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Lord Dholakia: My Lords, perhaps I may put on record my thanks to the Ministers, particularly the noble Lord, Lord Filkin, at Third Reading when he agreed to take the matter back, look at it and establish what provisions were necessary. I am delighted by the way he has assisted in the matter.

At Third Reading, I drew the Government's attention to the likely injustice to certain British overseas citizens in Kenya and the provision which was made on registration. I believe that Amendment No. 14A meets our concern. It is an honourable outcome for those whose one hope of registering as a British citizen would have been taken away. This is an example of how detailed scrutiny of legislation can help remove anomalies, for which I am grateful to the Minister. I hope only that he will take the opportunity to publicise the provision so that a small group of people can exercise their right as soon as possible and the matter can be usefully concluded. Again, I thank the Minister.

The Lord Bishop of Portsmouth: My Lords, I am grateful to the Minister for reporting the amendment from the House of Commons. I endorse the words of the noble Lord, Lord Dholakia.

Lord Bassam of Brighton: My Lords, in response to the noble Lord, Lord Dholakia, we will of course use our best endeavours to give the matter wide publicity so that it is widely understood how people can benefit. I am grateful to him for all his efforts.

On Question, Motion agreed to.


16After Clause 13, insert the following new clause—
"Disapplication of section (Consequential and incidental provision) in relation to Part 1
Section (Consequential and incidental provision) shall not apply to this Part." The Commons disagreed to this amendment for the following reason—

16ABecause the power to make consequential and incidental provision should not be restricted in the manner proposed.

Lord Filkin: My Lords, I beg to move that the House do not insist on their Amendment No. 16 to which the Commons have disagreed for their reason numbered 16A.

Lords Amendment No. 16 and the ancillary Amendments Nos. 45, 88, 126, 192, 216 and 224 had the effect of disapplying the consequential and incidental order-making power added by the Government at Third Reading. We discussed the issue clearly and strongly at Third Reading and I want to explain why the Government feel so strongly that the power is necessary and that some of the concerns that have been expressed are, I am glad to say, without foundation.

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The House knows that powers of this kind are nothing new. The Education Act 2000 and the Criminal Justice and Court Services Act 2000 contain similar provisions, as have previous Acts of Parliament since 1992.

The noble Lord, Lord Kingsland, had concerns about the timing. We would not have acted at this late stage if it were avoidable. It was a consequence of the way in which the Bill had fortuitously evolved following the agreement reached with the French about seeking to manage the situation in northern France. We had originally hoped that we would be able to include all the necessary consequential and incidental provisions within the Bill.

Lord Renton of Mount Harry: My Lords, I thank the Minister for giving way. It might be helpful if he were to explain how the agreement with the French—presumably that relating to Sangatte—made it necessary to introduce this clause about statutory instruments and secondary legislation. For someone who does not know all the detail, it is hard to understand why it is necessary.

Lord Filkin: My Lords, I shall gladly give one illustration. The agreement with the French required us to have the powers to bring in juxtaposed controls at Channel ports. We did not have those powers because they sat only in the Eurotunnel legislation and therefore a late amendment had to be introduced. The power in this clause is because of a number of late amendments of that type and it has not been possible to be certain that all the consequential and incidental provisions have been identified.

On the issue of scope, there was obviously concern and, I believe, misunderstanding. I am asking the House to agree to a Commons amendment which clarifies the scope of the power in response to the representations made across the Chamber at Third Reading. I am pleased to be able to do so, and I am pleased that we were able to respond in the Commons.

I stress that the power is wholly consequential and incidental. It is about tidying up. It would not allow the Government to make provision which was not purely consequential or incidental on something already in the Bill. Yesterday, Mr Oliver Letwin stated:

    "If the sole purpose of the clause as currently phrased is to rectify a direct conflict of laws, to rectify minor discrepancies of reference and to clarify matters where a lack of clarity would otherwise prevail, it is of course harmless.—[Official Report, Commons, 5/11/02; col. 227.]

My right honourable friend the Home Secretary replied, at col. 228:

    "The hon. Gentleman asked whether the narrow interpretation was correct. The answer is yes. We do not seek to introduce parent legislation by edict, fiat or anything else".

Mr Letwin also asked about the issue of jurisprudence. Like him, legal advisers have been unable to find any relevant jurisprudence on this matter. Due to the exceedingly minor nature of the changes made by such a power and the fact that they

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are clearly linked consequentially or incidentally to primary legislation, it is extremely unlikely that such a challenge could ever by brought. The power would not allow either this Home Secretary or any future Home Secretary to introduce a new provision of a type referred to during debate in the Commons.

I cannot list a large number of instances where we would use the power for the circular reason that they have not yet been identified. We would have rectified them if they had been identified. It is about updating paragraph numbers; ensuring that cross-references are correct; and inserting missing words—again, only in the eventuality that these numbers are wrong, the cross-references are incorrect and the words are missing as a consequence of provisions introduced in this Bill.

Assuming that the Bill becomes law, the Home Secretary cannot say, for example, "I don't like the way the two-year time limit is working and as a consequence I'll use the consequential power to lower or raise it". That would be completely ultra vires and he would not be able to act in that way.

The extremely limited nature of the power therefore poses no threat to the conduct of future business as suggested. It would also be interpreted very narrowly by the courts. All it gives the Government is the opportunity to make sure that this Bill, as enacted by Parliament, is able to function in the way that Parliament wants it to when passed. We cannot amend or alter anything unless it is consequential or incidental on a provision of this Bill. I commend the amendment to the House.

Moved, That the House do not insist on their Amendment No. 16 to which the Commons have disagreed for their reason numbered 16A.—(Lord Filkin.)

Lord Goodhart rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 16 to which the Commons have disagreed for their reason numbered 16A, at end insert "but do propose the following amendment in lieu thereof—

    Before Clause 137, insert the following new clause—

16B"Expiry of section (Consequential and incidental provision)
Section (Consequential and incidental provision) shall cease to continue in force after a period of twelve months unless an order providing for its continuation in force has been laid before and approved by a resolution of each House of Parliament." "

The noble Lord said: My Lords, Amendment No. 225 is designed to give power, by order, to make consequential and incidental amendments, including amendments to other statutes. Therefore, it is indeed a Henry VIII power. Such a power is, as the noble Lord, Lord Filkin, has said, fairly common. I served for four years on the Delegated Powers and Regulatory Reform Committee. During the course of that service I saw a considerable number of similar amendments.

I checked the statutes for the year 2000, and in that year more or less similar clauses appeared in: Section 426 of the Financial Services and Markets Act; Section 119 of the Care Standards Act; Section 105 of the

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Local Government Act; Section 128 of the Postal Services Act—admittedly, in that case limited to the modification of local Acts of Parliament; Section 109 of the Utilities Act; Section 277 of the Transport Act; and Section 77 of the Criminal Justice and Courts Services Act.

The need for these clauses to tidy up details has been stated by the noble Lord, Lord Filkin. It is due to the complexity of modern legislation, which makes it difficult to identify every existing piece of statute law which needs to be repealed or amended.

The power is a legitimate one. However, there are two matters in connection with this particular power which have caused concern. The first was the width of drafting, which led to not unreasonable fears that the clause could be used for purposes over and above those indicated by the noble Lord, Lord Filkin. The width of that power is unusual, although not unique. That objection is cured by Amendment No. 225A.

The second matter that caused concern was the fact that the clause was introduced by amendment at the last possible stage. Although the Minister has explained why it was done at that stage, it is unique in my experience for such a clause to be introduced by amendment at any stage of a Bill. For that reason, we have proposed Amendment No. 16B, which imposes a sunset clause at the end of the first year. That surely gives the Government time to trawl through existing legislation and to identify any inconsistencies that remain. After one year, that should be unnecessary.

One factor that has contributed to the problems arising from the clause is that there is no standard form of a consequential and incidental powers clause. My check on the clauses used in the year 2000 showed considerable variations. I suggest to the Minister that one solution to this problem would be that, following agreement—no doubt through the usual channels—the matter should be referred to the Delegated Powers and Regulatory Reform Committee for a report. That report should, first, identify when it is legitimate to use a consequential and incidental powers clause; it should identify in such cases what would be an acceptable form or forms for such a clause; and it should indicate whether a Henry VIII element in such a clause should normally require the affirmative procedure, as this clause does, rather than the negative procedure, which is more generally used in the other clauses that I have mentioned. This would prevent similar problems arising. I hope that the Minister will be able to take that point on board, although I do not expect any assurance on it today. I beg to move.

Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 16 to which the Commons have disagreed for their reason numbered 16A, at end insert "but do propose the following amendment in lieu thereof—

    Before Clause 137, insert the following new clause—

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