My Lords, this amendment raises an issue of parliamentary importance well beyond the scope of the Bill. Clause 124 is a Henry VIII clause. Its contents involve the usual provision to make consequential amendments following the enactment of the Bill. My amendment is expressly related to the additional power the clause gives to amend subsequent legislation passed in this House in the same Session as the present Bill.
In restricting the amendment to that particular subsection, it should not be understood that I approve of the use of Henry VIII clauses. They are often the result of a bureaucratic, slipshod approach, whereas years ago statutes in draft form were dealt with with great care. The more such clauses are introduced, the more will be eroded the parliamentary sovereignty that is exercised over primary legislation.
Subsection (b) contains the power to amend future legislation in this Session of Parliament. In Committee, I invited the Government to explain the necessity for this and to note that it was most unusual. In fact, I have been able to identify only one statute where this phraseology has been used—the Financial Services and Markets Act 2000, a Treasury Bill. Please note the difference. You can amend an existing statute under a Henry VIII clause if it is passed, whether it is as a consequence of this Bill or some Bill that has become an Act in the past. However, we are talking about this Bill giving a power for subordinate legislation to amend future legislation. That is an extraordinary power for Parliament to seek to give, no matter how often it is declared that it is only for consequential matters.
It is the one example that I can find and occurred in circumstances which are extremely concerning. The amendment deals with a clause that was introduced in Committee. It was not considered by the Delegated Powers Committee because it came subsequent to that committee’s report, and it was not considered by the Constitution Committee, both of which would normally consider and report on a Henry VIII clause. The Government would then respond to that report and the committee would reply. That process fulfils what the Constitution Committee’s report on the Public Bodies Bill in 2010 said should occur in respect of these clauses—they should be clearly limited, exercisable only for specific purposes and subject to adequate parliamentary scrutiny. That does not mean only on the Floor of the Chamber: it is the committee’s report, the Government’s response and that then informing this Chamber as to whether the Henry VIII power is appropriate. The Government introduced the clause by amendment and, as far as I am aware, they did not bring it to the attention of either of these committees or engage in the exchange that would normally have occurred.
The noble and learned Lord, Lord Judge—who now sits on the Cross Benches—as Lord Chief Justice, described Henry VIII clauses in general as pernicious because they make for sloppy legislation and potential injustice, as well as a lack of parliamentary sovereignty. However, he did not have in mind a Henry VIII clause that allowed amendment of future legislation. Is this academic? No, it is not. Within the present Bill and the Government’s commentary on the Parliamentary Commission on Banking Standard’s report, I identified to the committee three issues which the Government were continuing to consider, each of which would require legislation if they introduced a change in respect of any one of the three. This could occur, presumably, during this Session.
This is important. Is it not rare that a Chamber in a legislature should allow subsidiary legislation to dominate future primary legislation in the sense that it can
amend it? That state of affairs—something arising that affects a previous Act—should result in the Government of the day amending the new Act accordingly, as is their statutory duty in introducing legislation to the House.
In Committee, the noble Lord, Lord Newby—surely trying to be helpful, as he always is—said:
“I am very happy for Treasury lawyers to set out in a letter the precedents that these powers exactly replicate”.—[Official Report, 23/10/13; col. 1171.]
Five weeks later, I have received nothing and the Government have not given an explanation. It is not good enough. If the matter comes up again at Third Reading, it will be incumbent on the Government, at the very least, to make sure that any amendment concerning this clause should take place in the Chamber, if possible in the presence of noble Lords from those two committees playing their part. I beg to move.
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