After clause 13 (Hansard, 5 November 2002)

§ Beverley Hughes
I beg to move, That this House disagrees with the Lords in the said amendment.

Madam Deputy Speaker
With this we will take Lords amendment No. 45 and Government motion to disagree thereto, Lords amendments Nos. 46 to 83, Lords amendments Nos. 85 and 87, Lords amendment No. 88 and Government motion to disagree thereto. Lords amendments Nos. 89 to 97, Lords amendment 98 and amendments (a) and (b) thereto, Lords amendments Nos. 100 to 103 and 110 to 125, Lords amendment No. 126 and Government motion to disagree thereto, Lords amendment No. 192 and Government motion to disagree thereto, Lords amendments Nos. 193 to 213, Lords amendment No. 214 and amendment (a) thereto, Lords amendment No. 216 and Government motion to disagree thereto, Lords amendments Nos. 217 to 223, Lords amendment No. 224 and Government motion to disagree thereto, Lords amendment No. 225 and Government amendment (a) thereto, and Lords amendments Nos. 226 to 236 and 238 to 311.

§ Beverley Hughes
These amendments refer primarily to the order-making power in Lords amendment No. 225. Most of what has been said about that amendment so far, both in the other place and outside, has been wrong, and much of it has been extremely misleading. We can only conjecture whether that was deliberate or not, but to put the matter beyond doubt we have altered the wording of the amendment. That may have been unnecessary, but the revision was not difficult.
Three issues were raised in the other place in relation to Lords amendment No. 225: timing, scope and what was described as menace. On timing, there is little more I can say other than that we are where we are. As I think we all know, the Bill has necessarily evolved, 229 particularly in recent months as we have reached agreement with France during changes in the asylum system. We have had to develop policy and reflect that in the Bill. It is important that, notwithstanding extra strains imposed on Members, we have managed to produce good legislation in which we respond to reality, albeit a changing reality.
The greatest misunderstanding has perhaps been on the scope of the Lords amendment. I ask the House to agree an amendment to clarify the scope of the power. I make it clear that it was always our view, based on parliamentary counsel's advice, that the power was narrow and limited.
The right hon. Member for West Dorset (Mr. Letwin) has a formidable skill—I am not sure how long it will last or how soon he will be found out. He can talk utter rubbish and be totally wrong but because he has a soft seductive voice and seems like a nice person, he is believed, even by rather lazy journalists who do not do their research to find out the truth of the matter.
The right hon. Gentleman made two contentions on the "Today" programme about the Lords amendment—that the power would allow for changes to the Bill in future without recourse to a parliamentary debate, and that the power would enable the Home Secretary to change any previous laws. Both those contentions are completely and utterly incorrect. There would have to be a parliamentary debate and approval through an affirmative order if previous primary legislation were being changed, as is made clear in the Government's amendment. The right hon. Gentleman is being deliberately misleading or he has his facts wrong. He is such an assiduous person about detail that I cannot believe it is the latter.
The power would allow changes only to previous immigration laws that are consequential to this Bill to ensure coherence and consistency. That is good common sense and good drafting.

§ Mr. Douglas Hogg (Sleaford and North Hykeham)
The hon. Lady said that the amendment would allow changes only to previous immigration legislation, but if she is good enough to look at subsection (2) of Lords amendment No. 225, she will see the words An order under this section may, in particular— (a) amend an enactment". That is any enactment. It is not confined to an immigration enactment. Indeed it goes on to say that the order may modify the effect of an enactment. That clearly extends to statutory instruments made under any enactment. To say that the provision is confined to immigration legislation is not borne out in the statute.

§ Beverley Hughes
If the right hon. and learned Gentleman reads the first part of the Lords amendment, he will see that it says that The Secretary of State may by order make provision which he thinks necessary in consequence of or in connection with a provision of this Act. 230 Therefore, the enactment that can be amended or modified has to be consequential or incidental to the provisions of this particular legislation.

§ Mr. Hogg
indicated dissent.

§ Beverley Hughes
The right hon. and learned Gentleman will have to put forward the advice that he has been given but that is the view of the parliamentary counsel who are assisting us.

§ Mr. Robert Marshall-Andrews (Medway)
I am sorry to say this, but that is simply wrong. It is not a question of statutory interpretation. The provision enables an amendment to an enactment—any enactment. Is my hon. Friend prepared to say that it is inconceivable that it would lead, for example, to an amendment to a criminal justice Act, an education Act or anything else that is in any way incidental to these proceedings?

§ Beverley Hughes
My hon. and learned Friend, despite his experience in this field, is simply incorrect. In order to be amended or modified, another enactment would, by definition, have to relate to the provisions in this Bill—in other words, to immigration—for it to be consequential or incidental. Those are the terms of the amendment.
The order-making power would not therefore allow the Government to make provision that was not purely consequential on, or incidental to, something already in the Bill. [Interruption] To do so—as I suspect those hon. Members who keep jumping up and down know—would be ultra vires and unlawful.

§ Simon Hughes
Why was this provision introduced at the very last minute in the Lords? As the Minister knows, such provisions are always controversial and always looked at carefully. In keeping with the argument advanced by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. and learned Member for Medway (Mr. Marshall-Andrews), myself and others, why does the word "consequential" not have its normal meaning—something that happens after the Bill and which is related to it? The definition is very wide, and could include almost anything in the Bill, such as accommodation centres and appeal processes.

§ Beverley Hughes
I agree with the hon. Gentleman in that, had the position been different in terms of the Bill's development, I would have preferred to table the amendment earlier. However, there is a point about which we and parliamentary counsel cannot be clear. Although we think that all necessary cross-references with other legislation have been made—I shall deal with that point later in relation to a question that the right hon. Member for West Dorset asked me privately—we cannot be sure that all the other tidying-up work has been done to ensure that the Bill relates to previous legislation as written, without the need for amendment to make such cross-referencing absolutely clear and appropriate. As with much legislation, once the Bill has been enacted, there will be a need for a power that parliamentary counsel can bring forward, in the ways outlined in the amendment—and, so far as amendments 231 to previous enactments are concerned, through the affirmative resolution procedure—to ensure that different Acts of Parliament are not in conflict with each other.

§ Mr. Mark Fisher (Stoke-on-Trent, Central):
Can my hon. Friend help us some more on the meaning of the word "consequential"? If, as a consequence of the operation of this legislation, a weakness was revealed and a future Government wanted to introduce new elements of immigration or asylum law to cover it—such a situation would be the consequence of our failings in passing this legislation—would they be able to do so? In other words, through the amendment, could they pass what in effect would be new primary initiatives?

§ Beverley Hughes
I direct my hon. Friend to the wording of the amendment. He is perfectly capable of knowing what "consequential" means in these circumstances.

§ Mr. Fisher
I am asking my hon. Friend.

§ Beverley Hughes
Well, my hon. Friend knows what it means. It is a term that has been used in many clauses and much legislation, and I would have expected him to be familiar with it by now.

§ Mr. Fisher
Name one.

§ Beverley Hughes
I shall certainly name one. I want to get

§ Mr. Fisher
Will my hon. Friend give way?

§ Beverley Hughes
No, I want to make some progress.

§ Mr. Fisher
Will my hon. Friend give way on that point?

§ Beverley Hughes
I will not, because I want to make a further point.

§ Mr. Fisher
This is a debate.

§ Beverley Hughes
It is, and if, on listening to what I want to say, my hon. Friend wants to intervene, I will allow him to do so. [Interruption.]

§ Mr. Speaker
Order. While the hon. Lady is addressing the House, the hon. Member for Stoke-on-Trent Central (Mr. Fisher) should be quiet.

§ Beverley Hughes
Thank you, Mr. Speaker.
The third issue that was raised in the other place was referred to as "menace", which I take to mean precedent. In other words, the amendment was regarded as setting a dangerous and menacing precedent in terms of the way in which business is done in this House. That is the issue that I wish to address tonight and I hope that I will answer some of the points that my hon. Friend has just made.
232 Clauses containing exactly the same words as the amendment should be familiar to the House. For example, the previous Administration, in the Local Government Finance Act 1992, produced a similar—if not more wide-ranging—clause to that before us tonight.

§ Mr. Letwin
Would the Minister read out that clause?

§ Beverley Hughes
Certainly. It states: The Secretary of State may at any time by order make such supplementary, incidental, consequential or transitional provision as appears to him to be necessary or expedient for the general purposes or any particular purposes of this Act or in consequence of any of its provisions or for giving full effect to it … An order under this section may in particular make provision for amending, repealing or revoking (with or without savings) any provision of an Act passed before or in the same session as this Act, or of an instrument made under an Act before the passing of this Act". That is from 1992.
We have had examples of similar clauses in more recent legislation, such as the Criminal Justice and Court Services Act 2000 and the Education Act 2002. Only this week, we have had the Enterprise Bill, which included the following clause: Power to make consequential amendments etc … The Secretary of State may by order make such supplementary, incidental or consequential provision as he thinks appropriate … for the general purposes, or any particular purpose, of this Act; or … in consequence of any provision … An order under this section may … modify any Actor … may make incidental, supplementary, consequential, transitional, transitory or saving provision. Only last night, we considered the Adoption and Children Bill, which contains the following clause: The appropriate Minister may by order make … any supplementary, incidental or consequential provision … any transitory, transitional or saving provision, which he considers necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision of this Act … The power may be exercised so as to make … any supplementary, incidental or consequential provision". That is no different from the provision before us. In fact, the advice given to me suggests that the power in the Adoption and Children Bill is drafted in wider terms than that before us tonight in Lords amendment No. 225. It allows a Minister to make supplementary provision, as well as consequential and incidental provision, that he thinks is necessary or expedient for the purposes of…giving full effect to any provision"— of the Adoption and Children Bill.
The hon. Member for Southwark, North and Bermondsey (Simon Hughes) said earlier that the House always pays great attention to such matters. However, I have looked through the Hansard for the Adoption and Children Bill, and in the debate last night not a squeak was heard about the supplementary and consequential provision in that Bill by anybody.
I wish to deal with a point raised privately with me by the right hon. Member for West Dorset about the scope of the Bill, so that I may put my reply on the record. He asked me whether the provision would allow us to rectify a direct conflict of law between the Bill and some previous legislation. I can tell him that it will: rectifying conflicts of law is a real priority for any Act. We hope that we have done most of that in the course of this Bill's passage through the House.
233 We may be left with a more common type of problem, involving consequential issues that are of lesser priority than correcting direct conflicts of law. For example, such cases might include references in other legislation that have been superseded by the Bill and which need to be substituted. Where there is no direct conflict, they might involve a possible lack of clarity if the statute book were not tidied up.
My officials have provided me with an example of a consequential amendment that we know we need to make. The power that we are discussing would enable us to make it, but we could not do so without it. Section 12 of the Immigration and Asylum Act 1999 deals with the removal of asylum seekers to safe third countries, and refers to an appeal under section 65. However, the House will know that section 65 of the 1999 Act is being replaced by the appeal provisions in part 5 of this Bill. We will therefore use our consequential power to put that and similar inconsistencies right.
Hon. Members have claimed that the provision is far beyond the scope of any similar provision in any previous Bill. That is incorrect. The House considered a Bill last night that is wider in scope, and no one objected. As to the claim that the provision is without precedent, I hope that I have clarified that there are precedents in previous Tory legislation and in Bills that have been enacted in this and the previous Parliament. Moreover, the Bills that have come before the House in the past few days have all contained this provision.
I hope that I have reassured the House on the specific point about the provision. I am not sure why the matter gave rise to so much heat and so little light, or why people have been misled about the intention of the provision and about what it allows us to do. I do not like to talk of hypocrisy and fraud, but there has not been much enlightening comment from Opposition Members on this matter.

§ Mr. Letwin
I am not absolutely confident that the Minister has made her case in the best way to achieve a resolution of this matter. I find myself in genuine doubt. It is not the case that I sat in the bath tub to read the provision and imagine its meaning.

§ Mr. Blunkett
Or the shower.

§ Mr. Letwin
The Home Secretary helpfully suggests that I took a shower, but I did not even do that. I did not start this inquiry, which began in the House of Lords. I was present for that debate, to which a former Attorney-General, a Labour peer of great distinction, made a contribution, with commentaries being offered by leading counsel. I have consulted administrative lawyers. The Government Benches contain distinguished members of the legal profession. Behind me sits another silk, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), and my hon. Friend the Member for Woking (Mr. Malins) and the hon. Member for Southwark, North and Bermondsey (Simon Hughes) are both lawyers.
Lawyers surround us. Lawyers abound, and these lawyers read the words in the Bill as it used to be. There may have been recent precedents of almost identical wording—I do not know. I did not attend to the details 234 of all aspects of the Adoption and Children Bill—we were rather preoccupied with one aspect, as the Minister may have noticed. I do not think that it is a defence of the original wording to assert that, in the words of my right hon. and learned Friend the Member for Sleaford and North Hykeham, this is a serial offence. That does not help us one iota.
9.45 pm
The question here is what is the meaning of the original provision and, much more important, the amended provision. I may have been guilty of excessive generosity. I may have been mistaken. I thought this morning when we saw the Government amendment to the Lords amendment—rather late, I may say—that we had made huge progress. I thought that there was a difference between two statements—certainly there appears to be one in ordinary English. Lords amendment No. 225 states The Secretary of State may by order make provision which he thinks necessary"— I take it that the phrase "he thinks necessary" then governs the latter part of the sentence— in consequence of or in connection with a provision of this Act. That seems to suggest that the Secretary of State could deem what was necessary in consequence of or in connection with the provision of this legislation and having so deemed could amend without restriction any enactment.
There appears to this humble philosopher, and to a large number of lawyers whom this humble philosopher consulted, to be a difference between that and the more typical provision, which I have never liked—the Henry VIII clause is prevalent, as the Minister rightly says. There is a difference between the phrasing of Lords amendment No. 225 and the new phrasing suggested by the Home Secretary, which provides that the Secretary of State may by order make "consequential or incidental provision" in connection with the provision of this legislation. That seemed to remove or at least constrain the ability of the Secretary of State to judge whether something was consequential or incidental. It seemed to establish a category of thing that was genuinely consequential or incidental and to allow a modification of an enactment only if such a modification were necessary as a matter of it being consequential or incidental. Let us hope that that is the case.
I was hoping that the Minister would give a learned reply to the next question raised across the Floor and that some jurisprudence would be put before us. I hoped that she would tell us not that parliamentary counsel—one set of lawyers among others—took a view but that there were cases that showed on judicial review the meaning to judges in English law of "consequential and incidental". I admit that our researches so far have not identified such cases. We may be fallible in this. I had hoped that the Minister would reveal that there was jurisprudence that made it clear to us—or ought to—that we were now in safe territory again and that we were talking about the very things—and I fully accept her intentions in this matter—that she listed.
If the sole purpose of the clause as currently phrased is to rectify a direct conflict of laws, to rectify minor discrepancies of reference and to clarify matters where 235 a lack of clarity would otherwise prevail, it is of course harmless. The question is whether, as a matter of fact, it gives not to the present Secretary of State tomorrow but to some Secretary of State in future—establishing a precedent that will extend to a wider range of Secretaries of State in who knows which Administrations—the general ability to use what is, in effect, decree law subject to a 90-minute debate, to modify wild uncharted territory or enactments, or whether it simply provides for those Secretaries of State the ability to rectify discrepancies and conflicts of law. If the narrow interpretation prevails, I do not want to make a fuss about it—I see no reason to do so. If, however, the wider interpretation is correct, I see every reason on earth to make a fuss, because it is the fundamental principle of our parliamentary democracy that legislation should proceed through First Reading, Second Reading, Third Reading and a whole panoply of devices to ensure proper debate rather than 90 minutes' worth somewhere, stuck in a hole in the corner.
No doubt my right hon. and learned Friend the Member for Sleaford and North Hykeham and perhaps even some Liberal Democrat or Labour Members will accuse me of being too complacent, too lacking in doubt and scepticism.

§ Mr. Hogg
Too nice.

§ Mr. Letwin
Indeed. Tonight, however, I shall take it on trust that the Minister has behind her not her unpersuasive remarks but some genuine jurisprudence, some legal opinion that can be put before the House in rapid order, so that when the measure goes before the Lords tomorrow I can reassure my noble Friends that we have genuinely achieved a constrained and acceptable power. The matter is of some importance because the Bill could founder on it.

§ Mr. Blunkett
I am grateful to the hon. Gentleman for giving way, despite his comments on the eloquence of my hon. Friend the Minister.
The hon. Gentleman asked whether the narrow interpretation was correct. The answer is yes. We do not seek to introduce parent legislation by edict, fiat or anything else. The hon. Gentleman asked whether we would introduce jurisprudence. We shall certainly look for examples for the Lords debate tomorrow, but I cannot promise that we shall be debating jurisprudence in the Lords, rather than what is before us, on a narrow interpretation that mirrors exactly what has been done, including under the last Conservative Government—not least in the Local Government Act 1992.

§ Mr. Letwin
That is immensely helpful, not merely because of the Home Secretary's words but because he said them at the Dispatch Box. As I understand the implications of Pepper v. Hart, that will have some influence in determining how a court reads the provision.

§ Mr. Hogg
Although it is gratifying to hear the words of the Home Secretary, it is important to keep in mind 236 that he can bind only his own Government. He cannot bind his successors. We are thus thrown back on the language of the clause and the amendment.

§ Mr. Letwin
I accept my right hon. and learned Friend's point: the Home Secretary cannot bind anybody but himself. Indeed, the history of his relationship with his predecessor as Home Secretary amply indicates that one Home Secretary does not bind the next. However, I think that my right hon. and learned Friend will agree that the courts are likely to look at what the Home Secretary has just said when they interpret the statute, so the right hon. Gentleman's comments were most helpful. Let us hope, moreover—

§ Mr. Hogg
The Home Secretary did not give an interpretation, only a statement of his intent—

§ Mr. Speaker
Order.

§ Mr. Letwin
As I understand the matter, under the Pepper v. Hart doctrine, for a Minister—especially the Home Secretary in a measure that he has sponsored—to make a statement of his intent is to give something close to an interpretation, or something that has some force as an interpretation. However, I shall leave that point as we are in the hands of great legal experts on both sides of the House—I am not among them.
Let us hope that the point will be proved beyond doubt when the Home Secretary's gallant offer to produce some jurisprudential material is put before the House of Lords tomorrow.

§ Mr. Fisher
Like the right hon. Member for West Dorset (Mr. Letwin), I was considerably reassured to hear the Home Secretary say that it was not his intention to interpret the provision as the hon. Gentleman suggested. Hon. Members on both sides of the House welcome that. However, the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) related not only to future Governments, but also to what is possible under the Bill.
The fact that the Home Secretary has given his word about his intentions and about what he will not do is extremely welcome and reassuring, but it does not change the fact that another interpretation of the Bill would be possible. I should be grateful if the Home Secretary or the Minister would answer the genuine question that I put earlier. That was not about whether the provision was useful in rectifying or clarifying, but about whether it could be used to add to the Bill. That is a crucial element.
My question was genuine, although the Minister seemed to think that I was trying to be clever and already knew the answer. Perhaps I am naive, but I do not know the answer. If weaknesses in the Bill are revealed later, does the word "consequential"—a consequence being a failing in the Bill—allow the present Home Secretary or a future Home Secretary to introduce completely new initiatives? They might shore up the measure—perhaps desirably so—but that is not the interpretation that either the Home Secretary or the Minister are trying to put on the matter. There is an enormous difference between the two interpretations and I genuinely seek an answer.

§ Beverley Hughes
I can give my hon. Friend the assurance that he seeks. The power would not allow 237 either this Home Secretary, or indeed any future Home Secretary, to introduce a new provision of the kind that he has described. The words that the Home Secretary has uttered from the Dispatch Box apply not only to him but to any future Home Secretary.

§ Mr. Fisher
I am grateful for that clarification and reassurance. I suspect that that was heard on both sides of the House and I hope that other hon. Members will be reassured by it.
This exchange has been very useful because this practice is becoming far too common. The Minister referred to examples going back to 1992. Both Governments over the past 10 years have been guilty of using such provision. Too many pieces of legislation have opened doors. It is one thing, in the words my hon. Friend used in citing the Adoption and Children Bill, to give full effect to a provision. Of course, when that is so, the phrase "consequential and incidental" makes absolute sense. Every piece of legislation needs interpretation at the edge, but that is very different from opening a door in order to add substantively to the initiatives taken in a Bill. If the Minister and the Home Secretary say that "consequential" cannot be interpreted in such a way under this legislation, I shall be satisfied, relieved and happy. However, I remain worried; it will be interesting to see the matter considered at greater length.

§ Simon Hughes
I am conscious that we are on the last lap: we have considered 311 amendments in six and a quarter hours; 20 Government amendments were tabled late last night; and the Government also wanted us to overthrow 22 Lords amendments today. In this last group, there are three important matters, but we shall hardly be able to touch on two of them.
There is a significant issue in Lords amendment No. 98, which changes the law retrospectively. Had we the time, we would have moved our amendment to omit the retrospective nature of the provision, but in the absence of that I ask the House to vote against the Lords amendment because of that fundamental breach of principle.
There is a significant issue to do with the extension of powers outside the United Kingdom. Let us consider that we have immigration control at Sangatte, for example. We have argued that the same rights should apply to people whose asylum cases are processed there as they do in the UK. We therefore ask Members to refuse to assent to the proposed provision.
The final issue that has occupied us is the amendment to the so-called Henry VIII clause. Both the Minister and the Home Secretary have given reassurance on the point, but the amendment should not have been tabled at the last moment and only in the Lords. Even as amended, we are not satisfied that the provision will not allow some risk of further major legislation. I therefore hope that the House will stand up against anything that allows the Government to take power for the Executive that has not been expressly authorised by Parliament.
This Bill is full of new Executive powers. It takes away rights of appeal; it does not allow some people to appeal in this country; it leaves to Ministers decisions that were previously taken by the courts. On the Liberal Democrat Benches, we have tried for months in both 238 Houses to resist such proposals. We have put up a good fight in the other place and the Lords have done a very good job. As a commentator in the press made clear today, our job is to stand up to such Government usurpation of power. We shall do so, and I hope that colleagues join us in the Lobby when we have our last opportunity to vote against what are several steps too far and several powers too many in dealing with some of the most vulnerable in our society.
It being Ten o'clock, MR. SPEAKER put forthwith the Question already proposed from the Chair.
Lords amendment disagreed to.