New Clause 15 — Sub-delegated legislative functions

Orders of the Day – in the House of Commons at 8:00 pm on 16th May 2006.

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'(1) Where, by an order under this part, the function of legislating has been conferred on a person, any legislation that person makes must be made by statutory instrument.

(2) The procedures specified in section 10 and section [Veto by specified number of Members of House of Commons] shall apply to any legislation made by any person on whom the power to legislate has been conferred under this part.

(3) Any person on whom the power to legislate has been conferred under this part shall be subject to the same duties to consult before exercising that power as those to which a minister of the Crown is subject under section 11.

(4) Legislation made by a person on whom the function of legislating has been conferred under this part—

(a) may not delegate further any power to legislate,

(b) may only be made for purposes for which orders under this part may themselves be made, and

(c) is subject to the same restrictions as orders under this part.'. — [Mr. Heath.]

Brought up, and read the First time.

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

With this it will be convenient to discuss the following amendments: No. 5, in page 2, line 16 [Clause 2], leave out '(functions of legislating or'.

No. 9, in page 2, line 21 [Clause 2], at end insert—

'(2A) Provision made under subsection (2)(a) may only confer functions relating to the functions of legislation subject to the provisions of section (sub-delegated legislative functions).

No. 7, in page 3, line 13 [Clause 4], leave out from 'on' to 'unless' in line 14 and insert 'any person'.

No. 8, in page 3, line 23 [Clause 4], at end add—

'(5) Subsection (1) does not apply to—

(a) provision conferring a function of regulating a profession on a body elected by members of the profession;

(b) provision conferring a function of regulating a trade on a body elected by members of the trade;

(c) provision conferring on a local authority, within the meaning of section 1 of the Local Government Act 2000 (c. 22), the function of legislating with respect to its area; or

(d) other provision specified by order made by a Minister of the Crown.

(6) An order under subsection (5)(d) must be made by statutory instrument.

(7) A Minister of the Crown may not make a statutory instrument containing an order under subsection (5)(d) unless a draft has been laid before, and approved by resolution of, each House of Parliament.'.

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

The matter of the implied repeal of the Bill of Rights is of some consequence, and I think that it may well be a matter for the Chair or, indeed,Mr. Speaker, to protect the rights of the House, but that is not what new clause 15 is about. The new clause deals with the capacity conferred by the Bill to delegate the function of legislation. It is, at first sight, a rather extraordinary concept—the idea that Ministers might, by Order in Council, confer to any other person the function of legislating. Of course, delegated functions already occur through primary legislation in a number of cases, but when we asked Ministers—in Committee and elsewhere—exactly what they meant by the provision in the Bill, I have to say that the answers were less than convincing and less than adequate. There is no clear idea of why there is a need for Ministers to defer through an Order in Council what is the most important aspect of Parliament's work—the legislative function—to any other person. There is, I accept, an argument for allowing the function of levying fees or changing a fees regime to be delegated to another person, which is why we have framed our new clause in a different way from the amendment that we tabled in Committee, and why it does not deal with that issue.

We would have liked a full debate on this subject yesterday in the context of new clause 19, but as you know, Mr. Deputy Speaker, our procedure yesterday did not entirely allow for that. The new provision was originally in clause 2, but now lies in new clause 19 and the subsequent new clauses. We would have liked at that point to move amendments reducing the capacity to delegate the function of legislating, and to have divided the House on them.

Two things alarm us. First, we have to ask whether it is right to give, through secondary legislation, the legislative function to another person—whomsoever that may be—who is not a legislator; not a Member of this Parliament. The second and most relevant question is that even if one accepts the need to delegate the legislative function—which I do not—why on earth is the legislation that such a person can then create via the delegated power not subject to the same caveats to which the Minister who conferred that delegated function is subject? Why, moreover, is such legislation not subject to the same parliamentary protections—albeit inadequate, as we have just been debating—to which it would have been subject, had it been put through the House via secondary legislation?

The case is absolutely unanswerable. I am prepared to listen to arguments from the Minister on the need to delegate a legislative function, although I am still at a loss to know in exactly what circumstances such a power would be used. However, I will not accept, under any circumstances, that such a power should not be subject to the same restrictions, caveats and the so-called veto that we have applied to matters properly before legislators: in other words, Members of this House acting in a legislative capacity in a Select Committee or in a Statutory Instrument Committee.

The suggestion is entirely preposterous. I know that we sometimes seem to defer our legislative functions to all sorts of people, but at least we try to maintain the fig leaf whereby we legislate in this House on the basis of information that we have. Ministers will be allowed to wash their hands completely of legislation that is the product of this provision. They will not be interested in whether it complies with the regulatory principles or falls within the narrow constraints on Ministers' ability to delegate through such means, which we have just been discussing.

We must remember that we are talking about amendment to primary legislation. Primary legislation will go through all its parliamentary stages and, a few years later, a Minister will be able to say, "I'm going to amend this legislation, but I'm not going to tell you how. I'm going to delegate that function to another person whom the House does not know and whose capacity they do not know, in order that they can make amendments that the House does not know about, and which will never go back to the House for corroboration or scrutiny."

I do not think that that is the way that the House should do its business. It is an error of judgment. I know that the Minister will say, "It's nothing to worry about. We're only talking about a few learned bodies and things like that, and they must be allowed to make their own rules," but I do worry about it—that is my job. It is the job of all hon. Members to worry about whether we allow other people to make legislation on our behalf without the appropriate restrictions.

Mr. Miller, the Chairman of the Regulatory Reform Committee, also has amendments in this group. From his body language, it is clear that he shares some of our concerns and that he is itching to speak. Given the abbreviated time available I shall not delay the House, save to say that amendments Nos. 5 and 9 fall, as they apply to something that yesterday was deleted from the Bill by a decision of the House. However, new clause 15 is still relevant as it sets out the principles that should apply in this matter and would restrict the capacity to delegate the legislative function.

I hope that we will get satisfactory answers from the Minister, but I expect that he will not be able to satisfy my concerns as he has not put forward his own amendments to bring the delegated legislative function within the compass of his constraints. It is likely that I shall wish to divide the House, but I hope to get some support from other parties.

Conservative Members who share my concerns may feel put off because the new clause refers to the veto. They were unable to support that proposal earlier, but it has now been disposed of. This is an important issue and we must send the clearest possible message to the other place that it requires appropriate amendment. For members of the principal Opposition party to sit on their hands in respect of such an important matter would be extremely unhelpful, and I entreat them to show their support in the Lobbies, whatever their reservations about one small aspect of the new clause.

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

In view of the time, I shall be extremely brief. I wish to move the two amendments in my name, which fill the gap—

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

Order. The hon. Gentleman does not have to move his amendments, but merely speak to the group.

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

Amendment No. 7 would change the default position and ensure that the positive and negative procedures that apply to Ministers would also apply to any grantee of the power to legislate, unless an exception applied as set out in amendment No. 8.

I shall give the House practical examples of how that would work. The North Western and North Wales Sea Fisheries Committee is made up of local authority appointees and others, including lay persons. It has been involved in long and complicated machinations about illegal cockle fishing on the Dee estuary with the Environment Agency Wales. A regulating order has been passed, but it needed the authority of the EAW and the Department for Environment, Food and Rural Affairs. It would be intolerable if such a body could regulate on its own. I do not believe that that was the Minister's intention, or that of his predecessor, in drafting the order and my amendments are merely intended to help to resolve the situation. I could give further examples, but in view of the time and the fact that it is essential that we hear from the Minister on this important point, I shall conclude my remarks.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 8:45 pm, 16th May 2006

The original Bill attracted widespread criticism because it allowed such wide sub-delegation. Throughout our proceedings, the Opposition and, indeed, the Liberal Democrats, have tried to frame amendments in a way that might lure the Minister into accepting them. We did not get far in Committee, but things are going a bit better now, so I hope that the Minister might at least give us some assurances about later stages of the Bill in the other place.

I accept that there could be one sub-delegation to achieve the mergers that we were talking about yesterday in respect of the Hampton review, where it might be necessary to allow sub-delegation to a regulator—a point that I discussed with the Minister's predecessor in Committee. However, to allow the possibility for continuous, chain sub-delegation, whereby there is sub-delegation to one person who has the power to make secondary legislation, including the power to sub-delegate again, and so on, is a bit much—or a lot too much. New clause 15 is aimed at that situation. I support the idea that there should be a limit to the amount of sub-delegation—the length of the chain.

The point that there should be proper consultation before the use of secondary legislation for such purposes is well taken, so although, as Mr. Heath rightly pointed out, I have reservations about subsection (2) of the new clause, given that the House did not vote for the provision that a veto by a specified number of Members of the House should be added to the Bill, I do not feel constrained by that technical point in supporting the new clause. We certainly support the new clause and I shall be interested to hear the Minister's response to it.

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

I was pleased to hear that Mr. Heald accede to the case for sub-delegation in some circumstances. The question before us is twofold. New clause 15 suggests that those to whom powers are sub-delegated should be subject to the same parliamentary processes as a Minister making an order. Powers to legislate are already exercised by entities other than Ministers in situations where statutory instruments are not always appropriate—for example, there are local authority powers to make byelaws that are not subject to any parliamentary procedure, but instead have to be authorised by the Secretary of State and must have set model procedures. The conditions set out in the new clause would not cater for those powers and as a result would require extensive public consultation and parliamentary time when that would often be inappropriate or unnecessary.

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

Given the time available, I would rather make some progress.

When making an order that confers a power to legislate, the nature of that power will be considered on a case-by-case basis and the order will set out the appropriate procedural requirements, depending on whom the power is conferred and its subject matter. That is the best approach, rather than being too rigid.

In our short debate, there was a question about whether someone could "sell on" the power sub-delegated to them. No, they would not be able to do so.

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

I should like to press on.

Amendments Nos. 7 and 8, tabled by my hon. Friend Andrew Miller, do not suggest that sub-delegation should not happen. He attempts to produce a list that defines to whom the phrase "any person" might apply. As with his contributions throughout these debates, there is much sense in what he suggests. There are various instances in which powers to legislate are exercised by bodies other than Ministers, and he has attempted to define some of them in amendment No. 8 and in his contribution. We do not propose to accept those amendments tonight, but I can tell him that the effort to define the term "any person" more clearly is something that we hope to reflect on, consider and return to, as the Bill makes progress in another place.

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

Order. Is the Minister giving way to the hon. Gentleman?

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Instead of intervening on the Minister, perhaps I can make one of the shortest speeches on record.

Will the Minister explain his assertion that the Bill does not allow the right to sell on legislation, to use his words? Perhaps he can point to where that is specified in the Bill.

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

I thank the hon. Gentleman for giving way, especially as doing so probably spoils his effort to make the shortest speech of the evening, but I should like to encourage him in his question. If the provision in the Bill that sub-delegates the power to legislate in the first place were to include the possibility of further sub-delegation, and that was part of the original order, there is no reason to believe that further selling on of the power to legislate should be excluded.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

That is a fair point, but it does not address my point about where that is dealt with in the Bill. The whole House has been enormously impressed by the way that the Minister, having picked up this brief only about three days ago, has mastered the intricacies and nuances of a very difficult and incredibly important Bill that goes to the very heart of our parliamentary democracy. The House has noted the Minister's grasp of the issue and is very impressed by it—

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Not but—and I have spent some time reading the Bill and perhaps I have missed it, but I cannot see where the power not to sell on, in the Minister's words, is specified in the Bill.

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

I advise my hon. Friend to read paragraph 31 of the volume of Halsbury's Laws on administrative law and Bennion on statutory interpretation, where he will find the well-established legal principle that a statutory power must be exercised only by the person to whom it is given and that it cannot be sub-delegated to someone else, unless that it authorised.

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

That is the exactly the point—unless it is authorised.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The point is very well made from a sedentary position by David Howarth. The provision is qualified by the phrase "unless it is authorised". The House will be delighted by the parliamentary footnote. As someone who loves footnotes in books, I thought that the Minister's Halsbury footnote was a delight, but I hope that he will address the hon. Gentleman's intervention.

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

Perhaps I can help the House further. In the case of our Bill, explicit wording would be needed to authorise further delegation of legislative powers. Given that the Bill does not contain such provision, such further delegation would not be possible. The Bill does not say so in the way that the hon. Gentleman suggests.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

I hope that the Minister is right, but it is very worrying that this is a fundamental parliamentary principle and we have moments before the knife falls on the debate. There is no point in discussing that, but such things should not just be rubbed through like that and the House and the other place must return to these things not in a gabbled way under the edge of a knife falling on the debate, but in a serious way. I am sure that the Minister intends to justify the position, and I hope that he can do so with his mastery of the footnote. However, as things stand, I am more persuaded by what the hon. Member for Cambridge said from a sedentary position. He feels that there are problems. These matters are too serious to buff through.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The key point is that if there is a statutory instrument or order under the Bill that enables sub-delegation, sub-delegation can ensue. Only if the original Bill contained a provision saying that there could not be sub-delegation would that be, subject to judicial review, ultra vires. That is what we are asking for.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

I am afraid that these issues are too nice—in the true sense of the word—to tease out in three and a half minutes, but they are very important and we are going to have to come back to them. We cannot allow this legislation finally to pass on to the statute book without being clear about what we are doing. The Minister may be clear and he may well be right. He has earned the right to our confidence. He has shown that during the debate today and yesterday. However, we cannot afford to give him the benefit of the doubt. He has to justify that to the House. We have to be extremely careful about what sub-delegation we are making.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

In terms of what the Minister said in response to amendments Nos. 7 and 8, which were tabled by my hon. Friend Andrew Miller, can the Minister assure me—I was not clear from what he said—that he was minded to accept the spirit, if not the wording, of those amendments?

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

That was a short, but informative debate. I agree that the Minister has been doing a good job in rather disadvantageous conditions over the past two days. I hope that next time he comes before the House with a Bill, he has a better Bill to work with. His officials are rather over-reliant on interpretations from Halsbury and insufficiently prepared to look at the common sense of what is written in the statute. Quite clearly there is no exclusion in the statute in relation to sub-delegation—a quite proper matter for the House's concern.

The idea that the requirements on consultation, which are contained in clause 11, are an unsatisfactorily onerous duty for somebody who is legislating under a delegated function is quite wrong. If someone is making legislation that is binding on other people—even if it is only a few people—is it entirely improper that they should consult such organisations as appear to them

"to be representative of interests substantially affected by the proposals"?

I would suggest not. It is proper for delegated functions of legislation to fall within exactly the same constraints and to have exactly the same terms of consultation and procedures as any other matter handled under the accelerated procedure.

We still have some very big question marks—notwithstanding the Minister's preparedness to talk to the Committee and perhaps bring forward further proposals at the next stage of the consideration of the Bill in another place. Who knows, he may bring forward things that are of interest at that point, but that will not happen before this House today and, on that basis, we must seek the advice of the House, and I will press new clause 15 to a vote.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

On a point of order, Mr. Deputy Speaker. Will you confirm that parts 2 and 3 of this very important Bill will remain unscrutinised on Report and that that disgraceful state of affairs arises only because of the terms of the Government's own guillotine motion?

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

I can confirm only that it begins to look extremely improbable that the other parts of the Bill are going to receive consideration.

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

The House divided: Ayes 200, Noes 259.

Division number 238 Orders of the Day — New Clause 15 — Sub-delegated legislative functions

Aye: 200 MPs

No: 259 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly negatived.

It being after Nine o'clock, Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [15 May].