Clause 125 - Orders, rules and regulations

Adoption and Children Bill – in a Public Bill Committee at 2:30 pm on 17 January 2002.

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Photo of Robert Walter Robert Walter Conservative, North Dorset 2:30, 17 January 2002

I beg to move amendment No. 274, in page 70, line 4, leave out subsection 4.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 272, in page 70, line 4, leave out

'an Order in Council or to'.

No. 273, in line 4, leave out from 'Council' to the end of line 5.

Photo of Robert Walter Robert Walter Conservative, North Dorset

One might describe these as probing amendments, as part of my pursuit of joined-up government in these islands. The amendments come out of one part of my experience as a shadow Minister, dealing with one part of the kingdom, Wales. These Orders in Council—statutory instruments—can be

passed in Westminster, or in the Scottish Parliament or the National Assembly for Wales. The Bill goes on to lay down procedures for the annulment of those instruments, although not an Order in Council or subordinate legislation made by Scottish Ministers or the Assembly. I worry that we could end up with a series of practices and procedures in adoption law under legislation in Scotland, Wales and England, and that people will not necessarily all be singing from the same hymn sheet when the law is implemented.

I tabled three amendments in order to give the Government the opportunity to accept one or another. I am particularly concerned that it is possible for the House to annul an Order in Council under subsection (2)—it is specific about that—but there is no provision for the annulment of secondary legislation enacted in either the Scottish Parliament or the National Assembly for Wales. That seems to be an omission from the legislation. It would probably be far better if we did not include in this legislation provisions for annulment in this place, if there is no provision for annulment in either the Scottish Parliament or the National Assembly for Wales. It seems that the legislation is deficient, if only technically. I should be interested to hear the Minister's explanation for the exceptions that are made in subsection (4). If those exceptions are to persist, how will the Scottish Parliament or the National Assembly for Wales go about annulling a statutory instrument that they have made under this legislation?

Photo of Jacqui Smith Jacqui Smith Minister of State, Department of Health

I am not sure whether the intention behind the amendments is to probe, to raise specific technical points or—dare I suggest—to engage in a little debate about the principles of devolution. I am sure that it is not the latter, because that would, of course, be inappropriate, so I shall address the amendments.

Clause 125(1) provides that any power in the Bill that enables orders, rules or regulations to be made by the Lord Chancellor, the Secretary of State, Scottish Ministers, the National Assembly for Wales or the Registrar General is to be exercised by making a statutory instrument.

Subsections (2) and (3) provide for parliamentary procedure. The statutory instruments made under clause 88(6) amending the list of prohibited steps in relation to adoption, those made under clause 90, which covers restrictions on reports, and those made under clause 113(6) amending the restrictions on advertising in relation to adoption in the light of developments in technology, and any instruments that amend the primary legislation are to be subject to the affirmative resolution procedure.

Subsection (4) makes it clear that the parliamentary procedures in Westminster do no apply to an Order in Council or to subordinate legislation by Scottish Ministers or by the National Assembly for Wales.

Subordinate legislation made under the Bill might make different provision for different purposes. It may also make provision in respect of particular cases or classes of case. The amendments would mean that the

provisions in subsections (2) and (3) did not apply to an Order in Council or to subordinate legislation made by Scottish Ministers or by the National Assembly for Wales.

The intention behind amendments Nos. 273 and 274 seems to be to make Orders in Council made under the Bill subject to the negative resolution procedure. In fact, the only power in the Bill to make an Order in Council is in clause 123. The Committee will remember that that is an enabling power, which enables an Order in Council to give effect to the convention on protection of children and co-operation in respect of inter-country adoption in a British overseas territory. It is not subject to parliamentary procedure. It is a legislative mechanism to enable the British overseas territories to give effect to the convention, should they wish to do so. Giving effect to the convention in the British overseas territories is essentially a matter for those territories. It should not be subject to Westminster parliamentary procedure. Of course, the Order in Council would be laid before the House, so that Parliament was aware of it. I can reassure the hon. Member for North Dorset (Mr. Walter) that that would by no means be unique to the Bill. When an Order in Council is necessary in relation to such a territory, the matter is handled in that way.

Amendment No. 272 omits from subsection (4) the reference to subordinate legislation made under the Bill by Scottish Ministers and the National Assembly for Wales. That would have the effect that such legislation would be subject to Westminster parliamentary procedures as they are applied by subsections (2) and (3). In many ways, if not explicitly, the amendment attempts to undermine the devolution settlement. Because of that settlement, Scottish Ministers and the Assembly should be subject to the procedures of the Scottish Parliament and the Assembly when exercising powers. Both bodies have procedures to consider secondary legislation. I hope, therefore, that the hon. Gentleman is reassured that although the scrutiny process may not be carried out by the Westminster Parliament, it will rightly be carried out by the legislatures that have responsibility in those cases.

The existing Scottish powers to make subordinate legislation are set out in the Adoption (Scotland) Act 1978. Scottish Ministers want to continue to use those procedures in relation to subordinate legislation made under the Bill, rather than to use the procedures in the Bill. It is for Scottish Ministers to decide on procedures for making subordinate legislation in Scotland, not for Westminster.

It is a fundamental principle of the devolution settlement that subordinate legislation made solely by the National Assembly for Wales should be handled in accordance with its own procedures. The amendment runs contrary to the spirit of devolution by rendering secondary legislation in Wales under the Bill subject to parliamentary procedures and removing the decision-making process from the National Assembly.

The hon. Gentleman expressed concern about the extent to which there would be coherence about adoption procedures across the United Kingdom. At various points during our proceedings, we have discussed how the Bill will provide consistency for those involved in adoption. That is the important point, not that there be one uniform way to determine the secondary legislation under the Bill.

For the reasons that I have outlined, I hope that the hon. Gentleman will recognise that the amendment is inappropriate and withdraw it.

Photo of Robert Walter Robert Walter Conservative, North Dorset 2:45, 17 January 2002

I thank the Minister for her explanations, especially about Orders in Council. She rightly pointed out that they relate only to clause 123.

I think that I was right to table the amendments, because I am concerned about consistency of practice in adoption law across the UK. I do not want to reopen the devolution debate, and I do not think that the Committee is the appropriate place in which to do so. However, I am concerned that when we pass legislation on adoption, the writ of this Parliament should run throughout the United Kingdom on a consistent basis, even though the ability to pass secondary legislation in Scotland and Wales is in the Bill. I wished simply to probe the Government on the issue of consistency by raising those points. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 125 ordered to stand part of the Bill.