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Lord Renton: My Lords, the Government have nothing to fear from the amendment because it gives them the last word. It merely suggests that after three years the Government should consider whether the Bill should continue or be discontinued. The new subsection (10) would enable the Secretary of State to provide by order that the section shall continue in force. As the Government have the last word, I should have thought they would welcome the amendment.
Lord Filkin: My Lords, let me remind the House of the purpose of the powers in Clause 92. The clause does not grant the Government sweeping powers to amend legislation at will without Parliament having a chance to glance at what they are doing. We all know that, in practice, that is not the case. The powers concern only incidental and consequential provisions which fall within the scope of the Bill, and no wider. It would be ultra vires to use the power in another way and we have no intention of doing so.
I challenge the use of the term "bad behaviour". That is not the case. When the Bill has eventually passed through both Houses and received Royal Assent, in essence it will become the Act that this House and another place want to place into legislation and want to make work. All that these powers seek to dolimited and defined in the way that I have describedis to ensure that the will of the House can be exercised in practice; that it does not fall foul of some unforeseen and potentially unforeseeable circumstance which comes to light subsequently and identifies a glitch or an incongruity between this Bill and other powers.
As Members of the House are aware, the Government have already responded to the concerns held by certain noble Lords that the order-making powers were not subject to sufficient scrutiny. We therefore tabled amendments to ensure that any future amendments to primary legislation would be subject to the affirmative resolution procedure, while any amendments to secondary legislation would be subject to the negative resolution procedure. These amendments were in line with the recommendations of the Delegated Powers and Regulatory Reform Committee. The committee welcomed the Government's constructive approach to its recommendations.
The Delegated Powers and Regulatory Reform Committee did not recommend a sunset provision and the Government do not believe that it would be appropriate. Although we will make every effort to "get our act together" and introduce all necessary consequential amendments without delay, it is always possible that circumstances will arise beyond the three-year period. Schedule 5 runs to 11 pages, which demonstrates the highly technical nature of some of the law involved in the Bill.
The noble Baroness's amendment provides the Government with a chance to resurrect the powers of the clause beyond the three-year period. But that would require further parliamentary business and we question whether that is necessary.
We have consulted the Scottish Executive and Scottish officials closely on these issues. There is good liaison and consultation between the Scottish Executive and the UK Government and a long history of judicial co-operation. It is correct that Scottish Ministers should have order-making powers for those matters that are within their devolved competence. It is indeed possible that there may be certain variations north and south of the Border, but this would be only where a specific point of law in either jurisdiction required that. The overall purpose and effect of the orders would be the same.
This is because the subject matter of the Billthe implementation of international obligationsimposes exactly the same obligations in both Scotland and England and there is no reason to think that either set of Ministers would not be diligent in endeavouring to see that they were implemented effectively and that they were compliant with international obligations as a consequence. In circumstances of dispute, the joint ministerial committee can be used to resolve matters. Furthermore, Section 58 provides a legislative mechanism to solve problems of this kind, which no doubt one would hope would be entirely theoretical. So there is no need to provide for this afresh in every subsequent piece of legislation.
I shall not delay the House by going into more detail, but I should be happy to talk to the noble Baroness, Lady Carnegy, on this important but perhaps rather specialised point of Scottish intersection.
Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. Perhaps I may say, with the leave of the House, that he has done extremely well during the passage of the Bill in his co-operation with the Scottish Executive. It has involved a great deal of interlinking of ways of working. Bringing the Schengen agreement into Scots law has been a big operation in itself. I was not criticising that, I was merely saying that the Government requiring the Scottish Executive to use Henry VIII powers was new and that I hoped the habit would not develop too much. I was only referring to Henry VIII powers.
In conclusion, we hope that we will not need to use these powers after three years. But, in reality, no one can be certain of that. The argument for throwing them away or for arguing that one has to continually come back to Parliament for their renewal is akin to saying that because an event might have a low level of risk one does not require insurance and one can therefore afford to throw away one's insurance policy. I do not think that that is what the noble Baroness, Lady Anelay, is arguing. But it could be implied from the view that one does not need the powers to make incidental and consequential amendments to ensure that Parliament has the ability to keep its legislation in the form when and if it passes it. I hope that that is a satisfactory explanation.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his assurances and particularly for his explanation of what he meant at col. 691 on Report. There he referred to his reliance upon the work of the Delegated Powers Committee and how that fitted into the general approach as to how the Government might draft Bills. That was most helpful.
I accept the fact that this particular Henry VIII power deals only with incidental and consequential amendments. I am not trying to criticise those who are drafting the Bill. Far from it. I am trying to ginger up Ministers so that they might think a little more ahead as to the drafting of their Bills. In that way we would not have to go through several stages of drafting after a Bill has passed through both Houses in order to ensure that it is tidied up appropriately.
I agree entirely with the Minister that on occasions Henry VIII powers are required so that one can properly implement the original policy intention which may have been agreed to by all in both Houses. That does not always happen with such clauses. As I mentioned at the beginning, I certainly do not intend to press the matter. I agree entirely with other noble