Mr Malcolm Savidge (Aberdeen North, Labour)

I beg to move amendment No. 7, in page 7, line 6, leave out—

`an order under section 1 or 2 which contains any provision made by virtue of section 3(2)'

and insert—

`(a) an order under section 1 or 2 which does not contain any provision made by virtue of section 3(2); or

(b) an order under section 4, 5 or 15(3)'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to take the following amendments: No. 25, in page 7, line 6, leave out—

`or 2 which contains any provision made by virtue of section 3(2)'

and insert—

`, 2, 4, 5 or 15(3)'.

No. 8, in page 7, line 14, after `order', insert—

`under section 1 or 2 which contains any provision made by virtue of section 3(2), or an order'.

No. 9, in page 7, line 17, leave out subsection (5).

Mr Malcolm Savidge (Aberdeen North, Labour)

As with all my amendments, these are probing amendments and they hang together. Clause 12 is welcome, as it will ensure parliamentary scrutiny of the secondary legislation--that will be a statutory requirement. The Committee must agree that that is welcome.

Clause 12 provides for three levels of scrutiny for different areas of secondary legislation. The most stringent is the affirmative procedure, whereby a statutory instrument comes into force only if both the House of Commons and the House of Lords approve it. That will apply to all measures, although purely financial measures would, of course, be a matter for the House of Commons only.

The second most stringent level of scrutiny is the delayed affirmative procedure, whereby a statutory instrument must be approved within 40 days of being laid before Parliament.

The third most stringent level of scrutiny is the negative resolution procedure, whereby the statutory instrument comes into law, but can be nullified if a motion is passed against it in either House within—usually—40 days.

It is clearly in the interests of good government that we should have the most thorough parliamentary scrutiny. That is not just in the interests of Back Benchers of whatever party, but is in the interests of the Executive, provided that the Opposition do not cause inordinate delay or unreasonable instruction.

So that the Committee can understand this somewhat convoluted set of amendments, I shall explain their effect in the simplest possible terms. The statutory instruments that currently would be dealt with under the second most stringent level of scrutiny—the delayed affirmative procedure—would be moved up to the most stringent level of scrutiny—the affirmative procedure. The statutory instruments that would be dealt with under negative procedure would be moved up to the delayed affirmative procedure. As no statutory instruments would be dealt with under the negative procedure, subsection (5) would no longer be needed, and would, therefore, be deleted.

As I have said, the amendment merely probes. The idea is to give the Committee the opportunity to discuss the level of scrutiny that is required. The hon. Member for Salisbury referred to that when we discussed clause 6. I hope that it also gives the Minister the opportunity to consider further what levels of scrutiny are appropriate for secondary legislation under the Bill, and to explain his thinking to the Committee.

Dr Vincent Cable (Twickenham, Liberal Democrat)

I shall say just a few words in support of the amendment. The legal eagles may have noticed that my amendment has become rather redundant, as amendment No. 11, which originally referred to it, was withdrawn. I shall, therefore, speak in support of the hon. Gentleman's amendment, rather than my own.

He briefly and cogently made the point that all parties are interested in having good and appropriate parliamentary scrutiny. That was the spirit of the Quadripartite Committee, and both sides expressed the opinion that the Bill should proceed in that way. My interpretation of the amendments is that they would ratchet up the level of parliamentary scrutiny, so that delayed affirmative action would become affirmative, and negative action would become affirmative in all cases. I am sure that the hon. Gentleman is in no way trying to obstruct Government business. This is simply an attempt to enhance the role of Parliament in these proceedings in a carefully thought through way.

It is not clear why clause 6 is not dealt with affirmatively. That seems a little arbitrary; perhaps the Minister could explain that. When we debated the issue on 17 July, I introduced amendments on increasing parliamentary scrutiny. The Minister told me that

``any orders made for reasons that fall wholly or partly out with the purposes must be approved by Parliament by the affirmative resolution procedure. That means that any orders made under the subsection would cease to have effect if not approved by both Houses of Parliament before the end of a 30-day period.''—[Official Report, Standing Committee B, 17 July 2001; c. 28.]

I understand that it is a 40-day period, but he may have made a slip of the tongue, since I assume that he was not improvising policy as he spoke. I hope that he clarifies that point.

Ms Vera Baird (Redcar, Labour)

I support the spirit of the amendment, which probes the issue of the parliamentary scrutiny given to the Bill. The amendment would crank up the level of scrutiny provided for in the original drafts by a notch. That would allow the negative procedure to drop off the bottom, since it would no longer be applicable. Negative procedure does not require any debate in the Chamber, or even a significant amount in Standing Committee.

Members on both sides of the House have expressed great interest in the Bill. I re-read the Second Reading debate last night, in which many highly formed opinions were expressed. The nature of the subject demands that the Bill be laid down in skeleton form, with the meat provided by the statutory instruments. We should reconsider excluding the negative procedure from such applications. The amendment may not be relevant since clause 6 no longer stands part of the Bill, but I support the wish to probe Government thinking on levels of scrutiny.

Mr Robert Key (Salisbury, Conservative)

When we discussed clause 6, I drew the Committee's attention to the fact that if the clause were removed, the House would have less insurance on decisions on the subject. That was my one concern about striking out the clause. The Minister confirmed that danger. He said:

``The hon. Gentleman is correct in his observation that orders under clause 6 would be subject to affirmative resolution procedure and that that will no longer apply if clause 6 is removed.''—[Official Report, Standing Committee B, 16 October 2001; c. 121-22.]

The House has an interesting opportunity to exert its authority, choose affirmative resolution, and ratchet up the procedure from the negative resolution to the delayed affirmative procedure. There is agreement across the Committee that that is a good idea. That is why I agreed to drop clause 6; I said that we would have another opportunity to discuss the issue later. For that reason, I warmly support the amendments and think that they should be agreed to.

The House is going through an interesting phase in which it is losing authority to the Executive. I wish to resist any further such losses, and promote opportunities for increasing the authority of the House over the Executive. That is why I support such a touchstone amendment.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

I am grateful to my hon. Friend the Member for Aberdeen, North (Mr. Savidge) for setting out the difference between negative and affirmative resolutions so clearly. Our discussions show the great value of scrutinising such legislation. I would like to set out the reasons why we apply negative, rather than affirmative, resolutions, since that would answer the questions put to me.

The amendments would ensure that orders made under clauses 1, 2, 4, 5 and 15(3) are subject to the delayed affirmative resolution procedure; and amendment No. 8 would subject orders under clause 3(2) to the draft affirmative resolution procedure.

I remind the Committee that the Import, Export and Customs Powers (Defence) Act 1939 makes no provision for parliamentary scrutiny of secondary legislation. To that extent, we have a landmark Bill before us. I should also like to make the general point that the provision made under the Bill for the parliamentary scrutiny of orders reflects the distinction between orders that change the fundamental purposes for which export controls can be imposed and those that set out the details of the controls. When the fundamental purposes of the Bill are at issue, it is right that Parliament should have the opportunity to debate such matters under the affirmative resolution procedure. However, the details of the controls are, in our view, best dealt with by the negative procedure.

Most orders to be made under the Bill for which the negative procedure is provided will be predominately technical. Indeed, that point was well made by the hon. Member for Aldershot (Mr. Howarth) on Tuesday, when he referred to the technical nature of much of the secondary legislation given in the dummy orders. The most frequent need for amendment is as a result of changes to lists of items subject to control. Such changes are usually caused by alterations to international export control regimes, such as the missile technology control regime, on which most of our export controls are based.

The dummy orders illustrate the detailed nature of the orders to be made under the Bill, and are the type of orders for which the negative resolution procedure is best suited. Orders to be made under clause 15(3) relate to transitional arrangements in connection with the coming into force of the Bill. We understand that Parliament will quite rightly have an interest in the new controls to be introduced under the Bill, which is why we have provided the Committee and Parliament with copies of the dummy orders. Our commitment is to have full public consultation on draft secondary legislation, which will provide everyone with an interest the opportunity to consider and comment on new controls introduced under the Bill.

Amendment No. 8 seeks to alter the affirmative resolution procedure that we have already provided under clause 12(2) for orders made under clause 3(2). The intention is to require the Government to submit draft orders under clause 3(2) to Parliament first; we intend also that the powers conferred under that subsection should not be applied until parliamentary approval has been given. Although we accept such a procedure for orders made under clause 11, it would not be sensible for that procedure to apply to orders made under clause 3(2). The reason is that the Government will sometimes have to introduce specific controls under clause 3(2) to deal with emergencies. In such situations, the Government will be required to act without delay. It will not always be possible to achieve parliamentary approval in time, although it will still ultimately be left to Parliament to choose by the end of the 40-day period whether to allow the Government to continue to exercise those controls; and that will always be a significant influence on any Government who wish to exercise such powers over that short period.

The reason for affirmative resolution under clause 6 orders was because it contained broad powers to impose record-keeping requirements on companies. Those requirements could have been wide-ranging. However, as I explained on Tuesday, we concluded that we do not need such broad powers after all, because clauses 1, 2, 4 and 5 already provide a narrower but sufficient power for record-keeping purposes. Indeed, that is acknowledged in clause 6(3). Amendment No. 63 to clause 7, agreed to on Tuesday, provides a provision related to record-keeping, simply for the avoidance of doubt.

Clearly, there is no need for maintaining affirmative resolution procedures for the routine record-keeping requirements that relate to the controls that may be imposed under the Bill. The negative resolution procedures for orders containing record-keeping requirements has, of course, always been an integral part of the Bill. The consequential loss of the affirmative resolution procedure in no way diminishes parliamentary scrutiny of orders under the Bill.

The Bill is a significant improvement on the 1939 Act. We are providing for proper parliamentary scrutiny of secondary legislation. We have provided for the affirmative resolution procedure where fundamental purposes are involved and for scrutiny under the negative resolution procedure in all other cases. I hope that that persuades my hon. Friend to withdraw his amendment.

Mr Malcolm Savidge (Aberdeen North, Labour)

I said in my initial remarks that clause 12 was a positive development. I understand the Minister's comments about the 1939 Act: clear parliamentary scrutiny of all the secondary legislation is a positive step. I am encouraged by the Minister's comment that the affirmative resolution procedure will be used for purposes that are fundamental to the Bill, and that most of the cases in which the negative resolution procedure will be used will involve purely technical matters, such as changes in lists. Most of us find that reasonable.

On clause 3(2), we recognise that emergencies would justify using the delayed affirmative procedure. I should stress that the Minister said that most cases would involve technical matters.

Given the strong feeling on both sides of the Committee that we want the fullest possible scrutiny, I ask the Department to give the fullest possible consideration on Report to whether aspects of secondary legislation could be given fuller parliamentary scrutiny. On that basis, I beg to ask leave to withdraw the amendment.

Hon. Members:

No.

Mr Robert Key (Salisbury, Conservative)

It is unusual to object to an hon. Member withdrawing his amendment, but an important principle is at stake and consideration of it has been put off since our deliberations on clause 6. The hon. Gentleman who moved the amendment is now giving the Government another lifeline by putting the issue off until Report stage. That will not do. The Minister said that his proposals in no way reduce parliamentary scrutiny, but of course they do. If the Government allow only the negative procedure, parliamentary scrutiny will be reduced.

The Minister said that the details would be dealt with under the negative procedure. Does that mean that they are far too difficult for the House of Commons to consider? He said that they would be merely technical. Does that mean that any technical matter is too difficult for the House to consider? He said that he was talking largely about alterations in international control regimes with which we would have to conform. Does that mean that we should not debate such issues more fully under the affirmative procedure?

The Minister said that clause 3(2) contained special controls and related to emergency situations in which the Government would have to act quickly, but that the House would be able to consider matters after the 40-day period. However, we will still not be able to do so under the full affirmative resolution procedure. Once again the influence of the House is being diminished. We are being offered the chance to hold only the minimum possible discussion of any changes.

For all those reasons, we must make a stand. We simply cannot allow the Executive to push the boundaries further. I regret that the hon. Member for Aberdeen, North has sought leave to withdraw his sensible and practical amendment. It would not make a ha'p'orth of difference to the Government's ability to pursue their policies and objectives, but it would give hon. Members sufficient time, in the name of our constituents, to scrutinise what the Executive is up to. That is why I object to the withdrawal of the amendment.

Dr Vincent Cable (Twickenham, Liberal Democrat)

I endorse those remarks. This is not an ideological or policy issue; it is about parliamentary prerogatives and control over the Executive. I agree with the hon. Member for Aberdeen, North that clause 12 is a considerable improvement on what went before; we all acknowledge that. He introduced a gently probing amendment in a constructive spirit. However, I did not sense from the Minister's reply that the Government were listening. There was no suggestion of any movement in future, so it would be appropriate to take the matter further. I shall certainly support the amendment in a Division.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

I am sorry that hon. Members are not persuaded of the clear difference between the affirmative resolution procedure for the important broad principles of any provision of the Bill and the negative resolution procedure for, as an example, lists of items subject to control. If an item were added to such a list it would be put in the public and parliamentary domain, and Opposition and Government Members would have the opportunity to comment critically on it. They could bring the Government to account at the end of that 40-day period and reprimand them for having made an addition to the list or taken any action under the negative resolution procedures.

The Government are not trying in any way to avoid responsibility for decisions or to keep them out of the public domain. Decisions will be in the public domain and subject to proper parliamentary scrutiny, criticism and all that follows. As the hon. Member for Salisbury will know, having been a Minister, such scrutiny exercises a powerful effect when Ministers consider their decisions or are advised by others on them.

I am sorry that the hon. Member for Salisbury appeared to dismiss the problem of emergency and other situations. He probably did not intend to. Frankly, Governments will have to introduce specific controls under clause 3(2) to deal with emergencies that will often require immediate or prompt action. That action will be put before Parliament. As there is often not time to achieve parliamentary approval before implementation of action, the controls will be in the parliamentary and public domain under the negative resolution procedure so that Parliament can choose at the end of 40 days whether to allow the Government to continue to exercise them, or to stop them, with all the attendant reprimands and proper negative publicity, if it is felt that Ministers have exceeded their powers.

We are talking about the right tools for the right job, in parliamentary terms. To subject all controls to affirmative resolution procedures would have two effects. The first would be to prevent us from taking immediate action in emergencies, and the second would be to cause Members—not Ministers but Back Benchers, I suspect—to have to pore over matters and debate them in the House when only one item had been added to those subject to control.

The negative resolution procedure is the proper procedure for the Bill and this aspect of consideration of matters under it. Under clause 3(2), the procedure will be the delayed affirmative procedure. The provision will give us the right level of control at the appropriate stages, and all that control will be subject to parliamentary scrutiny at some point. I hope that hon. Members will agree to that.

Mr Joe Benton (Bootle, Labour)

I shall now put the question.

Mr Robert Key (Salisbury, Conservative)

On a point of order, Mr. Benton. Can we be quite clear; are we voting on the amendment or on leave to withdraw it?

Mr Joe Benton (Bootle, Labour)

The Committee is voting on the amendment. It takes only one member of the Committee to object to the withdrawal of an amendment, and it then has to remain on the Floor. I am now putting the question on amendment No.7.

Question put, That the amendment be made:--

The Committee divided: Ayes 4, Noes 10.

Mr Nigel Griffiths (Parliamentary Under-Secretary, Department of Trade and Industry; Edinburgh South, Labour)

I beg to move amendment No. 65, in page 7, line 14, leave out `6(1) or'.

The Committee will remember that when we discussed clauses 6 and 7 I mentioned the need for this small consequential amendment. Now that the Committee has agreed to the deletion of clause 6, I hope that it will have no difficulty in agreeing to the deletion of a reference to a subsection of a clause that no longer exists.

Amendment agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 and 14 ordered to stand part of the Bill.