Clause 4 - Subordinate legislation

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 10:30 am on 7 March 2006.

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Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport 10:30, 7 March 2006

I beg to move amendment No. 22, in clause 4, page 3, line 8, leave out from ‘on’ to ‘unless’ in line 9 and insert ‘any person’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following amendments:

No. 49, in clause 4, page 3, line 9, leave out from ‘otherwise’ to end of line 18.

No. 62, in clause 4, page 3, line 14, leave out paragraph (a).

No. 23, in clause 4, page 3, line 18, 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; or

(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.’.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

As a novice in Standing Committee, I am delighted to move my first amendment under your chairmanship, Mr. Caton. I have already stepped out of line during our proceedings, albeit unwittingly, and I hope not to do so again. However, if I say something that is not entirely in order or pop up at the wrong moment, I hope again to receive the benefit of your guidance.

I shall endeavour to be brief. Having been on the other side of the fence during the Committee stage of the Greater London Authority Act 1999, to which thousands of amendments were tabled—it was the longest Bill since the Government of India Act 1935—I have learned the value of brevity. Indeed, brevity is particularly important in relation to one of the Bill’s aims, which is the speeding up of over-lengthy processes.

I seek through the amendments to probe the Minister’s thoughts on whether part 1, and particularly clause 4, should apply greater constraints when conferring a power on an official body, individual officials, a private company or private individuals. It is legislating in a way that bypasses the normal affirmative and negative resolution procedures for statutory instruments.

The Regulatory Reform Act 2001 did not provide for the sub-delegation proposed in the Bill. In the past, Parliament has delegated powers to outside bodies. For example, the Building Societies Commission was   given substantial powers in the 1980s; but it was answerable to the Treasury, and Treasury Ministers were answerable to Parliament.

Sub-delegation is one of the streamlining procedures designed to speed up the deregulatory process. That is all very well, but it seems that there is scope not only for legislative sub-delegation but for the dropping of constraints from the regulatory reform order procedure in respect of burden and activities. The Minister will correct me if I am wrong, but it appears that a legislative reform order could be sub-delegated to anyone, without that person or group of people being answerable to Parliament. I am sure that the Minister does not mean that power to remain in the Bill.

The Regulatory Reform Committee was concerned about the need to tighten the power of legislative delegation yet allow orders to cover genuine trade and professional regulations and byelaws. I am sure that the Minister will say that there is no intention to give additional powers to inappropriate bodies, but I am concerned about who will decide what constitutes an inappropriate body.

I accept that Ministers never feel comfortable with lists in Bills, as they can be restrictive—in general, I share that concern—but amendment No. 23 contains a list. It is a probing amendment to concentrate the Minister’s mind on some of the groups that could be affected by the clause. I would therefore welcome his consideration of the Select Committee’s special report before ruling out any change.

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

I read amendment No. 23 as saying that Ministers should not be given functions that were previously fulfilled by professions or trade unions—in other words, that if there is no provision and a trade union or a profession regulates itself, or if there is provision for those bodies to regulate themselves, it should not be possible under subsection (1) to take that function from the body and give it to the Minister.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

That is an interesting point. It serves to flag up the confusion that exists on clause 4. That is why I am asking the Minister to reconsider the provision and to clarify the matter before Report.

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

I start with amendment No. 22, but I shall make the odd remark about the other amendments; I tabled one, and the Liberal Democrat amendment is likely to be spoken to.

Amendment No. 22 would, as the hon. Lady said, extend the clause 4 test on the conferring of legislative functions so that it applies not only to Ministers but to any person who is given a function under part 1. In effect, amendment No. 49 brings a stand part debate into Committee. The hon. Member for Cambridge (David Howarth) has set out his position and is suggesting that it should not be possible to confer a function of legislating on a Minister of the Crown under section 2(1). I should be interested to hear his introduction to the proposal. It is certainly well worth considering whether it is needed.

However, the amendment could provide conditions on which conferring on the Minister of the Crown the function of legislating would apply. Although we do not like it, it might be in the category of, “It’s better than nothing.” By tabling amendment No. 62, I would delete subsection (3)(a) so that any statutory instrument giving the function of legislating to a Minister of the Crown would have to be conferred by affirmative resolution procedure. It should not be possible to take such action without debate. If I say so myself, that is a sensible proposal. [Laughter.] To confer on a Minister the function of legislating is an important action to take. It is giving an order-making power to a Minister by order, and that should not happen without debate.

I understood that amendment No. 23 was designed to protect professions, trade unions and local government in the sense that it would not be possible to give a Minister order-making functions that are currently in the hands of such bodies. It is a good amendment because it would prevent those bodies from meddling by Ministers. I am inclined to support it, but I am looking forward to what the Minister has to say about this interesting group of amendments.

Photo of Martin Caton Martin Caton Labour, Gower

Order. As has been said, when dealing with the amendments, we will be debating the substance of the clause. I therefore do not intend to hold a separate stand part debate. Will hon. Members remember that when making their contributions?

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

I wish to speak briefly to amendment No. 49. Given that the Committee, unfortunately from the point of view of Opposition Members, decided to allow clause 2 to stand part of the Bill, amendment No. 49 is now more of a probing than an operative amendment. However, it allows us to ask the Government why they want to give Ministers such a power. For what purposes is the power granted under the Bill to create in Ministers legislative power, which on the face of it is a fundamental violation of the separation of powers?

Will the Minister tell us precisely what sort of legislation he has in mind? When he does so, we can then table more specific amendments that would allow, as far as they are reasonable, such powers to be given, but do not go as far as the Bill, which will give a general power. The fundamental objection that many of us have to the Bill is that it seems to grant powers that are over-broad and go way beyond any reasonable purpose that the Government might have.

What is the Minister’s understanding of the limits of ministerial power to legislate that can be granted under the Bill? Will any limitations on the use of the powers of the Bill that apply to orders also apply to ministerial legislation granted under such an order? For example, will any parliamentary scrutiny be required of orders made under the clause? It seems to me that the equivalent of a regulatory reform order could be passed, giving a Minister the power to create new law and obligations on the public, and that that power would not be subject to any of the restrictions in the   Bill. For example, such an order could create crimes punishable by more than two years’ imprisonment, increase taxation or create powers of forcible entry.

The Parliamentary Under-Secretary of State for the Cabinet Office (Mr. Jim Murphy)indicated dissent.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

The Minister is shaking his head, which is good news. If that is not his understanding, will orders that Ministers might bring be subject to parliamentary scrutiny? That is, will they be subject to negative, affirmative or super-affirmative procedures in the same way that an originating order will be? If so, we need that to be made clear in the Bill. It must be clear that nothing that can be done by a Minister under clause 4 can go beyond the scope of the Bill.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I am pleased to have the chance to respond to this brief debate, and I shall try to do so equally briefly. First, the Committee will be pleased to be informed that, arising from our discussion last Thursday on the commitment to introduce a specific power of veto, arrangements have been put in place for us to have conversations with Front Benchers from the Conservative party and the Liberal Democrats on the specific shape of any amendment in principle. I also confirm that responses to the consultation on the Bill have now been placed on the website, as recommended by the Regulatory Reform Committee.

Clause 4 places restrictions on any order that confers a function of legislating on a Minister, by setting out two conditions that must be satisfied. Where the power to legislate is conferred on someone other than a Minister, the conditions will not apply. There are many forms of secondary legislation, not all of which are appropriate for exercise by a Minister. Some matters that are uncontroversial or apply only on a local basis are suitable for legislation by someone other than a Minister. For example, a local authority may be given a power to make byelaws or orders relating to roads. However, where a power to legislate is conferred by order on someone other than a Minister, it must be given to an appropriate person or body, and a suitable level of procedure must be required depending on the nature of the instrument.

I turn to the points made by the hon. Members for North-East Hertfordshire (Mr. Heald) and for Cambridge, and by my hon. Friend the Member for Plymouth, Devonport (Alison Seabeck). Amendments Nos. 22, 23, 49 and 62 relate to conditions in clause 4 placed on the conferring of powers to make subordinate legislation. I will therefore address those amendments simultaneously.

Amendment No. 49 would prevent orders from conferring powers to legislate on a Minister, but not on someone other than a Minister. That would create an arbitrary restriction on the order-making power and prevent orders from delegating legislative powers that would most appropriately be conferred on a Minister. Of course, sub-delegation is common practice, and because we are considering an enabling power, there are protections, preconditions and procedures in place to ensure that all sub-delegation is considered appropriate. The amendment may be meant to be considered in conjunction with amendment No. 45,   thereby removing the power to confer legislative functions on any person by order. The question of removing the power to confer legislative powers by order falls within the remit of clause 2, which has already been discussed.

As I understand it, the rationale for amendments. Nos. 22, 23 and 62 is to ensure that the Bill’s order-making power to confer powers of legislation is exercised appropriately. The Government have no intention to confer new powers of legislation where that would be inappropriate, or to give them to inappropriate persons or bodies. The amendments would therefore impose an unnecessary degree of inflexibility on the power to sub-delegate legislative functions by order.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 10:45, 7 March 2006

The Minister says that the Government have no intention to do that in inappropriate circumstances. Where does that appear in the Bill?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

If the hon. Gentleman will allow me to make further comments, I shall make that point clear.

Amendment No. 22 would effectively require any person given the power to legislate to exercise that power by making a statutory instrument. That SI would be subject to negative or affirmative resolution procedure. A wide variety of persons and bodies are currently given powers to legislate, and it is not always appropriate for legislation to be subject to statutory instrument. The amendment, tabled by my hon. Friend the Member for Plymouth, Devonport, is a probing amendment to seek further information. She brings to this Committee her experience from her time on the Regulatory Reform Select Committee.

The Government feel that to require statutory instrument for all sub-delegation would not be appropriate. Local authorities, for example, must often have powers to make byelaws on local matters, and those powers are generally authorised by the relevant power or authority. Sub-delegation involving local authorities or other bodies of that nature should not have to go through the statutory instrument procedure.

Railway operators are also given powers to make byelaws by the Railways Act 2005. They are not subject to any parliamentary procedure, but must be authorised by the Secretary of State and by traffic authorities, including county councils and Transport for London, which can make traffic regulations orders under section 1 of the Road Traffic Regulation Act 1984. The rationale for the list of proposed exemptions in amendment No. 23 is understandable, but the Government do not consider that providing such a list in the Bill would be a measured response to the issue. It would also inevitably become outdated.

I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition, and I have stated that we will consider the options for veto in the Bill. The Committees would   undoubtedly consider whether the new power to legislate was appropriately conferred and would reject orders that did not meet that standard. I also reassure hon. Members that the Government do not intend by the provision to conduct a review of local authority powers or byelaws. The inclusion of the power is part of a holistic approach to reducing bureaucracy and unnecessary legislation wherever it falls.

Amendment No. 62 seeks to amend the conditions that must be met when a Minister is exercising legislative powers conferred by order. Where the powers must be exercised by statutory instrument, the amendment removes the option of negative resolution procedure. If subordinate measures are particularly minor or technical, it would be valuable to have the option to deliver them by SI, subject to negative resolution procedure. That is already the case in other areas of legislation.

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

The Minister is right that there some minor and technical changes are made to regulations by the negative procedure, although some of them are a bit more substantial than that. The difference is that we are talking about giving the power to make law, which is more substantial. The House has always guarded that power pretty jealously. Is it not concession enough for us to agree, as the amendment would allow, that the Minister may do this extraordinary thing—give a law-making power to somebody and expand it? That is quite a major change. It should at least be debated.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The power already exists in respect of sub-delegation. Ministers already sub-delegate to other bodies or individuals. The relevant Select Committees of this place and another place will still have the ability to refer any procedure upwards. Sub-delegation will be subject to the negative, affirmative and super-affirmative procedures and the power of veto.

The veto is the ultimate sanction. If inappropriate sub-delegation were suggested by Ministers, or if Ministers showed inflexibility on suggestions by the Regulatory Reform Committee or from the Committee in another place, the relevant Select Committees could exercise the veto, as we shall see from the discussion that we shall have over the next few weeks about the nature of the veto. The veto is a power that could be exercised over the whole order.

Notwithstanding the point made by the hon. Gentleman, we are confident and comfortable that we have got the balance right, and the Select Committees can make alternative recommendations if it is considered that the Government are suggesting inappropriate sub-delegation.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

Obviously, it is difficult for the Minister to address both the clause and the amendment, because the amendment would completely change the nature of the clause. The clause does not at all confer power to legislate on other persons, but on Ministers of the Crown. The question that I should like the Minster to answer is why he believes that Ministers of the Crown should be granted   powers to legislate without going through the statutory instrument process. That is what I understood him to mean.

If that is not what he means, and if any power to legislate by order could allow only that legislation, and subsequent legislation, itself to go through by statutory instrument, then we are fine. The problem is that that is not what the Bill appears to say. The Bill appears to allow power to legislate to be given to a Minister, and for the Minister then to be allowed to legislate further, without any parliamentary procedure at all. I find that disturbing. I hear what the Minister says about procedural protection, and we can talk about that in a while, but the problem is that the scope and purpose of the Bill are so broad that there is no inherent limitation on what Ministers could do.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

Ministers currently have such powers in a whole series of Acts that are debated and enacted—either themselves or by sub-delegation. Ministers have power to sub-delegate to bodies that are considered appropriate. The difference in the present case is that the relevant Select Committees of the House of Commons, and of the other place, would have the power to make alternative proposals on whether sub-delegation as the Minister suggested would be appropriate—or indeed to veto the whole proposal. I am advised that there must be a parliamentary procedure—either negative or affirmative—for any statutory instrument made by a Minister. I hope that that reassures the hon. Gentleman.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

I am pleased to hear from the Minister that the responses to the consultation have been placed on the website. That is a positive response to the Select Committee report.

I remain slightly unclear about what is meant by “appropriate” in relation to amendments Nos. 22 and 23. I have a marginal worry about that, but I take the Minister’s reassurances on board and I note his clear dependence on the proposed veto. Obviously, we want to see what is proposed on Report, but on that basis I shall not press my proposed amendments.

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

Having heard the Minister’s explanations, I think that the area is one to which I need to give further thought. On that basis, I do not object to the hon. Lady withdrawing her amendment, and I shall not seek a separate Division on amendment No. 62.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

We are all in the same position. Having heard the Minister’s explanations, we need to go away and think about the implications, so I shall not press my amendments either. However, I should like the Committee to note that the Minister’s position appears to be that the Government will accept no any limitation on the purposes to which the Bill can be put and the subject matter to which it applies. In each of the Minister’s responses, he has relied entirely on the possibility of procedural protection. I am afraid that, from my point of view, that will not be enough; as the Bill goes forward, I will be looking for more reassurance than simply procedural protection.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.