Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Moran: I am grateful to the Minister for his reply and I understand what he says. It is unusual to have a review clause in a Bill, but this is a rather unusual Bill. We are entering new territory.

I welcome his comments about Clause 34 and I hope that it will not be necessary to make changes. However, I believe that in practice there will be defects. We have already found some and corrected them in Committee. I was seeking only to provide a mechanism to achieve that. However, I hope that by using

15 Jun 1998 : Column 1371

Clause 34 the assembly will be able to make the necessary changes. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 151 [Power to amend enactments]:

6.30 p.m.

Lord Williams of Mostyn moved Amendment No. 268:

Page 74, line 12, leave out ("subordinate legislation").

The noble Lord said: This is a drafting amendment to bring the wording of Clause 151 into line with other references to subordinate legislation in Clauses 29(8), 43(6), 44(2) and 46(4). Therefore, it is intended to bring consistency. I beg to move.

Lord Mackay of Ardbrecknish: Does this amendment mean that once the words "subordinate legislation" are out, paragraph (b) will be referring to subordinate legislation in fact because that is what is made, whereas Acts of Parliament are passed? I do not understand why the Government have tabled this amendment.

Lord Williams of Mostyn: The point of this amendment is to leave out in line 12 the words "subordinate legislation". I am not entirely sure that I understand the drift of the noble Lord's question. That may well be my deficiency. As I understand it, it is simply to bring consistency and conformity with those other parts of the Bill to which I referred. I may have misheard the noble Lord's question.

Lord Mackay of Ardbrecknish: It may be that I did not phrase it very well. Do I take it that the Secretary of State may by order change any subordinate legislation, just as in paragraph (a) it appears that he can change an Act?

Lord Williams of Mostyn: Yes.

On Question, amendment agreed to.

On Question, Whether Clause 151, as amended, shall stand part of the Bill?

Lord Mackay of Ardbrecknish: My noble friend and I have tabled our opposition to this Motion. This clause, as anybody who reads it will see, is a fairly large Henry VIII clause. I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, has left us because I am sure that he would be interested in contributing to the debate. I am sorry also that the noble Earl, Lord Russell, equally interested in Henry VIII clauses, is not with us. Therefore, I must say my few words having learnt at their feet. Whenever I proposed anything that looked vaguely like a Henry VIII clause they came to their feet and reprimanded me.

I do not believe that I ever proposed anything quite a draconian as this Henry VIII clause. The noble Lord, Lord Williams, suggested to the noble Lord, Lord Moran, a few moments ago that his amendment was a self-amending clause. It seems to me that Clause 151 is a

15 Jun 1998 : Column 1372

self-amending clause. The Minister suggested also that that amendment would be a Henry VIII clause. Clause 151 is the mother and father of Henry VIII clauses. It states:

    "The Secretary of State may by order make in any enactment contained in ... an Act passed before or in the same session as this Act, or ... such amendments or repeals as appear to him to be appropriate in consequence of this Act".

I have little doubt that the Minister will tell me that I should not worry because the matter can be dealt with only by an affirmative order. I regret that I do still worry. It is an enormous Henry VIII clause.

I can see the point--and no doubt the Minister will make it--that with a piece of legislation as novel to us in this country as this, we may well have missed something with which we should be dealing today. After all, the repeals clause is fairly extensive. I can see that something may be missed which requires to be dealt with; that it would be foolish to require primary legislation; and that an affirmative order is a sensible solution. I am prepared to accept--as I suppose I must because I no doubt did it myself on a number of occasions--that an affirmative order is an acceptable way to deal with Henry VIII clauses.

However, this provision will be in the Bill for a long time to come. It worries me that way in the future, long after the time for sorting out some of the problems which may arise from learning to live with a new kind of structure in the UK, a Secretary of State--and I notice it is the Secretary of State--may decide to do something which goes beyond anything that we envisage in the course of our discussions in both Houses on this Bill.

Perhaps the Minister will consider allaying my reservations about this Henry VIII clause by considering a time limit. I shall not suggest whether it should be within a month or a year. However, there should be a reasonable time limit within which the clause should fold. Therefore, it will be there to help the Government to tidy up any loose ends which we may have omitted in Parliament, but it will also come to an end and cannot be used by a Secretary of State some years in the future in a way of which Henry VIII would have certainly approved.

Lord Hooson: Will the Minister consider what has occurred now after his amendment to take out the words "subordinate legislation" in relation to the wording of Clause 151? It now reads:

    "The Secretary of State may by order make in any enactment contained in ... made before the passing of this Act".

The word "subordinate" should have been taken out but not the word "legislation".

Lord Williams of Mostyn: The noble Lord, Lord Hooson, may in part be right in that regard. We may well bring a printing revision before the House in due course. That has been noted and I am aware of it. The noble Lord is right about that.

I turn now to the more fundamental point, if I may say so without disrespect, which is raised by the noble Lord, Lord Mackay of Ardbrecknish. These are reasonable questions to raise. This is not really a self-amendment

15 Jun 1998 : Column 1373

clause because an order under Clause 151 cannot amend this Bill. It is limited quite substantially, as the Committee will see. The amendment power is limited to:

    "An Act passed before or in the same session as this Act or .... legislation made before the passing of this Act or in the session in which this Act is passed".

I agree that it is a limitation; it is not an entire limitation. But if I understand the noble Lord correctly, he is talking about time in the future relating to time of amendment rather than the time of the passage of the original legislation.

Clause 151, with the limits that I have indicated, is a means of making consequential changes in the most efficient way possible. We have in mind that it may become apparent that the enacted provisions of this Bill are at odds with another statute. If so, the changes could be effected by order. That means that we do not burden this House or another place with fresh primary legislation to effect no more than what would be technical amendments. I suggest that it would be a waste of Parliament's time to require primary legislation and would produce unjustified, unwarranted and sometimes quite intolerable delay in making the necessary changes.

I am aware of what the noble Lord said about Henry VIII powers. One always needs to be careful. But the Committee will note that the Delegated Powers and Deregulation Committee saw no need to draw to your Lordships' attention the power in this clause. It noted that it and similar provisions in the Bill,

    "all arise naturally out of the subject matter".

There is the further limitation that Clause 151 makes it quite plain that it may be used only in consequence of the enacted provisions of the Bill. There is no carte blanche there. The noble Lord rightly foresaw that I would say, as I do, that this will be subject to the affirmative procedure in both Houses, so there is a check on the Secretary of State.

This clause intends to contemplate that we may have got things wrong; there may be errors and omissions; and it is a fairly simple mechanistic device to put things right, limited in the ways that I have indicated.

Clause 151, as amended, agreed to.

Clause 152 agreed to.

Schedule 15 [Repeals]:

Lord Williams of Mostyn moved Amendment No. 269:

Page 131, line 16, at end insert--

("Part AI
Welsh Administration Ombudsman and Health Service Commissioner for Wales

ChapterShort titleExtent of repeal
1967 c. 13.The Parliamentary Commissioner Act 1967.In Schedule 2, the entries relating to the Arts Council of Wales (Cyngor Celfyddydau Cymru), Bwrdd yr Iaith Gymraeg (Welsh Language Board), the Countryside Council for Wales, the Office of Her Majesty's Chief Inspector of Schools in Wales, the Sports Council for Wales and the Wales Tourist Board.
1974 c. 7.The Local Government Act 1974.In section 33(5), the words "by any of the Commissioners mentioned in this section, or by any of their officers,".
1989 c. 26.The Finance Act 1989.In section 182(4)(a)(i), the word "or".
1990 c. 43.The Environmental Protection Act 1990.In Schedule 6, paragraph 23(a).
1993 c. 38.The Welsh Language Act 1993.In Schedule 1, paragraph 5.
1993 c. 46.The Health Service Commissioners Act 1993.In section 2, in subsection (2)(b), the word "and" and, in subsection (5), the words "by Order in Council".
In section 18(3), the words "by a Commissioner or his officers".
In Schedule 1, in paragraphs 3(2)(a) and 3A(2)(a), the words "or for Wales" and paragraph 11(2).
1995 c. 17.The Health Authorities Act 1995.In Schedule 1, in paragraph 126(2)(b), the words "in paragraph (b), after "Wales," insert "and"".
S.I. 1995/1615.The Parliamentary Commissioner Order 1995.In article 2, the words ""Arts Council of Wales (Cyngor Celfyddydau Cymru)",".
1996 c. 57.The School Inspections Act 1996.In Schedule 6, in paragraph 1, the entry relating to the Office of Her Majesty's Chief Inspector of Schools in Wales.")

15 Jun 1998 : Column 1374

On Question, amendment agreed to.

Next Section Back to Table of Contents Lords Hansard Home Page