With this it will be convenient to discuss the following amendments: No. 63, in clause 13, page 7, line 17, leave out
‘about the draft as he thinks fit’ and insert
‘appearing to the authority to represent any interests concerned as the authority considers appropriate’.
No. 62, in clause 13, page 7, line 17, leave out ‘as he thinks fit’ and insert
‘appearing to him to represent any interests concerned and make available the details of the evidence provided’.
No. 64, in clause 13, page 7, line 19, leave out subsections (2) to (6) and insert—
‘(2)If following the consultation process under subsection (1) the Secretary of State decides to proceed with a draft (either in its original form or with such modifications as he thinks fit), he shall make a draft instrument containing the code (or revised code) for approval by resolution of each House of Parliament.’.
No. 65, in clause 13, page 7, line 33, leave out subsection (8).
The amendments will guarantee that all interested parties will be able to be consulted in a transparent manner prior to the drafting of the codes of practice. All that we are trying to do is ensure that the Bill provides for proper clarity and transparency.
Amendment No. 63 would make the consultation on the drafting of the codes of conduct less Minister-dependent. For example, the European Circus Association has expressed concern that the consultation process as drafted is too dependent on the authority’s view about whom it is fit to consult. Amendment No. 62 is intended to ensure that once any draft codes are produced, the Secretary of State will be statutorily obliged to guarantee to all interested parties an opportunity to make representations. I am sure that the Government would want that to happen anyway, but we want to ensure that it is specified in the Bill.
Amendments Nos. 64 and 65 are slightly different. These amendments will improve the transparency of the code-making procedure and enable Parliament formally to approve or reject the draft codes of practice. As I understand the position at the moment, to reject a code of conduct it would be necessary to pray against the statutory instrument placed before the House by the Government. I should like to change that to the affirmative procedure. Then every time the Government brought forth a code of conduct they would announce, “This is what we propose: will Parliament please approve it?” That would be far more transparent and open, and a more sensible way of proceeding. I am sure that it would be possible for the Minister to do that, but the amendments would ensure that he had to do it.
The hon. Gentleman may overestimate my powers of persuasion with the Whips and parliamentary managers if he thinks that I could persuade them to find time to rush the codes through using the procedure that he recommends. That takes us back to a point that was made a little earlier. It may be helpful to the Committee if I say a few words about how we plan to prepare and introduce codes of conduct; that may put into context the debates that we are to have in a moment.
For each of the codes that we intend to produce, we shall first convene a working group of experts to scope the work and ensure collaboration in producing a first draft. As is our usual practice, we shall in all cases try to convene a working group representing a wide range of interests. That happened with the draft cat code, which I have already made available to the Committee. Once the Department is happy with the draft, we shall put it out to consultation, and in most cases we would expect that to be a full public consultation.
All Departments conducting consultations are required to follow the Government’s code of practice on consultation. Criterion 4 of the code requires Departments to give
“feedback regarding the responses received and how the consultation process influenced the policy.”
The Department for Environment, Food and Rural Affairs, as hon. Members will know, makes all responses to consultations publicly available on request, unless the respondent has asked that a response be kept confidential. Information provided by the public in response to consultations must be dealt with in accordance with the access to information regimes. Those are primarily the Freedom of Information Act 2000, the Data Protection Act 1998 and the Environmental Information Regulations 2004. Where respondents request that information given in response to consultation should be kept confidential, that is possible only if it is consistent with the freedom of information obligations. On the other hand, there may be rare occasions where it is appropriate for responses not to be made public in part or in total.
Amendment No. 81 would require my Department to undertake a full public consultation before a first draft of a code of practice was produced. That would be an unnecessarily burdensome requirement, likely to slow down the production of codes—of which we have to produce quite a lot, as hon. Members have urged us to do. We do not think that such a slowing down in the process would be in the interests of animal owners or keepers. As I have explained, the access to information regime and the codes of practice on consultations already prescribe, in detail, the rights of consultees and members of the public in respect of evidence submitted to public consultations. We believe that it would be inappropriate to try to reproduce the complex provisions and safeguards of that regime with a summary requirement of the type suggested here.
The use of the word “authority” in amendment No. 63 could include the National Assembly for Wales. I am not sure whether that is the intent of the hon. Gentleman, but I doubt it given his earlier views on giving the Assembly powers under the Bill.
On amendments Nos. 64 and 65, clause 13 specifies the procedure that will be followed to make or revise a code of practice to apply in England. That is obviously connected to clause 12, on codes on practice, and clause 15, on the revocation of codes, while clause 14 specifies the procedure to be followed in Wales. When the Secretary of State proposes to issue or revise a code of practice, he or she will issue a draft and, as I mentioned earlier, there will then be a consultation. The draft would be laid before Parliament under the negative resolution procedure. Unless Parliament resolves not to approve the draft, the Secretary of State will then bring the code into force by order.
As a matter of record, can the Minister indicate how many codes of practice he anticipates there will be in total?
I am afraid that I cannot give the hon. Gentleman that figure off the top of my head, but we are talking of a considerable number. I think that Sweden, which is further down the road than us in these matters, has codes of conduct on animal species running into scores. I may be able to give the hon. Gentleman more accurate information if we have a stand part debate, but I can say that the codes would be many and time-consuming. I acknowledge the point made previously by my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith); perhaps not all of the codes need to be as long and detailed as the cat code. We wanted that kind of belt-and-braces code as a first example.
It is a time-consuming process, but that goes back to the point about being prescriptive. There may well be controversial codes which people want or against which they want to pray. However, our hope is that the vast majority of the codes would, having gone through the consultation process, not be controversial, so we do not want to prescribe that they always have to be agreed by affirmative procedure. That is why I hope that the hon. Gentleman will withdraw his amendment.
Yes, indeed; I am always keen to draw on good international practice, not only in the Bill, but throughout Government. We do not do enough of that. I am not in favour of reinventing the wheel, and we have studied carefully the experience of Sweden and other countries who have already taken these steps. That should help us to draw up the codes, in conversation with animal welfare organisations and other interested parties.
I am interested in the Minister’s remarks, Mr. Gale, but I want to return to the issue of negative and affirmative resolutions. Naturally, I understand the Minister’s desire for these codes generally to be non-controversial and agreed by all relevant and interested parties. Indeed, for a number of the activities that we are discussing, I hope that we will largely be adopting codes that already exist under self-regulatory processes.
Is the Minister aware, however, of concern among Conservative Members, which I believe is more widely shared, about the amount of secondary legislation in the Bill? We support the idea of flexible legislation and understand that, nearly 100 years since the last such Act, there is a need for a whole raft of primary legislation. In order to update flexibly as science advances and public opinion changes, it is necessary to have some secondary legislation, but we are concerned that it has gone too far.
I ask the Minister to think again about that issue. Although I hope that most of the secondary legislation will not be controversial, we all know that a Statutory Instrument Committee can go through even controversial matters in a very short time. I know that the Minister of the day would have to come and make a short statement, but it is not a big deal. However, the affirmative procedure gives some parliamentary control over the secondary legislation: it makes people think more carefully.
As somebody with your experience will know, Mr. Gale, the theoreticians will say that the negative resolution still requires everybody to look at what has been tabled and to decide whether to pray against it, although a prayer does not always end up in Committee. However, I believe that the principle of Parliament having to approve a code is right. Ideally, I would prefer to have an opportunity to amend it. It is a fault in our procedures that we cannot amend statutory instruments, but that is a separate issue which it is not for the Committee to resolve. However, at least an affirmative resolution gives an extra stamp of parliamentary control and would not create the problems of inflexibility that the Minister seems to imply.
Clearly we shall not force a Division on the amendment, but I wanted to stress that it is a serious concern. The Bill gives the Minister and his successors a huge amount of power. In many ways we do not regret that because of the flexibility that exists, but some element of democratic control is necessary, and I ask him to think again about the affirmative procedure versus the negative.
I appreciate that there is a balance to be struck between parliamentary scrutiny and the speed of getting codes through, as we have discussed before in the Committee. Regulations would be subject to the affirmative procedure. Here we are simply talking about codes, which have a slightly different legal status. Even with the best will in the world on my part or that of any future Minister, there are also constraints on parliamentary time for consideration of statutory instruments. If we were to adopt a prescriptive rule that every code had to be subject to the affirmative resolution, that would inevitably slow the process up, unnecessarily in this instance.
There is already the precedent of the Agriculture (Miscellaneous Provisions) Act 1968, in which codes of practice are subject to an affirmative resolution. Does the Minister agree that that approach would merely align the Bill with that earlier Act?
No, because the intention is to change the way in which we deal with agricultural issues. We intend to make those codes subject to the negative procedure as well.
I understand why we have argued for the affirmative resolution, which I support as a concept in principle, but I also understand the Minister’s objections. I wonder whether, when a code is about to be produced or subject to a negative resolution, a halfway house might not be for the Minister formally to send a copy of the code to the relevant spokesman of the other parties with a note saying that it was now here. It would then be flagged up and there would be no question of its being missed. Would that be a better way of doing it? In those circumstances Opposition Members would be fully aware of the statutory instrument and would have the opportunity to pray against it if necessary. Neither I nor the Minister would want a code to go through without its having been noticed. We know how much stuff goes past our desks every day. That might be a way to meet legitimate requirements.
Speaking for myself, I should be happy to do that, but I would not necessarily want to bind any successors. It would also be within the powers and scope of the Environment, Food and Rural Affairs Committee, for example, to spend time scrutinising the codes if it wanted to; even Back Benchers, if they felt particularly strongly about a certain code, could call a Minister to account in an Adjournment debate, or something like that. Therefore, hon. Members should not get too hung up on whether the codes require the negative or the affirmative procedure. There will be a great deal of interest and discussion, as there has been in the Committee, particularly on some of the more contentious ones.
First, the Minister made some important points about the fact that the whole Committee wants to see these codes of practice brought in as quickly as possible, and on that I agree with him. Then he laid out the procedure for consulting the public fully and transparently. He then had a quick go at me about my Welsh roots. For what it is worth, the House will this afternoon will be taking the Government of Wales Bill through its Committee stage.
Hon. Members will be interested to know that, while the Select Committee was engaged in its pre-legislative scrutiny of the Bill, the consultation was still open. The Government had not consulted fully before sending the draft Bill to the Select Committee; indeed, the consultation period closed on the day the Select Committee reported. It is not fair to say that the Government always get their consultation periods exactly right; nor is it good enough to say that they will consult fully, openly and transparently, because their track record is not perfect.
None the less, I understand that the Minister wants to consult as widely as possible. In one of their tidying-up exercises, the Government have probably lopped off the important bit about transparency. I can understand why they did so, although I am surprised that they did not want to embrace the openness and transparency that they always suggest.
We have talked a little about having a halfway house between the affirmative and negative procedures for introducing the codes of conduct. The problem with codes of conduct—we have already discussed their legal standing—is that Parliament will not have the option to amend them at any stage. As a result, we will be passing a Bill that gives a huge range of opportunities for prosecution. In allowing that to go through, we are denying ourselves, as elected Members, any option for amending the Bill. That is a great shame.
I take the Minister’s point about affirmative and negative resolutions, but hon. Members will not have the opportunity to deal with the codes in a Committee considering delegated legislation. The Minister must be clearly aware that he is asking us to commit an act of faith. To approve the framework for making codes of conduct without having the option to intervene as elected Members is not altogether acceptable. I made that clear on Second Reading. I make it clear again that I am not content.
I agree with the thrust of what the hon. Gentleman says, but neither the affirmative nor the negative procedure will solve the problem. The basic problem, which I have raised on the Floor of the House, is that statutory instruments are not amendable. It is Parliament that needs to get around that problem.
The hon. Gentleman is right. It is not acceptable. Not even a statutory instrument would be acceptable.
The Minister suggests a middle way. I suggest that we need to be involved at a far earlier stage than after the consultation. Transparency and openness are important, as is the fact that the Secretary of State should not be able to choose who to consult. Those who have been missed out of the consultation may say, “Oi, you’ve forgotten this one crucial fact”, but at that point the process will be closed. It is a weak part of the Bill, and we shall need to think carefully about it before Report. I beg to ask leave to withdraw the amendment.