My Lords, this amendment is the first in a group which deals with Clause 68 and draws attention to the very broad nature of this clause, which is usually described as a Henry VIII clause. In this group are five amendments in my name: Amendments 79A to 79E, which are also in the name of the noble Lord, Lord Forsyth.
May I explain a little of the background to this series of amendments? In recent months increasing concern has been expressed in this House about the use of Henry VIII clauses. I recall particularly the debate on the report of the noble Lord, Lord Strathclyde, arising from the concern about the use of statutory instruments and the inability of this House to amend them and do anything other than pass or refuse to pass them. It was in that connection that the noble and learned Lord, Lord Judge, delivered a very powerful speech that alerted us to the great dangers of overuse of Henry VIII clauses.
Clause 68 has been cited as a particularly extreme example of the use of this type of clause. To explain the point, I will analyse the clause a little to see what it actually does. It is headed:
“Power to make consequential, transitional and saving provision”.
I have no complaint about transitional and saving provision. My amendments seek to remove from the clause those parts that refer to consequential provisions.
If you look through the clause you will find that subsection (1) would give power to the Secretary of State by regulations to make,
“such consequential provision in connection with any provision of Part 1, 3, 4, 5 or 6 … as the Secretary of State considers appropriate”.
Part 2 is not mentioned there. If you look at Part 2, you will find more precisely targeted provisions dealing with related powers in Clauses 15 and 19. The draftsman has taken the trouble to provide provisions related to the needs of that particular part. In this subsection you will see that Parts 1, 3, 4, 5 and 6 are grouped together in a way that does not attempt to target the need for the provision in any particular way at all.
Then you will find in subsection (2):
“Regulations under this section may amend, repeal, revoke or otherwise modify any of the following (whenever passed or made) … an enactment or an instrument made under an enactment … a prerogative instrument … any other instrument or document”.
Subsection (3) is very wide because of the way in which it enables these regulations to proceed. They may be used for all sorts of purposes which are set out in the subsection.
As far as the expression “an enactment” is concerned, there is a definition in subsection (7), which tells us that it includes,
“an Act of the Scottish Parliament”,
but also goes on to say that it includes,
“a Measure or Act of the National Assembly for Wales, and … Northern Ireland legislation”.
It is startling to find references to the measures passed by the other devolved institutions in a Bill that purports to deal only with Scotland.
If you look carefully at subsection (5) you can find that the regulations may repeal,
“any provision of primary legislation”,
and that expression is defined as including an Act of Parliament—in other words an Act of this Parliament. The Secretary of State is seeking to assert to himself a power to,
“amend, repeal, revoke or otherwise modify”,
a whole range of statutes including Acts of this Parliament and measures of the devolved institutions, without any limit of time whatever for any purpose he may consider proper, so long as it can be described as consequential.
There are four features of this provision which are the source of particular concern and I have, in a way, hinted at them in the opening remarks. First, there is no limit on the time during which this power may be exercised or on its extent. Secondly, there is no attempt to relate the provisions about consequential provision to the needs of any particular parts or clauses within the parts referred to in subsection (1).
Thirdly, the power is to be exercised by statutory instrument, which has all the defects referred to in the debate that I mentioned earlier. All we can do is look at what the instrument says and either pass or refuse to pass it. There is no opportunity for this House, or indeed the other place, to subject it to the scrutiny that primary legislation would receive. That is quite extraordinary when you consider the scope of the power that the Secretary of State is seeking to give himself.
Fourthly, the power is to be exercised by the Secretary of State, but there is no provision that he is to be required to consult Scottish Ministers. We have already had debates about Clause 2 and the Sewel convention, which is not being made part of a statutory provision. It is subject to the word “normally”, and its scope and application are open to some question unless they are spelled out in the statute, and it is perhaps not entirely clear whether it extends to statutory instruments as well as to primary legislation.
Therefore, the scope of the clause is in itself disturbing, but in this Bill, of all Bills, it is even more extraordinary because, as we have been told from the very beginning, the purpose of the Bill is to give effect to what one finds in the Smith commission report—no more, no less. Yet the power given to the Secretary of State will enable him to go well beyond what is set out in this Bill and it is not qualified in any way to limit the Secretary of State to what may be found in the Smith commission report, however widely one might construe it.
This really is an extreme provision which ought to be edited in some way to make it clear that what is being done relates to the nature of the Bill, which
deals with Scotland, and to the need of the clauses or parts of the Bill in question to give effect to the Smith commission report. As it stands, it seems far, far too wide. It may simply be the product of—if I may say so with all due respect to those who are responsible—lazy draftsmanship. Of course, it is dead easy to write in words as widely as we find here without giving any thought to how necessary they may be.
For those reasons, I respectfully suggest that this clause is defective in so far as it seeks to relate to consequential provisions, and the parts which are the subject of my amendments should simply be taken out of the Bill. I beg to move.