Minor and consequential amendments and repeals and revocations

I beg to move amendment 343, in clause 86, page 102, line 13, leave out subsections (7) and (8).

With this it will be convenient to discuss Government amendment 317.

Given your indication, Sir Nicholas, in terms of time and the impending division, I will be brief. However, in the short time I have been in this House it has been interesting to note how these minor inconsequential amendments provisions have grown, seeming to cede more authority to the Government to deal in secondary legislation with matters previously dealt with in primary legislation. With your leave, Sir Nicholas, I will combine my stand part comments to save time. Look at subsection (3) where

“the Secretary of State may by order make such supplementary...provision...for the general purposes, or any particular purpose, of this Act or in consequence of any provision made by or under this Act”.

This is extremely wide in its ambit and drafting and seems to give a broad swathe of additional powers and authority to the Government to make subsequent orders  that may be important and significant by way of order-making power, rather than dealing with it by way of primary legislation, allowing a full and proper debate on the merits or otherwise of those provisions.

The amendment in my name and that of my hon. Friend the Member for Bury St. Edmunds seeks to delete subsections (7) and (8). Those subsections provide that the negative resolution mechanism will apply in circumstances where the repeal, amendment or change does not apply to a public general Act. There may well be other statutory instruments approved by affirmative resolution that may then be captured and changed by virtue of these provisions, such that they are being amended, and on the basis of this language they would suddenly become subject to the negative resolution process. It is this mission creep in respect of these clauses that seems to extend the additional powers, moving not simply into statutory instrument territory but also into the negative resolution approach. That is what I object to in the way these matters have been progressing, even over the past few years. I would urge the Minister to consider this provision more carefully in the way it has been drafted and the powers that seem to be ceded because on its current terms I do not think it is acceptable.

I am grateful to the hon. Gentleman for seeking to clarify this measure because it has prompted a Government amendment to seek to do precisely that.

If I may speak first to Government amendment 317 which is a minor technical amendment intended to clarify clause 86 (7). Subsection (7) states that the affirmative resolution procedure is not required for an order made under this clause that does not amend or repeal a provision of a public general Act. The amendment is intended to make clear that an order does not amend or repeal a provision of a public general Act as described in subsection (7) if the provisions being amended or repealed were inserted by a local Act or any other Act that is not a public general Act. Indeed, such an order would be subject to the negative resolution procedure. The hon. Gentleman’s amendment 343, on the other hand, seeks to make all orders made under clause 86 subject to the affirmative resolution procedure. We believe that the affirmative resolution procedure is necessary for those orders that amend or repeal public general Acts, a point made by the hon. Gentleman, but it is not necessary for all orders made under clause 86 to be subject to that procedure. For example, the order-making power could in theory be used to replace references in secondary legislation to the Independent Barring Board with references to the Independent Safeguarding Authority should clause 62 come into force. We consider that such amendments would not warrant the use of the affirmative resolution procedure. Indeed, the clause is in line with provisions in other Acts of Parliament. For example, similar provisions were made in section 148 of the Criminal Justice and Immigration Act 2008 and section 75 of the Charities Act 2006.

I hope that the hon. Gentleman will withdraw amendment 343. I invite the Committee to support amendment 317.

An issue of principle is involved here, and although I heard what the Minister had to say I seek to divide the Committee on amendment 343.

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Amendment made: 317, in clause 86, page 102, line 18, at end insert—

‘(9) For the purposes of subsection (7), an amendment or repeal is not an amendment or repeal of a provision of a public general Act if it is an amendment or repeal of a provision which has been inserted (whether by substitution or otherwise) into such an Act by a local Act or by any other Act which is not a public general Act.’.—(Mr. Coaker.)

New clause 86(9) ensures that an order does not amend or repeal a provision of a public general Act as described in subsection (7) if the provisions being amended or repealed were inserted by a local Act or any other Act that is not a public general Act.

Clause 86, as amended, ordered to stand part of the Bill.