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Lord Goldsmith: Before the noble Lord withdraws his amendment, he is too good a lawyer to know that silence does not constitute consent. He knows too well that on this side of the House we repeatedly say that it is wrong for those on the opposite side of the House to seek to throw out statutory instruments, but it still happens. Nothing that I have said is in any way intended to change the position that we take about the respective relationship between this House and another place. Let us remember that the other place most certainly is in a position—whatever we may think that this House should do—to reject regulations if it thinks that they are inappropriate. I venture to suggest that scrutiny is possible in another place too.
Lord Kingsland: If I may say so, in current political parlance I believe that the noble and learned Lord has just shot his own fox—something which is in conformity with a recent statute. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland: I believe that I shall now move Amendment No. 46 but I hope the House will forgive me as my papers are in a very temporary state of disarray.
Lord Goldsmith: I was going to suggest that what I believe Clause 20 does—I am sorry. I thought that we were discussing the clause stand part debate. I was going to move that the clause stand part of the Bill, but we have discussed it already.
Lord Kingsland moved Amendment No. 46:
The noble Lord said: I shall now move Amendment No. 46. This amendment deals with a somewhat different, albeit related point, to the previous grouping. The Explanatory Notes helpfully explain at paragraph 126:
"Subsections (7) to (9) set out transitional arrangements for the first regulations to be affirmed after coming into force".
I do not know whether this approach is standard practice. Perhaps the noble and learned Lord can tell us how often it has been used previously. It seems to us to invite Parliament to accept a fait accompli without proper scrutiny. Indeed, as I read the provision, the initial regulations could come into force in circumstances where Parliament will not even have had sight of them.
Moreover, while I recognise that subsequent regulations would be subject to the affirmative procedure, in the scheme of things these would flow naturally from their original incarnation. There is a risk, therefore, that any anomalies or infelicities in them would be perpetuated ad infinitum on the basis that their usage had already been established. In effect Parliament is being asked to accept a severely limited, indeed, almost non-existent, form of scrutiny for the initial regulations. Why is that so?
I suppose I can see why the Government might like this solution. The management of the process towards an integrated HMRC is full of pitfalls, not least a potential hiatus in the application in law of relevant secondary legislation. However, based on the assumption that I have accurately identified the Government's concerns, there is an eminently sensible solution.
As I have already intimated, the Joint Committee on Human Rights is just as worried as we are about this. Its proposition at paragraph 1.24 of its report is unequivocal; namely, "the definitions"; that is to say, of justifications for public interest disclosures,
As the noble and learned Lord the Attorney-General will not be surprised to hear, I agree. To my judgment not only would that obviate the need for subsections (7) to (9), but also it would serve to clarify the boundaries within which the Government envisage that the public interest exemption would operate. In passing, I add that it would also attend to the difficulties surrounding subsection (6) that we dealt with in the previous grouping. I beg to move.
Lord Goldsmith: The purpose behind this provision which is, as the noble Lord says, a special arrangement, is to permit the first set of regulations to come into force when made, but to lapse if not approved by Parliament within 28 days. The consequence of the amendment, if accepted, would be that that first set of regulations could not come into
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force until they had been approved by Parliament. That would create a gap between the coming into force of the new body and the existence of regulations.
As I have already said, the existing commissioners are currently able to make public interest disclosures, but those disclosures which take place in future—that is, after the Bill comes into force—would take place under the regulations in Clause 20. So there would be a gap unless we had the special arrangement. That is the significance behind it. Parliament will catch up very quickly with deciding whether the regulations are acceptable.
I am told that there is an example of this first use arrangement in paragraph 26 of Schedule 2 to the Financial Services and Markets Act 2000. I have not looked at it myself, but I do not doubt the information with which I am provided. I hope that helps to answer the noble Lord's question.
Lord Kingsland: I am most grateful to the noble and learned Lord for confirming what I had suspected. It was just that I wanted him to address himself specifically to the proposition of the Joint Committee on Human Rights at paragraph 1.24 of its report, to which I referred.
Lord Goldsmith: That is really something that we have debated already. I suggested that the procedure in Clause 20 for regulations is an appropriate one. The Joint Committee states in paragraph 1.24 that it wrote to the Government asking what kind of purposes are envisaged as justifying disclosure in the public interest. I have not seen what its response has been since the Government responded to that request and provided a copy of the draft regulations.
Lord Kingsland: In other words the noble and learned Lord is saying it might well be possible that the committee is now satisfied.
Lord Kingsland: I am most grateful to the noble and learned Lord for that. In those circumstances I shall make investigations about what the committee's reaction has been and meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goldsmith: I suggest this may be a convenient moment for the Committee to adjourn and to continue consideration of the remaining few groupings on Wednesday 2 March at 3.30 p.m.
The Deputy Chairman of Committees (Viscount Simon): The Committee stands adjourned until Wednesday at 3.30 p.m.
The Committee adjourned at one minute past seven o'clock.
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The first Written Statement should have been printed on 23 February.
Written Statements
Thursday 24 February 2005
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Royal Marriage
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): In the light of recent interest in the law surrounding Royal marriages, I am making this Statement to set out in more detail the view that has been taken by the Government on the lawfulness of the proposed marriage between the Prince of Wales and Mrs Parker Bowles.
The Government are satisfied that it is lawful for the Prince of Wales and Mrs Parker Bowles, like anyone else, to marry by a civil ceremony in accordance with Part III of the Marriage Act 1949.
Civil marriages were introduced in England, by the Marriage Act 1836. Section 45 said that the Act . . . shall not extend to the marriage of any of the Royal Family".
But the provisions on civil marriage in the 1836 Act were repealed by the Marriage Act 1949. All remaining parts of the 1836 Act, including Section 45, were repealed by the Registration Service Act 1953. No part of the 1836 Act therefore remains on the statute book.
The Marriage Act 1949 re-enacted and re-stated the law on marriage in England and Wales. The Act covered both marriage by Church of England rite, and civil marriage. It did not repeat the language of Section 45 of the 1836 Act. Instead, Section 79(5) of the 1949 Act says that "Nothing in this Act shall affect any law or custom relating to the marriage of members of the Royal Family".
The change of wording is important, and the significance is not undermined by the fact that the 1949 Act is described as a consolidation Act. The interpretation of any Act of Parliament, even when it consolidates previous legislation, must be based on the words used in the Act itself, not different words used in the previous legislation.
In our view, Section 79(5) of the 1949 Act preserves ancient procedures applying to Royal marriages; for example, the availability of customary forms of marriage and registration. It also preserves the effect of the Royal Marriages Act 1772, which requires the Sovereign's consent for certain marriages. But it does not have the effect of excluding Royal marriages from the scope of Part III, which provides for civil ceremonies. As the heading to Section 79 indicates ("Repeals and Savings") it is a saving, not an exclusion.
We are aware that different views have been taken in the past; but we consider that these were overcautious, and we are clear that the interpretation
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I have set out in this Statement is correct. We also note that the Human Rights Act has since 2000 required legislation to be interpreted wherever possible in a way that is compatible with the right to marry (Article 12) and with the right to enjoy that right without discrimination (Article 14). This, in our view, puts the modern meaning of the 1949 Act beyond doubt.
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