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Lord Goodhart: My Lords, on the first day of Report stage, I spoke against the much wider amendment (which was defeated on a Division) to exempt the Church of England and, indeed, other religious bodies from much of the effect of this Human Rights Bill.

On this occasion, I speak in support of the amendment which has been moved by the noble Lord, Lord Williams, because it seems to me to do no more than what is perfectly proper, which is to secure that the existing arrangements for the constitutional settlement between Parliament and the Church of England are maintained as now. We on these Benches are entirely happy with that.

Lord Williams of Mostyn: We are grateful for the generous response of the Church of England as articulated by the right reverend Prelate the Bishop of Ripon and for his positive assertion, which we welcome and accept, that the Church of England would not be found wanting or dilatory were a declaration of Convention incompatibility to be made in respect of any court order.

To answer the specific question asked by the noble Lord, Lord Hughes of Woodside, nothing in this Bill takes away from any citizen of this country the opportunity of the journey to Strasbourg if that were eventually required. The whole point of the Bill is, to coin a phrase, to bring rights home. The Church of England is not being exempted from the provisions of this Bill. We are dealing with the relationship between Church measures and legislation. It is because Church measures can be only approved or disapproved--not amended--following parliamentary discussion and scrutiny that we think that the remedial fast-track procedure is not appropriate for the reasons outlined briefly by the noble Lord, Lord Goodhart, upon which exposition I cannot improve.

On Question, amendment agreed to.

Clause 11 [Remedial orders]:

Lord Williams of Mostyn moved Amendment No. 47:

Page 6, line 35, leave out from beginning to ("may") and insert ("A remedial order").

The noble Lord said: My Lords, this is a drafting amendment. In Committee the noble Lord, Lord Meston, commented that the phrase "a remedial order" seemed to make its first entry into our world in Clause 11 although the power to make it was conferred by Clause 10. Scrutiny of the Bill will show that the phrase does not appear first in Clause 11, but in Clause 6(6)(b) which is concerned with acts of public authorities. It is not defined in that clause but in Clause 21, which defines a number of expressions used in the Bill. Clause 21 states that "remedial order" means,

I agree with the noble Lord that the drafting of Clause 11 could be improved. Where we detect improvements, as is now notorious in your Lordships'

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House, we are always willing to act upon them. That is why this drafting amendment has been tabled. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 48:
Page 7, line 3, at end insert--
("( ) The power to amend or repeal primary legislation under this section may be used only where it is deemed necessary to correct the incompatibility with the Convention rights.").

The noble Lord said: My Lords, this amendment draws on the report of the Select Committee on Delegated Powers and Deregulation, paragraph 23 of which states:

    "This [remedial fast-track procedure] is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention ...We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".

On 27th November, at col. 1143 of Hansard the noble Lord, Lord Williams of Mostyn, said in reply:

    "It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility".
The Minister was referring to appropriateness as being the test.

The purpose of this amendment is to require the fast-track procedure to be invoked where it is not merely appropriate but necessary in order to give effect to the court's declaration of incompatibility.

When the Lord Chancellor replied, he indicated that the Government had considered with great care the report of the Select Committee on Delegated Powers and Deregulation and had concluded that Clause 12 was adequate. The noble and learned Lord then said these important words:

    "In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention".--[Official Report, 27/11/97; col. 1145.]
That is not what the Bill says; it is what the amendment says.

I regard it as of great importance that the words of the Lord Chancellor should be reflected on the face of the Bill because of the unease on all sides of the House, shared with different levels of disquiet, about Henry VIII clauses. I note that when we come later to Amendment No. 49 we shall look at attempts to impose further safeguards on the fast-track procedure. My attitude to those amendments will be greatly affected by the reply from the Government Benches to this amendment, and whether the Government are willing to create the necessary safeguard. I know it will be said that it goes without saying and that the courts are likely to read into the Bill a test of necessity and not just appropriateness, but the words "appropriate" and "necessary" are not the same. Therefore, it is very important that before delegated powers to amend primary legislation are invoked--powers with which I entirely sympathise for the reasons given by the noble

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and learned Lord the Lord Chancellor during the previous debate--the test of necessity should be on the face of the Bill. I beg to move.

Lord Henley: My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. He referred to my amendments which are in the next group. Those amendments take the idea somewhat further and I believe are more in line with the suggestions made in paragraph 24 of the sixth report of the Delegated Powers Scrutiny Committee. Obviously, I would prefer to go down the line of Amendment No. 49 and the associated amendments, but if the House is unwilling to go that far at this stage I should like to support Amendment No. 48. If the House is prepared to accept both I shall be even happier because the two groups of amendments are not incompatible. I believe that my amendments, to which I shall speak at slightly greater length, do more to achieve that which was suggested or recommended by the Delegated Powers Scrutiny Committee.

Baroness Williams of Crosby: My Lords, this particular amendment attracted a good deal of support in Committee. We were then told to go away and ponder the matter further. The noble Lord, Lord Williams of Mostyn, said that he would also ponder further upon it. He said at the time that I was pressing for both belt and braces. That is correct. I see no objection to the combination of belt and braces. Indeed, that may be a very useful motto for everyone to bear in mind on some occasions.

I cannot see any objection to this amendment. Either it is the Government's intention to draw as narrowly as possible the powers that Ministers will have under these clauses or it is their intention to try to satisfy Parliament that the powers used are absolutely essential. I believe that on both tests this amendment is not objectionable. I hope that in responding the Government will make it plain either that they accept it or that there are very good reasons why they cannot do so.

Lord Simon of Glaisdale: My Lords, I too support the amendment. Your Lordships are now sensitive to the allegation of Henry VIII powers, particularly since the setting up of the committee which investigates them. These provisions allow the Henry VIII provision to go to quite unnecessary lengths. I ask your Lordships to look at Clause 11(1) which provides that a remedial order may make consequential provision. In subsection (2) it is provided that subsection (1) powers include powers to amend or repeal primary legislation--that is the Henry VIII proposal--including primary legislation other than that which contains the incompatible provision; in other words, it goes beyond what is required to remove an incompatibility and what is consequential to that. Put another way, the provision in this amendment is necessary. It picks up the word used by my noble and learned friend in justifying it. It is necessary in order to limit the quite undesirable ambit

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of the Henry VIII provision; in other words, it includes other primary provisions beyond what is incompatible and consequential on the incompatibility.

Lord Coleraine: My Lords, I should also like to express my support for the amendment moved by the noble Lord, which I believe the noble Baroness, Lady Williams, moved in Committee. I have one query on the drafting which centres on the word "it". I believe that the word should be "power". Obviously, the remedial order will not be made except where it is deemed necessary to correct the incompatibility with Convention rights. The Government will not amend the legislation except where necessary to correct an incompatibility, but it is important to make clear that it is the power which is deemed necessary.

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