgate, L.
Strange, B.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Vincent of Coleshill, L.
Wakeham, L.
Walker of Worcester, L.
Walmsley, B.
Watson of Richmond, L.
Wigoder, L.
Wilberforce, L.
Wilcox, B.
Williams of Crosby, B.
Wolfson, L.

NOT-CONTENTS

Acton, L.
Allenby of Megiddo, V.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jeger, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Massey of Darwen, B.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Nicol, B.
Parekh, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Stallard, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

31 Oct 2002 : Column 314

5 p.m.

Clause 16 [Support for destitute asylum-seeker]:


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