This is a small but important matter. One reason why we tabled this amendment for consideration was to give the Government the opportunity to come back to the House. Mr. Ainsworth, who dealt with this issue previously as a Minister—he has been elevated to deputy Chief Whip—accepted that the existing brief did not clarify matters as well as he would have liked. In fact, he said:
"I am not certain to what degree I am prepared to resist."—[Official Report, Standing Committee A,
I previously urged the current Minister not to read out a line about resisting, and she heeded my advice and immediately accepted the amendment tabled by Mr. Heath, so I hope that she will follow the example of the hon. Member for Coventry, North-East, but perhaps her resistance will prove stronger than his did. As a Minister, he undertook to seek further advice from the Treasury about whether it wanted the Government to continue to resist the amendment, and my first request to the current Minister is to give us the benefit of that further advice.
There is a serious point that I want to reiterate. We did not debate this issue in Committee through an amendment, so this is the first time we have been able to consider amending the Bill in this way. You have much more experience of such matters than me, Mr. Deputy Speaker, but it is surely very rare, if not completely unheard of, for a Bill to include powers for "the Treasury" to grant an order. It is customary for legislation to give powers to "the Secretary of State", because such terminology covers any senior Minister and Cabinet member who is responsible for a Department. Indeed, that procedure is commonplace. We never specify the Secretary of State for a particular Department, so as to allow for future changes; however, this Bill gives power to "the Treasury".
I argue against doing that, and in two valid ways. First, if by "the Treasury" the Government mean the Chancellor of the Exchequer—or any other Treasury Minister—I see no reason why he should not be classified as a Secretary of State. Perhaps the Minister can say whether there is some legal reason why the Chancellor, despite being in charge of a Government Department, is not considered a Secretary of State. My understanding is that he is so considered—he is certainly paid the same as the other Secretaries of State—so I see no reason why the generic term cannot be used.
We face another oddity. The Treasury itself is an institution, not a person. In legislation, we carefully give powers to Ministers and to Secretaries of State. They are people—members of the Government acting on the Government's behalf to introduce orders for our consideration. It seems odd to seek to give power to an institution, to a building. If the legislation has to be related to the Treasury—I will take a lot of convincing that that is so—why does it not specify the Chancellor of the Exchequer or, as I said in Committee, the Prime Minister, who is First Lord of the Treasury? I cannot understand why the Bill should refer to a building.
Since entering this House in 1997, I have never seen a Bill that referred to a ministry rather than to a Secretary of State. The only explanation that I can think of for the failure to refer to a Secretary of State, or to the Chancellor of the Exchequer by his office, is the current state of relations between No. 10 Downing street and the Exchequer.
I cannot deny that the thought crossed my mind, but I am perhaps too nice a person to make such an allegation. [Interruption.] I hear the Government Whip say, "Surely not", and he is probably right. I shall make amends later.
I am making an important point. On the one hand, we are giving powers to an institution rather than specifying an individual Minister or using a generic term for a member of the Government. On the other hand, we seem to be restricting the powers to a specific Department. When we debated the issue in a stand part debate in Committee, it was argued that the Treasury might wish to make legislation about Customs and Excise. I understand that, but that is to presume that, for ever and a day, Customs will be part of the Treasury. That may or may not be the case, but the same argument could be advanced for any other Government institution.
The issue of whether an area of policy will always be associated with a specific Department is important and is precisely why we do not specify Secretaries of State for individual Departments. We always use the generic term "the Secretary of State", so I cannot understand why, in respect of making an order for the consideration of the House, the Government persist with using the term "the Treasury". The Minister was reasonable earlier when she accepted an amendment, and I hope that she will not resist this one.
The amendments need not detain us long, but Mr. Paice has put his finger on what appears to be an anomaly within the Bill. I share his view that given that countless examples of legislation refer to "the Secretary of State" in the generic sense, it is curious that these provisions differ. We have both dealt on many occasions with legislation that encompasses the duties of Her Majesty's Customs and Excise within that generic term. We have considered statutory instruments covering both the police and Customs and Excise that happily specify the Secretary of State.
The only Minister continually singled out and identified in legislation by title—chaos will be caused in abolishing the position—is the Lord Chancellor. He is not a generic Minister because of the present confused position regarding who is the head of the judiciary. I have no idea why the Treasury has been identified in the provisions. I hope that it does not encompass the Treasury in the sense of something other than the Ministers as such—not only the First Lord of the Treasury and the Chancellor of the Exchequer, but the Lords Commissioners, the Comptroller of Her Majesty's Household and the crew who sit at the far end of the Treasury Bench. If they are to determine the future of the legislation, we have very serious cause for concern.
The Minister certainly owes us an explanation—her ministerial colleague was unable to provide it in Committee—that is rather more convincing than the simple argument that because there might be a reference to Her Majesty's Customs and Excise, the Treasury has to be specified by name. I express the hope that the enforcement functions of Customs and Excise will eventually not be the responsibility of the Treasury. I have held that view for some time and I would like to see that area of responsibility under an entirely different Department. That is an aside, but the hon. Lady must explain why the Bill is formulated as it is.
My predecessor, my hon. Friend Mr. Ainsworth, said in Committee:
I am afraid, however, that resist I must. We reflected further on the issue, which is connected with Customs and Excise. The power to make orders conferring powers on Customs is properly exercisable by the Treasury—the Department to which Her Majesty's Customs and Excise is answerable. We consulted Customs on that matter.
Clause 27(1) creates a power to grant certain powers specifically to Customs and Excise. It is correct that the Treasury makes the order. Similar references in other legislation—for example, section 114 of the Police and Criminal Evidence Act 1984—give the Treasury the power to make provisions by order. There are other, more recent precedents for referring to the Treasury when conferring powers on customs officers, including section 7(7) of the Criminal Justice (International Co-operation) Act 1990, as well as more recent legislation on income tax and finance. Precedents exist, and there is little more to say. That is the protocol used.
Why cannot the Minister accept the amendment? I understand why she says that the provision is reasonable as it stands, but now that the matter has been raised it would not matter if the words were changed to read "Secretary of State". As long as the Treasury continues to have control over Customs and Excise, the Treasury can use the powers. The refusal to accept the amendment leads many of us to suspect that there is something behind it. Why will the Government not give way on this issue when it does not seem to matter very much? Is there something behind it?
No, there is nothing behind it. The issue is straightforward. The phrase "the Treasury" has been used in numerous other pieces of legislation. There is nothing to be gained by muddying the waters and changing the legislation today, and for that reason we will not accept the amendment.
The Minister is being unduly difficult. This is not a major issue, but it is important. I am grateful to her for producing some precedents, but that does not mean that we have to follow them. We have identified what we believe to be a misuse of language and an oddity in the reference to an institution as opposed to an officeholder. The Minister has not answered my question about whether the Chancellor is a Secretary of State.
My right hon. Friend Mr. Gummer suggested that there might be something behind the Government's use of language, and it could be concern on the Chancellor's part that some other Secretary of State might introduce an order affecting Customs and Excise without the Treasury knowing about it. However, the prospect of the present Chancellor not knowing what is going on in another Department is difficult to accept. He seems to know—if not dictate—what happens in every other Department.
I fear that the Minister has failed to persuade us on this issue. She has not told us why it would be wrong to use the usual term, so I wish to divide the House on the matter.