Clause 40 - Orders and regulations under this act
Vehicles (Crime) Bill
11:00 am

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Mr John Bercow (Buckingham, Conservative)

I beg to move amendment No. 90, in page 23, leave out lines 29 and 30.

The clause deals with orders and regulations under the Act. The amendment proposes to delete lines 29 and 30, and its effect would be to remove the facility to exercise discretion. I doubt why the Secretary of State should have the power,

to make different provision for different cases...or for different purposes or different areas.

Several points relevant to this matter were aired in the Committee's discussion of clause 34, but the arguments are worth batting around again.

The provision seems to allow the Secretary of State the flexibility to implement the EU end-of-life vehicles directive. Is that not dangerous? The provision appears to say that the statutory instrument would give the Secretary of State greater power to make different provisions for different areas. How much power does the Secretary of State want? What are the different scenarios in different areas, or involving different purposes, which justify the accretion to the Secretary of State of more power that he can choose to exercise in varying degrees, or not at all? For example, if the provision on notification is to apply, surely it should apply equally to all businesses in all areas? After all, the Driver and Vehicle Licensing Agency is a national body and it should be able to rely on a standard, uniform service from scrap metal dealers.

In the name of specificity, and therefore of predictability, the Bill and the clause should, as far as possible, be prescriptive rather than permissive. The Committee has debated this subject at length. I have argued for tying down the powers of the Secretary of State and his Ministers as far as possible, so that the nature and extent of those powers are apparent and the manner in which they may be exercised can be foreseen with reasonable confidence and precision. By contrast, Ministers have tended to pray in aid the unforeseen or the unpredictable, arguing that it justifies the accretion to them of more power, which they can decide how to exercise at some unspecified time in the future. I am uncomfortable about that.

I am minded, therefore, to raise again the concern that I mentioned when the subject was previously debated: namely, that what bothers me about much of the legislation, and certainly about lines 29 and 30 of the clause, is that there is so little specific information or reassurance by way of example. I hope that the Minister will be willing and able today to give me and my hon. Friend the Member for Lichfield examples of when and how differential application of ministerial power would be exercised. The Minister claims that he must have maximum flexibility as different scenarios might arise and that it is sensible not to tie the clause down in a way that might not permit him, or agents acting on his behalf, to exercise powers that were subsequently judged necessary.

I would be more comfortable if he were able and willing to say that the provision is needed because business X and Y might differ in their size, location, or another material factor. He has not yet been specific about differential application, and that lack of specificity makes me uncomfortable. It is our duty to probe the Minister and to try to get him to offer a more concrete justification of the unamended clause. I do not object—and neither does my hon. Friend—to the principle of vesting power in the Secretary of State. Nor are we objecting to the exercise of power by statutory instrument. Our objection is that, if such a power is to exist, it should be clearly described and applied in a way that does not inappropriately discriminate between one motor salvage operator and another, one registered plate supplier and another, or one scrap metal dealer and another.

11:15 am
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Mr Michael Fabricant (Lichfield, Conservative)

I have been sent to this legislature to scrutinise legislation, as well as to represent the interests of my constituents. Last week, I spoke about the predilection of the Government to include blank cheques in legislation, whereby later they can completely negate tight clauses. Clause 40(2)(a) is a blank cheque, if ever there was one. It allows the Secretary of State to introduce an order

to make different provision for different cases or descriptions of case or for different purposes.

It is the blankest of blank cheques.

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Mr John Bercow (Buckingham, Conservative)

I acknowledge that the Minister might be able to reassure us as to the benign character of the unamended clause, but the official Opposition have expressed concern about the Henry VIII character of such an exercise of power by regulations. It would be helpful if the Minister could provide a sample draft copy of the regulations before Report and Third Reading.

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Mr Michael Fabricant (Lichfield, Conservative)

Draft regulations certainly would be helpful, but in response to inquiries from my hon. Friend the Member for Buckingham, the Minister wrote to members of the Committee on 22 January, saying:

we do not intend to provide any draft regulations before the Bill is enacted.

He went on to say:

We consulted major stakeholders before the Bill was introduced and they agreed to work out matters of detail at a later stage so that we can take account of any amendments to the Bill.

I understand what the Minister wrote in his letter, but he wants us to rubber-stamp a Bill that has gaping holes. We have to trust his integrity—about which there is little doubt—but, more to the point, we have to trust the integrity of future Ministers. Subsection (2)(a) leaves too much to chance and, for that reason, I join my hon. Friend in asking for it to be deleted.

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Mr John Bercow (Buckingham, Conservative)

I agree strongly with my hon. Friend's comments. The fact that the Government have decided not to issue draft regulations before the Bill is enacted but rather to await consideration of amendments is a good reason why those regulations should be subject to the affirmative procedure. We would then have an opportunity at a later stage to examine them and express an opinion on them.

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Mr Michael Fabricant (Lichfield, Conservative)

My hon. Friend is right. As I said earlier, we are a legislature and our job is to scrutinise legislation. Provisions such as this avoid such scrutiny, which is dangerous. We will discuss amendment No. 32 later, and I believe that it would provide a useful alternative to subsection (2)(a). It would provide tighter but reasonable constraints that would still give the Home Secretary flexibility to ensure that the legislation would be applicable in changing circumstances.

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Mrs Anne McIntosh (Vale of York, Conservative)

I apologise for my late arrival, Mr. O'Brien.

I thank the Minister for replying to me on a separate matter, in which he referred to the Weights and Measures Act 1985. I support the amendment because—I hope that the hon. Member for Eastleigh (Mr. Chidgey) will not take exception to this—subsection (2)(a) appears to be a Liberal solution, proposing different solutions for different parts of the country. Worse still, it could appear to be a federal solution and, as the Minister will appreciate, the official Opposition are opposed to federalism in any shape or form.

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Mr John Bercow (Buckingham, Conservative)

Will my hon. Friend confirm that when she says that the subsection appears to be Liberal, she does not mean to imply that it is permissive, but merely that it cannot make up its mind?

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Mrs Anne McIntosh (Vale of York, Conservative)

I thank my hon. Friend for that clarification, with which I agree entirely.

I referred to the Weights and Measures Act 1985 in relation to the empowerment of the Secretary of State because I fear problems similar to those that arose from a recent court case, details of which were spread across the national newspapers last weekend. Under the Bill as it stands, statutory instruments could be passed at short notice and without proper scrutiny—which I always understood was the purpose of Standing Committees— resulting in prosecutions that were unintended by the Government of the day. I urge the Minister to support the amendment and not to put himself and his Government into that situation. Any regulations and their application, to which subsection (2)(a) refers, should be put before the Committee today. I associate myself with the amendment and want to see subsection (2)(a) struck from the Bill.

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Mr David Chidgey (Eastleigh, Liberal Democrat)

Good morning, Mr. O'Brien. I almost felt glad to be back from my excursions to the frozen north of Europe, but hearing points of order about colleagues being frozen out, I felt that I had never been away.

I have some reservations about subsection (2)(a). Most parliamentarians would agree that it is typical for the Government to define its legislation in this way, but my main concern is that it provides no opportunity for Parliament to scrutinise or approve any such exercise of powers that a Minister may require. My intervention will be brief, although it is neither illiberal nor undecided. My point is simply that I would prefer such orders to be brought before Parliament, so that they can be challenged as necessary.

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

A number of the comments that have been made relate to amendment No. 32 and I hope that they will be considered in that context.

As the hon. Member for Buckingham said in moving the amendment, we fully debated a number of the points in Committee, so we should get to the nub. Subsection (2) states that

Any power of the Secretary of State . . . may be exercised—

so it is a permissive clause. As the hon. Member for Eastleigh said, such clauses are a common feature of legislation—but what is their purpose? Specific detailed legislation should be discussed substantially and in detail with those affected by it; that is true of not only this Bill but other measures. Those affected include the various organisations of the motor salvage industry, the number plate suppliers, the Local Government Association, the Institute of Trading Standards and the motor safety organisations. Such a discussion can best take place on the basis of a knowledge of what Parliament's intention in these matters is.

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

No, I said ``Parliament's intention is''. The hon. Gentleman may have misheard me, perhaps deliberately—although my paranoid streak may be showing.

Such a clause is correct in the context, given that we are interested in discussing and consulting the industry. Specific examples of the reasons for consultation have already been given, but I will recite them again. They include the need to take account of the different sizes and natures of businesses and the need to be prepared to consider the precise way in which we apply regulations to take account of the different natures of the businesses. The hon. Member for Buckingham referred to that last point in previous debates on the matter. Whether we will need different characteristic approaches for different types of businesses depends on the consultation that I described.

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Mr John Bercow (Buckingham, Conservative)

Is there a read-across between sub-paragraphs (2)(a) and (b)? Does the Minister envisage circumstances in which differential application of the power will be applied to large and small businesses in relation to transitory matters?

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

I can envisage it, but I do not anticipate it. Precisely because I can envisage it, we seek to establish flexibility through the clauses that we have discussed, by laying regulations for different circumstances.

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

No. We are about to discuss amendment No. 32, which deals with affirmative resolution. I ask the hon. Gentleman to consider withdrawing the amendment, because—

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Mr John Bercow (Buckingham, Conservative)

I am trying to help the Minister, although he seems oblivious of the fact. Having explained the theory, will he give me one example of differential application based on science? That is all I ask for, as I am a modest fellow with modest ambitions and modest expectations even of this rising Minister. Will he give one instance of how the Government might apply regulations differentially, as between a larger or smaller company?

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

It is imaginable—although not the Government's intention—that we may be able to introduce regulation earlier for large number plate suppliers than for small number plate suppliers. I emphasise that that is not the Government's intention, but we seek to be flexible as possible, and not to have a uniform approach to every type of enterprise and circumstance when we receive representations about the implementation of the legislation.

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Mr John Bercow (Buckingham, Conservative)

That seems clear but, for the avoidance of doubt, will the Minister answer one question? Would the desire to save money for small companies or, at least, to stagger the introduction of new regulations in order to minimise the short-term burden, be a factor that inclines the Government to apply the regulations differentially?

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

It could be, but the real issue is the burden of regulation on different types of industry. We are keen, for reasons with which the Committee is familiar, to tailor the burden to the size of the industry. We do not have a specific intent, but seek a permissive ability for us to take account of representations made about the burden of legislation and the cost to particular businesses. For that reason, I hope that the hon. Gentleman will withdraw the amendment so that we can have the power to talk properly to the types of businesses of which he has rightly urged us to take account.

11:30 am
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Mrs Anne McIntosh (Vale of York, Conservative)

How does the Minister propose to avoid a situation whereby innocent people are prosecuted under a change that is subsequently introduced by Order in Council?

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

It might have been helpful if the hon. Lady, who has spoken on this matter in relation to other areas, had listened to what I had to say on those occasions, or done us the courtesy of being present at the beginning of the debate. I was reluctant to give way because, for that reason, I could not take her seriously. There will be no prosecutions of innocent people in this regard. As I have said on a number of occasions, the purpose of the Bill is to enable the Secretary of State to be flexible, and to take account of the interests of the industry in knowing what the regulations do, in fact, bring forth. I have tried several times to wind up, and I urge the hon. Member for Buckingham to withdraw the amendment.

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Mr John Bercow (Buckingham, Conservative)

I am content to withdraw the amendment. Once again, I find the Minister's words reassuring. However, I return to a point recognised and accepted by all legislators—a measure should be judged on its merits, and on its potential demerits in the wrong hands. Although I am inclined to give the Government the benefit of the doubt on this occasion because of what the Minister has said, I might be much less comfortable with the differential application of the powers in the hands of a less benign Minister. I certainly do not rule out the possibility of returning to the matters at a later stage, but as an earnest of good intent and a sign that we are willing to take his intentions at face value, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Mr John Bercow (Buckingham, Conservative)

I beg to move amendment No. 32, in page 23, leave out lines 34 to 36 and insert—

`(3) The Secretary of State shall make no orders or regulations under this Act (other than an order under section 43) unless a draft of the order or regulation, as the case may be, has first been laid before, and approved by, a resolution of each House of Parliament.'.

I shall be a model of brevity. My hon. Friends and I have argued many times in Committee that regulations flowing from the Bill should be subject to the affirmative procedure. I know that the Minister disagrees, but I believe that the regulations flowing from the Bill will represent its heart or meat. It is not right that they should simply be nodded through.

I am happy to rest the case in deference to other members of the Committee, including hon. Friends who might wish to contribute, and also to the hon. Member for Colchester, who was angry that he was not able to contribute the other day and who I am sure will want to contribute today. The arguments have been rehearsed many times, and the Minister knows where I am coming from on the subject. We have to agree to differ.

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

As the hon. Member for Buckingham says, the debate is familiar. It is not dishonourable. It is a perfectly fair and reasonable discussion between Opposition and Government about how to deal with matters. I argue only for a sense of proportion. As currently drafted, clause 40 requires all orders and regulations made under the Bill except commencement orders to be subject to the negative resolution procedure, which, as the hon. Gentleman knows, offers an opportunity to pray against an order or regulation within 40 days of its being laid, failing which it becomes law. Regulations that require affirmative approval should be matters of weight and substance for the attention of the whole House. There are areas in which we would all agree that that is necessary, and I do not think that it is necessary in this case.

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

No. I will let the hon. Gentleman make his point in his summation on the amendment. The negative resolution procedure is perfectly adequate to deal with such matters. I see no point in my dilating at greater length on the arguments, which are familiar and have been well rehearsed, including in the Committee. I urge him to withdraw the amendment. If he does not do so, I ask my hon. Friends to vote against it.

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Mr John Bercow (Buckingham, Conservative)

Seasoned observers of Parliament will be aware of the distinction between the affirmative and negative procedures. However, it is possible that there will be people taking an interest in the Bill, either as individual citizens or on behalf of pressure groups, who will not be well versed in or even remotely aware of that distinction. The affirmative procedure allows debate on regulations and the negative procedure denies it.

The Minister and I will have to agree to differ. I accept that it is a matter of judgment. I am not arguing that every single regulation that flows from every piece of Government legislation should be subject to debate in Parliament. I am arguing that in many cases regulations should be debated in Parliament and that in many cases it would have been in the Government's own interest for them to have been properly debated. I will not animadvert to matters that are not within the purview of this Committee because you would upbraid me, Mr. O'Brien, were I to do so, but it is relevant by way of analogy to underline why my hon. Friends and I are concerned about the intended absence of debate on those matters. We know, simply from reading the book, the difficulties into which the Government have plunged as a result of earlier denials of debate. I refer to the 71 pages of A4 on the regulations to give effect to the working time directive as an example. That example motivates me in the amendment. The Government chose to steamroller regulations through Parliament without debate. Subsequently, it was seen that those regulations contained grave flaws, and a subsequent Secretary of State had to revise them. It is at least arguable that if they had been subjected to full and thorough scrutiny by the House, that problem would not have arisen.

The Minister has been inclined to argue that there is limited parliamentary time and that such debates are not the best use of that time. However, it is not quite as simple as that. If Ministers decide that a matter should not be debated in Parliament because it does not merit parliamentary time, and if subsequently the regulations are shown to be burdensome or inadequately drafted in one form or another, will the Minister acknowledge that at that point the regulations will have to be amended and might well be the subject of parliamentary scrutiny, debate or questioning, which would also absorb time? Some generosity of spirit, as well as simple prudence, at the outset might avoid the wasting of time at a later stage, as well as the attendant personal embarrassment to the Minister, who is obliged to eat his earlier words or those of one of his predecessors.

One other point is worth making, although I will then be content to withdraw the amendment and not to subject it to a vote. We are talking about a very small amount of time. Will the Minister at least recognise that? He has often talked about it as though a great burden would be imposed. Will he at least confirm by nodding that we would be talking about 90 minutes of debate, no more?

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Mr Charles Clarke (Minister of State, Home Office; Norwich South, Labour)

I have never implied that it is a great burden, as it is not, but nor is it a relatively small amount of time. It is a question of the best way of dealing with a situation.

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Mr John Bercow (Buckingham, Conservative)

Indeed. The Minister believes that the best way is by the negative procedure, whereas I believe that it is by the affirmative procedure. That is why I tabled the amendment. I have listened to his response. I do not agree with it, but I do not wish at this stage to put the matter to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 ordered to stand part of the Bill.

Clauses 41 and 42 ordered to stand part of the Bill.