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"In Part 4 of that Schedule (insolvency), in paragraph 45, in paragraph (c) of the definition of "restraint order", for the words from "external" to "virtue" there is substituted "order which is enforceable in England and Wales, Scotland or Northern Ireland by virtue of paragraph 11G, 25G or 41G or"."

On Question, amendments agreed to.

Clause 92 [Supplementary and consequential provision]:

[Amendment No. 110 had been withdrawn from the Marshalled List.]

Baroness Anelay of St Johns moved Amendment No. 111:



"(2A) Before making an order under subsection (1), the Secretary of State shall consult the Scottish Ministers.
(2B) Before making an order under subsection (1) the Scottish Ministers shall consult the Secretary of State."

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 112.

I make it clear immediately that these amendments are merely a device. I do not intend to press them. They do not seek to provide a solution to a problem caused by devolution; their purpose is simply to ask the Government to explain, with regard to Scotland, the position that will obtain when statutory instruments are made to give effect to the supplementary and consequential provisions that are part of Clause 92.

The Bill makes it look as though different provisions could be made for Scotland than for the rest of the UK. That seems inadvisable, to say the least. The amendments are simply a device to ask the Government to put on the record what they consider would be the proper approach to these matters. I beg to move.

Baroness Carnegy of Lour: My Lords, my noble friend Lady Anelay is quite right to raise this issue. These could be very wide-ranging orders. This is a Henry VIII clause, and we could have wide-ranging orders within the competence of the Scots Parliament only or the Westminster Parliament for England, Wales and Northern Ireland only. It is important to clarify the position. Surely there should be consultation, whatever these orders are, between the two legal jurisdictions. I hope the Government can clarify that. It is no good simply saying that there will be. Conflicting orders could be made for some reason which would endanger the content of the Bill.

Lord Renton: My Lords, it is important that we do not have a Henry VIII clause here. The Bill is unusual; it breaks new ground and is of international as well as national importance. We need to see how it operates after a time. So, I hope that the Minister will observe what my noble friends have said.

Lord Filkin: My Lords, I am happy to try to give the explanation that the noble Baronesses, Lady Anelay and Lady Carnegy, have sought. I hope that in the process I will also satisfy the noble Lord, Lord Renton.

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Amendment No. 111 would ensure that the Secretary of State and Scottish Ministers will confer before making any order to amend primary legislation or make secondary legislation which makes supplementary or consequential provision for the purpose of bringing the Bill into full effect. I presume the intended purpose of the amendment is to ensure that the legislation will be applied consistently on both sides of the border.

Where matters of the Bill fall within the competence of the Scottish Parliament, it is of course for Scottish Ministers to legislate. There is no requirement in the Bill for consultation to take place before doing so, but in practice Westminster departments have close relations with the relevant department of the Scottish Executive, and consultation is extensive. As the measures in the Bill will work most effectively if there is a consistency of approach north and south of the border, it is highly likely that consultation will take place on the implementation of the Bill. Indeed, I am happy to commit my officials to consulting with their counterparts in the Scottish Executive. I hope that this will give the reassurances sought.

Amendment No. 112 seeks to extend the types of order that may be made under the power granted in subsection (1). The amendment actually appears to have as its effect an extension of the types of incidental provisions that may be made under this clause, although I am not sure whether this is the intended purpose.

During our previous debate on this clause in Committee, the Government tabled amendments which now form subsections (5) to (8), so that any amendments to Acts of Parliament will be subject to affirmative procedure, although amendments to secondary legislation will still be by negative procedure. These amendments were warmly welcomed by the Delegated Powers and Regulatory Reform Committee, who recommended that they be tabled, and the noble Lords who attended Committee.

We had detailed discussions about the necessity of such clauses and what type of amendments they would be used to make. As I explained then, the Delegated Powers Committee agrees that there are certain cases where this type of clause is justified, particularly where it would be difficult to anticipate the full extent of amendments during the passage of a Bill. As I am sure we all agree, 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, particularly in relation to the highly technical road traffic provisions of Part 3.

Under the clause, the appropriate Ministers are granted the power to make supplementary or consequential changes which add to, replace or omit any part of an Act of Parliament or, as the case may be, an Act of the Scottish Parliament. The wording reflects that used in Section 140 of the Adoption and Children Act 2002. The Government consider that the current drafting of the clause would cover circumstances where orders would "apply in modification" parts of

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other Acts of Parliament for the purpose of making supplementary or consequential provisions to give full effect to the Bill. The Government therefore do not consider that the amendment is necessary, as I hope I have explained to the satisfaction of the noble Baroness, Lady Anelay.

Baroness Carnegy of Lour: My Lords, before the Minister sits down, when he speaks to Amendment No. 111, he says he will give an assurance that Ministers will consult and agree. How can he do that? There will be an election to the Scots Parliament shortly. A quite different Administration may emerge then. How can the Minister be sure that there will be such consultation or agreement?

Lord Filkin: My Lords, I carefully sought to say that I could give a commitment on behalf of the United Kingdom Government that our officials would consult with the Scottish Executive. For very proper reasons, I could not commit the Scottish officials to consult with us for a point of delegation. I clearly have not touched on the point that the noble Baroness, Lady Carnegy, is getting at; I am sure she will be glad to enlighten me further.

Baroness Carnegy of Lour: My Lords, I am sorry to take up the time of the House, and I hope I have its leave. It may not be the same Government at Westminster. These orders could be made to conflict and ruin the Bill if there was no compulsory consultation between the two. The Minister is being a little too optimistic, but we shall leave the matter for the moment.

Lord Filkin: My Lords, I repeat that, whatever the political composition of the Scottish Executive, this Government will consult with their officials over these measures.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his reply and for putting it clearly on the record that he will commit his officials to consulting with their counterparts. However, my noble friend Lady Carnegy has made an important point. We will also have to consider how this provision operates in the future in order to achieve the consistent application of these provisions across Great Britain in Scotland, England and Wales.

The Minister referred to the second amendment which I put down as a taster for the sunset clause. There is a subtle irony that we are debating Henry VIII powers with regard to Scotland when Henry VIII was not king of Scotland. No doubt my noble friend Lady Carnegy will be able to find another nickname for these clauses to make them more appropriate to Scotland. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 112 not moved.]

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Baroness Anelay of St Johns moved Amendment No. 113:


    Page 61, line 23, at end insert—


"( ) This section shall cease to have effect at the end of three years beginning with the date on which it comes into force."

The noble Baroness said: My Lords, I shall also speak to Amendment No. 114. These are the sunset clauses for the Henry VIII powers of Clause 92 to which the Minister referred in his last speech. I tabled both amendments to give the House the opportunity to debate the principle of which alternative is preferable. Let me make it clear that I think that one of them should be. As the Minister has just said, Clause 92 is an enabling clause giving the Government the opportunity to amend or repeal primary legislation by statutory instrument with or without further parliamentary scrutiny.

The House debated these clauses recently as a result of the helpful report from the Delegated Powers and Regulatory Reform Committee. The Committee found that there could be circumstances in which Henry VIII clauses were appropriate per se. There might be Bills in which subsequent changes were about to take place that one could not necessarily foresee and it was necessary to have some form of Henry VIII clause.

In that debate, the Committee's chairman, the noble Lord, Lord Dahrendorf, pointed out that any debate on those matters,


    "goes right to the heart of the key constitutional question of the limits of executive power, and of the ability as well as the duty of Parliament to prevent the unchecked extension of these limits".—[Official Report, 14/1/03; col. 165.].

As well as speaking as chairman of the committee, the noble Lord made it clear that he made some comments in a private capacity. In that capacity, he said, at col. 169, that such clauses should be subject to a sunset provision. I agree with him. That is why I have tabled these two alternative sunset amendments.

The first is the blunt weapon, which is more commonly used. It would give Clause 92 just three years of life. At the end of that period, the Government would have to revive it if they were in what one would think was the unlikely position of still not having got their act together over introducing any necessary supplementary and consequential provisions.

The second amendment—Amendment No. 114—is a gentler device whereby, after three years, the clause would expire unless the Government brought forward an affirmative statutory instrument to keep it going. That would give proper parliamentary scrutiny of the process by which the Government had succeeded or failed to implement any necessary supplementary and consequential provisions.

I am convinced that the sunset procedure would provide good practice for Henry VIII clauses, such as Clause 92. It would ensure that the Government got their act together and introduced any necessary amendments as soon as possible. Three years seems long enough for the Government to make decisions about amendments that are consequential or supplementary to the Bill. If they were still unable to

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make up their mind at that stage and believed that further amendments might still be necessary, Amendment No. 114 would give Parliament a vital scrutiny role to ensure that the original legislation was not redirected inappropriately. It would give Parliament the opportunity, after scrutiny, to allow Clause 92 to continue its life.

Finally, a sunset clause would discourage hasty drafting in the first place. That is essential. As ever, I do not blame those who draft legislation. It is their political masters who cause the urgency and then sometimes change their minds at the last minute on what they hope to achieve with the legislation. I appreciate that those doing the drafting merely respond to the exigencies of the political world.

In Committee I moved a much tougher sunset clause that would have allowed for only one year before the axe came down on Clause 92. That was a probing amendment—as it had to be, because one cannot vote in Grand Committee—to tease out the Government's response. I noted with interest that the Minister, at col. GC39, did not reject out of hand the principle of a sunset clause. He said he would consider the points made, without signalling that there would necessarily be a meeting of minds on sunset clauses. I hope that in its further consideration of these matters, the Home Office has concluded that it would be appropriate to adopt a sunset provision on Clause 92. Of course I will perfectly well understand if today the Government are prepared to dip their toes gently in the water of Amendment No. 114, rather than going the whole way with Amendment No. 113. I beg to move.

8 p.m.

Lord Goodhart: My Lords, I shall speak briefly to the amendment. The Scottish equivalent to a Henry VIII clause might be a Macbeth clause. I also note that Amendment No. 114 is not quite as drastic as I originally thought. As drafted, the sunset provision appears to apply not just to the Henry VIII clause, but to the whole Act. I am glad to know that it applies only to the Henry VIII clause.

A sunset provision for Henry VIII clauses is an interesting idea that is worth considering. In a written Answer to me last week, the noble and learned Lord the Leader of the House listed the occasions on which Henry VIII clauses relating to transitional and consequential provisions have been used in certain Acts. Those powers have been used much more extensively than I anticipated and well past the three-year period in some cases. That should be referred to the Delegated Powers Committee for further study rather than introducing it as part of a Bill at this stage, before the implications have been fully thought through. A time limit on this kind of Henry VIII clause is worth considering, but I do not support it on this occasion.


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