My Lords, when one gets to the final provisions in a Bill whose Committee stage has lasted for five days, one might think that the debate has come to an end. However, that is not so. It is hard to avoid the fact that the approach of a number of noble Lords is coloured by the nature of the debate on the clauses that come before those final provisions. In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory.
I do not think it is appropriate for me to provide a personal defence. Here, we are looking at a pretty commonplace provision contained in Clause 73. I say that it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a provision that says:
“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.
That is identical to the power in Clause 73. Section 53 of the Pensions Act 2014, under the heading “Power to make consequential amendments etc”, says:
“The Secretary of State or the Treasury may by order make consequential, incidental or supplementary provision in connection with any provision made by this Act”.
Section 20 of the Offender Rehabilitation Act 2014, under the heading “Consequential and supplementary provision etc.”, says:
“The Secretary of State may by order make consequential, supplementary or incidental provision in relation to any provision of this Act”.
Therefore, this—in particular, the use of the word “supplementary”, which I understand those who have proposed these amendments have a particular difficulty with—is not unfamiliar territory.
It is something of an irony that at various stages in Committee I have been subjected to a large number of interventions by the noble Lord, Lord Davies, who is not currently in his place. During the debate on a previous group, he ventured observation in relation to this provision, saying that it was wholly unexceptionable as compared with the terms of clauses elsewhere. Sadly, he is not here to expand upon his views; nevertheless, I draw some comfort from the fact that they had come from an otherwise harsh critic of this legislation.
Despite every effort, it is not always possible to identify every necessary amendment to primary legislation, and it would not usually be appropriate to include amendments to existing secondary legislation in primary legislation. As noble Lords—many highly experienced,
and more experienced than I am, in parliamentary procedure—will know, it is usual practice for a suitable power to be included in a Bill to ensure that its provisions can be brought into force. Amendment 83 would amend the power in Clause 73 to make such provisions by removing the Secretary of State’s power to make supplementary provision.
Noble Lords are concerned about the breadth of this power. The power to make supplementary provision was included in this clause in recognition of the complexity of the legislative framework within which sit some provisions of the Bill, particularly those relating to sentencing and the new single justice procedure. The consequence of not being able to make supplementary provision could be to inhibit the proper operation of aspects of the Bill. In relation to sentence calculation, this could even be to the detriment of an individual. The drafting, as I have indicated, is similar to that approved in similar legislation.
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