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Lord Goodhart: As a former member of the Select Committee on Delegated Powers and Regulatory Reform, and as someone who took part in the debate to which the Minister referred, I naturally welcome the Government's acceptance of the principle that clauses on consequential amendments should require that the affirmative procedures be used when there is any amendment of existing primary legislation.

The sunset clause did not arise from any recommendation in the Select Committee's report. It was a personal recommendation by my noble friend Lord Dahrendorf. As I recall, I expressed some sympathy with it during the debate. Obviously it has considerable implications—they go well beyond the Bill—as to whether there should be a general principle of sunset clauses. Certainly, I find that the arguments in favour of three years rather than one year have considerable force. At this point, I would not like to commit my colleagues to supporting the amendment that calls for a sunset clause on Report, but we could do so.

Baroness Carnegy of Lour: I am a member of the Select Committee on Delegated Powers and Regulatory Reform. Of course, I welcome what the Government have done, as did the noble Lord, Lord Goodhart.

In relation to what was said by my noble friend Lady Anelay, the Government could save a great deal of legislative time if they asked departments to get together and try to find a more common approach to the wording of such clauses. If a clause hitherto unseen of such a nature appears on a Bill, it is necessary for the Opposition to question why it is worded as it is. If the clauses will recur, it would be in the Government's

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interests to consider the matter. The Minister could ask his right honourable friend to consult others on the subject, as it is quite important.

As was said by the noble Lord, Lord Goodhart, the sunset clause was not a recommendation from the Select Committee but the personal proposal of the noble Lord, Lord Dahrendorf. It was an interesting proposal. He has thought about the subject a lot, and I am sure that it will be followed up as time goes on. In this case, my noble friend has a good point in that a sunset clause could have a place in the Bill, albeit one involving a longer period as the Minister illustrated that a year was probably too short in this case. I look forward to seeing what happens on Report.

Lord Filkin: The noble Baroness, Lady Anelay, raised three initial questions to which I shall seek to respond. Then I shall come to points raised by other noble Lords on the amendments.

The noble Baroness, Lady Anelay, asked whether the Government would always use the procedure in future, and gave the Courts Bill as an example. I refer to the response of my noble and learned friend Lord Williams of Mostyn when he was asked the same question. He said:

    "My Lords, it is better to rely on the committee, which has the expertise and is non-partisan. Our experience has been rather successful. Rather than having an overall presumption, I suggest that it is better to rely on the specific, distinct expertise of the committee in any particular case. We are certainly more than happy to follow that line. As I have said in the past, in my experience since 1997, I do not believe that we have ever gone against a recommendation from the committee of the noble Lord, Lord Alexander, and now that of the noble Lord, Lord Dahrendorf. We should move forward in that way".—[Official Report, 14/1/03; cols. 186-87.]

I would infer that as meaning that we would take serious note of the Committee and would have to have good reason to fly in the face of it, without giving an automatic presumption.

Could there be more unified wording? As ever, I am advised that we cannot make commitments for the whole of the Government, which seems a great shame. Nevertheless, I recall the discussions on the then Nationality, Immigration and Asylum Bill when Parliamentary Counsel said that what was suggested as an amendment made no significant difference, and/or that its wording was appropriate for the circumstances. That may have been right, or perhaps that is what Parliamentary Counsel would have said anyway.

Without wanting to signal anything particularly major, I shall say that we shall correspond with the Lord Chancellor's Department on the issue, to see if there is any scope to reduce needless variation and focus the variation where it is essential. However, I do not invite the Committee to get overexcited about the product of that reflection. Of course, it may not be completed by Report, given the time that some such processes take.

The third point was on sunset clauses. I appreciate the comment that the amendment was probing, and that three years may be the period brought back on

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Report. At this stage, I shall not say a great deal more than that. My noble and learned friend Lord Williams stated during the debate on the delegated powers that,

    "the sunset clause would become, by and large, eclipse legislation and we would spend a disproportionate amount of time every year looking at sunset clauses".—[Official Report, 14/1/03; col. 185.]

By that, I think that he meant that one could spend time setting the sun, wherever it was.

At heart, the issue is whether one can be certain that one has identified all the consequential and incidental amendments that might be necessary. The second question is whether the consequence of not doing so is serious or trivial. The debate will probably have to focus around those two points, although I and others may need to consider further matters before we return to the subject on Report.

In short, I am signalling that we will consider the points made without signalling that we shall necessarily find a meeting of minds on the sunset clause, or that one should necessarily expect a standardised wording on such issues in the near future, if ever. However, we will certainly consider them.

Baroness Anelay of St Johns: I am very grateful to noble Lords who have participated in the debate. The noble Lord, Lord Goodhart, made the point that it was important that there be a presumption in favour of the use of the affirmative resolution when scrutinising later changes to primary legislation. In response, the Minister—I too shall quote part of a speech in a moment—referred to the noble and learned Lord the Leader of the House, who appeared to brush sunset clauses aside.

As I read the debate, and then watched it on the parliamentary channel, it appeared that the noble and learned Lord suggested that it would become overburdensome if sunset clauses dealt with both secondary and primary legislative changes—if they topped off everything after one year. I hope that my proposal of three years is a far more positive way forward. In the interim, affirmative resolution will be used for changes to primary legislation, but certainly three years will be a helpful way forward.

I direct the Minister to the helpful quotation that came my way from the noble and learned Lord, Lord Williams of Mostyn. He referred to the recent work in the Grand Committee on the Police (Northern Ireland) Bill, and in regard to 50:50 recruitment in the post-Patten proposals he said:

    "That is quite a useful scheme, providing for statutory review not more than every three years and a requirement for renewal not more than every three years. That is a device. I cannot be quite as nuclear as the noble Lord, Lord Dahrendorf".—[Official Report, 14/1/03; col. 185.]

He then went on to use the words that the Minister chose to quote. He was being positive towards the idea of a proper approach to ensuring that we do not simply let Henry VIII clauses drift on for ever.

My noble friend Lady Carnegy kindly supported the idea of sunset clauses and said, quite rightly, that one year would be too short.

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I was selective about my quotation and the noble Lord, Lord Goodhart, was absolutely right to ensure that the noble Lord, Lord Dahrendorf, was correctly quoted. I said that the noble Lord, Lord Dahrendorf, gave his support to sunset clauses. What I should have added was that he said:

    "Were I to add such a revolutionary proposal to the recommendations in the committee report, I should be transgressing my chairman's remit considerably".—[Official Report, 14/1/03; col. 169.]

I appreciate that he was speaking in his capacity as chairman that day, but in my view he quite rightly allowed himself the little luxury of being human at the end by making a very sensible proposal in addition to the other sensible proposals of the Committee.

At this stage, thinking forward to what we might to do on Report, I shall not move my amendment.

On Question, amendment agreed to.

5.45 p.m.

[Amendment No. 164 not moved.]

Lord Filkin moved Amendments No. 165 and 166:

    Page 60, line 27, at end insert—

"(5A) A statutory instrument containing such an order which adds to, replaces or omits any part of the text of an Act is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament." Page 60, line 28, after "instrument" insert "(other than an instrument to which subsection (6A) applies)"

On Question, amendments agreed to.

[Amendment No. 167 not moved.]

Lord Filkin moved Amendment No. 168:

    Page 60, line 30, at end insert—

"(6A) A statutory instrument containing such an order which adds to, replaces or omits any part of the text of an Act or of an Act of the Scottish Parliament is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Scottish Parliament."

On Question, amendment agreed to.

[Amendment No. 169 not moved.]

Clause 91, as amended, agreed to.

Clause 92 agreed to.

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