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Lord Sainsbury of Turville: We are concerned to see how this process can be speeded up, but by its very definition it is impossible to say, given the scale of this problem, how quickly that can be done, as we simply do not know all the detail that is required.

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 8 [Power to modify legislation]:

Lord Sainsbury of Turville moved Amendment No. 24:
Page 8, line 29, at end insert ("be").

On Question amendment agreed to.

Lord Sainsbury of Turville moved Amendment No. 25:
Page 8, line 30, at end insert--
("( ) any such provision in relation to electronic communications or electronic storage the use of which is authorised otherwise than by an order under this section as corresponds to any provision falling within any of the preceding paragraphs that may be made where it is such an order that authorises the use of the communications or storage.").

The noble Lord said: In moving this amendment, I would also like to speak to Amendment No. 26.

These are both technical amendments to amplify the power contained in Clause 8.

Amendment No. 25 is intended to make sure that the clause works in the same way when an order facilitates electronic communication as when the order authorises electronic communication.

Clause 8 is designed to operate on a broad range of barriers to doing things electronically. In some cases there may be a clear statutory barrier, and in such a case the Clause 8 order would authorise electronic communication. But in other cases the law may be less clear cut. There may be room in existing legislation to argue that a statutory requirement could be met by using electronic means. In such cases the order could facilitate what was already authorised. The Government policy is to encourage a level playing field between electronic and traditional ways of doing things.

Where people find it possible to meet a statutory requirement using electronic means, because of the drafting of the original legislation they might have had to use electronic means in a rather roundabout way. In such cases a Clause 8 order could be used to provide a more efficient electronic process which could satisfy the statutory requirement.

Finally, many who have welcomed the Government's policy to remove barriers have urged that there should be consistency in the way different departments handle electronic communication. It will not always be possible to have complete consistency across the board, but arrangements will be made to encourage consistency where possible, and it is desirable to be able to include the facilitated cases as well as the authorised cases. There may also be cases where the existing legislation is quite explicit in authorising electronic communication, but again a Clause 8 order might be used to provide consistency.

I have spoken about electronic communication for ease of exposition, but the amendment will do exactly the same thing for electronic storage.

I will now explain Amendment No. 26. The Clause 8 power is capable of operating on both primary and secondary legislation. As it stands it is

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debatable whether Clause 8 could operate by modifying a power to make secondary legislation. This amendment would put it beyond doubt that it could. So, where the Secretary of State has an existing power to specify the form of such storage, which expressly or implicitly restricts the electronic option, the amended clause would allow him to modify the existing power to allow for electronic options. In some circumstances this may be more desirable than exercising the two powers concurrently or sequentially.

It may be helpful if I give a brief example. If the Secretary of State had power to make regulations in a piece of primary legislation, and that power stated that the written form of document may be prescribed by regulations, this amendment would allow the regulation-making power to be amended to allow the electronic alternative. Otherwise the power to allow the electronic alternative would derive from Clause 8 of the Bill, and would have to use this power concurrently with the power to make regulation in order to amend the regulations. This would be required every time to amend the regulations.

With this amendment a Clause 8 order could be made once to amend the primary legislation and that part could be used thereafter to amend the regulations with regard to the electronic option as and when necessary. This amendment would also pave the way for part of the new clause we are about to debate concerning conferring powers on the National Assembly for Wales. In some areas, the assembly will have a power to specify the form of some communicational storage but only Westminster, rather than the assembly, would usually be able to modify that power. Taking the amendments would allow the assembly to modify such a power subject to the safeguards in the new clause and in Clause 8. I beg to move.

Lord Lucas: I find it fascinating that the same brain which has such exquisite grammatical sensibility as to remove a redundant "with" earlier in the Bill should land Amendment No. 25 on us, which, after much study, I am only able to begin to understand because of the eloquence of the Minister's explanation. I still read it again, with very great difficulty, to know why this particular form has been chosen. I hope that some attention might be paid to render this into English before the Bill leaves us. It would certainly be helpful to any future user of the Bill.

I particularly find it very difficult to know how this wording fits with the wording at the beginning of subsection 4, which reads,


"containing any of the following provisions--(a) [any such] provision". It is very difficult to know how that works in logic let alone grammar, and I can see that the grammatical construction of what follows might mean what the Minister says it means but clearly it would be very helpful if it meant that in plain English.

Earl Erroll: I seem to remember there was a great deal of talk about trying to write our laws in clearer English and we debate that possibility from time to

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time. There is an excellent body called the Plain English Campaign which has been very good at writing all sorts of banking information and my credit card information into English which I can now understand. Would it be an idea if it looked at this?

Baroness Buscombe: I shall say a few brief words in defence of those who are drafting the Bill. From a legal standpoint it is extremely difficult to say what has to be said without it sometimes coming across as rather complex. It is only fair to make that point for those who are here today and, I am sure, find great difficulty in making legislation as clear as they can.

Lord Sainsbury of Turville: I can confirm that when I read this clause for the first time it did not strike me with an enormous, illuminating beam of light, but required a great amount of thought in order to understand it. It does what it is intended to do and I hope my explanation made that clear. However, I would not want to recommend it as a piece of prose.

Lord Lucas: Will the Minister at least promise me that he will ask his officials whether they might not see their way to render it into plain English, if such is possible, and I take my noble friend's strictures in that regard very seriously.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendment No. 25:


Page 8, line 30, at end insert--
("( ) any such provision in relation to electronic communications or electronic storage the use of which is authorised otherwise than by an order under this section as corresponds to any provision falling within any of the preceding paragraphs that may be made where it is such an order that authorises the use of the communications or storage.").

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendment No. 26:
Page 9, line 4, at end insert--
("(8) In this section references to doing anything under the provisions of any enactment include references to doing it under the provisions of any subordinate legislation the power to make which is conferred by that enactment.").

On Question, amendment agreed to.

On Question, whether Clause 8, as amended, shall stand part of the Bill?

Lord Lucas: Following on our earlier discussions on the sort of things which will have to be tackled under Clause 8, I wonder whether we have let ourselves become too lax in the supervision which this House is going to place on the resulting orders. These could be quite deep and difficult matters, as the Minister pointed out. As I understand it, the general power in Clause 8 is that of the negative resolution, but there is a procedure to lay drafts before the House which are then approved by both Houses. Can the Minister give me some comfort as to the circumstances under which drafts would be laid, rather than leaving a final order to come before us in the negative procedure? Can we

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be sure that, in all cases where something fundamental is being tackled, we will have the opportunity to debate it as fully as is possible when it is only secondary legislation?

4.45 p.m.


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