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Lord Renton: My Lords, I believe that a serious matter arises under Amendment No. 60. The noble Lord, Lord Williams of Mostyn, has done his best to explain and excuse the purpose of Amendment No. 60 which inserts a new schedule and, for the first time, makes proposals to deal with remedial orders. It is right that the matter should be dealt with. If only the third paragraph of the new schedule had not been inserted everybody would have been satisfied. But I invite the attention of the House to the comments on this matter by the Select Committee on Delegated Powers and Deregulation. I shall not read a great part of what is said. However, if I quote paragraph 8 on page 4 of the report it will place on record the difficulties that are likely to arise. Having said that paragraph 2 of the new schedule introduces a second 60-day delay by providing that a draft order cannot be approved by resolution until after the end of the period of 60 days beginning with the day on which the draft was laid, the committee states:

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I do not believe that anything was said during those proceedings to justify the long delay that is now put forward in paragraph 3 of the new schedule. The report continues:

    "While we appreciate this positive response, the procedure set out in Commons amendment 60 is not, however, what we suggested in our previous report--there is only one 60 day limitation in the procedure under section 4 of the Deregulation and Contracting Out Act 1994--and we see no reason for the introduction of a second 60 day period".
The committee met yesterday and its report was published only this morning. I confess that I did not see it until this afternoon. The paragraph concludes:

    "We hesitated to draw this matter to the attention of the House at such a late stage in the Bill's passage, but do so because it may be that this exceptionally lengthy scrutiny period will in practice make the procedure so slow as to belie the definition 'fast-track', and will in fact make it unworkable, thus leading to greater reliance on the emergency procedure. The Government and the House may therefore wish to consider a simple amendment to Commons amendment 60 to remove the second 60 day period".

Due to the short notice, although I would have wished to table a manuscript amendment I have not done so. I wonder whether the noble Lord, Lord Williams, who is always so sensitive and helpful about difficulties arising on legislation, will seek the permission of the House--I understand that under the rules of procedure such can be given--to delete paragraph 3 of the new schedule. There would be such obvious public advantage in so doing. I wish that I had had the opportunity to alert the noble Lord to the point before the debate. However, he has a full grasp of the situation as he made clear when he invited the House to approve Commons Amendment No. 60. I very much hope that even at this late stage we can put the matter right.

Lord Lester of Herne Hill: My Lords, I support what the noble Lord, Lord Renton, has said. In a sense we are in a Gilbertian situation. The Select Committee on Delegated Powers and Deregulation is one of the most admirable recent inventions of this House. It is there to maximise parliamentary scrutiny over delegated legislation and to ensure that Henry VIII clauses are not abused. It blew the whistle at an early stage. It was the main Opposition party which pressed strongly for adequate safeguards against the misuse of Henry VIII powers. There was also a certain dislike of the fast-track procedure. We on these Benches were strongly in favour of that procedure while we also pressed for safeguards.

The reason for our support for the fast-track procedure was the same as that put forward by the Government; namely, first, that for the procedure to come into force there must be a declaration by a court of competent jurisdiction that there is an incompatibility between the statute and a convention right; and, secondly, that the victim must have abandoned or completed all appeals under our system, or it must appear to the Government having regard to a finding of the European Court of Human Rights that the provision in our statute book is incompatible with an obligation under the convention.

All of those events must have happened before the fast-track procedure can start. When one reaches that situation there has been a systemic failure: that is, the

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courts have decided that there is a mismatch between our statute and a convention right, and in the background is the victim. The victim cannot make the ghastly long journey to the Strasbourg court. The procedure takes six or seven further years after the fast-track procedure has been exhausted. The victim must have exhausted all effective domestic remedies; and this is one of them. Therefore, the longer the fast-track procedure the more it becomes a slow-track procedure, the worse the injustice to the individual, and the worse the failure to provide an effective remedy under our own legal system.

The Gilbertian aspect is that the admirable committee chaired by the noble Lord, Lord Alexander of Weedon, now tells us that the Government quite rightly, commendably, and in a way that was not always true of the previous administration, are bending over backwards to provide effective safeguards. But by enhancing parliamentary scrutiny they have fallen on their back. The committee believes that the procedure is now so slow that it is no longer fast-track and use will have to be made of the emergency procedure.

I believe that the argument for doing what the committee suggests is quite overwhelming. I very much hope that it is possible--as a relatively new boy in this House, I do not know whether it is--to pursue the suggestion of the noble Lord, Lord Renton, and to table a manuscript amendment even at this late stage. If not, I am concerned that our desire for parliamentary scrutiny will defeat one of the central purposes of the legislation.


Lord Henley: My Lords, I endorse everything my noble friend Lord Renton said on the report of the Delegated Powers and Deregulation Committee and I endorse part of what the noble Lord, Lord Lester said.

I have two points to add. The previous government introduced the Delegated Powers and Deregulation Committee because, quite legitimately, there were a number of complaints about the use of delegated legislation and, in particular, Henry VIII clauses. I want to inform the House and the noble Lord, Lord Lester, that, having introduced the committee, the previous government always observed the recommendations of that committee.

Lord Lester of Herne Hill: My Lords, the noble Lord is quite right. The committee was setup during the lifetime of the previous government and there was no case where its recommendations were not observed.

Lord Henley: My Lords, I thank the noble Lord, Lord Lester, for that acknowledgment. Since then the current Government have continued with the services of the committee and on a number of occasions have observed its recommendations, but not, I have to say, always with the alacrity with which the previous government observed them.

Like my noble friend Lord Renton, I saw the report at a late stage. Therefore, I was not in a position to put down an amendment to the Bill. Both my noble friend

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Lord Renton and the noble Lord, Lord Lester, have suggested that, at this late stage, the Government could introduce a manuscript amendment that would deal with the problem.

I propose another alternative. As there is considerable agreement on all sides of the House and a considerable amount of goodwill, which would allow the Bill to be dealt with quickly, we could adjourn consideration of this matter until some time next week. It would not take up time that the Chief Whip values so much and therefore we could see the Bill amended in the way in which the Delegated Powers and Deregulation Committee has suggested. The Bill would then speed to the statute book without further delay.

Lord Williams of Mostyn: My Lords, there is a misunderstanding and a deep irony here. We are doing more to protect parliamentary scrutiny than the committee suggested. It is not a case of a government doing less--for instance, flouting the views of the committee. In fact, we have done more. The noble Lord, Lord Renton, was generous enough to say that the committee welcomed the positive response but thought that the model should be the Deregulation and Contracting Out Act 1994. The important point to bear in mind--I believe that it has been overlooked--is that the 1994 Act does not distinguish between urgent and non-urgent cases. Therefore, it has a single period of time. I cannot repeat often enough that we are offering more parliamentary scrutiny than the Select Committee suggested.

We need to distinguish carefully between the urgent and the non-urgent. If the matter were urgent, and there were compelling reasons, the Government would proceed by way of urgent remedial order, made in advance of parliamentary scrutiny and approval. If the matter were not urgent, the Government would proceed with a non-urgent remedial order and it would not matter that there were 120 days to complete the process, except in terms of the benefit of additional scrutiny. There would still be an advantage to whichever government were in power in terms of amending legislation when there was difficulty finding time in the legislative programme.

I have heard what your Lordships said. Perhaps I can suggest a way forward. The noble and learned Lord the Lord Chancellor and I have said on distinct occasions, as has the Home Secretary in another place, that we would welcome either a joint committee on human rights or a Commons committee or a Lords committee subject to the views of both Houses. This is the sort of question that could usefully be addressed by such a committee. Once this provision has been implemented and we have had a certain amount of experience, rather than conjecture, about how things may or may not work in practice, such a committee could usefully put its mind to see whether or not we should have second thoughts about the matter.

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