Clause 27 - Orders and regulations
Regional Assemblies (Preparations) Bill
9:15 am
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I beg to move amendment No. 80, in
clause 27, page 13, line 7, after 'order', insert 'or direction'.
Mr John Butterfill (Bournemouth West, Conservative)
With this it will be convenient to discuss the following:
Amendment No. 81, in
clause 27, page 13, line 14, leave out from 'savings' to 'as' in line 15.
Amendment No. 82, in
clause 27, page 13, line 18, leave out paragraph (4).
Amendment No. 83, in
clause 27, page 13, line 25, leave out subsection (c).
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
Clause 27 deals with orders and regulations. There are several issues that I want to touch on.
Amendment No. 80 would include directions as matters that would have to be exercised by statutory instrument. The Secretary of State is granted a liberal use of directions throughout the Bill. As I understand it, they are not subject to any kind of parliamentary scrutiny. The system we have for scrutinising statutory instruments is feeble enough, but at least it is something. The amendment suggests that directions should be made through statutory instruments so that there would be a small opportunity for Parliament to scrutinise them. There is a worrying tendency for more and more ministerial action to be taken in ways not accountable to Parliament and I hope that the Minister would be prepared to accept the inclusion
of directions within the powers that must be exercised by statutory instrument.
Amendment No. 81 would remove the words
''including provision amending, repealing or revoking enactments''
in subsection (3). It is customary to have a schedule of repeals, amendments and revocations attached to a Bill of this sort, and indeed there is a schedule of amendments in relation to clause 15 only. However, I am deeply unhappy with the principle that primary legislation can be amended by order. We seem to build into every Bill a provision that allows the Secretary of State to do that. If there is a need to repeal primary legislation related to the Bill, I hope that the Minister's Department has already identified that need, and can spell it out. If it can, it should include it in a schedule. If it cannot tell us if there is a conflict with any existing enactments, we must conclude that the Department has not thought through the consequences of the legislation.
I hope that the Minister can tell us that his Department has reviewed carefully any potential conflict with other enactments, and found that there are no such conflicts. That would explain why there is no schedule, and why the words deleted by the amendment are superfluous, redundant and unnecessary—as were at least two of those three words. I hope that the Minister will accept amendment No. 81.
Amendment No. 82 is a probing amendment. Teasingly, it seeks to remove subsection (4), but it does so to probe the Minister on what all this guff—to use a word that found favour in yesterday's debate—exactly means. Does anyone, apart from officials who are not present, know what the Bill means by
''a draft of an instrument to which subsection (5) applies would apart from this section be treated for the purposes of the Standing Orders of either House of Parliament as a hybrid instrument it must proceed in that House as if it were not such an instrument.''
If a spade is a spade, the Bill requires it to be treated as not being a spade for the purpose of the enactment. I hope that the Minister will throw a little light into that rather murky corner. We were discussing yesterday the need for clarity in a referendum. Perhaps some clarity for Members of Parliament trying to decipher the meaning of the drafting would be helpful.
Amendment No. 83 is also probing and would remove subsection (5)(c). Paragraph (c) says that the subsection applies to an instrument made under section 129(1) of the Political Parties, Elections and Referendums Act 2000. The Bill refers to orders, regulations and directions and now mention is being made of an instrument. Section 129(1) of the 2000 Act makes no mention of an instrument. It refers to ''such provision''. The heading of the section is:
''Orders regulating conduct of referendums''.
So where has the term ''instrument'' come from? If the instrument is no different from an order, a direction, or a regulation, as set out earlier in the clause, why is it necessary to introduce yet more terminology?
The Parliamentary Under-Secretary of State, Office of the Deputy Prime Minister (Mr. Christopher Leslie):
Good morning, Mr. Butterfill. I am sure that as I comment on the amendments things will become clearer and it will set the day up wonderfully. Amendment No. 80 would mean that any direction-making powers introduced under the Bill, including those to amend or revoke directions, would have to be exercised by statutory instrument, hence the word ''instrument''. The basic direction-making powers of the Bill are the power to direct the boundary committee to carry out a local government review in a region and the power to direct the Electoral Commission to provide advice on electoral areas and the total number of elected assembly members for a region.
It is not normal practice for directions to be made by statutory instrument. The power under the Local Government Act 1992 for the Secretary of State to direct the Local Government Commission for England to carry out structural reviews was not required to be exercised by statutory instrument. Nor were the powers in the Greater London Authority (Referendum) Act 1998, which are analogous to those found in part 3 of the Bill.
The Government fully intend to publish any directions made under the Bill and to deposit copies in the House Libraries. That commitment was made by my right hon. Friend the Minister for Local Government and the Regions. Of course, under clause 15, the Secretary of State can implement the recommendations of the boundary committee only by order. This order-making power would, under clause 27, be exercisable only by statutory instrument subject to affirmative procedure. The same applies to directions given to the Electoral Commission under part 3 of the Bill. We would not be able to act on its advice regarding electoral areas and numbers of elected assembly members until the Bill enabling elected regional assemblies to be established were enacted. That subsequent legislation would, of course, also be subject to parliamentary scrutiny.
I will now move on to amendment No. 81. Subsection (3) enables an order or regulations made under the Bill to include provision amending, repealing or revoking enactments. However, that is only where such provision is a consequential, incidental, supplementary or transitional provision or saving—in other words, for relatively minor matters. Any such provision would be subject to parliamentary scrutiny by virtue of subsection (2).
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
The Under-Secretary seems to be implying that a consequential repeal of other legislation would be trivial, but if something in the Bill directly conflicted with the provision of an Act, presumably repealing that part of the Act would be consequential on the Bill. That would not necessarily make the repeal trivial; it could be a major repeal.
Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)
My point was that at all times Parliament legislates in the context of the wider law. The intentions of Parliament would be made plain in any enactment of the legislation.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
If the Under-Secretary, with the resources that he has in his Department, cannot put into a schedule the context of the wider law, as he calls it, it is a bit rich to expect ordinary members of a Committee to be able to be fully aware of any conflicts with existing legislation.
Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)
I was very careful to talk about the intentions of the legislation. Those will be quite clear in the decisions that we will make in this legislative context. All that we are seeking to do through the provision is to remove doubt. Amendment No. 81 would remove, or at least put in doubt, the ability to make those consequential incidental changes.
I shall give an example of why the provision is necessary. The schedule to clause 15 makes consequential amendments to other Acts, as the hon. Runnymede and Weybridge said. They are minor amendments to take account of the enactment of the Bill. If we discovered in a few years' time that consequential amendments of a similar nature needed to be made to another Act that we have missed in the schedule, we would need the power to do so, and subsection (3) provides that. This is a precedented provision, which can be found in section 26(4) of the Local Government Act 1992.
As the hon. Gentleman teasingly said, amendments Nos. 82 and 83 test what we mean by hybridity, or the hybrid procedure. Subsection (4) ensures that the hybrid procedure for affirmative resolution instruments does not apply to certain orders or regulations made under the Bill or to any provision made under section 129(1) of the Political Parties, Elections and Referendums Act 2000 for referendums held under the Bill. Section 129(1) is the power to make by order provision for, or in connection with, regulating the conduct of referendums. Amendment No. 82 would remove subsection (4) from the Bill, which would mean that subordinate legislation under the Bill, where it may be hybrid, could be subject to the hybrid procedure.
Amendment No. 83 is a free-standing amendment that would mean that an order made under section 129(1) for the purpose of referendums held under the Bill would, were it hybrid, be subject to the procedure for making hybrid instruments.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
Can the Under-Secretary give an example of how an order made under the Bill is likely to be hybrid?
Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)
I can. Indeed, I was about to come to that in my peroration. It might be helpful if I explained the purposes behind subsections (4) and (5).
An order under part 1 of the Bill could possibly be considered a hybrid instrument if, for example, it set a different referendum date and referendum period for different regions or if it were made under clause 15 and implemented different proposals for local government reorganisation in different regions. We do not consider that those differences are of a nature that justifies the use of the more complex and lengthy hybrid procedure. The best analogy to make—the hon. Gentleman may be familiar with this—is the hybrid procedure for public and private Bills and the various mixed arrangements that can apply in relation to a
hybrid Bill, which are very similar in the case of statutory instruments.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
I may be on the wrong track here, but is there a difference in procedure in terms of parliamentary scrutiny, and the timetabling of such scrutiny, depending on whether a matter is hybrid?
Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)
There is indeed a difference in respect of hybrid legislation. I shall try to elucidate as simply as I possibly can by reference to private Bills. Those tend to be promoted by the presenter of a petition who is seeking specific, usually local, powers, and follow a procedure of more lengthy examination by Parliament, which, unless completely unopposed, involves the taking of evidence and so forth. Hybrid Bills are public Bills to which elements of the private Bill procedure may apply. For that reason, we are taking the lead of a similar provision in section 26(2) of the Local Government Act 1992.
With regard to orders made under section 129(1) of the PPERA, we intend to apply the same provision to all referendums on establishing a regional assembly, subject to the possibility of general change over time as new voting methods are established. That might indicate that applying subsection (4) to conduct orders is unnecessary because hybridity, by definition, could occur only if we had at least one order making different provisions for different regions. However, the subsection is needed for certainty reasons. Regional referendums will not all take place at the same time; it may be several years before some regions become interested in a referendum. We cannot predict what a conduct order might look like in five or 10 years' time or how parliamentary conventions or other circumstances might have changed.
The question of hybridity is difficult to judge. I have explained the circumstances, in the context of the Bill, in which it could arise. I hope that hon. Members accept that our intent is not sinister; rather, we seek practical measures to tackle issues that could arise. Therefore, I ask the hon. Gentleman to withdraw the amendment.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
The Under-Secretary has obviously decided to try a different tactic this morning: he is boring the Opposition into submission by rehearsing what could be a text on parliamentary procedure—but I probably asked for it.
I accept much of what he says, but I cannot help thinking that the question of whether a matter is hybrid ought to be dealt with in the usual way by the proper authorities when a matter comes before the House. I find it rather objectionable that we have different procedures for private and public matters and for hybrid matters, and that the Government seek to pre-empt the proper assessment of whether something is hybrid.
Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)
I understand what the hon. Gentleman is saying, but I did refer to a similar provision in the Local Government Act 1992 that was introduced by the previous Conservative Administration to clarify whether an issue should be dealt with under the hybrid procedure.
Mr Philip Hammond (Runnymede and Weybridge, Conservative)
It may come as a shock to the Under-Secretary, but I do not believe that my brief is to defend everything that was done by the previous Conservative Administration. We learn, and one thing we have learned that is relevant to the discussions of the Committee is that change in local government arrangements will not be durable and sustainable unless it is rooted at the bottom rather than passed down from the top. The Minister for Local Government and the Regions referred to comments by colleagues who were very much involved in such matters in the past. I do not take it as an absolute that I am required to stand here and defend something that was done before 1997. Instead, I shall consider whether a provision is sensible, as I expect the Under-Secretary to do.
However, in view of what the Under-Secretary said and the fact that, essentially, these probing amendments were meant to establish the precise meaning and relevance of the issues, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 ordered to stand part of the Bill.