Clause 7 - Procedure for orders under s. 6
Identity Cards Bill
5:00 pm

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I beg to move amendment No. 151, in clause 7, page 7, line 3, at end add—

'(7) Orders made under section 6 shall be considered to be primary legislation for the purposes of the Human Rights Act 1998.'.

The amendment is probing and we can probably deal with it in fairly short compass. I tabled it because the clause is interesting to say the least, and I am keen to have more of the Minister's and the Government's thinking on it on record.

The procedure covers orders that contain provision for compulsory registration. It lays out a process that involves the preparation and publication of a report that sets out a proposal for it to include the Secretary of State's reasons for making the proposal, for the report to be laid before both Houses and for each House to have approved the proposal in the report, with or without modifications, as well as the draft order. I have read the clause short, but that will be its effect.  

I stress that the amendment is effectively a probing amendment. Its terms are such that, for the purposes of the Human Rights Act 1998, the orders would be considered primary legislation. The distinction is that primary legislation requires to be certified by the Secretary of State—the Home Secretary, I think, in this case—and that the legislation is compliant with convention rights—[Interruption.]

Roger Gale (North Thanet, Conservative)

Order. There are far too many conversations taking place.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

Thank you, Mr. Gale. Primary legislation, however, cannot be struck down. It can be disapproved by Parliament, which is what happened with the Law Lords in respect of the detentions at Belmarsh and the anti-terrorism legislation that we dealt with towards the end of the previous Parliament.

Secondary legislation is open to challenge and the nub of the point that I want to bring to the Committee's attention is whether the clause will remain secondary legislation for the purposes of a Human Rights Act challenge? Is it something that, for example, could be struck down by a court making an order if it felt that the necessary conditions had not been met? It would be infinitely preferable that, for a scheme to include an element of compulsion as opposed to a voluntary scheme, which we currently have—nominally, least—we proceed by way of primary legislation. Clearly, the Government take a different view, and I want to the Minister to explain the thinking and reasons behind that different view.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I agree with the hon. Gentleman. The points that he made are another way in which to attack my worries about the 60 unseen and unheard of powers that the Secretary of State is giving himself under the Bill. There are good arguments to be voiced about the value of the amendment and the hon. Gentleman has made them.

However, I am worried that the process by which Parliament can deal with such matters will be constrained by the regime under the Bill. Not only can the courts strike down secondary legislation, so it might be thought that secondary legislation is a power that would be better for us, but, more to the point, in an emergency, Ministers can amend secondary legislation without parliamentary approval. Powers in the Human Rights Act are given to the Minister to amend legislation that, in this case, will be matters of some worry. I shall leave it at that, because I know that the general point that the hon. Gentleman made was better made by him than by me.

It is important that we never leave off discussing and putting forward our concerns about the way in which legislation increasingly empowers Ministers to do things over which we have no control. The Government find it convenient to legislate in that way, and that is a problem not just with this Bill, but with all sorts of other legislation. It is increasingly the way in which modern legislation is constructed, and it is just an enabling system for Secretaries of State to hang secondary legislation, giving themselves the power to do this, that and the other. In this Bill, it   reaches the level of 60 individual powers, and I am not sure that that is a good way to run a country.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I am grateful to the hon. Member for Orkney and Shetland for tabling the amendment, because it is an important point. It implicitly acknowledges that although the super-affirmative procedure outlined in clause 7 is in fact secondary legislation, it is closer to primary legislation in terms of parliamentary scrutiny than other forms of secondary legislation.

The hon. and learned Member for Harborough raised some concerns. The process is laid out in such detail, and, for precisely those reasons that we discussed during the debate on the previous clause, Parliament has a commanding role in passing whatever is to be passed. We recognise the seriousness of a request to the British public for people to register under the scheme. For that reason, it is right and proper that their parliamentary representatives have full opportunity to scrutinise the Government's proposals and that Parliament has the ability as laid out in the clause to amend them.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I am sure that all that the Minister says is entirely true, but does he agree that under the clause 7 procedure, Parliament has no ability to amend the secondary legislation before the House? There is no guarantee that whole rafts of powers and statutory instruments will not be placed in one debate that, if the practice in this and the previous Parliament is anything to go by, will be limited to no more than 90 minutes, and, possibly, only to 45.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I refer the hon. and learned Gentleman to clause (7)(2)(c). It talks of a procedure in which a

''report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications''.

I put it to him that that could not be clearer.

Mr. Garnier rose—

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

Let me finish. It could not be clearer that the House has the opportunity to modify the proposals laid before Parliament by the Secretary of State. In that way, the provision is subject to the fullest possible scrutiny, which is why I said to the hon. Member for Orkney and Shetland that it mirrors primary legislation and that it almost is primary legislation. In effect it is primary legislation, although it will still be taken under a secondary procedure.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Since the Under-Secretary is moving in my direction, I want to see whether I can push him a little further. I want him to be clear with us about the modification. If he means amendment, why does he not say amendment? Does the modification refer to the proposal, meaning one of the powers that the Secretary of State is reserving to himself, or to the report? We must be clear. The report may be modified, but it may contain within it in an unmodified or unamendable form, a proposal that is the statutory regulation. Although I believe every word the Under-Secretary says—of course I do—we must be clear about the English, and about what he means and what   he intends. What he says now will be relied on by other people in due course.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The hon. and learned Gentleman began by saying that he was glad that we were moving in his direction. The clause is in the Bill, and perhaps if he had read it carefully, he would have seen that whether it is modifications or amendments, it does not matter, the effect is absolutely—[Interruption.] Modifications is absolutely the same thing as amendments. If the hon. and learned Gentleman would like to tell me the difference between them, I would be interested to hear it, but the effect is the same. As the clause sets out, Parliament has the power to consider the report that the Secretary of State has laid before it. Each House will have the opportunity to approve the proposal, with or without modifications, and the order on which both Houses vote then gives effect to it, modified or not. The provisions could not be clearer.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I am grateful to the Under-Secretary for giving way, because I am curious as to how a report can be modified—or, if he would prefer, amended—under current Standing Orders. Does he envisage that that would be done on a debatable resolution or would the report itself be modified, which is what the Bill seems to suggest? If that is the case, are we talking about something closer to the procedure that we undertaking here, in a Standing Committee or perhaps in a special Committee?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The hon. Gentleman is correct. The proposal as outlined in the clause is for the report to be modified by the House. My understanding is that hon. Members would have the opportunity to move amendments to the text and that the House would have the opportunity to vote on those amendments. The report, as amended, would form the basis of the proposal that the House as a whole would accept or reject.

As a new Minister and a relatively new Member, I think that we are in fairly new territory in parliamentary terms. I am trying to think of parallels. I think the system that was conceived under the tuition fees Bills, in terms of raising the cap on the maximum fee that can be charged, is analogous to the mechanism proposed. I hope that the hon. Gentleman and other Opposition Members will recognise that the strength of the procedure is its ability to take on board the concerns that have been expressed about the seriousness of going to a fully compulsory scheme.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I am grateful to the Under-Secretary for giving way, because we have come to the nub of the matter. I cannot think of any provision in Standing Orders that would allow amendment of a report in that way. If the report comes as part of secondary legislation, the matter is quite clear. No power to amend secondary legislation is given to this House, although it is given to the other place, so what parliamentary procedure would be followed?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The Bill lays the basis on which Parliament would consider the report that was laid by the Secretary of State and from which any such order would emanate. That would be the process. There   would be a debate on the content of the report and, as the Bill explicitly lays out, it is amendable. I shall have to come back to the hon. Gentleman on what the parliamentary process would be and consider his point about being absolutely clear that the procedure is fully compliant with Standing Orders.

I am pretty confident that the procedure as outlined in the Bill is consistent with the procedures of the House, the intention being—it is important to talk about the intention—that hon. Members from all parts of the House have the chance to consider and amend the proposal being put forward. We should bear in mind that the Secretary of State might put forward quite a technical proposal. It could specify a staged roll-out or implementation of registration. The proposal might be quite detailed, so the amendments could be technical.

That is the commitment that the Government have given. It would perhaps be easier not to open up the process to that level of scrutiny, but we believe that it is right to do so. The House would have the ability to accept or reject the order, as amended. If the hon. and learned Gentleman wants reassurance on precisely how the House authorities would view such a process, I will get back to him on that.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

Will the Under-Secretary reassure me on another point?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I will try.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

The Under-Secretary has laid great stress on the fact that ''modification'' is interchangeable with ''amendment''. Presumably ''modification'' was included in the Bill rather than ''amendment'' for a reason? When we debate making changes to legislation, we usually discuss amendments; the Chairman calls an amendment, and he might say that with it, it will be convenient to discuss certain other amendments. He does not call a modification, and say that with it, ''modifications of the following nature'' will be discussed. Therefore, I am suspicious—as, perhaps, is the hon. Member for Orkney and Shetland, but he may be more polite than I am—that ''modification'' is a weasel word that will be used in a different way from ''amendment''. Will the Under-Secretary make it clear that ''modification'' is intended to be interchangeable with ''amendment'', and if that is the case, why does he not use ''amendment''? Will he also make it clear that the ''modifications'' referred to in subsection (2)(c), which mean ''amendments'', are a power available to both Houses, because there is concern that, by the use of language, the Under-Secretary is trying to present a case that might be misconstrued in due course?

Roger Gale (North Thanet, Conservative)

Order. I think that I have been fairly tolerant. I will allow the Under-Secretary to answer that point, after which the hon. and learned Gentleman might feel obliged to intervene again.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I like to think of myself as a plain-speaking northerner, so I apologise if I am not making myself clear. If I have to go through this again for the benefit of the hon. and learned Gentleman, I will do so. He asked me whether this would be amendable by   both Houses. That is clearly and explicitly stated in subsection (2)(c), which says that

''each House has approved the proposal contained in the report, either with or without modifications''.

That could not be clearer. If the hon. and learned Gentleman is saying that that needs to be clarified further, I do not know how we can do that.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I am grateful to the Under-Secretary for allowing a further intervention. What happens if one House modifies and the other does not? What procedure is followed thereafter?

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

I guess that the procedure would be the same as it is now; the elected House, with primacy, would prevail. I would not want there to be any procedure other than that. I will get back to the hon. Gentleman with regard to the detail of how the process would work on the Floor of the House, but from my point of view it is clear that the elected House will ultimately determine whether and how the order goes forward.

I direct the hon. and learned Member for Harborough to clause 43(1). On page 37, in line 8, ''modification'' is defined clearly as ''omission, addition or alteration''. I grant that the parliamentary word ''amendment'' is not used, but the substance of that definition is entirely the same—''addition or alteration'' is probably clearer than ''amendment''—and the effect is plain.

To offer clarification to the hon. Member for Orkney and Shetland, let me say it is my understanding that it is conceived that the system would operate in this way: if either House is not content with the proposal as modified

''it must start the process again with a fresh report and proposal''.

That is explained in paragraph 52 of the explanatory notes to the Bill.

I now wish to turn to the substance of the amendment.

Ben Wallace (Lancaster and Wyre, Conservative)

As I am new to the House, I would like the Under-Secretary to clarify the relationship between modifying the report and how that affects the order.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

With respect, I think that we have covered that ground. The order is drawn from the report, which could be agreed as amended. That is the basis for any order on which the House votes. It is the detail of the report laid by the Secretary of State that is debated. It is amendable and modifiable. Then the House can vote on that order. That is the process as we have outlined it. Only once the report has been approved can an order be made under the affirmative procedure, which would require approval in both Houses. The report has to be approved first, before we can move on to a consideration of the order.

Before I turn to the points raised by the hon. Member for Orkney and Shetland, I want to stress again that this is, in many ways, new territory. The process that we are outlining has been conceived to reassure Opposition Members, who have consistently raised concerns throughout the discussion of the Bill. It is intended to ensure that when the moment comes to move to compulsion—Government Members are   clear that that is the point when the full benefits of the scheme will be unlocked—the House will be able fully to consider and amend any such proposal. That is the commitment that we have given.

The hon. Member for Orkney and Shetland raised the issue of the compatibility of any such order with the Human Rights Act 1998. I understand the point that he is making, but his amendment would remove the power of a court to quash an order made under clause 6 on grounds of incompatibility with the Human Rights Act. I understand why he has tested us on that point, but that would be the effect. As with primary legislation, the most the court could do would be to interpret the order with regard to convention rights. It could declare the order incompatible, but it would not be able to annul it.

The reason why the Government are confident about the Bill as it stands is that we are confident that it is fully compatible with the Human Rights Act. We are also confident, and ready to be tested on it, that any order made under the Bill will equally be fully compatible with convention rights and that the powers to make subordinate legislation will be exercised in a manner compatible with those rights. Labour Members see no need to limit the court's powers in relation to the Human Rights Act and clause 6, as the amendment would do. On that basis, I invite the hon. Gentleman to withdraw his amendment, given that we stand ready to be held fully accountable under the Human Rights Act for both the primary and secondary measures that emanate from this Bill.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I have no problem with withdrawing the amendment. I said initially that it was a probing amendment, and I fully accept what the Under-Secretary says about its effect. We have had a fairly wide-ranging debate but, with your leave, Mr. Gale, I would like to pursue a couple of points on the basis that it is unlikely that we will have a stand part debate. I will take your guidance on that.

Roger Gale (North Thanet, Conservative)

The hon. Gentleman places me in a slightly difficult position because the amendment was fairly tightly drawn. The Minister chose to widen the debate, and I allowed him to do so. The debate was completely in order from that point of view. The hon. Gentleman is now winding up the debate. In effect, he is precluding any other Member from raising any other issue on the clause. Although I agree that there has been a fairly full discussion of the clause, I may decide to have a stand part debate so that I can throw that open to any other Member just in case there is something else that somebody else wishes to raise.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

In that case, I shall seek to catch your eye in a few seconds' time, Mr. Gale. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I shall be brief because we have covered the clause, but a few of the Under-Secretary's comments struck me as worthy of further comment.  

When I first asked the Under-Secretary what would happen if one House approved the Bill in a modified form and the other House approved it in an unmodified form, or if they modified it in different ways, he said that he presumed that we would follow the procedure that currently pertains—namely that the will of the elected Chamber would prevail. He then said that, if that eventuality were to occur, a new report would have to be laid before Parliament. I see nothing in the Bill that suggests that that would be the procedure. I accept that it is said in the explanatory notes, but fortunately we are charged only with consideration of the Bill. The Bill will become the Act, and the explanatory notes will not.

So many issues on this point remain unresolved that I see the Government creating problem after problem for themselves. Without wishing to be picky, I do not see that there is a procedure under the terms of Standing Orders as framed that would accommodate a procedure such as the one that the Under-Secretary described. He said that it was new territory. I see immense difficulties arising.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I am not sure whether, in providing that answer a moment ago, the Government applied their mind to the Parliament Act 1949. If the Lords refuse to accept a proposal contained in the report, whether modified or not, for more than the statutory time stipulated in the Parliament Act, will that Act bite or will we have to rehearse the procedure under clause 7 again and again?

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I do not know the answer to the hon. and learned Gentleman's question. I suspect that nobody in the Room does. As the Under-Secretary said, the process is a novel one.

We seem to be tying ourselves in knots for no good reason. If what is wanted is a process that involves proper scrutiny of an important change to the Bill, it is always open to the Government to use the Standing Orders of the House as they exist and bring forward a piece of primary legislation. It seems to me that we are going all around the houses and risking all sorts of difficulties for no good reason. We have a perfectly adequate system.

The Under-Secretary and other Ministers know that, although primary legislation normally takes a significant time, and properly so, it does not always do so. In the last Parliament, I was involved in a number of pieces of legislation relating to Northern Ireland in which all stages in the House of Commons—at least—were gone through in a day. Often, the whole thing was done, and something formed between ourselves and the other place, in two or three days. If there is any urgency, primary legislation need not take long. When there is urgency, it is generally accepted by all parts of the House that it is necessary for matters to proceed.

We are dealing with this issue on a hot and muggy day. We will have the opportunity to return when the leaves are turning on the trees. I suggest that the Minister takes the benefit of that intervening period to consider whether more detail or specification is required on this clause. As things stand, I fear that   the Committee would be remiss to let it stand part of the Bill.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I agree with the hon. Gentleman, both for the reasons that he put forward and because, when we return to deal with the matter on Report, I would not lose much money if I put a bet down that we will have part of a day to discuss the remaining stages of the Bill. Perhaps we will have from 3.30 pm, subject to statements, until 9 pm. Then there will be an hour for Third Reading. That happened to the last night's Bill. I am not convinced that Parliament is allowing itself as a whole, let alone the Committee, proper scrutiny of this hugely complicated area of new legislation.

Neither Minister is entirely familiar with the territory. That is not their fault; they are new to the Department and this is a whole new area of legislation. However, not only is it new, but it will wholly alter the relationship between the individual and the state. We are advancing in a rather haphazard way. We accept in good faith the words of the Under-Secretary when he says, ''Oh well, we'll sort it out this way, or that way,'' but we are advancing in the absence of these statutory instruments, the code of practice and all the information that we, as dutiful legislators, need now in order to see whether this is a proper way forward. So I, too, am deeply sceptical about the good sense, or even the common sense, of allowing the clause to stand part of the Bill.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Happily, this clause stand part debate has been very useful. The points raised by the hon. Member for Orkney and Shetland are entirely fair. The short answer to his question on parliamentary procedure is that the Bill, and the passing of the Bill, will ensure that there is parliamentary procedure. However, he raised an interesting point.

As people will know, the genesis of the provisions is the fact that we regard compulsion to register as the end goal. We regard the step from voluntary to compulsory as a serious one. That is why we sought to put in the Bill a scrutiny process that would allow the House proper time to scrutinise these matters carefully, with due diligence. But what has been said raises interesting points. Not the least of those, as hon. Members will know, is the fact that the Parliament Act does not cover subordinate legislation, and so that route is out, as a safeguard.

One interpretation—I give just one—is that the super-affirmative procedure could be seen as a rather crude algorithmic loop, in which something starts here, goes there, and, modified or otherwise, comes back. If it does not get to where it was headed, it starts again, with no apparent escape from that scrutiny loop. That is an entirely fair point. We put that down the last time the Bill was determined to be helpful to the House in terms of scrutiny. I assure the Committee that we shall take back and consider those comments, albeit with the clause intact, because that is how these things work.

We will not lose sight of the points made about scrutiny, but equally we will not lose sight of the points   at least implied by hon. Members about the primacy of this House over the other place. It is the balance between those two matters that we really need to achieve. If it is not apparent to all Members that that balance has been achieved, or that there is practicability to this method of scrutiny, those are serious points that we need to take back and consider. However, because of the quaint way in which this place works, I would still rather like the Committee to confirm that, for now at least, the clause can stand part of the Bill, although we do take those concerns seriously, and we will respond to them in due course.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I do not know whether the hon. Member for Orkney and Shetland wanted to respond to the Minister, but I thank the Minister for his offer.

I do not want to be accused of being unduly cynical, and I certainly do not wish to accuse the Minister or saying something that he did not mean, but it would be perfectly proper, and indeed our duty at this stage, to hold the whip hand, in so far as we have a Whip in our hand—

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Your Whip is not here, is he?

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I made that joke first.

In so far as we have any power at all, I think that it would be perfectly right for us to seek to divide the Committee to remind the House that we left this matter in a state of irresolution, if I can put it that way. If the Minister comes back on Report with a new version or a better explanation of how the Government think that they will go forward, for consideration in either this House or the other place, we will have done everybody a service, but he cannot at this stage dissuade me from seeking to divide the Committee.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I said that we needed to push the clause through, because that is how this place works, and in that context I fully understand why the Opposition will want to register opposition to the clause. I have no problem with that at all. As to the hon. and learned Gentleman's earlier comment, I would never use the term ''unduly'' in respect of him.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I cannot remember using the word ''unduly'' either in respect of myself or anybody else. I think the hon. Member for Orkney and Shetland would like to say a few words.

Alistair Carmichael (Shadow Minister, Home Affairs; Orkney and Shetland, Liberal Democrat)

I wish merely to place on record my appreciation of the tone and content of the Minister's comments. I remain of the view that we would be modifying an inferior system by modifying clause 7. My preference remains for amendment—or modification—by primary legislation. Accordingly, I would vote against the clause standing part of the Bill.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 5.