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The Lord Chancellor: My Lords, I confess that I am a little puzzled. Your Lordships will appreciate that the amendment under consideration is an amendment to Clause 11, not Clause 10. Therefore, the subject matter under consideration is correctly addressed by the noble and learned Lord, Lord Simon of Glaisdale. Clause 10 allows a remedial order to be made to amend a piece of primary legislation so as to remove an incompatibility that has been found to exist in one of its provisions. Clause 11(1)(a) provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate. Clause 11(2)(a) provides that the power to make incidental changes includes power to amend or repeal primary legislation, including primary legislation other than that which contains the incompatible provision.

Thus, Amendment No. 48 bites on the power to make incidental changes to legislation in addition to the main changes necessary to remove the incompatibility. I gained the impression from the language used by the noble Lord, Lord Lester, that he believed his amendment would alter the whole basis for remedial orders. But they are made under Clause 10 and this amendment relates only to the ancillary powers in Clause 11.

I hope that I can reassure your Lordships, as I and my noble friend Lord Williams of Mostyn sought to do both at Second Reading and in Committee, that the Bill contains sufficient safeguards to meet concerns about the powers conferred under Clauses 10 and 11. These powers have been carefully tailored to ensure that a remedial order can perform the job that it is designed to do; namely, to remove incompatible provisions of legislation in an effective and tidy way. A remedial order would not be used, and in our view could not be used, for any other purpose.

Lord Simon of Glaisdale: My Lords, would not the word "consequential" be sufficient to tidy up the amendment?

The Lord Chancellor: My Lords, I will explain in a moment the effect of Clause 11(1)(a). It provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate.

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Clause 11(2)(a) adds that this provision includes a power to amend or repeal primary legislation including primary legislation other than that which contains the incompatible provision.

It is in relation to that power only that the amendment would bite. It would limit the power to make incidental, supplemental and consequential changes to primary legislation which were themselves deemed necessary to correct an incompatibility with the Convention. In doing so it would prevent the amendment or repeal of provisions of other primary legislation that are not in themselves incompatible but whose amendment or repeal would be a natural or sensible corollary to the successful curing of the incompatibility of the legislation found to have been wanting. In other words, the effect of the amendment would negate the purpose of the provision which is made in Clause 11 for changes incidental to this which are needed to correct the incompatibility.

For example, there may be cases where changes to other legislation which is not itself incompatible, are necessary not to remove an incompatibility but for consequential or supplemental purposes. For example, if a section of an Act has been deleted, any references to that section in other Acts would be otiose and should also be removed. Changes under this category would be ruled out by the amendment.

The Government understand the desire to ring-fence the powers in Clauses 10 and 11 so far as possible, consistent with the purposes of the remedial order; but we believe that the existing provisions provide appropriate safeguards. I will list the elements. The order-making procedure is only available where a declaration of incompatibility under Clause 4 or a Strasbourg court judgment has been given or there is an urgent need to replace subordinate legislation quashed on convention grounds. Crucially, for present purposes, the power is to be used to remove incompatibility found by the UK or the Strasbourg court, and plainly it cannot be used in any connection for any other purpose.

The power to make incidental, supplemental, consequential and transitional provision is not novel; it is a well precedented supplementary vires provision. I emphasise "supplementary". It is not a basis on which a Minister could properly tackle some unrelated issues. Supplementary provision can only be added to a Clause 10 order, and the object of the Clause 10 order must be to remove the incompatibility found by the United Kingdom or Strasbourg court. In other words, while the power extends to amending other legislative provisions, it is heavily circumscribed because of the plain purpose of Clause 10.

Our view is that it is necessary to have the extra powers in Clause 11 in addition to the main powers in Clause 10 if the job is to be done properly and remedial orders are to make proper sense. We think that the amendment would make this impossible.

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The purpose of Clause 10(2) and Clause 11(1)(a) is to ensure that the removal of an incompatibility is complete so far as the statute book goes. As we see it, that is all that there is to it, and on that basis I hope the noble Lord will withdraw the amendment.

Lord Lester of Herne Hill: My Lords, that was a most powerful and impressive reply, which I should like to read in Hansard and think about tomorrow. If I have been guilty of a certain confusion of thought, then I plead guilty as between Clause 10 and Clause 11. I understand why the noble and learned Lord the Lord Chancellor had gained that impression of what I said.

I do not share the view of noble Lords who have criticised Clauses 10 and 11 as creating a vast Henry VIII clause with jackboots added on, doing violation either to parliamentary accountability or rule of law. I made clear at an early stage that I approve of this fast track procedure for the reasons given by the Lord Chancellor--that is to say, it is to uphold the rule of law to ensure that a declaration of incompatibility in judgments of the European Court are speedily and effectively translated by Parliament into effective remedies required, among other things, by Article 13 of the convention. Therefore I have no disagreement with the purpose of Clauses 10 and 11.

Much of what the noble and learned Lord said sounded like a judgment of the Appellate Committee in the House of Lords in an argument of vires about whether a particular form of delegated legislation came within or outside Clauses 10 and 11. I believe that the law Lords would be most likely, if not certain, to give a judgment in that way.

We have been given assurances, which I should like to consider further, about the need to ring-fence the safeguards the Lord Chancellor has indicated and the difficulty of seeking to limit the remedial orders in Clause 11 by a test of necessity when one does not, for obvious reasons, seek to limit the power to take the legal action by a similar test of necessity in Clause 10.

I hope I will not be considered by noble Lords who have been generous enough to support this amendment to have sold the pass; but I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Procedure]:

Lord Henley moved Amendment No. 49:


Page 7, line 7, at beginning insert ("subject to the provisions of subsections (1A) to (1D)").

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 52, 53, 54 and 59. We have briefly discussed the matters in relation to the earlier amendment which, sadly, the noble Lord, Lord Lester of Herne Hill, did not press to a Division. The other amendments in this group, Amendments Nos. 50 and 55 and 51, 56, 57 and 58, are all different approaches to the same issue and I trust that on this occasion we have all found the right clause to put them in. Even if they are not in the right clause I

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hope that the Government will not address the issue tonight because that matter could be resolved on another occasion.

I suspect that the group of amendments in my name and in the name of my noble friend are nearest to the approach put forward by the Delegated Powers Scrutiny Committee.

I moved similar amendments at Committee stage and therefore I do not intend to speak at great length on these amendments. I received a degree of support from the noble Baroness, Lady Williams, and then I offered her a degree of support on her amendments, just as I do on these amendments. Having debated the amendments, I have made some modifications to appease the Government by reducing the period of delay from 60 days to 40 days; but I suspect that that was unnecessary because the Government's amendments now seem to accept a 60 day delay period. I made the concession but it was not necessary.

At Committee stage I made reference to the report of the Delegated Powers Scrutiny Committee. I will not repeat paragraph 24 of that report except to remind noble Lords of the sentence which stated that the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders.

It is important that Parliament has a means of amending these orders. That is what my amendments do, and what, I regret to say, the other amendments do not do. It would obviously be possible, if one followed the lines pursued by the Minister's amendments, for the Executive to produce amendments following the consultation period. That is not sufficient. This is one of those occasions where it is important that Parliament itself can make amendment to the orders before they go through.

Committee stage was some time ago, and since then we have had the final stages, which the Minister will remember, of the Special Immigration Appeals Commission Bill. That Bill came to this House for the last time on 2nd December last year, and, as I understand it, it was designed to rectify a problem following a judgment of the European Court of Human Rights.

As the Minister will remember, my noble friend Lady Blatch, who was at the time dealing with Home Office matters, on a number of occasions pressed amendments to that Bill, but they were resisted in this House by the Minister. Following my noble friend failing to move, as it were, the Minister, but no doubt on his advice, his colleagues in another place agreed largely to accept the points put forward by my noble friend. Again, I hope on his advice, his honourable and right honourable friends in another place accepted the spirit of her amendments.

Without my amendment, it would not be possible for Parliament to make those amendments. No doubt the Minister will respond that it would be possible for the Government, should they wish, to use primary legislation to rectify those problems. Similarly, it would be possible for the Executive, in moving the orders

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following that procedure to make amendments, but it would not be possible for this House or another place themselves to put right the wrong. That is why I believe that my amendments are the right way to take forward this matter. I beg to move.


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