New Clause 21 — Power to implement Law Commission recommendations

New Clause 20 — Power to Promote Regulatory Principles – in the House of Commons at 9:00 pm on 15th May 2006.

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'(1) A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2).

(2) That purpose is the implementation of recommendations of any one or more of the United Kingdom Law Commissions, with or without changes.

(3) In this Part "the United Kingdom Law Commissions" means—

(a) the Law Commission;

(b) the Scottish Law Commission; and

(c) the Northern Ireland Law Commission.

(4) Subject to this Part, the provision that may be made under subsection (1) includes—

(a) provision amending or abolishing any rule of law,

(b) provision codifying rules of law,

(c) provision conferring functions on any person (including functions of legislating or functions relating to the charging of fees),

(d) provision modifying the functions conferred on any person by any enactment,

(e) provision transferring, or providing for the transfer or delegation of, the functions conferred on any person by any enactment,

(f) provision abolishing a body or office established by or under an enactment,

and provision made by amending or repealing any enactment.

(5) An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate.

(6) An order under this section may bind the Crown.

(7) An order under this section must be made in accordance with this Part.'.— [Bridget Prentice.]

Brought up, and read the First time.

Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

With this it will be convenient to discuss the following: amendment (a) to new clause 21, in line 4, leave out 'with or without changes'.

Amendment (b) to new clause 21, in line 4, leave out 'with or without changes' and insert

'either without changes or with such changes as are necessary to take into acount any development in the law since the time the recommendations were made.'.

New clause 10— Law Commission recommendations—

'(1) In section [Power to implement Law Commission recommendations], "recommendations of any one or more of the United Kingdom Law Commissions" means proposals in the form of a draft Bill or draft Order, which do not relate to—

(a) the creation of a new offence that is punishable, or increases the penalty for an existing offence so that it is punishable—

(i) on indictment, with imprisonment exceeding thirty months; or

(ii) on summary conviction, with imprisonment exceeding the normal maximum term or a fine exceeding Level 5 on the Standard scale.

(b) authorisation of forcible entry, search and seizure,

(c) family law and rights of occupation,

(d) landlord and tenant law, in so far as it affects the rights of tenants.'.

Amendment No. 3, in page 1, Clause 1, leave out lines 8 and 9 and insert—

'(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, either without changes or with such changes as are necessary to take into account any development in the law since the time the recommendations were made.'.

Government amendments Nos. 23, 27, 33, 34, 40 and 59.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

New clause 21 provides a power to implement by order recommendations of any of the UK Law Commissions, with or without changes. It makes the same provision for delivering Law Commission recommendations as set out in provisions contained in clauses 1 and 2, as amended in Committee. The preconditions in clause 3 and the restrictions in the following clauses continue to apply, as does the undertaking given in Committee by my hon. Friend Mr. Murphy, now the Minister for Employment and Welfare Reform, that the power will not be used for highly controversial measures. The new clause is necessary because of the changes made to clauses 1 and 2.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

The Minister says that the new clause is necessary because of changes to the Bill, but why is it necessary at all in the light of Standing Order No. 59, which makes special provision for an accelerated procedure to take place in the House for Law Commission Bills?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I am grateful to the right hon. Gentleman for his comments. As Chair of the Procedure Committee, has, I know, taken a detailed look at the Bill. I am interested in his remarks and would be prepared to reflect on them. However, it is not always appropriate to do everything by Standing Order. It is better to put some things in a Bill.

It has sometimes taken too long for Governments to implement some of the proposals recommended by the Law Commission. Indeed, its report last year was fairly typical. It revealed that there were 16 accepted but unimplemented reports, with an average waiting time of more than seven years from publication to enactment. Clearly, that is not satisfactory.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Why does the hon. Lady feel that there is this long delay in implementation of Law Commission reports? Is it a lack of Bills from the Home Office or the Department for Constitutional Affairs, or is there some other reason?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I am amazed that the hon. Gentleman was able to say that with a straight face. As he knows very well, parliamentary time for Bills from a variety of Departments is likely to be precious and it is difficult for space to be made for them. That is one reason why it is important that the Bill allows for the opportunity for Law Commission recommendations to be brought before Parliament in a speedier fashion. That is the very purpose of new clause 21. After all, Law Commissions are by their nature generally apolitical, so it is not that easy to win parliamentary time. That is one reason why proposals might otherwise not be enacted for very many years. That is not good, because people and businesses are not able to benefit from the considered proposals that the Law Commissions have made. For those reasons, I recommend the new clause to the House.

If I may, I shall refer to the amendments to the new clause and explain to the House why I must ask it to resist them. The problem with amendment (a), which is intended to restrict the scope of the order-making power to implement Law Commission recommendations by ensuring that Ministers cannot change those recommendations in any way if they wish to use the order-making power, is that it is too restrictive. It would not allow any changes to the recommendations. The words "with or without changes" introduce a degree of flexibility into new clause 21. The new clause would therefore avoid the loss of good measures by reason of quibbling arguments that a change is beyond a particular technical parameter, while still preserving the overall rule that the order in question must implement a Law Commission recommendation and not something different from that.

Photo of David Gauke David Gauke Conservative, South West Hertfordshire

I wish to draw the Minister's attention to subsection (5), which states:

"An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate."

She said that omitting "with or without changes" would permit dealing with quibbling matters, but subsection (5) deals with the very issue to which she refers.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

Subsection (5) does indeed go a long way to achieving what we want to achieve, but it is important that we include in the Bill the fact that amendments to Law Commission recommendations may need to be made. The most obvious example of when that might be necessary, which my hon. Friend the Member for East Renfrewshire gave in Committee, is following a time lapse such as we have discussed, during which other things may have taken place that mean that a recommendation no longer fits the purpose for which it was intended. In that case, changes would have to be made. Amendment (a) would stifle that use.

My hon. Friend also said in Committee that the words "with or without changes" are not intended to allow Ministers to make proposals that would turn recommendations into something completely different. If proposals are so far removed from the recommendations that they would not, in fact, implement them, under new clause 21 the proposal should not be proceeded with. I would imagine that the Scrutiny Committee would be quick to ensure that that were brought to the House's attention under the new veto provisions to be introduced in the Bill.

The 2001 Act included numerous technical restrictions that created arbitrary limits on what could be delivered by order. The order-making powers created by the Bill should be flexible enough to achieve the effective delivery of beneficial Law Commission recommendations, which are an important part of the better regulation agenda. The correct approach is not to rule out changes but to allow proposals to be considered by the Committees. If they do not agree that the proposals implement Law Commission recommendations or satisfy the pre-conditions in clause 3 that provide important protection for people's rights, they can veto the order. We may, for example, need a power to make changes before the Law Commission recommendations become legislation. There may be scope for drafting or structural changes if the Government decide to adopt only some of the proposals in a Bill drafted by the commission. It is often necessary to make amendments to reflect changes in the law after a Committee reports. It may be desirable, too, to make material changes to the detail after further consideration or a suggestion from a scrutiny Committee. In response to the question from Mr. Gauke, subsection (5) would not cover all those possibilities. In summary, amendment (a) is unduly restrictive, as it would introduce sterile and time wasting arguments about form and language. We want a procedure that delivers better regulation, not one that absorbs resources in arid legal arguments over technicalities. I therefore cannot support amendment (a), so I hope that Mr. Knight will withdraw it.

Amendment (b) is slightly more generous than amendment (a), and is substantially the same as amendment No. 3. It would allow Ministers to change recommendations if it is necessary to take into account any development in the law since the recommendations were made, as I said earlier. It builds the case for such a change—the longer the delay between the publication of the Law Commission recommendations and the delivery of the order, the more likely it is that the law will have to be changed. In such cases, it is no longer sensible to implement the recommendations without changes, because in certain respects they may be out of date. It is important to be able to implement the recommendations with the changes necessary to reflect changes in the law.

To that extent, I welcome the policy underlying amendment (b). However, it, too, is excessively restrictive. There may be other reasons why changes are necessary or desirable. It may be possible to improve the drafting of the draft legislation proposed by the Law Commission, not least when part of a group of recommendations is to be implemented or several sets of recommendations are drawn together in a single instrument.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry 9:15 pm, 15th May 2006

I do not want to cast aspersions on the abilities of parliamentary counsel, but I doubt whether they can draft better than the Law Commission. Any conceivable circumstance in which changes need to be made is surely covered by amendment (b) or new clause 21(5). I cannot see that there is room for anything beyond those two measures.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I have no intention of refereeing between parliamentary counsel and the Law Commission to decide who employs the better draftspeople. Any drafting changes made by the commission to draft legislation would be subject to consultation, and it could reflect on the responses.

A Minister may wish to make a material change. Provided that the order remains an order to implement Law Commission recommendations, they should be able to do so. The change proposed might be as a result of consultation after the publication of the report. It might be that a change is proposed to make the recommendations of the commission more generally accepted. Indeed, as I said earlier, the scrutiny Committees themselves might wish some changes to be made. The correct approach is not to rule out changes, but to allow the proposals to be considered by the Committees. For that reason, I ask the House to resist amendment (b) to new clause 21.

Photo of Pete Wishart Pete Wishart Opposition Whip (Commons), Shadow Spokesperson (Cabinet Office), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (International Development)

Can the Minister confirm that, in new clause 21, the reference to the Scottish Law Commission relates only to issues that are reserved to the Westminster Parliament under the Scotland Act 1998? That is suggested in new clause 21 and in clause 8, but nowhere in the Bill is it specifically stated.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I will reflect on the hon. Gentleman's question. It is my understanding that the measure will apply to all the UK Law Commissions. They would all be subject to this part of the Bill.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

On my hon. Friend's answer to Pete Wishart, it is not clear to me, particularly since new clause 22 has not been selected, whether new clause 21 would apply to the Northern Ireland Law Commission, which is specifically not mentioned in subsection (3), although it was mentioned in clause 1 of the original Bill.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

New clause 21(3) specifies the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission. I hope that that answers the questions from both my hon. Friend Rob Marrisand Pete Wishart.

New clause 10 would rule out the creation of certain new offences and the authorisation of forcible entry, search and seizure. These were possible under clauses 6 and 7. However, Government amendments Nos. 23 and 27 will achieve the same result, so that orders implementing Law Commission recommendations will not have any special treatment in this respect, and the limits in clauses 6 and 7 will apply to these orders, as well as to others. To that extent new clause 10 has been overtaken by events.

Photo of Roger Gale Roger Gale Conservative, North Thanet

The hon. Lady referred specifically to forcible entry, search and seizure. Does her caveat apply to all the other categories covered in the new clause?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I shall come to the Government amendments that apply to those categories in a moment.

For clarification, may I say to the hon. Member for Perth and North Perthshire that he is right. Where matters are devolved, the provision would not apply. It applies only to Westminster legislation that has effect in Scotland.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

With reference to Scotland, the Minister may be aware that the Law Society of Scotland has pointed out that there is an implied assumption in new clause 21 that all Law Commission and Scottish Law Commission reports and recommendations are non-controversial and may be enacted using the procedure under the Bill. It goes on to state that that is "not necessarily so". Does she accept that some of the measures that the Law Commissions examine are quite controversial?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

The hon. Gentleman is right. Many of the issues that the Law Commission deals with are controversial. That is one of the reasons why, as an independent apolitical body, it is particularly useful to us in the House for examining those very issues. I have no quibble at all with the idea that some of the issues are controversial. To reassure the Law Society of Scotland, I point out that where issues are controversial, as has been said in earlier debates today and as was said in Committee by my hon. Friend the Member for East Renfrewshire, it would not be the Government's intention to put through this system any measure that was particularly controversial. I hope that gives the House some reassurance.

Secondly, new clause 10 would prevent any order from implementing Law Commission recommendations in the area of family law and rights of occupation or landlord and tenant law in that it relates to the rights of tenants. The Government feel that this is too restrictive because not every proposal is unsuitable for implementation by order. Such blanket prohibitions would create new boundaries. We would need to define family law and the other topics that have been mentioned. We would create, once again, technical limits that have little to do with the merits of the proposal or its suitability for the procedure.

Some family law and landlord and tenant law proposals would be far too contentious to proceed with other than by primary legislation. The Government have made it clear—I make it clear again this evening—that we will not use the procedure for highly controversial measures. The correct approach is not to rule out reform but to allow proposals to come forward to be considered by the scrutiny Committees. New clause 10 would unnecessarily limit our power and, on that basis, I cannot support it.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Is there not a weakness in the argument that it is the Government who will determine whether something is highly controversial, in which case the procedure would not be used, or whether something is just controversial, in which case the procedure may be used?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I do not intend to dance on a pin on the difference between highly controversial and controversial. I do not think that controversial issues, as in those terms, would proceed under this system. The scrutiny Committees would have reached a strong decision if they felt that something was controversial and should not be subject to the order-making mechanism. The Government have made it clear that they would take that into account.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

I do not want to get into a philosophical debate about the angels on the head of a pin, but what criteria are to be used to define "controversial"?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

There are no criteria to define "controversial" other than according to what we understand in our everyday lives and the usage of the word. I am sure that my hon. Friend was involved in issues in the past that were judged to be highly controversial which are now accepted as being relatively mainstream. My hon. Friend may not appreciate my describing anything that he has done as being mainstream, but he will understand my point that things change. On that basis, we have to be able to define what is controversial now and what might be controversial tomorrow. That is quite difficult.

Photo of Roger Gale Roger Gale Conservative, North Thanet

I am grateful to the Minister.

Hitherto in these arguments the Government have discarded arguments about reasonableness because reasonableness is difficult to define. That has been the Government's stance. Why should we not apply the same yardstick to the issue before us? Why should it be left to the Government and the Law Commission to decide what is controversial and what is not?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

The argument is not left purely to the Government. The scrutiny Committees will have a view. It is not the Government who decide what is controversial. I do not think that it would be possible to find a satisfactory legislative definition of controversial, unlike reasonableness. The reasonableness test is well known in law. Judicial review is an opportunity for people to test the reasonableness of a Minister's decision.

I will give an example. A 1990s report on divorce and the current project on homicide are plainly unsuitable for implementation by order because people have strong feelings about the principles that they address. Therefore, it would not be appropriate to take them through the proposed system. Equally obviously, other reforms are uncontroversial, often technical "lawyers' law" reforms; very important, but politically unexciting. Those are the ones that often struggle to find parliamentary time.

Amendment No. 3 builds on one possible reason why a change may be necessary. Indeed, the longer the delay between publication of the Law Commission's recommendations and the order being delivered, the more likely, as I said earlier, that the law will have to be changed. So it is important to be able to implement the recommendations with the changes necessary to reflect changes in the law. I will not go over the arguments again, because I explained in respect of earlier amendments the reasons why such an approach would be too restrictive.

I hope that the House welcomes Government amendment No. 23, which relates to the limits, already contained in clause 6, on the criminal penalties that can be imposed by order. Currently, these restrictions do not apply to orders implementing Law Commission recommendations. The amendment will make orders implementing such recommendations subject to the same limits on maximum criminal penalties to which all other orders are subject. In Committee, the Government agreed to reflect on amendments that proposed deleting the exception relating to criminal penalties imposed by orders implementing Law Commission recommendations. That exception was created to allow orders implementing Law Commission recommendations, notwithstanding the level of penalties proposed. That caused some concern in Committee, even though it seemed likely that the exception would be little used. We have therefore given careful consideration to that concern during the Bill's passage.

The Government have always intended that the order-making power should work as an effective vehicle for delivering regulatory reform measures, while maintaining necessary protections and safeguards. I hope that Government amendment No. 23 reassures Members that the Bill's order-making power will be used to implement only appropriate measures by order, and that, on that basis, they will be willing to accept it.

Government amendment No. 27 relates to the limits already in clause 7 prohibiting the authorisation by order of forcible entry, search, seizure or the compelling of the giving of evidence. Currently, those restrictions do not apply to orders implementing Law Commission recommendations. The amendment will make orders implementing such recommendations subject to the general prohibition on authorising by order forcible entry, search, seizure or the compelling of the giving of evidence. We agreed in Committee to reflect on amendments that proposed deleting the exception for orders implementing Law Commission recommendations, and I hope that Government amendment No. 27 offers the same level of reassurance that the Bill's order-making power will be used to implement only appropriate measures by order.

Government amendments Nos. 33, 34, 40 and 59 are consequential drafting amendments, so I do not propose to discuss them in detail. Suffice it to say that Government amendment No. 33 is made necessary by the amendments to clauses 1 and 2, but it does not change the effect of clause 11(1)(d). Government amendment No. 34 is also made necessary by amendments to clauses 1 and 2, and does not change the effect of clause 11(2). Government amendment No. 40, also made necessary by amendments to clauses 1 and 2, does not change the effect of clause 12(4). Finally, Government amendment No. 59 replaces the now obsolete reference to "section 1(4)" with a reference to subsection (3) of new clause 21.

On that basis, I commend the new clause and the amendments to the House.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 9:30 pm, 15th May 2006

New clause 21 would enable a Minister to make orders to implement

"recommendations of...the...Law Commissions, with or without changes."

I accept that the Law Commissions are very important, responsible and respectable bodies, and there is no doubt that too few of their recommendations have become law, but one cannot deny that they consider some important and controversial areas. The Minister touched on tenants' rights, provocation in the law of murder and other areas. The question is not the Minister's motives, about which I have not the slightest doubt— [ Interruption. ] I heard something sotto voce which I will not repeat. Bearing in mind the ability of Ministers to change recommendations, if a Minister did not agree with the full Law Commission proposal, expanded it and wished to continue with it, there is nothing in the Bill that would entitle the House to have the full debate and scrutiny that it would wish for. In those circumstances, I cannot be satisfied with what is proposed.

New clause 10, which I do not intend to press, would have limited the extent of orders based on the Law Commission recommendations. I welcome the Minister's amendments Nos. 23 and 27, which to some extent deal with the point that was made in Committee.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Before my hon. Friend moves off this point, will he reflect on my point about Standing Order No. 59, which allows for an accelerated procedure in this House for Law Commission proposals? That Standing Order was introduced under the last Conservative Government but has not been used by this Government since 1999, so whose fault is it if a lot of Law Commission reports are gathering dust?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

As ever, my right hon. Friend makes a telling point. The advantage of the Standing Orders route, if I can put it in that way, is that it has within it the flexibility either to move the Bill through swiftly or, if the House is concerned, to take it through the various stages in our normal way, including a proper Committee stage and Report.

I do not think that we have quite got there on the question of how to tackle Law Commission Bills. I would be only too happy to sit down with the Minister and other colleagues, if required, to consider how we might better approach it and build on what the Standing Orders already provide.

My right hon. Friend Mr. Knight tabled amendment (a) in his capacity as Chairman of the Procedure Committee. Removing the words, "with or without changes", would put Ministers in a position whereby they could not expand on what the Law Commission had suggested, which would be a good thing. If it reached the point where the Minister had had a bit of delay and it was necessary to make some change to what the Law Commission had recommended, I am sure that Sir Roger Toulson and his committee would be only too happy to be speedy about it and to turn it round, because I know how frustrated they are that they do not get their measures put through. None of these problems is insuperable, but pushing through controversial changes by order without proper protections is not the way forward for the House.

The veto that the Minister mentioned currently exists in a very restrictive form. It does not mean that a Committee can look at a piece of legislation and say, "No, that is not suitable for the order-making power." It says to the Committee, "If you go through these very rigid steps which are set out in the second part of the veto, you will be able to block the measure." That is not good enough. If we believe in Select Committees and want to empower them, we should trust them.

Without some serious concession on the veto and perhaps something in Standing Orders as well, I am not satisfied with new clause 21, but if it is passed by the House, I will support my right hon. Friend the Member for East Yorkshire and his Select Committee in their amendment (a).

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

Having listened carefully to what my hon. Friend the Minister said, I think that she reflects very sensibly the desire of the Law Commission and this House to make progress on some of the less controversial issues. Clearly, we have to reflect carefully on how we deal with the more controversial ones. I fully endorse the Opposition spokesman's view that this leads us to reflect on what kind of veto the House has, where it can be exercised and by whom. There is a very important point that I invite my hon. Friends on the Front Bench to reflect on before we reach the section on the veto. While I am minded fully to support the principles set out in the new clauses that we are dealing with, I am predicating my remarks on a veto of similar power to that which existed in respect of the 2001 legislation, but on the face of the Bill. The ministerial understanding was one that the House would not tolerate being broken; I think that hon. Members on both sides of the House would agree with that. Mr. Heald is right to say that the Government have proposed a veto, but the qualifications that are being proposed create problems for us.

I want to make a few quick observations on the important contribution made by my hon. Friend the Minister. First, her remarks need to be looked at in the context of the commitment given to the Chairman of the Procedure Committee and me by the previous Minister in the Cabinet Office, my hon. Friend Mr. Murphy, that there would be significant changes to the Standing Orders available to the House.

I hope that my second observation will take some of the sting out of hon. Members' concerns. Clause 16 contains provisions that will enable the House to require the Minister to have regard to representations from the outside, as well as any resolution of either House or any recommendations by a Committee of either House charged with dealing with a draft order. On that basis, I believe that new clause 21 makes eminent sense, because the protections are there. However, amendment (b), tabled by the Liberal Democrats, also makes sense. Some of the issues that the Law Commission deals with have gathered dust over a number of years, for the reasons that the Chairman of the Procedure Committee outlined, as well as for many other complex reasons. It might be sensible to make provision for such eventualities, as proposed in amendment (b), although I do not think that amendment (a) is necessary, because of provisions contained elsewhere in the legislation.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

Would not amendment (b) result in our ending up having endless debates on what "necessary" meant?

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

In his previous occupation, my hon. Friend spent many a long hour arguing about the meaning of words such as "necessary" and "reasonable" in front of learned courts, and no doubt getting paid considerably more than he is now. Such arguments are among the regular problems that Parliament has to face.

Without getting into a tirade about lawyers and their earnings, my final point is that the Bill will contain a veto. As I said at the beginning of my remarks, the nature of the veto is mission-critical to ensuring that the spirit of my hon. Friend's remarks can be adhered to throughout the passage of an order. Assuming that the assurances given are delivered on, and with the caveat expressed about the second part of the Liberal Democrat amendment, the new clause ought to be accepted.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 9:45 pm, 15th May 2006

The intervention from Rob Marris drew attention to the words "necessary" and "reasonable". I have always felt that I am necessary and reasonable and that what I want to put into a Bill is necessary and reasonable, although I understand that that might engender debate. In this instance, we need not be very concerned.

There should be a mechanism for getting Law Commission proposals into law expeditiously and effectively. The first difficulty is ensuring that it is not abused to bring forward matters that are not non-controversial in any way, but that have important impacts with which many would disagree. The second difficulty is avoiding a Government either amending or cherry-picking those proposals along the way, so that what is enacted is different from what the Law Commission proposed. The third is ensuring that, wherever possible, a primary legislative route is used in preference to an order of this kind. I take seriously the point made by the Chairman of the Procedure Committee about the application, or lack of application, of Standing Orders. It seems preposterous that the Government say that they have had no opportunity to enact the long queue of Law Commission proposals when they have not used the mechanisms available in the House to do that.

It beggars belief to say that there is a lack of legislative opportunity to introduce Law Commission proposals, especially with regard to criminal law, but even with regard to civil law. There is a criminal justice Bill every single year, as I know to my cost because I have served on the Standing Committees on most of them. There is an immigration and asylum Bill every year, without fail. Sometimes, a couple of terrorism Bills are introduced in a single year. There is a queue of legislation coming from the Home Office and the Department for Constitutional Affairs, and it does not take a great deal of ingenuity to attach Law Commission proposals to those Bills. Everything else is attached—criminal justice Bills often look like Christmas trees with the number of baubles attached because they are thought worthy of a few column inches in one of the papers.

There are other difficulties. When is a Law Commission recommendation a Law Commission recommendation? I never had that satisfactorily explained by the Minister in Committee. Is it the original recommendations, the draft Bill that the Law Commission will produce, or either one? If it is the recommendations, the point made by the Under-Secretary of State for Constitutional Affairs, Bridget Prentice about a difference in drafting between parliamentary counsel and the Law Commission is of no importance whatever, as the recommendations are what matter. We need clarity on that.

With regard to amendments (a) and (b) to the new clause, we are still wary about giving Ministers the capacity to introduce changes to Law Commission proposals. We asked time after time in Committee why the Minister needed that power. He repeated five times—I have looked at Hansard to confirm it—that he needed the power for one reason only: to deal with a situation in which a Law Commission proposal had been hanging around for some time, there had been a substantive development in the law since the time when the recommendation was made, and there was a need to reflect that. That is why we formulated our amendment (b) exactly as the Minister had said at the time that he wanted it to be formulated. We formulated it in that way to meet his requirements: we had no other reason to do so.

Some Governments are very hard to please. They tell us exactly what they want, we table an amendment to that effect, and then they want something completely different. There are other reasons for which they want to be able to change recommendations, and it is those other reasons that give us cause for alarm in this instance. If the intention is to implement some recommendations and not others, that may completely change the complexion of what the Law Commission proposes. Is the Minister proposing to cherry-pick certain proposals? Are proposals going to be tweaked to make them more acceptable to Ministers or, indeed, Select Committees? I have worries about that as well. The issue should be put before the House so that everyone has a choice to take part in the discussion, not just a select few.

If the Bill is to contain the mechanism described by the Minister for the fast-tracking of Law Commission proposals—there are new caveats that I welcome, given their applicability to later amendments—it must also incorporate amendment (b), which limits the ability to change the recommendations in a way that the Minister specifically identified in Committee as a necessary prerequisite for effective working of the legislation.

If the Chairman of the Procedure Committee, Mr. Knight, presses his amendment, we will support him. I merely ask him to reflect on whether our amendment would not only do the same as his, but allow a small concession to Ministers in the context of what they sought in Committee. In the light of that, he may prefer to support our amendment. In any event, the House should divide on one of the amendments. I must add that if the Procedure Committee, a Select Committee of the House, is to be ignored by Ministers, it sets a poor precedent for the working of the Bill.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

This is not a party-political issue. It is really a matter of judgment. I have reached the conclusion that new clause 21 is not the answer, and I hope that the Minister will reflect on what has been said this evening and will withdraw it. If she is not prepared to do so, the new clause will be rendered less offensive if the House accepts amendment (a), which incidentally has cross-party support. I hope, Mr. Speaker, that you will allow a Division on the amendment.

As has been said, new clause 21 seeks to facilitate the implementation of Law Commission recommendations by using a fast-track procedure under the Bill "with or without changes". The Minister objects to the removal of those four words. According to the Minister for the Cabinet Office, Hilary Armstrong, if time had elapsed and some of the measures had been implemented because they were deemed urgent, without the words "with or without changes" Ministers would not be able to implement the balance.

I do not buy that argument, for reasons identified by my hon. Friend Mr. Gauke and David Howarth. Subsection (5) of the new clause states:

"An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision)".

I think that the power is there.

One of the duties of the Law Commission—some would argue that it is one of its main tasks—is to codify and bring together legislation on the same subject. Why would we want to split one of its proposals between different pieces of legislation? My reading of subsection (5) is that Ministers could implement proposals that were necessary and repeal any law changes made in the interim, and codify it all under the order-making power. That seems to me to be the right way to proceed.

As my hon. Friend Mr. Heald said, it is incorrect to assume that a Law Commission recommendation will be uncontroversial. When my Committee took evidence, the Minister's predecessor, Mr. Murphy, insisted on using the term "highly controversial" to describe measures to which the provision would not apply—not just controversial, but highly controversial was the description given in each case. If the Minister is saying that she has reflected on that and is willing to lower the threshold, I would be reassured.

I see no need for the provision to be in the Bill. We have two Standing Orders that could relate to the type of legislation that we have been discussing. Standing Order No. 58, which deals with consolidation measures, states that Second Readings and Third Readings of such measures will be taken forthwith; it therefore provides a much accelerated procedure. Standing Order No. 59, which the Conservatives introduced, with consent, when we were in government, specifically refers to Law Commission Bills and states that they should be referred to a Second Reading Committee. We made those changes with consent—that was how we did business then when we amended Standing Orders, and I regret that that is not what happens now. That Standing Order, which was introduced in 1995, has, I believe—I stand to be corrected by the Minister—not been used by the Government since 1999. One has to ask them why. Why have they not at least tried to use that provision to put Law Commission proposals on to the statute book?

I am not saying that those two Standing Orders are perfect, but I noted what I regard as a point of good will made by my hon. Friend the Member for North-East Hertfordshire. He said that he was prepared to engage in constructive dialogue with the Minister, perhaps on ways of changing the Standing Orders to deal with such matters. The Modernisation Committee is already examining our processes, and I know that the Procedure Committee would be prepared to consider that very point. I hope that the Minister will reflect on that with a view to not going down the proposed route and to ensuring that the House always has the opportunity, through primary legislation, to consider Law Commission proposals, albeit by an accelerated procedure.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Department for Constitutional Affairs

I, too, welcome the comments made by Mr. Heald. I am always happy to enter into dialogue with him, and happy to restate that if it helps this evening's debate. However, that does not mean that I have any intention of withdrawing new clause 21. There are times when the accelerated procedures that Mr. Knight has clearly outlined are not appropriate for substantive changes to the law, as opposed to consolidating Bills. I ask him to reflect on that point.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I am disappointed to hear that. In the light of what the hon. Lady has just said, I shall be one of those seeking to divide the House on the new clause.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

In view of the time I shall be brief and add only one point. The importance of the debate is that the Law Commission route is the only one under the Bill whereby Ministers can change the common law; otherwise their powers are restricted to changing statutes. The common law basis of our constitution is well-known; the rules of natural justice, for example, exist only in common law, not in statute.

The Government have a history of changing Law Commission recommendations. On bad character evidence, for example, the Criminal Justice Act 2003 did exactly the opposite of what the Law Commission recommended, so these are serious matters. If the Government cannot bring their desires within either subsection (5) of the new clause or the second part of amendment (b), to take advantage of the power to make changes consequent on the delay in implementing the recommendations, the only proper route is not to make use of the fast-track procedure but to go back to the Law Commission and try to persuade it to take the matter forward.

It being Ten o'clock, Mr. Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House divided: Ayes 326, Noes 133.

Division number 233

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Clause read a Second time

Mr. Speaker then proceeded to put the remaining Questions required to be put at that hour.

Amendment proposed to the proposed new clause: (a), in line 4, leave out 'with or without changes'.— [Mr. Greg Knight.]

The House divided: Ayes 196, Noes 262.

Division number 234

See full list of votes (From The Public Whip)

Question accordingly negatived.

Clause added to the Bill.