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Lord Bassam of Brighton moved Amendment No. 157:

The noble Lord said: Amendments Nos. 157 to 161 are technical amendments to paragraph 12 of Schedule 4 and relate to Clause 15(2), which provides that the Secretary of State may refer a request for assistance which relates to fraud to the Director of the Serious Fraud Office. The SFO will have incoming requests for assistance channelled through the Secretary of State. However, as drafted, paragraph 12 of Schedule 4 refers to the "territorial authority", which is inconsistent with the drafting of Clause 15(2). The amendments are designed to put that right.

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As to Amendments Nos. 161A to 161E, after consultation with the Ministry of Defence it was concluded that Schedule 4 should be amended to include the deletion of Section 11 of the Criminal Justice (International Co-operation) Act 1990. That section has the effect of applying to proceedings before service courts the provisions in the Act relating to the service of UK summonses overseas and the transfer of prisoners.

The reasons for this are the same as those that led to the original Clause 50 of the Bill being withdrawn. Section 11 of the 1990 Act is superfluous given that other current and long-standing arrangements relating to the summons of witnesses operate satisfactorily in this regard for trials by courts martial held in both NATO and non-NATO countries. The ability to relocate a trial by court-martial to a particular state means that there is no necessity for a provision to transfer overseas prisoners to the United Kingdom.

It has also been concluded that the Bill should amend Section 5 of the Criminal Justice (International Co-operation) Act 1990 to allow service personnel sentenced to imprisonment by courts martial—and who will have therefore been dismissed from the Armed Forces—to be transferred overseas temporarily to assist in investigations in other countries. If it is not amended, the current provisions of the service discipline Acts could prevent such transfers.

In addition, an amendment has been introduced to allow the Ministry of Defence to make provisions under the appropriate service legislation equivalent to Section 5 of the 1990 Act for the temporary transfer overseas of service personnel sentenced to detention—who remain in the Armed Forces while they serve their sentence of detention—to assist with investigations in other countries.

The amendments seek to amend the various service discipline Acts in turn to permit the temporary transfer overseas of service personnel sentenced to imprisonment—who will have been dismissed from the Armed Forces as a result—to assist with investigations; and to permit Section 31 of the Armed Forces Act to be used to make provisions equivalent to Section 5 of the 1990 Act for the temporary transfer overseas of personnel sentenced to detention—who will remain in the Armed Forces while they serve their sentence of detention—to assist with investigations.

I hope that that provides a satisfactory explanation of what are essentially technical amendments. They have been brought forward to ensure consistency and, I hope, clarity. I beg to move.

Baroness Carnegy of Lour: I am somewhat bamboozled by what the noble Lord said. For clarity, can he assure me that these changes apply also to Scotland? Is the Secretary of State for Scotland involved in the changes?

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Lord Bassam of Brighton: I think that they have a national application, so they cover Scotland. I think that that covers the "Scotification" point.

Baroness Carnegy of Lour: But in the rest of the Bill the Secretary of State for Scotland is not involved at all; it refers only to Scottish Ministers and the Lord Advocate. That is why I ask.

Lord Bassam of Brighton: The Secretary of State for Defence covers the whole of the United Kingdom.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 158 to 161D:

    Page 67, line 7, leave out "the authority" and insert "him"

    Page 67, leave out lines 10 and 11.

    Page 67, line 12, leave out paragraph (b).

    Page 67, line 16, leave out "territorial authority" and insert "Secretary of State"

    Page 70, line 27, leave out "and 8" and insert ", 8 and 11".

    Page 70, line 28, at end insert—

"In section 5 (transfer of UK prisoner to give evidence or assist investigation overseas), after subsection (3) there is inserted—
"(3A) A warrant under this section has effect in spite of section 127(1) of the Army Act 1955, section 127(1) of the Air Force Act 1955 or section 82A(1) of the Naval Discipline Act 1957 (restriction on removing persons out of the United Kingdom who are serving military sentences)."" Page 70, line 29, leave out paragraph 36.

    Page 76, line 10, at end insert—

"Armed Forces Act 2001 (c. 19)

In section 31 of the Armed Forces Act 2001 (power to make provision in consequence of enactments relating to criminal justice), in subsection (7)—
(a) after "section" there is inserted "section 5 of the Criminal Justice (International Co-operation) Act 1990 and",
(b) for "is" there is substituted "are"."

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Repeals]:

Lord Bassam of Brighton moved Amendment No. 161E:

    Page 77, line 6, column 2, leave out "and 8" and insert ", 8 and 11"

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Lord Bassam of Brighton moved Amendment No. 162:

    Before Clause 91, insert the following new clause—

An Order in Council under paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (legislation for Northern Ireland during suspension of devolved government) which contains a statement that it is made only for purposes corresponding to those of Chapter 2 of Part 3 of this Act—
(a) is not to be subject to paragraph 2 of that Schedule (affirmative resolution of both Houses of Parliament), but
(b) is to be subject to annulment in pursuance of a resolution of either House of Parliament."

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The noble Lord said: This is a procedural amendment to enable Northern Ireland to replicate the provisions in Part 3, Chapter 2 of the Bill—that is, mutual recognition of driving disqualification within the UK—by way of Order in Council subject to the negative resolution procedure. The clause is necessary due to the current suspension of the Northern Ireland Assembly.

The provisions of Part 3, Chapter 2, mutual recognition of driving offences or disqualifications between Great Britain and Northern Ireland, cannot come into force until reciprocal measures are in place in Northern Ireland. The new clause will expedite Northern Ireland legislation and allow the earliest introduction of the Great Britain/Northern Ireland mutual recognition measures. We think it important that the existing anomaly whereby a disqualification imposed in Northern Ireland is not recognised in Great Britain is closed as quickly as possible. I beg to move.

On Question, amendment agreed to.

Clause 91 [Supplementary and consequential provision]:

Lord Filkin moved Amendment No. 163:

    Page 60, line 25, after "instrument" insert "(other than an instrument to which subsection (5A) applies)"

The noble Lord said: The purpose of Clause 91 is to allow the Secretary of State—or Scottish Ministers, where the subject matter falls within the competence of the Scottish Parliament—to make consequential and incidental provisions that are necessary to give full effect to the provisions of the Bill. The clause is needed to ensure that the Bill functions properly when it comes into force and that the legislation is as effective as possible.

I am well aware that noble Lords are concerned by the use of those so-called Henry VIII provisions in legislation—I recollect our discussions during the passage of the Nationality, Immigration and Asylum Act 2002—which appear to give Ministers sweeping powers to amend legislation.

Indeed, the Delegated Powers and Regulatory Reform Committee published a special report on the matter on 16th December 2002, which was debated on the Floor of the House on 14th January, when several Members of the Committee were present. The Committee concluded that there are,

    "no doubt occasions where Henry VIII powers to make incidental, consequential and similar provision are justified",

especially where, otherwise, the number of amendments would result in a disproportionate increase in the length of a Bill, or where it would be difficult to anticipate the full extent of such amendments during a Bill's passage. The Committee recommended that where these powers are used, the department responsible for the legislation should provide a full explanation as to the need for the power. I hope to be able to provide that in my answer today.

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I now turn to the opposition amendments. If we understand it correctly, the purpose of the first two opposition amendments is to ensure that any future statutory instruments making supplementary provisions to the Bill—regardless of whether they would amend primary or secondary legislation—would be subject to an affirmative, rather than a negative resolution order in both the UK and Scottish Parliaments.

The Government resist those amendments on the grounds that they would hamper the effective operation of the Bill. Their effect would be to clog up parliamentary time with debates on minor and technical statutory instruments that neither merit nor benefit from discussion. The Government believe that any future amendments to the Bill should be subject to scrutiny proportionate to the scope of the amendment, which the amendments do not take into account.

The Delegated Powers and Regulatory Reform Committee report on the Bill, published on 11th December, considered the power in Clause 91. The report concluded that although the negative procedure is sufficient for any amendments to secondary legislation, affirmative procedure should apply to amendments of Acts of Parliament, because of the importance of their subject matter.

In the light of and in line with the committee's recommendations, the Government have therefore tabled Amendments Nos. 163, 165, 166 and 168. Those government amendments comprehensively address concerns raised by the Delegated Powers and Regulatory Reform Committee and the Opposition regarding adequate scrutiny of the power. The amendments ensure that any consequential amendments arising from the Bill that are made to Acts of Parliament will be subject to the affirmative resolution of both Houses, while any amendments to secondary legislation will be subject to negative resolution. The Delegated Powers and Regulatory Reform Committee has indicated that it is happy with the Government's approach.

I believe that the government amendments strike an effective balance between providing an appropriate level of parliamentary scrutiny of the powers in the clause, while at the same time ensuring that parliamentary time is used effectively. I therefore recommend that those amendments be accepted.

Turning finally to the third opposition amendment, Amendment No. 169, which would "sunset" the power granted to the Secretary of State in Clause 91 to make further statutory provisions to the Bill one year after it comes into force. That would mean that any further amendments identified after that time would have to be made by primary legislation, whenever an opportunity arose.

Although I understand the intention behind the amendment, I cannot accept it. Limiting the duration of the powers of the clause to a year after the commencement of the Bill would restrict the possibility of identifying and then scheduling adequate parliamentary time to debate any subsequent amendments. As I hope that the Committee will agree,

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the Bill is highly complex and amends a substantial amount of previous legislation. Although every effort has been made to ensure that all consequential provisions have been accounted for, it is possible that others may arise—for example in relation to the highly technical road traffic provisions of Part 3.

Such consequential amendments may not come to light within a year after the Bill comes into force, but if that power had expired, we would be unable to make changes necessary to make the legislation fully effective. For those reasons, I am unable to accept the amendment. Especially given the nature of what we are dealing with—serious crime and terrorism—it is important not to have delay in ensuring that the Bill can operate in the way in which the Government intend, which I hope that the Committee supports.

For those reasons, the government amendments are necessary. I trust that the Opposition will recognise that we have responded adequately to their concerns by following the advice and guidance set out by the Delegated Powers and Regulatory Reform Committee. I beg to move.

5.30 p.m.

Baroness Anelay of St Johns: I shall speak to Amendments Nos. 164, 167 and 169, which stand in my name. It may be for the convenience of the Committee if I now speak also to clause stand part, to round off the debate.

First, I make it clear that I welcome the government amendments. As the Minister said, this is an enabling clause that gives the Government the opportunity to amend or repeal primary as well as secondary legislation by statutory instrument, with or without further parliamentary scrutiny.

The Minister rightly referred to the recent debate on the Floor of the House of the special report of the Delegated Powers and Regulatory Reform Committee. I am aware that my noble friend Lady Carnegy took part in that debate. I regret that I was not able to do so, simply because at three days' notice the Government brought forward the debate by a day and it was impossible for me to rearrange meetings on other Bills in which I had to take part. Naturally, I have carefully read Hansard and spoken to noble Lords who took part in that debate.

I have made it clear that I tabled the amendments to cover the comments of the Select Committee and to enable a wider debate on the matter. Later, the Government tabled their own amendments, which I welcomed.

I still have fundamental concerns about how such clauses may be used. We need to see them early in the course of a Bill's passage through Parliament, and on this occasion the Government cannot be faulted on that. The clause has been in the Bill from the start, unlike the equivalent clause in what was then the Nationality, Immigration and Asylum Bill, to which the Minister referred. In that Bill, the clause popped its

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head up at Third Reading, at the last gasp after the Bill had already passed through another place. On this Bill, the Government have got the timing right.

There are three issues on which I want to make brief comments, all of which I derive from the Select Committee report and the debate on the Floor of the House. There should be a presumption in favour of the affirmative procedure in certain circumstances, and an appropriate form of wording for the Henry VIII clause should be adopted. I also want to discuss the sunset clause.

The Minister said that the Select Committee had recommended the presumption in favour of affirmative procedure, and that it would be the good practice in future. The Government have used it today. Will they use the procedure in every Bill in future so that when they table a Henry VIII clause and there will be a transitional and consequential amendment to primary legislation, the orders will be subject to the affirmative procedure? That is not the case in the Courts Bill. I appreciate that it would have been drafted before the Select Committee report, but we need to know whether that is the good practice approach that the Government will adopt, otherwise they will have to respond continually to amendments from the Opposition on such matters.

The Select Committee posed the question, "Could a uniform wording of such clauses be adopted?". It came to the conclusion that that would not be appropriate, and that it may have to vary from case to case properly to meet the exigencies of a Bill. I entirely accept that conclusion, but will the Minister tell us whether the Government are taking steps to review properly the drafting of clauses between departments? The Home Office should talk to the Lord Chancellor's Department and other departments, so that where possible they achieve uniformity of approach. That would help those whose job is afterwards to interpret the application of such Bills.

I have continuing concern on sunset clauses. During the debate on the Floor of the House the noble Lord, Lord Dahrendorf, the chairman of the Select Committee, suggested that the clauses should be subject to sunset provision. He suggested that they be put into every Bill to cope with the likelihood that if they were not present the Government might let things drift. They might not focus their mind properly on the drafting of Bills in the first place, and let any further drafting drift. He was absolutely right to say that.

When the Minister referred to sunset clauses and to Amendment No. 169 he did not attack the principle underlying a sunset clause. He said that one year was too short in respect of the Bill, because some complex issues need to be addressed on driving disqualifications and other matters on which international agreements naturally have to be reached. I reassure him that the one-year period chosen was a tool for debate. Amendment No. 169 was drafted before I had read the speeches made by the noble Lord, Lord Dahrendorf, and other noble Lords on the Floor of the House about the Select Committee report, and before I had taken soundings with other noble Lords.

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I am now of the view that one year is too short. I am persuaded that the noble and learned Lord the Leader of the House is right to say that three years would be the appropriate period for imposing a sunset clause.

Although naturally I would not press my amendment today, as we are in Grand Committee, I feel strongly that I should bring it back on Report using the period of three years. In responding, will the Minister say whether he agrees with the noble and learned Lord, Lord Williams of Mostyn, that three years is a better figure?

On clause stand part, I accept that there are occasions on which such clauses have validity, and when one needs the opportunity for later drafting changes. We need to ensure that they are not used as a matter of course, and as a get-out clause for sloppy drafting. I do not mean sloppy drafting by those who do the hard work behind the scenes of putting pen to paper, or finger to typewriter as is more likely these days. I refer to sloppy drafting by Ministers, who may change their minds a dozen or more times before they are satisfied with the policy intention that they give to the drafters, whose job is then to make it reality in the Bill.

As a caveat, I accept that the clauses have to be there, but I shall watch each and every one of them to ensure that they are not overused.

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