New Clause 5 — Delay in proceedings under section 13

Orders of the Day – in the House of Commons at 5:45 pm on 16th May 2006.

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'(1) Where within the period set out in section 13 either House of Parliament resolves that the content of an order is inappropriate for provision to be made under section [Power to remove or reduce burdens] , there shall be no further proceedings in respect thereof.

(2) An order which has the same or similar effect to one that has previously been prevented from passing under the provisions of subsection (1) may not be laid under Part 1 within the subsequent two-year period.

(3) In this section, "two year period" means the period of two years beginning with the day on which the draft order was laid before Parliament under section 12.'. — [Mr. Djanogly.]

Brought up, and read the First time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

New clause 6— Reference of order to Second Reading Committee—

'Where within the period referred to in section 13, either House of Parliament resolves that the content of an order is inappropriate for provision to be made under section 1 and that such order should be treated as a Bill, then the order may be deemed to be a Bill and shall be referred to a second reading committee.'.

New clause 14— Veto by specified number of Members of House of Commons

'No order may be made under Part 1 where both of the following conditions have been fulfilled—

(a) within the period defined in section 13(7), more than 10 per cent. of the members of the House of Commons have signified to the Speaker in writing that they object to the use of the Act for purpose of introducing the order in question, and

(b) the members referred to in subsection (1) above are not all members of the same party.'.

No. 46, in page 8, line 17 [Clause 14], leave out subsection (2) and insert—

'(2) The Minister may make an order in the terms of the draft order subject to the following provisions of this section.

(2A) The Minister may not make an order in the terms of the draft order if either House of Parliament so resolves within the 40-day period.

(2B) A committee of either House charged with reporting on the draft order may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend under this subsection that no further proceedings be taken in relation to the draft order.

(2C) A recommendation may be made under subsection (2B) only if the committee considers that—

(a) the provision made by the draft order does not serve the purpose specified in section (Power to remove or reduce burdens)(2), (Power to promote regulatory principles)(2) or (Power to implement Law Commission recommendations)(2) (as the case may be);

(b) any relevant condition in section 3(2) is not satisfied in relation to any provision of the draft order referred to in section 3(1); or

(c) the condition in section 3(4) is not satisfied in relation to any provision of the draft order referred to in section 3(3).

(2D) Where a recommendation is made by a committee of either House under subsection (2B) in relation to a draft order, the Minister may not make an order in the terms of the draft order unless the recommendation is, in the same Session, rejected by resolution of that House.'.

As Amendments to Hilary Armstrong's proposed Amendment (No. 46):—

(a), in line 5, leave out from 'with' to end of line 18 and insert

'responsibility for this matter may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend that no further proceedings be taken in relation to the draft order.'.

Amendment (b), in line 9, leave out from beginning to end of line 18.

Amendment (c), in line 9, leave out from beginning to end of line 22.

Amendment (d), in line 20, leave out from first 'order' to 'the recommendation' in line 21 and insert

'no order may be made under this Part in the terms of the draft order unless either—

(a) before the order is made—

(i) at least two years have passed since the recommendation was made, and

(ii) the procedure to be observed under this Part has been observed anew, or

(b) '.

Government amendments Nos. 47 to 49

No. 50, in page 8, line 31 [Clause 15], at end insert—

'(2A) However, a committee of either House charged with reporting on the draft order may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend under this subsection that no further proceedings be taken in relation to the draft order.

(2B) A recommendation under subsection (2A) may be made only if the committee considers that—

(a) the provision made by the draft order does not serve the purpose specified in section (Power to remove or reduce burdens)(2), (Power to promote regulatory principles)(2) or (Power to implement Law Commission recommendations)(2) (as the case may be);

(b) any relevant condition in section 3(2) is not satisfied in relation to any provision of the draft order referred to in section 3(1); or

(c) the condition in section 3(4) is not satisfied in relation to any provision of the draft order referred to in section 3(3).

(2C) Where a recommendation is made by a committee of either House under subsection (2A) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (2) unless the recommendation is, in the same Session, rejected by resolution of that House.'.

As Amendments to Hilary Armstrong's proposed Amendment (No. 50):—

Amendment (a), in line 1, leave out from 'with' to end of line 14 and insert

'responsibility for this matter may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend that no further proceedings be taken in relation to the draft order.'.

Amendment (b), in line 5, leave out from beginning to end of line 14.

Amendment (c), in line 5, leave out from beginning to end of line 18.

Amendment (e), in line 16, leave out from 'no' to 'the recommendation' in line 17 and insert

'order may be made under this Part in the terms of the draft order unless either—

(a) before the order is made—

(i) at least two years have passed since the recommendation was made, and

(ii) the procedure to be observed under this Part has been observed anew, or

(b) '.

Amendment (d), in line 18, at end add—

'(2D) Where a draft order has been the subject of a recommendation under subsection (2A) and no further proceedings have been taken in the same Session, a Minister may not table a like draft Order within a period of two years after the day before the draft order was laid before Parliament pursuant to section 12.'.

Government amendments Nos. 51 to 53

No. 54, in page 9, line 8 [Clause 16], after subsection (4) insert—

'(4A) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (3) and before the draft order is approved by that House under subsection (4), recommend under this subsection that no further proceedings be taken in relation to the draft order.

(4B) A recommendation under subsection (4A) may be made only if the committee considers that—

(a) the provision made by the draft order does not serve the purpose specified in section (Power to remove or reduce burdens)(2), (Power to promote regulatory principles)(2) or (Power to implement Law Commission recommendations)(2) (as the case may be);

(b) any relevant condition in section 3(2) is not satisfied in relation to any provision of the draft order referred to in section 3(1); or

(c) the condition in section 3(4) is not satisfied in relation to any provision of the draft order referred to in section 3(3).

(4C) Where a recommendation is made by a committee of either House under subsection (4A) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (4) unless the recommendation is, in the same Session, rejected by resolution of that House.'.

As Amendments to Hilary Armstrong's proposed Amendment (No. 54):—

Amendment (a), in line 1, leave out from 'with' to end of line 14 and insert

'responsibility for this matter may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend that no further proceedings be taken in relation to the draft order.'.

Amendment (b), in line 5, leave out from beginning to end of line 14.

Amendment (c), in line 5, leave out from beginning to end of line 18.

Amendment (e), in line 16, leave out from 'no' to 'the recommendation' in line 17 and insert

'order may be made under this Part in the terms of the draft order unless either—

(a) before the order is made—

(i) at least two years have passed since the recommendation was made, and

(ii) the procedure to be observed under this Part has been observed anew, or

(b) '.

Amendment (d), in line 18, at end add—

'(4D) Where a draft order has been the subject of a recommendation under subsection (4A) and no further proceedings have been taken in the same Session, a Minister may not table a like draft Order within a period of two years after the day before the draft order was laid before Parliament pursuant to section 12.'.

No. 55, in page 9, line 18 [Clause 16], after subsection (6) insert—

'(6A) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (5) and before it is approved by that House under subsection (6), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.

(6B) A recommendation under subsection (6A) may be made only if the committee considers that—

(a) the provision made by the revised draft order does not serve the purpose specified in section (Power to remove or reduce burdens)(2), (Power to promote regulatory principles)(2) or (Power to implement Law Commission recommendations)(2) (as the case may be);

(b) any relevant condition in section 3(2) is not satisfied in relation to any provision of the revised draft order referred to in section 3(1); or

(c) the condition in section 3(4) is not satisfied in relation to any provision of the revised draft order referred to in section 3(3).

(6C) Where a recommendation is made by a committee of either House under subsection (6A) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (6) unless the recommendation is, in the same Session, rejected by resolution of that House.'.

As Amendments to Hilary Armstrong's proposed Amendment (No. 55):—

Amendment (a), in line 1, leave out from 'with' to end of line 15 and insert

'responsibility for this matter may, at any time after the expiry of the 30-day period and before the expiry of the 40-day period, recommend that no further proceedings be taken in relation to the draft order.'.

Amendment (b), in line 6, leave out from beginning to end of line 15.

Amendment (c), in line 6, leave out from beginning to end of line 19.

Amendment (e), in line 17, leave out from 'no' to ' the recommendation' in line 17 and insert

'order may be made under this Part in the terms of the revised draft order unless either—

(a) before the order is made—

(i) at least two years have passed since the recommendation was made, and

(ii) the procedure to be observed under this Part has been observed anew, or

(b) '.

Amendment (d), in line 19, at end add—

'(6D) Where a draft order has been the subject of a recommendation under subsection (6A) and no further proceedings have been taken in the same Session, a Minister may not table a like draft Order within a period of two years after the day before the draft order was laid before Parliament pursuant to section 12.'.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

This important group of amendments seeks to introduce similar changes to clauses 14, 15 and 16, which outline the procedure that would apply when an order is to be made under the negative resolution procedure, the affirmative resolution procedure or the super-affirmative resolution procedure. One of our long-held criticisms of the Bill is that it lacks adequate safeguards for the use of its fast-track order-making powers, which many people believe will abolish our constitutional longstops. The Bill has widely become known as the "abolition of Parliament Bill".

We supported the Government's amendments to part 1 of the Bill yesterday, following their stated intention that the Bill would deal only with deregulation. However, we made it clear that our overall support would depend on the introduction of further safeguards. The introduction of a procedural veto to the Bill, which would be exercised either by the Houses of Parliament or by Select Committees, was one of the primary mechanisms recommended by my hon. Friend Mr. Heald and me on Second Reading, as a means of introducing such safeguards.

For that reason, an amendment to clause 16 was tabled in Committee. It would have required an order to have been withdrawn or amended if an amendment to the order had been agreed by one or both of the Houses of Parliament or by the relevant Committees of either House. The amendment would have granted Parliament the power to insist on amendments to the order which, if not accepted by the Minister, would have to be withdrawn. The Minister would then have to start the process all over again.

The Conservatives were, admittedly, far from being the only ones calling for a parliamentary veto on the use of the procedures in the Bill. The Liberal Democrats have done the same, and I noted with interest the reports of the Regulatory Reform and Public Administration Committees, among whose recommendations was a call for an amendment to the Bill to provide scope for an effective veto.

Our support for the insertion of the procedural veto into the Bill meant that we welcomed the then Minister's announcement in Committee—I see him in his place today—that he would introduce a parliamentary veto on the use of the procedure. The Conservative party welcomes the Government's amendments on the statutory veto as a significant step in the right direction. It is accepted in most quarters that the Bill requires adequate safeguards so that it is not used in future as a tool for the Executive to abuse their power and discard Parliament. The amendments are meant to carry through the Government's pledge to build in a veto over an order for the relevant Committees of both Houses of Parliament. However, the amendments fall far short of introducing the robust and firm veto that we would expect to see inserted in such an important and constitutionally significant Bill.

Our concerns were heightened when we read the wording of the amendments. The Minister needs to explain exactly what the amendments entail. A Select Committee of either House may recommend that the relevant draft order should not be proceeded with. That recommendation, however, can be discarded if it is rejected by a resolution of the relevant House. Furthermore, when making such a recommendation, the Committee must have considered a range of factors, including those listed in clause 3. Our primary concern is that the conditions imposed on the relevant Committee, by which it is able to exercise such a veto, are excessive.

The primary difference between the Government's amendments and the amendment tabled by Conservative Members in Committee and now in new clause 5 is that the Government's proposals allow for the veto to be exercised only by a Select Committee, whereas our proposals allow for a veto by either the Committee or the Houses of Parliament. I note that the Procedure Committee, which recently produced an insightful report on the Bill, recommended that the power of veto should be exercised

"outside the Committee as well as within it".

While the Government's amendments allow both Houses to become involved in the process, they do not contain an automatic right of veto. If either House is unhappy with an order, it cannot veto it until a Committee has acted. The Procedure Committee's report noted that there was no need for the Bill to include a power of veto exercised beyond the Committee. It recommended that the mechanism by which the House of Commons exercised the veto should rest on House of Commons procedure. Is the Government's failure to empower Parliament by including an automatic veto in the Bill a result of that recommendation? If so, what steps will be taken to amend the House's procedure to ensure that it possesses a veto and that the mechanics are fully in place? More urgently, why will the Government not accept that this is a matter of great concern to Opposition parties and other Members who have voiced concerns and deal with the matter now, setting out the balances and stating the powers in the Bill?

While the Opposition are concerned about the lack of a parliamentary veto under the Government's amendments, we are also concerned that a Committee could have its veto overridden by a resolution of the relevant House. According to the wording of the Government's amendments, the veto of a Select Committee, which the Cabinet Office proudly proclaimed in its press release on 4 May, is effectively nothing more than a recommendation. The difference between a veto and a recommendation is obvious and needs no further explanation. Were a Commons Committee to recommend that no further proceedings were to take place, is it not likely that the Government would simply use their majority in the House to overrule it? Would not that negate completely the introduction of the veto?

If the Government have their way on this set of provisions, how will Parliament be able to ensure that the more contentious issues are dealt with in the Lords, where the veto is not capable of being vetoed by majority party votes?

Photo of Greg Knight Greg Knight Chair, Procedure Committee

The Government deserve credit for listening to representations and giving ground in some other areas, but does my hon. Friend accept that in this area they have failed to meet the assurances given by the previous Minister, Mr. Murphy, to the Procedure Committee? Is he aware that on 7 February this year, the then Minister told the Procedure Committee:

"so our commitment is very clear, that we will not seek to do anything which is highly controversial. The Select Committee will make a judgment on that and the Select Committee can veto any recommendation from a minister."

The veto now proposed falls far short of that commitment.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

My hon. Friend is absolutely right. Part of the problem is that the Government have been consistently late in responding to comments made in Committees and in producing draft clauses for review. We have been treating Report, to some extent, like Second Reading because we have not seen the clauses to comment on them.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

My hon. Friend is making sound points in criticising the adequacy of the veto offered. Will he reflect on whether a veto is totally reassuring? As my right hon. Friend Mr. Knight just pointed out, the former Minister repeatedly gave assurances in various forums that nothing that was controversial would be taken through in this way. I take that to mean that a substantial number of Members of the House saying that a measure should be subject to the parliamentary process should be adequate to stop the order making procedure being used. If all that is offered can simply be overridden by the working majority of the Government of the day, very controversial measures could be taken through using this simple, scarcely parliamentary procedure. Just a bare majority of Members of the House of Commons would make sure that an unsuitable process was used to override a significant section of public and parliamentary opinion.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

My right hon. and learned Friend makes an important point. Were the matter concerned to be dealt with in the Lords, where the veto is more likely to be effective, I can imagine Ministers moaning and groaning that unelected Members of the House of Lords should not concern themselves with administrative or deregulatory issues. As a result, we could be caught in a cleft stick.

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

Actually, what the right hon. and learned Gentleman said was entirely in line with the new clause that we shall discuss in this group, which my hon. Friend David Howarth and I tabled and which I believe the hon. Gentleman has set his mind against. It is no good his saying that his right hon. and learned Friend has made an important point if he disagrees with the fundamentals of it when it comes to a vote.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I will come on to the hon. Gentleman's new clause, which has its problems, although, as he will hear, I believe that it merits further discussion.

We believe that the best course of action is to follow through the spirit of Government amendment No. 46. However, that amendment needs improvement to allow the veto to be exercised by either of the Houses or by Committees. I shall now deal with the point made by Mr. Heath about new clause 14, as I know that he wants me to address it.

The Liberal Democrats' new clause 14 seeks to grant the House a statutory veto over orders introduced by virtue of this Bill. It suggest a novel alternative to relying on the recommendations of a Select Committee, already burdened and restricted in its freedom of action by the factors, as set out in the Government amendments, that must be considered when rejecting a draft order. That alternative is that a parliamentary veto may be exercised by a quorum of at least 10 per cent. of the House. The new clause also contains a safeguard of its own, in that those exercising their veto must encompass more than a single parliamentary party. That would prevent a single political group from rejecting the Government's measures on purely partisan grounds. It has been suggested that an order introduced under the Bill, which, if we are to believe the Government's words, would relate only to deregulation and Law Commission proposals, should be stalled by a parliamentary veto only if it is controversial. If that is the case, the order should be presented to Parliament in the form of primary legislation.

I agree that new clause 14 would in practice mean that only controversial measures would be vetoed, and I understand the spirit of it. However, it goes too far by setting a precedent in other areas of procedure. Issues such as what should be a relevant percentage and entrenching minority rights would need a much wider review.

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

The hon. Gentleman mentioned minorities. I think that the Liberal Democrats' new clause has its merits, in that the minority parties would be included. The hon. Gentleman is more than aware that we are not included on all Select Committees. In fact, we are on very few of them. That means that we would have no say in any veto. The Liberal Democrat proposal would allow us at least an opportunity to participate.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 6:00 pm, 16th May 2006

The hon. Gentleman has just demonstrated his ability to participate. I do not think anyone is saying that he cannot participate in the progress of legislation. We maintain, however, that establishing a veto has significant implications for the flexibility of the way in which the House works, and would require a full review.

Photo of Robert Smith Robert Smith Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Energy and Climate Change)

The hon. Gentleman told Pete Wishart that he had demonstrated the ability of minority parties to exercise this right in the Chamber. The point is that the Government's procedures require them to exercise it in a Select Committee. We are trying to enable the whole House to influence what happens to procedure. Members of a Select Committee are, by their nature, select.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I hear what the hon. Gentleman says. I gave some time to his party's proposal because I think there could be some merit in it, but I also think that we need a full, much wider review than it proposes.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

The difficulty is that we cannot reflect fully in the time before the Bill leaves the House of Commons. I find myself in the slightly embarrassing position of supporting what the Liberal Democrats have said. At a meeting, David Howarth and I urged that view on the then Minister, and I think that it has considerable merit.

Of course I accept that we cannot normally allow minority vetoes on the processes of the House or on ordinary parliamentary procedure, but yesterday I accepted new clause 19—reluctantly, as did my hon. Friend—as a step in the right direction. I was prepared to allow some flexibility in abandoning parliamentary procedure for non-controversial measures. Surely, though, if 65 Members say that a measure merits being subject to the full parliamentary process, it is not a non-controversial deregulatory measure. If we were in office, I would take the view that even if the 65 were shell-backed left-wing members of the Labour party with a stray Welsh Nationalist added, they would be entitled to the full parliamentary process, and to be allowed to veto a short-cutting of the whole parliamentary procedure, which we are all prepared to contemplate only in the case of genuinely non-controversial deregulatory measures.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I hear what my right hon. and learned Friend says. It is an interesting debate. According to company law, 10 per cent. of members can call an annual general meeting but cannot scrap a resolution. The percentage figure would need to be reviewed carefully in the context of the way in which the House works. Let us not forget that these proposals were presented to the House a matter of days ago. I respectfully suggest that to say that there should have been or could have been adequate time is not realistic, but, as I said to Liberal Democrat Members, I do not discount it as an argument, and it may be followed up in the other place.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

Perhaps I can help the hon. Gentleman in his difficulties with Mr. Clarke. I am sure he would accept that all motions before the House tabled by Back Benchers must have equal status. According to his logic, the House would be forced to debate any early-day motion that attracted more than 65 signatures. That would tie down parliamentary time to an impossible degree.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

The hon. Gentleman makes an important point, if only in saying—as I think I have been saying—that a good many of the issues will need to be examined in the round. It is not just a question of slapping down a clause and saying "Isn't that a great idea? Let us put it into legislation." The Minister might even agree with me about that.

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

The problem that new clause 14 at least attempts to solve is precisely the question of what counts as controversial for the purpose of a choice between the procedure proposed by the Bill and ordinary legislation. I am sure that the hon. Gentleman has read the report of the Committee proceedings. During those proceedings, his hon. Friend Mr. Chope suggested that if one Member objected, the matter would be controversial and should be treated as a Bill.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

The hon. Gentleman has made the same point again. He has heard what I have had to say. I shall move on now, but I think the Minister has received the message that Members would like to hear his views.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Does my hon. Friend now accept that there may well be scope for common ground between all Opposition Members, so that when the Bill goes to the other place an amendment along these lines will be able to command common support among Liberal Democrats and Conservatives, and receive applause when it returns to the House of Commons?

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I think that the matter should be seen in a wider context, and in that context I cannot answer my hon. Friend's question. What I can say is that our party will discuss it with our noble Friends.

Another of our concerns is that the amendments severely restrict the period during which the Committee's veto can be exercised. Amendments Nos. 46 and 50 allow for the exercise of the veto in the negative and affirmative resolution procedure respectively only after a 30-day period commencing with the day on which the draft order is laid before Parliament. That means that the period during which the veto may be exercised is limited to just 10 days.

While I understand the time limit, I wonder on reflection whether there is really a need to prevent a Committee from exercising its veto in the first 30 days following the laying of a draft order before Parliament. Perhaps the Minister could explain. In any event, we look forward to hearing the debate on the issue, particularly the debate on amendment (a), which was tabled by members of the Procedure Committee.

Amendments Nos. 54 and 55 allow for the veto to be exercised under the super-affirmative procedure only during the period between the moment when the Minister lays a statement before Parliament detailing representations made on the draft order and the moment at which the order is voted on in both Houses and therefore approved. It is unclear how long the gap between the two events is estimated to be. Is it not feasible that they could occur within a matter of days of each other?

We are also concerned about the conditions that must be met for a recommendation from a Committee to be valid. They appear onerous, and may provide the Government with a simple excuse to reject a Committee's recommendation rather than resorting to an attempt to defeat the recommendation in the House.

The factors listed in clause 3 that a Minister must take into account when introducing an order are essential. They provide a valuable safeguard, one of the few originally contained in the Bill before widespread criticisms forced the Government to back down. For that reason it is right that the Minister must consider those factors, but is it necessary for a parliamentary Committee—consisting, I am sure, of competent and respected parliamentarians—to have to take account of the same factors and more?

The changes to the Bill announced recently by the Cabinet Office are vital from a constitutional viewpoint. They will help to prevent a Government from abusing the Bill and from being able to amend any legislation on the statute book, but imposing conditions on a Committee of Parliament that is carrying out its function of holding the Executive to account and preventing abuses of power is surely unnecessary and over-restrictive. Do the Government not consider a parliamentary Committee sufficiently responsible to make a wise enough decision on a draft order introduced under the Bill? For that reason we tabled amendment (b) to the Government's amendments Nos. 50, 54 and 55, calling for the removal of subsections (2B), (4B) and (6B). We believe that such changes would create the robust and flexible veto that so many constitutional experts believe is vital to ensuring that the Executive do not abuse the power conferred on them by the Bill.

Our concerns about the Government amendments appear to be shared by the Procedure Committee. I note that it has also tabled amendments to all the Government's amendments relating to the statutory veto, calling for the omission from amendment No. 46 of proposed new subsections (2B) and (2C) and the corresponding subsections in amendments Nos. 50, 54 and 55. They would allow a Committee of either House to recommend that no further proceedings be taken in relation to the draft order. There would be no factors to consider and the onerous conditions imposed on the Committee by the Government amendments would cease to exist.

I shall now discuss our further amendments to the Government amendments, which would prevent a Minister from tabling a draft order for a period of two years if the same or similar order had been vetoed by the relevant Select Committee. A two-year moratorium has been imposed on altering the regulatory reform order, but no such standstill period is contained in the proposals. I noted with interest that such a moratorium was also recommended in the Regulatory Reform Committee's report. It was aimed at preventing a Minister who has just had an order vetoed from laying a similar order before Parliament.

In recent years, we have seen a growing culture in which the Executive ignore the will of Parliament or, should I say, the people. Certainly, we see that happening in the European Union with underhand plans, now being implemented, to bring in by stealth elements of the failed constitution. In the UK, we see it in the Government bringing in their regionalisation plans—whether it be through primary care trust mergers, about which we heard earlier today, or in respect of the police—despite losing heavily in the north-east referendum. Our amendments are aimed at stopping that move towards legislation by stealth and regurgitation of failed plans.

An important point about the statutory veto concerns the make-up of the Committee of either House charged with reporting on the draft order. It is unclear in the Bill what type of Committee it should be. Is there to be a permanent Committee, charged with reviewing all orders issued under the Bill? If so, I draw the Minister's attention to the Procedure Committee's conclusion that parliamentary scrutiny of draft orders should not necessarily be in the hands of a single Committee responsible for all orders, as in the Bill, but be discharged by whatever Committee has the relevant subject expertise, including the departmental Select Committee. Will the Minister clarify which Committees the Government envisage undertaking those crucial roles?

The Conservative party believes that the exercise of this veto, which was a central plank in the Government's effort to placate the fears of opponents of the Bill and was recommended by both the Public Administration Committee and the Regulatory Reform Committee, should be far more flexible than is envisaged in the amendment. The opinion of a Select Committee charged with reporting on a draft order laid before Parliament under the Bill should carry more force. There should be a less restrictive time period for the exercise of the Committee's recommendation, and fewer conditions should be imposed on the exercise of that recommendation.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

I think this is the first time, Madam Deputy Speaker, that you have had to listen to our long and complicated debates on the Bill, so welcome to the Chair. To make it even more complicated, as Mr. Djanogly was speaking, my glasses fell apart, so I shall have to ask the Minister to hold my notes a little further away until my spare glasses arrive.

Both in partnership with my fellow members of the Select Committee and subsequently in exploring practical ways forward, I have carefully considered the matter of the veto. I was certainly left with the impression, as reinforced by the Chairman of the Procedure Committee, that we were not being offered a qualified veto and I have discussed with Ministers where that would leave us. I have expressed to my hon. Friends privately and put it on the record that I am uncomfortable with the Government's amendment, so I am anxious to listen to the views of the Chairman of the Procedure Committee when he moves his amendments, particularly when I have amended his amendments further in respect of the two-year rule.

What powers does the Minister envisage the Committee having? That is the most important issue. The Secretary of State said in a letter of 11 May—I referred to it yesterday and confused the hon. Member for Huntingdon—that the statutory veto was not "a blanket veto". There may be good technical reasons for that. I am not a lawyer, but am always prepared to listen to them. Often one has to listen to them at length; I do not want to disparage the profession of Mr. Clarke, but he might be happier with a bigger Bill.

I am more interested in the practical ways of how the House deals with its business. That issue was raised by the Liberal Democrat MP, Brian Cotter, in 2001. In the Second Reading debate on the Regulatory Reform Bill 2001, Brian Cotter, then the Liberal Democrat Member for Weston-super-Mare, asked the then Minister, Graham Stringer, to explain what he meant about a ministerial undertaking. The undertaking given has proved to be mighty effective; only 27 orders were dealt with through the process in the last Parliament. The reason is probably that a ministerial undertaking given to the House is an absolute one.

If the Parliamentary Private Secretary would like to pick up my glasses from over there—I have just seen them through the corner of my eye—I would be extremely grateful, especially as the next part of my speech is written in micro-dot. What a wonderful service we get here. That's better, I can read my notes now. The ministerial undertaking given is, I think, a very powerful vehicle. I would like to establish clearly and unambiguously with the Minister whether he is prepared today to restate that ministerial undertaking. I cite what the then Minister said when he gave it:

"First, I am happy to confirm that the order-making power will not be used for large and controversial measures"— we have already debated that.

"Secondly, the Government would not proceed with an order against the Committee's wishes."—[ Hansard, 19 March 2001; Vol. 365, c. 117.]

No qualifications there; it was said clearly that the Government would not proceed against the wishes of the Committee. If the Minister can today, irrespective of the partial statutory veto, give a similar undertaking, that would make a forceful point. As I look around at hon. Members in their places who have been or are Ministers, I know that they realise that such an undertaking would be of very considerable significance.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak 6:15 pm, 16th May 2006

A ministerial undertaking is no substitute for stating something in the Bill. Government amendment No. 46 includes no such statement; in fact, the restrictions on the use of the so-called veto are so great that it is difficult to imagine any circumstances in which it would be impossible for an order not to serve the purposes specified.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

I hear what my hon. Friend says, but I am talking about practical politics; about a Committee's ability to say to a Minister without fear of judicial review that it is not prepared to let them continue along a particular course. That has proved an effective mechanism; that said, I would prefer to adopt an approach in keeping with the views of the Chairman of the Procedure Committee. The key is to ensure that this House has a practical means of stopping in their tracks a Minister who is going too far.

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

I am listening carefully to the hon. Gentleman and I know that his intention is good, but the point is that Government's extraordinary proposal is to impose a statutory bar on what a Select Committee of this House can do. The hon. Gentleman is asking the Minister to assert that he will not use two thirds of the provision, which seems absurd. The only way that the Minister could make that binding is to be the only Minister involved with it, and to stay in office for ever, which is unlikely. If he has no intention of using the provision, why on earth include it in the Bill?

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

Given the Minister's experience over the past 24 hours, he probably wants to move on rapidly, like his predecessor, despite his sterling work. A ministerial undertaking is understood by this House to be binding on the Government. [Interruption.] Does the right hon. and learned Member for Rushcliffe want to intervene?

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

My understanding of ministerial undertakings is that they are regarded as binding only on the Government of whom the Minister in question is a member. Leaving aside the history of ministerial undertakings not being adhered to by some Governments—and although I am sure that, if we took office, we would be impeccably deregulatory and simultaneously sensitive to the procedures of the House—the fact is that many undertakings given by the present Government would not be regarded as binding on successor Governments. I envisage that in 10 years' time, ministerial undertakings will be regarded as somewhat irrelevant. Indeed, that is why we did not accept assurances—given constantly by the previous Minister in response to complaints—that the original Bill would not be used in the way that it plainly allowed for if someone stuck to the law.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

I have some sympathy with that point, but I am simply trying to find a practical way forward. We have yet to hear the Minister's views on this issue, but I am sure that the House will agree that the restating of the undertaking to which I have referred would be more than a nuance and would shift the ground, albeit slightly.

Photo of Robert Smith Robert Smith Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Energy and Climate Change)

I understand where the hon. Gentleman is trying to come from, but under the previous regime, a Committee could communicate its concern and the Minister could then invoke his undertaking not to go against its wishes. How would the ministerial undertaking work under the terms of this new provision, which would constrain a Committee in expressing its reservation?

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

I know where I am coming from—it is where I am going to that sometimes proves a little difficult. In practice, I would expect a Committee of this House to make use of the potential veto at any stage up to the point at which the order in question is issued; I would not want to insist that it be used only when the draft order is published.

Let us consider the following example. An innocent-looking draft order affecting London museums met with the approval of the original consultees and, at first glance, of my predecessor Committee. But when it went out for broader public consultation, a legitimate authority expressed reservations and demonstrated to the Minister in question that an error had been made and that it was not appropriate. So one needs the power to exercise the veto at any stage, with or without statutory restrictions. Such a view is based on the undertaking given by the then Minister on Second Reading of the 2001 Act.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Surely the point is this: we were given a ministerial undertaking on 7 February and what we need now is not a second one, but the delivery of the first. That can be done today if the Minister accepts the Procedure Committee's amendments.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

As I said earlier, I have some sympathy with the views of the authors of those amendments, which provide a more clinical way of dealing with this issue. However, it seemed to me appropriate at least to explore this idea and to invite comments from the Minister, in order to help inform our proceedings. I understand where Mr. Knight is coming from, but I have yet to hear the Minister explain why the veto was drafted in this way, rather than according to the right hon. Gentleman's understanding, which is based on evidence given to his Committee.

I turn to the amendments standing in my name and that of my hon. Friend Alison Seabeck relating to the two-year rule. Essentially, they are probing amendments that seek to discover what will happen when a Minister is hell-bent on introducing an order, despite opposition from a Committee of the House. Clause 16, which deals with the super-affirmative resolution procedure, clearly sets out the reporting procedure. There are mechanisms that enable Ministers to tweak and amend an order in the light of discussions with Committees of both Houses, and with public bodies and individuals. So what starts as a draft order is not necessarily the final text. It may be amended or qualified in writing, or the body or organisation for which it is promulgated may make appropriate assurances. Yesterday, I gave the example of the assurance given to both Houses by the chairman of the Forestry Commission that satisfied the concerns expressed by my Committee.

Those possibilities are available in the tweaking process, but what happens if the Minister says that he will keep coming back even though the Committee does not like what he says? First, the parliamentary business managers would not be terribly enamoured of that and the Minister would not survive for long without being ridiculed for trying to repeat the same mistake over and over again—

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

The hon. Gentleman must not tempt me. The alternative to that is that practical politics might stop a proposal returning to the House within the lifetime of a Parliament.

These are probing amendments, designed to elicit an explanation from the Government of when it would be sensible, in the lifetime of a Parliament, for a Minister to bring back to the House an order that a Select Committee had decided was not suitable for regulatory reform. Under what circumstances would the Minister consider that appropriate?

I am trying to break these complex legal issues into simple and practical procedures that would allow hon. Members to do their job and examine the work of the Executive in an effective manner. The work of the Regulatory Reform Committee would be strengthened if Conservative Members bothered to turn up, as I noted previously to Mr. Djanogly, but that is a matter for him to deal with.

An effective mechanism is in place, but we are trying to make it stronger so that it can deal with the enhanced powers set out in the Bill. I hope that my comments will inform that debate, and I look forward to the response from my hon. Friend the Minister. That, in turn, will help the House to determine the best way forward.

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

I am intrigued by the notion expounded by Andrew Miller that ridiculing Ministers causes them to be sacked. In my experience, they get promoted or retain their salaries when their jobs are taken away. However, he clearly knows more about that than me.

We are dealing with one of the three most important elements in the Bill. Yesterday, I set out the three ways to secure some safety with the proposals. I said that that could be done by prescription of what could be dealt with by the Bill, by proscription of what could not be so dealt with, and by protection—that is, using the safeguards available to the House to influence the use of procedure.

This group of amendments is entitled "Parliamentary veto", but that is an unfortunate misnomer. A better alternative might be "Parliamentary caveat", as we are certainly not talking about Parliament vetoing what the Government propose. We have heard a great deal about the value of ministerial assurances and a Select Committee of the House was assured, right at the start of our consideration of the Bill, that there would be a Select Committee veto on proposals. The former Minister, who is now Minister for Employment and Welfare Reform, originally thought that that mechanism was already in the Bill. It was gently pointed out to him that that was not the case, but he seemed to retain that misapprehension even as the Committee stage began. Eventually, he promised that it would be brought in later.

The tenor of the Government's response to the quite proper criticism of the Bill voiced by hon. Members of all parties has been that the Select Committee structure would have primacy in the procedural arrangements. It therefore bodes very badly for the exercise of the powers in the Bill that Ministers are not prepared, even now, to accept the recommendations of the Procedure Committee or of the Regulatory Reform Committee. The members of those Committees have great knowledge of these matters, but their proposals were not adopted by Ministers when they put forward their amendments.

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

Does the hon. Gentleman agree that it would be a fine thing to trust our Select Committees with the responsibility that he describes? If Ministers are not prepared to do that, they should say so. They gave the impression early on that they were prepared to trust the Select Committee with the responsibility, so can he understand why they will not do so now?

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

I do not understand anything about the Government's approach to the Bill. They have been dragged, kicking and screaming, to the realisation that they could not get through their entirely preposterous original proposals. They are in full retreat, making concession after concession, but even now they do not seem to understand the basic principles that underlie the many criticisms levelled at the Bill from many quarters, and so are unable to respond to them adequately.

The Government do not propose a Select Committee veto on procedure. It is transparently obvious that the most that Select Committees can do is to make a recommendation in that respect. I emphasise that we are not talking about a veto on an order itself, as Ministers could always use an alternative procedure to bring forward an order if the original procedure were rejected. They could use for that purpose the primary legislation that in normal circumstances would be the proper vehicle for introducing an order and, in turn, that would mean that an order would be properly scrutinised by this House and the other place.

That alternative was always open to Ministers, but the idea was to institute a fast-track procedure that would avoid that level of scrutiny before an order went into a Statutory Instrument Committee. No controversial measure was to have been put through the fast-track procedure, but the proposal under consideration would allow a Select Committee to consider an order only under a very constricted time scale. The result would be that that Committee would not be able to consider an order for too long, or to listen too carefully to the voices from outside the House. The few hon. Members serving on the Select Committee concerned would be able to make a recommendation, but that could be overruled by an order of the House.

In those circumstances, what would the motion put before the House contain? Would it allow a proper debate and give people an opportunity to express their concerns and say why they did not consider the fast-track procedure appropriate? Of course it would not. The matter would be dealt with at the end of the day in a business motion requiring a negative or an affirmative resolution of the House, and if anyone had the temerity to say no it would be pushed through on a deferred Division on a Wednesday afternoon. I would bet my life that the Government would have their way because no one would know about any of the arguments why they should not.

What considerations can a Select Committee make in even making such a recommendation? Can it follow its instincts? Can it listen to the advice that it was given? No, it cannot. The proposals from the Minister lay down the limited range of criteria that the Committee can use in coming to a conclusion. It is improper to constrain a Select Committee's considerations in that way. I know of no circumstances in which Ministers have tried by statutory means to restrict the activities of a Select Committee of the House.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

That is why I wanted to explore whether it would be better to address the problem through a different route. It is a real issue and we have to deal with it, but I want to find the best solution.

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

I understand that the hon. Gentleman is trying to reach the right outcome, but I do not share his optimism that an assurance from Ministers on the Treasury Bench that they will not apply what is clearly laid out in statutory form in their proposals would have any value whatever. The Select Committee would be very constrained in the criteria that it could use to determine whether the procedure was right. It is transparently obvious that if a Minister did not like the result of the Select Committee's considerations, he would overrule it in the House. There is nothing in the provisions to stop a Minister behaving in that way. Even if the excellent new Minister on the Treasury Bench was absolutely determined that he would not use the provisions in that way, I do not believe that the writ of the Parliamentary Secretary to the Cabinet Office—or is it to the Duchy of Lancaster, I am not sure of the exact title?—would run to the Home Secretary or to the Secretary of State for Constitutional Affairs.

Photo of Ed Miliband Ed Miliband Parliamentary Secretary (Cabinet Office)

The hon. Gentleman underestimates my hon. Friend on the Treasury Bench.

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

I may be underestimating the Minister, but I have seen dodgy procedure from past Home Secretaries and I do not believe that a Home Secretary would listen to a junior Minister in the Cabinet Office. No assurances from the Treasury Bench will hold water.

For that reason, if the Government press ahead with the proposals in their amendments Nos. 46, 50, 54 and 55, it is essential that we amend them today to remove those appalling restrictions on the latitude allowed to Select Committees in undertaking their work, both in terms of time and the criteria they must use to assess whether an instrument is appropriate for the fast-track procedure.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I think that I am correct in saying that if a Select Committee was contemplating a recommendation that the process should not be used it would almost certainly be advised by its Clerk that it was not able to make such a recommendation unless it addressed the terms of the legislation. It would be open to the Committee to make a recommendation only if it could demonstrate that it was complying with the conditions put on it. If the Select Committee decided as a matter of parliamentary principle that the process was not appropriate it would receive professional advice from the Clerk that it was not in a position to make a recommendation on that basis.

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

The right hon. and learned Gentleman is absolutely right. Such statutory constraints on the exercise of a Select Committee's discretion are unique, but it is clear that, as Lynne Jones said earlier, most, if not all, of the good reasons for assessing that an order was inappropriate for the accelerated procedure would be declared ultra vires. We would have the absurd prospect that a Select Committee decision was justiciable—reviewable—on the basis that it had not followed criteria set down in statute in reaching its decision. When has a Select Committee ever been bound by statute, and justiciable in the courts, in the exercise of its discretion? The suggestion is preposterous.

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

I think that the hon. Gentleman is in this case.

Does my hon. Friend Mr. Heath agree that in the important example given by my right hon. and learned Friend Mr. Clarke yesterday about tax cuts being something that could be fast-tracked using the order-making power, a Select Committee would not be able to veto it because it would have to go through exactly the same hoops as the Minister? As we know, tax cuts are not covered by that process so it is not a real protection in the circumstances outlined by my right hon. and learned Friend.

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

I have hon. Friends on both sides of the Chamber so I, too, shall call the hon. Gentleman my hon. Friend in this matter. He is right. Anything within the terms of the order, and that the Minister has correctly assessed as within the terms of the order, must be so in the view of the Select Committee because it has to apply the same criteria. Therefore, any political judgment on the essential question of what is controversial means nothing in the context of the provision. We were told at the start of the Bill's proceedings that it would not be used for anything controversial. Then, the Government elevated the threshold slightly and said that it would not be used for anything "highly" controversial. I hope that we have now gone back to "controversial".

Unless we make the necessary amendments, the whole measure will be meaningless. If the opportunity arises, I shall press hard my amendment (c) to Government amendment No. 46, because removing those constraints is crucial to the work of Select Committees. Even if that were achieved, we would still have the problem, alluded to in a short debate between Mr. Djanogly and most of his hon. Friends on the Back Benches, who did not agree with him, about a genuine parliamentary veto.

A Select Committee has a Government majority. If the purpose of the safeguard is to ensure that something that is deeply controversial to a section of the House—whether on the Government Benches or elsewhere—is not put through a fast-track procedure, a simple majority in a Select Committee with a Government majority will not do the job, however assiduously the Committee may attempt to do its job. With the best will in the world, its members may not be aware of the local implications of an order put through by that process that might be deeply controversial. The procedure can be used not only for general public Acts, but for local Acts. The Regulatory Reform Committee or its successor might be completely unaware of a particular local Act, not because Members had not done their research properly, but because there was a burning political issue—we are, after all, politicians, which is why we are sent to this place—of which they were unaware because none of them was from that area.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

If I might correct the hon. Gentleman, that is why we have a consultation process. That is why the order relating to London museums, to which I referred earlier, was dropped. The consultation process identified an error relating to a local matter, which would certainly not have been an issue in Burnley, the constituency of my predecessor as Chairman.

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

I understand the hard work that goes on in Select Committees to try to deal with such issues, but as we all know—certainly those of us with local authority backgrounds—often there will be no response to a consultation and the matter appears entirely benign, until it is implemented. Then everybody says, "Why didn't you ask us? Why didn't you consult us? Why didn't you allow our objections to be heard?" Of course there was the opportunity, but no one asked the right person at the right time about their problems.

I want to make it clear that we do not suggest the sort of process in new clause 14 from our partisan point of view. We deliberately set the threshold beyond what the Liberal Democrat party has in the House. I do not think that 10 per cent. is an unreasonable figure. If 10 per cent. of the House feel strongly about something, the voice of those hon. Members should be heard, because that subject is controversial by definition. If that 10 per cent. comprise at least two parties represented in the House, it is clear that no simple mechanism on behalf of one party for political advantage is involved.

I believe that if those circumstances apply, it is right that that should apply a brake to the procedure. Let us remember that it would not be a brake on the order. The order can still be translated into primary legislation and go through its normal course of action. It is not a question of a minority party preventing legislation; it is simply suggesting that the legislation must be scrutinised. There are Liberal Democrat Members, Conservative Members and Members from the minority parties who very clearly understand the merits of that case.

Photo of Roger Gale Roger Gale Conservative, North Thanet

I have some sympathy with the hon. Gentleman's view that the House should be able to challenge the view of a Select Committee, and most certainly that of an Executive with overweening power, but I am very concerned indeed about the second part of his proposal because there is a quaint and long-standing belief that Members of Parliament are individuals who speak for themselves and their constituents, based on an assessment of the problem. If he and the Liberal Democrats go down the road of suggesting that any measure in the House must have the support of more than one party, it is a very slippery path indeed.

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

I am most grateful to the hon. Gentleman for his observation. First, parties are established under Standing Orders—we understand what parties are—and secondly, it was a criticism when we first suggested such a proposal that to allow one party effectively to block a parliamentary procedure was inappropriate, because that should require a greater degree of consensus. That is precisely why we suggested the provision. I find it slightly odd that we now hear a quibble from the other direction, suggesting that such things should be in the hands of a single party, but perhaps that could be debated later. However, the proposal has considerable merit in terms of parliamentary procedure. Simply because we do not do it now is not a good enough reason to say that we should not do it in the future.

The hon. Member for Ellesmere Port and Neston made the point about early-day motions being discussed on the Floor of the House. There ought to be a mechanism for that, too, if enough hon. Members want to do so. When an early-day motion is signed by more than half the membership of the House, such as the one on the removal of the Post Office card account, I cannot believe that we as a House cannot insist that we should debate the subject—a majority of hon. Members from all parties very feel strongly about it—yet we do not have the mechanism to do so.

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

Does the hon. Gentleman think that we are in danger of having too many veto proposals in the Bill? The idea of the Select Committee veto—something that we have all pressed for throughout consideration the Bill—should be applauded and strengthened, and we should be pressing for that. However, I wonder about considering other proposals that relate to blocking minorities on the Floor of the House. That would set a major precedent because it could be argued that perhaps a blocking-minority approach should be adopted for every procedure. Surely, if we were to do that we would need a major inquiry and discussion between the parties about how we tackle our procedures on numbers. The next step after that would be to say that we have entrenched majorities for constitutional matters. It would then be a different kind of Parliament, and it may be a good one, but to make that change—which would have huge significance constitutionally—piecemeal would be the wrong thing to do.

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

I hear what the hon. Gentleman says, but I simply do not agree with him. We need to set a precedent occasionally. We are discussing an entirely novel procedure, to which a brake needs to be applied, and we have suggested a good brake. That view is clearly shared by Mr. Clarke, who chairs the august body in the Conservative party that is working on exactly these matters. His opinions should carry some weight among Conservative Members.

We ought to send a signal today, which is why, given the opportunity, I will press new clause 14 to a Division this evening, and I will do so content in the knowledge that it would serve the interests of Back Benchers, minority parties and those who would not otherwise have the opportunity to make their voice heard—and who ought to be heard, either in a Select Committee or a Statutory Instrument Committee—at a later stage. My worry about leaving the issue to another place, as I think the hon. Member for Huntingdon intimated, is that Members of the House of Lords will be very cautious indeed about expressing an opinion, because it is quintessentially a House of Commons matter.

My worry is that they will simply not feel able to make the necessary intervention. That is why tonight's debate is so important—it may be our last opportunity to make it clear that the procedure that the Government propose will not do. If the Bill is passed today by a Government majority, I do not believe that it will come back to us—I wish it would, but my fear is that the other place will feel inhibited about intervening in House of Commons business for all the reasons that we know, and therefore it will not come back to us for reconsideration. Therefore, tonight is make-your-mind-up time about whether we accept the very flawed mechanism that the Government propose.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I only want to correct what I think was a slip of the tongue. The hon. Gentleman said that he wanted to divide the House on new clause 42. I presume that he meant amendment No. 46.

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

I referred to new clause 14. I think that the right hon. Gentleman, who is the Chairman of Procedure Committee, misheard me, but I am grateful to him for intervening because it is important that the discussion of these procedures is not only intelligible but audible. So I repeat that I wish to seek a Division on new clause 14. We had very important debate yesterday. This is the important debate today, because if we get this wrong the procedure, albeit not quite so open-ended as before the Government amendments were accepted yesterday, will nevertheless be too open-ended for the comfort of any hon. Member.

Photo of Tony Wright Tony Wright Labour, Cannock Chase

There is, of course, a slight gap between the way in which we talk about Parliament and how it operates, and perhaps we ought to confess to that, in the interests of people who listen to our debates and read the reports of them. That was caught quite nicely by the casual remark of my hon. Friend Andrew Miller, the Chairman of the Regulatory Reform Committee, when he said as an aside that the Conservative members of that Committee do not turn up. I do not say that to make a trivial party point of the kind that we are prone to make; I say it only because we are talking about the great powers that should live within our Select Committees and how important it is that their will should prevail, and we then go on to talk about the glories of Parliament itself. Yet that is suddenly pierced when we see the reality of how such things work.

It is rather amusing in a way to watch the Opposition parties failing to agree on what would be appropriate for Parliament to do in the circumstances—whether it is better that a Committee should decide, whether the whole House should decide, or whether a percentage of the House should decide, all of which ideas depend on different versions of what Parliament is and how it operates. However, it is quite a perverse argument to suggest that the House itself should not decide on a matter before it. That argument is being put, because the House is governed by parties and inbuilt majorities. That is true; it is how our system works—but it is odd to pick away at that system in one little segment without acknowledging the fact in our wider deliberations.

That is a curious proposition, because anyone looking at it from the outside would think it a rather sensible procedure for the whole House—the Commons bit of parliamentary sovereignty—to exercise its power, so that it can constitutionally trump whatever a part of the House might decide. That would seem the constitutionally proper arrangement. Indeed, that is precisely how we proceed in the entirety of our business. To acknowledge publicly that we do not want to proceed in that way, as is being argued, is to give the game away, in a sense, about how this place operates. If we are going to do that, we should at least follow the argument through and give the whole game away, and not pretend that we can just give a little bit of it away.

I take this area of the Bill and the amendments seriously. They are crucial. As Mr. Heath just said, we are talking about one of the most objectionable bits of the first incarnation of the Bill. It was right to say that it would become less objectionable, or unobjectionable, only if an effective veto were put into the Bill to provide a mechanism to enable us to say, "It is not appropriate to use this mechanism for this purpose," and for that view to prevail.

The question is: have the Government inserted such a mechanism? The answer is: partly. We have, perhaps, a qualified veto. We have a recommendation power. However, if it is a veto, it could be argued that we have a provision to veto the veto. Then we are back to the arguments that I have just described about how Parliament works. Parliament can collectively decide what to do—but we know that in reality, that can subvert the mechanism that we think we have established to do a job for us. As has been said, we are talking about a Committee that has a Government majority anyway, so why do the Government need the reassurance of a veto on the veto when they have inserted a procedure that, on the whole, is thought to be satisfactory?

There may be disagreements about the mechanisms being recommended, but what unites everybody who is contributing to this discussion is the proposition that we want a strong rather than a weak veto. We want an effective veto, rather than an ineffective one. We are entitled to look to the Government to provide assurances about what is going to happen in the days to come to deliver that effective veto, so that this whole area of concern about the Bill is comprehensively removed. That is my main point.

I have one further point on a matter that has been raised already—trying to specify the grounds on which the qualified veto can be exercised by a Committee. Government amendments Nos. 46, 50, 54 and 55 insert that qualified veto, but they also set out the only grounds that a Committee may properly take into account when deciding whether to exercise that veto. Including in the Bill in that way the grounds on which a Committee may make a decision is entirely new. Previously, that has always been a matter for Standing Orders.

There are two difficult alternatives: either the courts will have the power to review proceedings in Parliament, or the limitation is entirely ineffective because the courts would hold that power without an express provision overriding article 9 of the Bill of Rights. They have no power to examine a Committee's reasoning, because to do so would be to "impeach or question" proceedings in Parliament. It is constitutionally extremely peculiar to invite the courts to review judicially the validity of parliamentary decisions. That is why a number of the amendments—including one tabled by me—seek to remove those parts of the veto provision.

I hope that when he replies, the Minister will assure us that the concerns being expressed about the effectiveness of the veto will be addressed, and that he will reflect further and deliver a veto that will be strong rather than weak, and effective rather than ineffective. I hope that he will reconsider whether it is necessary, or indeed constitutionally desirable or possible, to specify the grounds on which a Committee of the House can exercise its power.

Photo of Greg Knight Greg Knight Chair, Procedure Committee 7:00 pm, 16th May 2006

I rise to speak about Government amendment No. 46 and amendment (a) to it, which is in my name and the names of other members of the Procedure Committee. Amendment (a) is a cross-party amendment, although I am aware that some members of the Committee see it as a probing amendment, while others feel very strongly about it. Government amendments Nos. 46, 50, 54 and 55 introduce the Committee veto that we have been discussing in respect of the orders under the Bill.

The Procedure Committee recommended that a veto should be added to the Bill, so I give the Government one cheer for delivering the veto. However, in introducing that veto they have only partly met their commitment to the Committee, because they have sought to define the grounds on which the veto can be exercised. I have serious concerns about that on two grounds. First, as has been said by the hon. Members for Somerton and Frome (Mr. Heath) and for Cannock Chase (Dr. Wright), it raises the possibility that the courts might be encouraged to examine how a Committee reached a decision, and whether it did so properly. That would be clearly contrary to the accepted understanding of article 9 of the Bill of Rights, as the hon. Member for Cannock Chase said. It could draw the courts into areas that they have hitherto been at pains to avoid.

Secondly, and most importantly, the grounds themselves are narrowly defined and certainly do not live up to the Government's previous undertaking that no order would be proceeded with if the relevant Committee judged that it was an inappropriate use of the powers under the Bill—for example, because the matter was controversial. I refer Members to my Committee's first report of this Session—HC 894—and evidence pages 17 and 18. We received evidence from the Minister who was then at the Cabinet Office, Mr. Murphy, who gave at least three ministerial assurances on this matter—or perhaps I should say one ministerial assurance that was repeated three times.

The hon. Gentleman was unequivocal about the veto. In answer to questioning, he said:

"so our commitment is very clear, that we will not seek to do anything which is highly controversial. The Select Committee will make a judgment on that and the Select Committee can veto any recommendation from a minister."

During the same evidence session, he went on to say:

"Ultimately, the sanction that select committees have is, 'It doesn't feel right. You have overstepped what we anticipated and we are not willing to give our consent to this going forward either in the way you propose', so it should not be a negative, it should be an affirmative order or it should be super-affirmative, 'or it should not go ahead at all'."

Later, he returned to the scope of the veto and, referring to what the Committee could do, he said:

"so they can either move it up one, or move it up two in fact, so they can move it from negative to super-affirmative, or indeed they could just say, 'We don't think this is suitable at all for this committee', and we are back to the drawing board to seek an alternative way of implementing the order."

There was no mention of restrictions on the use of the veto, which are now before us.

My Committee's amendment, and others, would remove the definition of the grounds for the use of the veto, thus leaving open the possibility that an additional veto, which could be exercised outside a Committee, could be introduced by Standing Orders.

Photo of Hilary Armstrong Hilary Armstrong Minister of State, Cabinet Office, Minister (Cabinet Office) and Minister (Social Exclusion) and Chancellor of the Duchy of Lancaster

It might help the House if I remind the right hon. Gentleman that the evidence that he is citing was given before the amendments to limit the powers with regard to the orders were tabled. The Government have been very careful to limit those powers in the manner for which the House asked through the Select Committees that examined the matter. They simply linked the veto to the new restricted powers. Part of the almost circular argument that we are having is that although we have agreed the limit on the powers, it is said that the powers are now so narrow that the veto must be widened. I hope that the right hon. Gentleman understands what the Government were trying to do. During this debate, yesterday's debate on narrowing the powers is being forgotten. The Government tried to link the veto to the new definition of the powers.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

I am not sure that that is a valid point. The powers in the Bill may well have been narrowed, but that has been done only in line with what Ministers said the purpose of the Bill would be anyway. Ministers have introduced provisions that achieve what they told us, through assurances, that the Bill would be used for. I do not accept the point that the right hon. Lady is making.

We do not want to widen the veto, but we think that it should be exercised as was indicated by the former Minister when he gave evidence to the Procedure Committee: if a measure is controversial—although controversy is outwith the scope of the veto—a Committee should be able to veto it. That would not stop the Government getting their legislation through. As the hon. Member for Somerton and Frome said, we are merely suggesting that we should be able to say to the Government that the fast-track procedure is not appropriate in a specific case, so the measure should be subject to greater scrutiny. With the greatest respect to the right hon. Lady, she did not make a valid point at all.

If the Government are not ratting on a promise, they are certainly guilty of backsliding on an unequivocal ministerial assurance given to a Select Committee of the House. I hope that we will be able to vote on amendment (a) to Government amendment No. 46. Quite simply, the House should not put up with this.

Photo of Alison Seabeck Alison Seabeck PPS (Rt Hon Geoff Hoon, Minister of State), Foreign & Commonwealth Office

As a member of both the Regulatory Reform Committee and the Standing Committee that considered the Bill, I am generally pleased by the progress that has been made. However, I still have concerns about this group of amendments, especially Government amendments Nos. 46, 50, 54 and 55. Those concerns have been voiced with greater knowledge and expertise than mine by my hon. Friends the Members for Ellesmere Port and Neston (Andrew Miller) and for Cannock Chase (Dr. Wright).

Although the Regulatory Reform Committee's special report, which has been much quoted, has, it appears, provided the basis for many of the revisions that have been made to the Bill, no further amendment has been made to one or two aspects. However, there is still a case for both this House and another place to consider those aspects. That is why I have put my name to several amendments tabled by my hon. Friend the Member for Ellesmere Port and Neston.

In my view, and in that of the Regulatory Reform Committee and the Public Administration Committee, it is preferable that after an order has been laid, no draft order to the same effect, or any which, although it has been reworded or modified, would have the same effect, should be laid within two years. The veto as it stands does not bring with it the two-year moratorium that the Regulatory Reform Committee felt was appropriate as a matter of course. I hope that my hon. Friend the Minister will again consider proposing further changes, which could be brought forward in another place, to introduce such a measure.

The Regulatory Reform Committee felt that the demand for a two-year breathing space did not expect more from Ministers than at present, as they already voluntarily respect that rule. However, in the interests of our peace of mind, and with regard to possible abuse by future Governments and Ministers who are not so well disposed or responsible as the present incumbents, this matter demands further ministerial consideration.

Unless a Committee's veto was overturned by the House, the Committee would have significant powers—although, as hon. Members have said, its precise role is not exactly clear. Mr. Djanogly raised concerns too, so I hope that the Minister will clarify the time scale in which the veto must be exercised, because it is 10 days in the case of Government amendment No. 54, but a less specific period in the case of Government amendment No. 55.

There appears to be no scope for a formal veto if the real problem is an order being categorised as controversial or inappropriate. Members of the Standing Committee will recall that we could not get a clear definition of those terms, despite the then Minister's best efforts to provide reassurance. The Bill is thus narrower than the informal undertaking that has been respected since the introduction of the Regulatory Reform Act 2001. Will the Minister confirm whether such an undertaking remains on offer this time? If not, will he consider including it more formally in the Bill?

The Minister's predecessor said to the Public Administration Committee:

"to get the veto provision correct will take a great deal of work and thorough consideration".

There has been a great deal of thorough consideration, but we may still have work to do to ensure that the Bill meets the concerns raised in the House today. I hope that my hon. Friend the Minister will not rule out amendments that would insert the two-year restriction, following the gentle and friendly probing of Labour Members.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee) 7:15 pm, 16th May 2006

I almost stopped trying to catch your eye, Madam Deputy Speaker, because I agreed with everything said by my hon. Friend Mr. Djanogly when he moved new clause 5 and everything said by my right hon. Friend Mr. Knight and the hon. Members for Somerton and Frome (Mr. Heath) and for Cannock Chase (Dr. Wright). On these questions of parliamentary procedure, we are Members who are usually brought together across the Floor in such discussions. I speak only to underline the importance of the points that are being made for the benefit of those in another place. The general understanding outside is that the Government have made a substantial retreat, and it might be felt that the worst problems have somehow been solved and that there is not a great deal left to do. Unless the Minister makes an extremely generous response to the debate, I hope that Members of another place will examine seriously whether we are adequately reassured by what has been done.

I regard the Bill as dangerous because we are talking about circumventing the ordinary parliamentary processes of considered debate and judgment and using instead a fast-track procedure that might have broad application. I am prepared to take the risk of passing such a Bill because of my enthusiasm for deregulation. I have no reason to doubt the bona fides of either Minister who has handled the Bill in detail because both genuinely endeavoured to have as wide a Bill as possible so that they can deliver deregulatory measures. I look forward to reading the reports and finding out what has been delivered. I think that the Minister will be contending with the culture of Westminster and Whitehall, but I hope that his good intentions will produce something worth while.

We need the strictest safeguards when introducing a procedure that can further reduce the use of the proper parliamentary process for potentially difficult subjects. As my right hon. Friend the Member for East Yorkshire said, we should hold the Government precisely to the undertakings that the former Minister gave. I thus echo everything that has been said about the Select Committee having the right to exercise a veto at its own discretion, bearing in mind the concern that we have all expressed that the procedure should not be used to circumvent parliamentary procedure when a significant body of interest is entitled to be heard.

I have to say—this is about the only note of dissent that has arisen between any two Members who have spoken, because we have not yet heard the ministerial reply—that I have never been completely reassured by the Select Committee veto. Select Committees have an in-built Government majority. A year or two ago, the House was given the opportunity to reconsider the way in which Select Committees are appointed because of concerns that the powers of ministerial and Whips Office patronage were being brought to play in appointments to Select Committees. I do not want to discuss whether that is still true, but the danger is only too obvious—and it might recur. At present, there is a great deal of patronage. We are lucky that such good Chairmen as the ones who have spoken have emerged from the process. Nevertheless, there is an in-built Government majority.

The undertakings that were given from the outset were outlined in a precise quotation from my right hon. Friend the Member for East Yorkshire. We were reassured that the full parliamentary process would be used for any controversial procedure. In my opinion, that means giving an adequately large minority the opportunity to have their views heard and debated, and to insist that an important change goes through the correct process.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Is my right hon. and learned Friend concerned that the Government could lean on the more ambitious and younger members of the Select Committee to ensure that they come round to the Government's way of thinking, although that would go against the rules of the House?

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

The hon. Member for Cannock Chase gave some candid views on how the House works in reality. We should be careful about too much candour, but I have not the slightest doubt that Governments of all complexions use the process to which my hon. Friend refers if a Select Committee looks like it will be too difficult. There is, of course, a political process behind that, which we all realise has to be borne in mind.

I reiterate my belief that if a substantial body of opinion in the House wishes to insist on the full procedure, it should have the opportunity of doing so. I apologise to my hon. Friend the Member for Huntingdon for putting him in a slight difficulty, but I have no way of getting out of this because I shared a platform with David Howarth from which we advocated such an idea. In the end, that is the only satisfactory reassurance we can have.

The Liberals have been quite generous in putting the limits they propose beyond their reach as a single party. I am not sure why one of the three major parties of the House should be prevented from having a full parliamentary procedure if it so wishes, but I agree with my Front-Bench colleagues that that would involve much wider considerations, including the whole question of who determines what we debate on the Floor of the House and how we do it. That needs to be addressed.

I continue to hold the view that the one thing that will be completely beyond the control of the Government is stopping 10 per cent. of the Members of the House indicating, in some formal fashion, that they believe that the full process should go ahead. If we can get 10 per cent. to insist on that, it means that there is some interest, with which I probably profoundly disagree, that is entitled to have the full parliamentary process before the legislative machinery is changed.

My hon. Friends are worried about precedent. One of the most common arguments used by the civil service and others against deregulation is the precedent that might be created if we reopen something. Precedent has to be approached with caution. Let me make it clear: I do not think that the proposal establishes any precedent for allowing a minority to block legislation that has gone through the legislative process. It sticks in our craw when we have lost a measure by one vote, but one vote is sufficient in this place for the majority to overrule the minority. However, we must go through a process before that conclusion can be reached. I do not see precedent being created because of the unique nature of the Bill. We are talking about altering primary legislation by a process that cuts out all the ordinary legislative process precisely because of the need for speed and to avoid delay, and because we are so keen on deregulation.

Photo of Tony Wright Tony Wright Labour, Cannock Chase

Was not the right hon. and learned Gentleman's reference to the political factors the key consideration? Surely if the relevant Select Committee, with, as we keep saying, a Government majority, recommended that it was not appropriate to use the order-making power for the purpose proposed, and if the Government nevertheless sought to overturn that by using their majority to get a resolution of the House, there would be political consequences and it would be decided politically, which is how we decide everything in this place.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

That is why the constraint on the Select Committee to make that recommendation has to be removed. If the Select Committee makes a recommendation exercising a discretion and a political judgment that the process is unsuitable, I accept that it would be a bold Government indeed who went ahead with the change, although the point made was valid: we are not talking about the Government having to expose themselves to a full debate on the Floor of the House or some particular process to get their resolution through. We have now reached a stage at which half the time votes on orders and procedures have been reduced to a ritual part of the process of the House. If we are talking about the reality, the change would probably be decided by a deferred Decision on Wednesday, as I think the hon. Member for Somerton and Frome said. If we are being indiscreetly candid, probably a very high proportion of the Members of Parliament ticking the piece of paper would not bother to inquire closely exactly what subject they were voting on. It is too trivial a procedure to override such a change.

I do not accept that the small body of Members who have the privilege of being on the Select Committee should be our only protection. A substantial body of the membership is enough.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I welcome the Minister to her new task. She is doing her best, with all these concessions, to sort out a rather miserable process that she inherited. I acknowledge all that. However, my right hon. Friend the Member for East Yorkshire precisely and brilliantly responded to her main point. The undertakings were given by a Minister who said that the Bill would be used for only narrow purposes. I shall not go back to yesterday's debate, but I do not believe that the Bill as it stands has narrowed the scope of the powers to the scope described by the former Minister. It allows for far more than ordinary deregulation. That must be looked at again.

I hope lots of the orders go through. I hope the Government make liberal use of their new process. I undertake not to vote in deferred Divisions for trivial reasons to block deregulatory measures and upset the Government's timetable, or to cause difficulty. However, I want the reassurance that if a big body of opinion wants something debated, we will all be obliged to debate it and subject it to the full parliamentary process.

Photo of Hilary Armstrong Hilary Armstrong Minister of State, Cabinet Office, Minister (Cabinet Office) and Minister (Social Exclusion) and Chancellor of the Duchy of Lancaster

I want to make a point that I was never allowed to make in my previous incumbency, but none the less learned. The official Opposition can bring matters to the Floor of the House. When they chose to do so, the usual channels agreed with them, and such things were debated on the Floor of the House.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

I am being tempted to go into much wider issues on Supply days. That relates only to the Front Bench. There are occasions when Back Benchers feel frustrated that the leaders of their party do not wish to bring to the Floor of the House things that they want to debate. I do not often feel the frustration that a left-wing member of the Labour party must sometimes feel about the priorities given to business by his Front Bench, but there were times during the Iraq war when I was slightly impatient about the opportunities we had, the timing of the debates and the form of the motion proposed through the usual channels to be debated on the Floor of the House. On deregulatory matters to do with forestry and the licensing of vendors of game, one might often find that the two Front Benches and the usual channels do not have the monopoly of the views of every hon. Member about what the proper procedure should be.

I do not understand why Ministers are being so cautious. I have not doubted their good will because when I debated this matter with the previous Minister I believed him, and when I listen to these Ministers I believe them when they say that they have no intention of undermining Parliament and they intend to deregulate only on non-controversial measures. They give us every assurance that it has never crossed their minds to introduce politically controversial measures that might upset a significant minority or to avoid proper debate by taking it through their proposed process. I still cannot understand why the Government will not include that in the Bill, as they would bind all their successors—and not just themselves—if they did so. They are receiving advice from someone in the Department who does not share their deregulatory enthusiasm or who has a sneaking hope that one day a Government will get stuff through Parliament quicker and with less inconvenience. Why do the Government keep tabling late and mealy-mouthed amendments that do not live up to their undertakings? My praise for their deregulatory intentions would be followed by praise for their sensitivities to sentiments in the House if they tabled amendments—alternatively they could accept the amendments tabled by the Conservative spokesmen and by the Liberal Democrats—and include in the Bill something that they have been telling us since they first introduced it. I do not understand their reluctance to do so.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry 7:30 pm, 16th May 2006

I agree with every word that Mr. Clarke said, and I do not intend to add to his contribution. I shall, however, make a few points that have not been made in our debate.

Our debate has focused on two amendments tabled by my hon. Friend Mr. Heath that I am happy to support. Amendment (c) to Government amendment No. 46 removes from the Government's so-called veto—it is not, in fact, a veto—the requirement on the Committee to consider various things under clauses 2 and 3. New clause 14 attempts to provide a genuine parliamentary veto. I wish to make only one point about amendment (c). Yesterday, the Government were keen to tell us that their judicial review of ministerial discretion did not require the insertion of the word, "reasonably", in the Bill. That creates a problem, as what is sauce for the goose is sauce for the gander. The word, "reasonably", does not appear in Government amendment No. 46, but "considers" does. That leaves scope for judicial review, as long as the problem of the Bill of Rights is overcome, as Dr. Wright said.

The Government should therefore say categorically in reply to the debate that they do not intend the amendment to override provisions in the Bill of Rights that forbid the courts from interfering with what happens in the House. However, as the hon. Gentleman said, if they say that that statutory form of words is not intended to have legal effect, why have they introduced the provision, as there does not appear to be an enforcement mechanism? They are therefore left in an obvious dilemma: either they add words to the statute that do not have any effect, or they must do what should always be done in the circumstances—if one does not want words to have legal effect, one leaves the matter to convention or to the Standing Orders ofthe House, which are not justiciable. I fail to see why the Government have not taken that route.

My main argument concerns new clause 14. The procedural protections against the misuse of the Bill are still required, even though yesterday changes were made to the purposes for which the Bill can be used and to the subject matter to which it can apply. It can no longer be used to change itself, or to change the Human Rights Act 1998. However, we did not debate a far more important restriction—the proposal that the Bill should not be used to change any of the country's constitutional arrangements. We did not discuss that amendment, so it is possible to use the Bill for those purposes. Yesterday, we examined the example of changes to trial by jury, which is not protected by the Human Rights Act. The Bill could be used to make dramatic changes to that right, and it is still possible to reform local government using an order under the Bill. There is therefore a great need for procedural protections, which is why we have proposed such protections in new clause 14 in addition to the so-called Committee veto, which, as everyone knows, is not a veto.

The only argument against our proposal is that it will set a dangerous precedent. That argument suggests that we should not do the right thing now for fear that our slightly dim successors will not be able to tell the difference between the problem that we face and the problem that they face. Nevertheless, new clause 14 is not a departure, because there are such mechanisms, albeit with a slightly different construction, in Standing Orders. Standing Order No. 92 deals with what happens when a Bill has been considered by a Second Reading Committee or by the Scottish Grand Committee. The Report stage could take place in a Special Committee or in a Scottish Grand Committee. Standing Order No. 92 says that if a motion is introduced in the House to allow for that and 20 Members rise in their place and object,

"the Speaker shall declare that the noes have it."

Standing Orders already provide a blocking mechanism on procedure that requires a fuller hearing of the matter—in this case, the Report stage—than would otherwise be the case. That is precisely what we are trying to do in new clause 14.

Photo of Roger Gale Roger Gale Conservative, North Thanet

The hon. Gentleman has the text of the Standing Orders before him, and he is quite right. I do not have the text with me, but I think that I am right that it does not specify that those Members should come from more than one party in the House.

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

The hon. Gentleman is quite right—the standing order does not provide that extra protection. However, new clause 14 does so: Members who object to the use of the procedure should not all come from one party.

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

Another blocking mechanism can be deployed by a minority of one. It is often seen and heard on Friday afternoons when we debate private Members' Bills. It is usually the role of Mr. Forth to shout, "Object", thus preventing the progress of such Bills. A blocking minority can therefore act to procedural effect.

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

Indeed, that is a blocking minority of one from one political party.

The purpose of new clause 14 is to protect minorities. It provides geographical protection—we have heard the point about local Acts—and it also protects political minorities in the House and within parties. A matter can be controversial for a substantial number of Back Benchers, but it may not be controversial for their Front-Bench spokesmen. We need a mechanism that allows such minorities not to block the progress of legislation completely, but to demand further debate.

Photo of Roger Gale Roger Gale Conservative, North Thanet

The hon. Gentleman is kind in accepting interventions, but he has contradicted himself. He says that the provision is meant to protect minorities, including minorities in a single party. Forgive me, but it is not inconceivable that 70 members of the parliamentary Labour party would disagree with their Front Bench, as they often do so at present. If they wished to object, but did not receive any support from the Opposition, their objection could not be heard under his proposal.

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

At least the position of those Members would be better than it would be if the new clause is not accepted. The hon. Gentleman, if I may say so, is making the best the enemy of the good.

The purpose of the new clause is to make sure that in circumstances where the matter before the House is controversial in the minds of a sufficient number of Members, the full Bill procedure will be used. The main problem that we have had with the Bill all the way through is that Ministers have told the Committee that they did not intend to use the procedure for controversial matters, but they have not been prepared to offer any substantive definition of "controversial". That is why, to extract Ministers from that difficulty, Members on the Liberal Democrat Benches and in other parts of the House have tried to solve the problem procedurally. New clause 14 offers, in effect, a procedural definition of what is controversial.

I cannot understand why the Government resist. They do so, presumably, because they do not want written into the Bill matters that could possibly become subject to judicial review. They want to protect themselves from the courts, but, with their own system of a Committee veto, they are offering a line of argument that may well lead to the Committees of the House being subject to exactly the same review in the courts. I find that to be precisely the wrong way round. It ought to be Ministers, more than Committees of the House or the House itself, who are subject to the courts.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

May I begin by offering the House a point of information relating to a point of order raised earlier about the regulator's compliance code? I am advised that that was sent to the joint Chairmen ofthe Standing Committee which considered the Bill on3 April, and that copies of that draft have been placed in the Libraries of both Houses, so I believe the document is available, even though—

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

The Minister may know that that has been the subject of discussion between one of the Ministers' offices and my own. I think it was I who raised the matter in Committee and asked that the code be made available to Members, and I was given no notification at all when the letter was sent to the Committee Chairmen. We were left floundering about, not knowing that it was in the Library. That was most unhelpful.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

I understand the point that the hon. Gentleman is making. I was trying to be helpful to the House by providing the information that I could find today about how the document had been distributed.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

For clarification, the letter to which Mr. Heald referred was the subject of a parliamentary question that I tabled, so it was in the public domain and he could have found it.

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

It is pretty discourteous for the matter to be left in that way, when I had specifically raised it in Committee.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

May I suggest that we return to the issue at hand?

Listening to the contributions on the veto power, I am struck by a curiosity. Yesterday there were many contributions from hon. Members who argued that the powers set out in new clause 19, 20 and 21 were perhaps an improvement on the original version of the Bill, but that they were still far too wide. They could be used, for example, to abolish trial by jury—we heard that again a few minutes ago—introduce euthanasia, and possibly even recast our relationship with the European Union, yet today, in the discussion of the veto, which is related to those same clauses, the powers in them appear to have shrunk. We are told that the veto is not worth much because it is related to those powers, which yesterday were criticised as being so wide. Today they seem to have shrunk so much that they might not apply to our friend the Wolverhampton butcher. There is a curiosity in the criticisms of tying the veto to the powers set out in new clauses 19, 20 and 21.

Photo of Roger Gale Roger Gale Conservative, North Thanet

In the light of the letter that the Minister kindly sent to me earlier today, which is about powers in new clause 19, can he explain what he had in mind when he wrote that letter?

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

With the Deputy Speaker's permission, I am happy to do so.

The legal effect of new clause 19 relates to the power to remove or reduce burdens. The purpose for which the power can be exercised contains two alternatives. The first is the removing or reducing of any burden resulting for any person directly or indirectly from legislation. The second is removing or reducing the overall burdens resulting for any person directly or indirectly from legislation.

Removing or reducing a burden from one person may increase the burdens upon others, so the first alternative could permit an overall increase on persons as a whole. For example, where a regulatory regime is being placed on a risk basis, costs on low-risk businesses could go down, while costs on high-risk businesses may go up.

The second alternative requires a removal or reduction of burdens overall, although this would permit the imposition of new burdens where the overall effect was a removal or reduction of burdens. This is similar to the position under the 2001 Act; if a burden is removed, new burdens may be added. Orders as a whole, including any new burdens, must meet the safeguards, including, for example, being proportionate to the policy objective of the order.

In particular, I draw the hon. Gentleman's attention to the precondition in clause 3(2)(c), which requires that Ministers consider that the provision as a whole

"strikes a fair balance between the public interest and the interests of any person adversely affected by it".

This precondition, which is clearly particularly relevant where burdens are imposed or increased, also mirrors the existing position under the 2001 Act. The explanatory document will include both a summary of consultation responses, and an assessment of the extent to which an order to be made under new clause 19 removes or reduces burdens. Also, a detailed impact assessment would be provided, where appropriate, and these documents would explain the rationale behind the proposals.

The expectation is that in most cases the overall burden will have been reduced, but for the reason stated the Government believe that we need the flexibility to add burdens as well as remove them, if these burdens are to be useful in delivering better regulation.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 7:45 pm, 16th May 2006

I am grateful to the Minister for that explanation. In summary, when he replied yesterday to my question whether, on his interpretation of new clause 19,

"it may well result in this procedure being used in circumstances where overall burdens will be increased, rather than decreased"—[ Hansard, 15 May 2006; Vol. 446, c. 783.]

and he said no, what he really meant to say was yes.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

What I have set out would be the intention in most cases, but there is the possibility that I outlined to the hon. Gentleman a few moments ago.

Photo of Robert Smith Robert Smith Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Energy and Climate Change)

Having clarified that and confirmed that the evidence from the Department to the Select Committee on Procedure was to the effect that burdens could be increased under the clause, is the Minister not creating the ground on which we need an effective and sophisticated veto system to ensure proper scrutiny, if the Government are to use a regulatory reform or regulatory deregulation Bill to increase the burdens on society? Measures should be properly and effectively scrutinised in the House to make sure that they do not unnecessarily increase burdens. We therefore need the amendments that we tabled to constrain the procedure through which the House might examine those burdens.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

Well, I think that that is what people call "a stretch", although I agree with the hon. Gentleman that we need effective scrutiny procedures. If hon. Members allow me to proceed with my remarks, I shall set out how those scrutiny procedures will operate.

Government amendments Nos. 46 to 55 fulfil a commitment made in Standing Committee to provide parliamentary Committees in both Houses with a statutory power to veto orders. Noting concerns about the procedural safeguards in the Bill, Government amendments provide that Committees can veto orders under any procedure; negative, affirmative and super-affirmative.

I want to stress at the outset the important point that the Government have given careful consideration to the form that the promised veto should take. We have sought to listen and to respond to views on the issue raised during the passage of the Bill, including those of the Select Committees, most of the Chairmen of which have spoken, and we hope to continue that dialogue. I assure hon. Members that the Government will continue to listen to views on the most appropriate way to ensure that the safeguards in the Bill are effective and workable.

As has been said, the veto is not a blanket veto. Committees will, of course, be able to oppose an order on any basis that they choose, which is the case under the Regulatory Reform Act 2001. Several hon. Members have asked me to clarify that matter, and I reiterate the Government's commitment not to push through orders in the face of Committee opposition. I must add that the Government have always adhered to that commitment in the operation of the 2001 Act.

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

The Minister has said that the Committee can reflect on any matter in reaching its recommendation. Government amendment No. 46 states that

"A recommendation may be made under subsection (2B) only if the committee considers" the criteria. How can that mean "anything"?

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

The statutory veto relates to the powers set out in the Bill. If it were operated, it would mean that the order could not continue to be made by the Minister. However, it would not constrain the Committee from opposing the order on other grounds, in which case the legal consequences would not be triggered and the Minister would seek to adhere to the terms of the undertaking. The statutory veto relates to the powers in the clauses that we discussed yesterday, but the Committee can express a view in other terms, should it wish to do so.

Photo of Kenneth Clarke Kenneth Clarke Chair, Tax Law Rewrite Bills (Joint Committee)

Will the Minister explain the logic of that proposition? He rightly accepts that the Select Committee will be totally unconstrained when it comes to considering the merits of an order, so if it wants to vote against an order or express a view, it can consider anything it likes. When it comes to what procedure should be followed, however, the Select Committee would be tightly constrained by the terms of the statute. What on earth is the point of allowing the Select Committee full discretion on debating the merits of an order, but to confine it so closely on the procedural point of cutting out parliamentary debate? There could be orders that the Select Committee is against, but on which it approves of the procedure, and there could be ones of which it is in favour, but on which it thinks that there should be full procedure, because it knows that many other hon. Members want to consider the matter. Why distinguish between the two?

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

The position is symmetrical because the statutory veto relates to the powers in the Bill, which is the point made by my right hon. Friend the Minister for the Cabinet Office in her intervention on the Chairman of the Procedure Committee. We were asked to introduce a statutory veto, but we were also asked to narrow the powers in the Bill. The Government amendments include a statutory veto, which relates to the narrowing of the powers in the Bill that the House agreed yesterday.

In the context of amendments to focus the order-making power more explicitly on better regulation objectives, it was considered appropriate for the veto to provide a symmetrical and focused check on that power. The Government consider it right that proposals are judged on the extent to which they deliver the regulatory reform agenda, and it is right that the proposals are judged on whether the conditions in the Bill are met.

First and foremost, the veto is intended to present an effective and workable mechanism to protect against the abuse of the order-making power in the Bill. To that end, the veto builds directly upon the strengths of the existing system for scrutinising orders. The conditions to which the veto is tied are consistent with those contained in the Standing Orders of relevant Committees under the 2001 Act, conditions against which Committees have previously tested and, in one case, rejected regulatory reform orders. The Government believe that those conditions continue to represent key indicators on whether a proposal is suitable for delivery by order.

Additionally, the veto addresses concerns surrounding a Minister's capacity to implement Law Commission recommendations "with changes", which has raised questions about the extent to which a recommendation can legitimately be altered when it is delivered by order. In a case in which a Committee judges a recommendation to have been changed to such a degree that the recommendation can no longer be seen to implement a recommendation of the Law Commission, the Committee can exercise the statutory veto. As has been noted, however, the Government acknowledge the need for continued discussion about the most appropriate way in which to take forward the provision of a veto for Committees, which is a delicate issue. As was said yesterday, one of the reasons why the Bill is delicate is that it touches not only on what the Executive may want to do, but on the relationship between the Executive and Parliament, which is why we are open to continued discussion on those matters.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee, Chair, Regulatory Reform Committee

I am grateful to my hon. Friend for the tone that he is adopting and think that further discussion is necessary. Will he ensure that the point made by my hon. Friend Dr. Wright is covered in that discussion? It would be unacceptable to the House and, indeed, to the Executive if we were to end up in a position in which the work of a Select Committee could be subject to judicial review.

Photo of Pat McFadden Pat McFadden Parliamentary Secretary (Cabinet Office)

I am happy to take that point on board in the ongoing discussions, in which I hope that the Chairman of the Regulatory Reform Committee will be an active participant.

A number of the Opposition amendments to new clauses 5, 6 and 14 and to Government amendments Nos. 46, 50 and 54 explore alternative arrangements for the veto. I hope that hon. Members will consider the issues raised during the debate and the rationale for focusing the veto on the powers and conditions in the Bill. I also hope that they are assured of our intention to continue to engage with Parliament on that issue.

Some of the amendments deal with the issue of where the responsibility for exercising the veto should lie. They specify that the Committee capable of using the veto should be one

"with responsibility for the matter".

Presumably, the rationale behind the amendments is to open the issue of changes to the structure of Committee scrutiny of orders. For instance, the amendments would allow separate Committees to perform procedural matters and the task of reporting on the substance of a draft order. It seems appropriate for the scrutiny of orders to be performed by a single Committee, which would make best use of the understanding of an order built up by a Committee. The Government have assumed that the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in another place will continue to perform those roles, but I stress that those matters are for the House and that, in principle, there would be no objection to other Committees with expert knowledge being involved in the scrutiny of draft orders.

As hon. Members know, it has been agreed to expand the remit of the Regulatory Reform Committee. The Government expect it to be appropriate for Standing Orders to reflect the potential need for the Committee to seek expert views from other Committees on particularly complex orders. As noted, that is ultimately an issue for Parliament to decide.

Hon. Members have also tabled amendments that would remove provision for the House to overturn a veto exercised by its responsible Committee. To provide that a Committee decision could override the opinion of the House would be an unprecedented step that ultimately could be unworkable in practice. In new clause 14, however, hon. Members suggest a mechanism for the House of Commons to exercise a veto, whereby if a certain percentage of MPs objected to an order in writing, that order would have to be withdrawn. That percentage is set at 10 per cent.

The Government are committed to ensuring that the procedural safeguards in the Bill are robust and effective. However, the amendments would create a somewhat arbitrary arrangement which, crucially, does not build on the strength of the existing system for scrutinising orders—namely, the detailed scrutiny given to orders by the specialist Committees. In any case, under the affirmative and super-affirmative procedure, a proposal must, following Committee scrutiny, pass to the House for affirmative resolution. Some hon. Members suggested that the House is excluded from these matters, but that is wide of the mark.

There was then a discussion on proposals for a two-year rule whereby once an order had been vetoed a Minister could not table a similar order for the next two years. I understand the reasoning behind those amendments. They seek to ensure that a veto system cannot be abused by a future Government, a point with which I have considerable sympathy, and which ultimately constitutes the rationale for Government amendments to introduce a veto into the Bill. However, we would want to avoid imposing an arbitrary restriction on the order-making process, and I am concerned that the amendments may do precisely that.

New clause 6 proposes that where either House decides within 21 days that an order is inappropriate for delivery under the order-making power, it should be the subject matter of primary legislation. That arrangement could be difficult to operate. The Cabinet Committee on the Legislative Programme takes decisions each year on which proposals the Government will take forward by primary legislation. As provided for in clause 12, the explanatory document will describe to Parliament why a proposal is suitable for delivery by order. The legislative programme is carefully planned, and adequate resources need to be in place to take forward a Bill. A procedure such as this, whereby an order could suddenly be translated into primary legislation, could cause unmanageable uncertainty and potentially create a very overcrowded legislative programme. I hope that hon. Members accept that we could not support such an amendment.

The Government recognise—this was touched upon—that there are issues surrounding the level of procedural detail that should be contained in statute and in Standing Orders. The Procedure Committee, for instance, has recommended that as far as possible the procedural requirements for scrutiny of orders should be left to House authorities. I have provided assurance that the Government will continue a dialogue with the Chairs of the relevant Committees about appropriate changes to Standing Orders, and I have confirmed, and am happy to confirm again, my intention to listen to views on this issue.

Our priority is to get the Bill right, to have a workable system of scrutiny, and to achieve the right balance between creating a power that is able to deliver the regulatory reform agenda and ensuring that effective and robust safeguards are in place. The veto clearly plays an important role in achieving that balance. The Government are confident that in the veto provided we have the substantial and workable safeguard that Committees have requested. However, we will continue to listen to views on the most appropriate form that the veto should take, both during the passage of the Bill and in relation to amendments to Standing Orders once the Bill has been passed.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I thought that the Minister had sat down, and I think that my interpretation was correct. I call Mr. Jonathan Djanogly.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

We have heard many significant concerns voiced by Members from all parties. We do not like the way in which the Bill is being taken through this House, and we do not like much of what it is in it, but, as my right hon. and learned Friend Mr. Clarke said, we are putting up with it for the sake of deregulation.

It is somewhat bizarre to hear the Minister suggest that the wider veto is somehow related to there being narrower powers. We say that there must be safeguards and that there are not enough safeguards in the Bill as it stands, not least as regards the promised veto, which turns out in practice not to be a veto. I hear the Minister's offer of further consultation; we shall see. In the meantime, we had expected that a full and restrictive veto should be given to Select Committees, and we still expect that. On that basis, I intend to ask the House to divide on new clause 5.

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

The House divided: Ayes 205, Noes 256.

Division number 236 Orders of the Day — New Clause 5 — Delay in proceedings under section 13

Aye: 205 MPs

No: 256 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.