Delegated Legislation

Part of the debate – in the House of Lords at 5:30 pm on 14 January 2003.

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Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative 5:30, 14 January 2003

My Lords, it seems to me an extremely good thing that the House is considering this important matter outside the discussion that takes place during the passage of a Bill. We can thus stand back and ask ourselves about the principle at stake. Is it really right and proper for the government of the day so frequently to take powers to enable them to alter in the future any part of a particular Act of Parliament that they feel like altering, and to do so simply by order and possibly by negative resolution?

With 12 examples of such provisions in recent Acts of Parliament before us in the report—nine introduced by this Government and three by the previous government—we can ask ourselves whether such clauses should be acceptable at all to Parliament. If they are acceptable—or, at least, if they seem unavoidable—should Parliament insist on parameters limiting their use? It is a point of democratic principle, and an important one for the future.

In introducing the debate, the noble Lord, Lord Dahrendorf, reminded the House of how the committee came to report. He gave a very interesting historical account of how we got to where we are. He explained how the committee accepted that it would be difficult to ban these clauses altogether and what the conditions for acceptability set by Parliament might be. Like the noble Lord, Lord Temple-Morris, as a member of the committee I congratulate the noble Lord, Lord Dahrendorf, on his admirably clear explanation. The House can see for itself—if it has not seen already—how fortunate the committee is to have the noble Lord as its chairman and how worthy a successor he is to his predecessor, my noble friend Lord Alexander of Weedon.

From a personal point of view, I should like to add a word about what the committee did not say. This was touched on in a subtle, sideways fashion by the noble Lord, Lord Dahrendorf, and by the noble Lord, Lord Temple-Morris, perhaps in a more friendly way than I feel is possible. The committee did not say it because it eschews, as far as possible, what it sees as politically controversial points.

It did not say this: that the problem is a good deal more than the fact that this most extreme form of Henry VIII clause is of itself undemocratic; the problem is also, perhaps primarily, the way that governments—at present this Government—use such clauses and the way in which future, less responsible, governments might use them.

We were reminded by both noble Lords of the latest example of this in the Nationality, Immigration and Asylum Bill. I am sorry that the timetable for the House was changed at very short notice and that my noble friend Lady Anelay, who was deeply involved in the Bill, is not able to speak today. That Bill, after months of Home Office research and a White Paper, had been through all its stages in both Houses. At the last moment, at Third Reading in this House and with no time left before the end of the Session, the Government introduced a very wide-ranging Henry VIII clause, stating quite openly that the Bill was still incomplete and that they must continue to amend it after it became law.

The Home Office had not done its work in time and the Home Secretary felt justified in using this device to get it out of the hole it was in. That is what happened, as I think the noble Lord, Lord Temple-Morris, agrees. Both opposition parties here expressed deep concern, as did the noble Lord, Lord Clinton-Davis, from the Government Benches. It should be emphasised that no Member of this House, apart from the Minister, argued in favour of this particular clause and, on a Division, the House removed it from the Bill. But, as the noble Lord, Lord Dahrendorf, reminded us, the Government amended it slightly, the House of Commons reinstated it into the Bill, and it is now the law of the land.

That is what I mean when I suggest that it is the way in which governments use such clauses, as well as the clauses themselves, that is dangerous. The Nationality, Immigration and Asylum Bill was urgently needed—the asylum problem was acute and is still mounting—and the Government knew that this House was therefore unlikely to refuse to give it a Third Reading because, in the very last days of the Session, that would have meant the Bill falling and having to be reintroduced in the current Session. I do not believe that anyone wanted that to happen.

So the Government forced through a Henry VIII clause—— it is still very much a Henry VIII clause—which, until then, had not been considered necessary. At the very last moment the Government forced it through simply to enable them to go on making outstanding amendments by order. In doing so, they have opened the way for changes to the Bill which may be much less innocent and go quite beyond the reasons they gave at the time. Indeed, another government might do the same.

There have been, and doubtless will continue to be, many proposed clauses used for good and less good purposes, each of which may have a different effect and different wording but which open the way to the kind of changes we are discussing. The least Parliament can do is to establish the kind of parameters the report suggests, or perhaps stronger parameters, before it accepts such clauses. I shall be extremely interested to hear what other speakers have to say on this matter.