Clause 16 - Super-affirmative resolution procedure

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 6:00 pm on 7 March 2006.

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Photo of Mark Harper Mark Harper Shadow Minister (Defence) 6:00, 7 March 2006

I beg to move amendment No. 1, in clause 16, page 8, line 40, at end insert—

‘(2A)If during the 60 day period an amendment, or amendments, to an order under section 1 is agreed by—

(a)both Houses of Parliament, or

(b)the relevant committees in both Houses of Parliament, the Minister shall either—

(a)make the amendment or amendments to the order, or

(b)withdraw the order.’.

Clause 16 refers to the process for the super-affirmative resolution procedure. Under the Bill, all the Minister has to do is to

“have regard to ... any representations” that he receives and to

“any resolution of either House of Parliament, and ... any recommendations of a committee of either House of Parliament charged with reporting on the draft order”.

If he does, he can simply make an order pursuant to the original draft and lay before Parliament a statement giving details of the representations that he has received. That is not adequate, particularly given the Bill’s scope.

Amendment No. 1 says that if “both Houses of Parliament” or

“the relevant Committees in both Houses of Parliament” suggest an amendment to the order, the Minister must do one of two things: he must make the recommended amendment or withdraw the order; he cannot simply proceed and ignore the resolutions of either House of Parliament. That provision is much more robust than the one in the Bill. Given the procedural safeguards that we tried to insert at earlier stages, which have not been accepted, the provision would be a huge improvement, giving to Parliament—either the Houses themselves or Committees—the power to insist on amendments. If they were not accepted, the Minister would have to withdraw the order and start all over again. That is the case in a nutshell, and I should be interested to hear whether the Minister either is minded to accept our proposal in total, or thinks that there is some scope for beefing up the clause as drafted.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

This is a very important amendment, because we understand that so far, the Government have never gone beyond the super-affirmative resolution and insisted on having their way by taking an order to the Floor of the House and pushing it through against the will of the Committee. They may have chosen not to insist prior to this, because they have not thought anything significant enough to insist on, thereby encouraging hon. Members into a false sense of security and into thinking that the Government shall act reasonably and responsibly.

My hon. Friend the Member for Forest of Dean is right to point out that if the amendment were not agreed to, the Government could ultimately insist on getting their way by using their majority on the Floor of the House.

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

I do not know whether my hon. Friend would agree, but the Regulatory Reform Act 2001 was in force and considered to be the main option for the Government for only a short period. Four years later, here we are with a new Bill, so we have seen the operation of that mechanism for only a short time. In those circumstances, is it not important to include in the Bill the protection that one feels necessary?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I agree with my hon. Friend, particularly given that the powers in the Bill are so much more extensive than those in the 2001 Act—as we have discussed extensively during Committee. I cannot see why the Minister will not accept the amendments. Perhaps he will accept amendment No. 1. If he will not accept amendment No. 1, it will again indicate that we must be extremely suspicious about what the Minister referred to earlier in Committee as the Government’s “wider ambitions”.

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

I want to speak briefly in support of the amendment. Throughout Committee, or at least occasionally, the Minister has said that there will be a power to amend orders that come through under the Bill. As I read the clause, that is not the case. The clause allows the Minister, if he wishes, to put forward an amended order, but there is no procedure for this House, either itself or in Committee, to amend the order.

Amendment No. 1 would be a rather moderate addition to the Bill, giving the Government the option of accepting an amendment or withdrawing the order. It would not amount to a full Bill procedure, but it would restore one of the most important aspects of the primary legislation procedure, which is what we are involved in now.

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

In responding to the points and the amendments, I am sure that the hon. Member for Christchurch will be disappointed at having accepted in principle nine of the amendments from the previous debate.

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

Because I am going to make some progress. That is why I said that I am going to make some progress.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office) 6:15, 7 March 2006

I said that I am going to make some progress, Sir Nicholas, because I am going to make some progress.

In respect of the amendment, we are aware of the need to ensure that Committees are provided with adequate opportunity to reflect upon the merits of proposed orders, and to recommend amendments accordingly. I can assure the hon. Gentleman that the Government would not wish to compromise that arrangement at all. The Bill provides that orders undergoing scrutiny by super-affirmative procedure can be amended, because the relevant Minister can take on board views from Parliament and revise the draft order. Either House can require that the super-affirmative procedure be followed in any particular case, as can a Committee of either House.

However, we do not wish to jeopardise the flexibility that has proved an effective part of the current order-making process. In practice, of course, the Government have rarely had reason to reject Committee recommendations for regulatory reform orders, but we need to avoid situations in which a potentially valuable reform could be lost on the basis of a single proposed amendment. It is important that Departments continue to have the opportunity to consider whether a proposed amendment is technically workable and whether it represents the most effective means of dealing with an identified problem. The Government’s ability to assess the validity and quality of proposed amendments is a valuable part of the parliamentary process.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

If the Minister looks at the amendment to the clause he will see that it would be quite difficult to invoke, because there has to be a recommendation from both Houses of Parliament or from the relevant Committees of both Houses of Parliament, so we are not even talking about just one of the two. The Minister says that it is valuable for the Government to be able to assess the nature of regulations, but it is equally important that the House of Commons and the other place are able to do so, and if they have recommended an amendment it does not seem unreasonable that the Government should either have to accept the amendment or withdraw the order. For the Government to pursue their original intention when both Houses of Parliament have said otherwise seems unnecessarily dictatorial.

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

I have already given assurances that the Government will not seek to force through an order where a Committee has proposed an amendment. As was the case under the 2001 Act, we wish to retain the flexibility to ensure the quality of orders.

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

I am going to make some progress. The amendment would bind the Government to accept any amendment to a proposed order and would not give the flexibility that has already worked so well under the 2001 Act. The Delegated Powers and Regulatory Reform Committee demonstrated the merits of the current system during the scrutiny of the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003. The Committee expressed concerns about proposals to downgrade the process of court approval for certain lease agreements between tenants and landlords, and specifically questioned whether the proposal would maintain necessary tenant protection. The Department undertook further research and was able to allay those concerns, with the result that the order was successfully made.

The flexibility of the current arrangement is a valuable and important part of the order-making process, and for the reasons I have given I am not minded to support the amendment. On the point made by the hon. Member for Forest of Dean about the wording whereby the Minister must have regard to representations, that is the same as in the section 8(4) of the 2001 Act. I hope the fact that we are replicating the 2001 Act helps him to see the context.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

The Minister is in danger of repeating the point that there is replication of the 2001 Act. That is the case, but the point is that the Bill is much wider in scope, and because of that we want a more robust safeguard. That is exactly why we have tabled the amendment.

It is unlikely to happen often that both Houses of Parliament, or both of their relevant Committees, insist on an amendment to an order. The Minister has been able to suggest that other proposed amendments to the Bill have been poorly drafted or relatively flippant. It will not happen often that a Minister proposes an order and both Houses of Parliament vote that it should be changed, but it seems to me that when it does it would be unacceptable for the Minister to proceed. The Minister said that he would not intend to push things through in that case. If that is true, why does not he allow it to be set out in the Bill? If he finds the drafting of the amendment not to his liking—despite the fact that it was drafted by my hon. Friend the Member for North-East Hertfordshire, the barrister—he is perfectly entitled to say, as he generously did on a previous provision, that he accepts the spirit of the amendment but wants to give it to parliamentary draftsmen to examine, so that he can return with a Government amendment that may be more elegantly drafted.

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

I am happy, again, to give the additional reassurance that the Government would not push through an order in the face of opposition from the Committees. That is, I understand, an understanding deriving from the 2001 Act. There is no evidence that the current procedure, whereby Committees can make recommendations and Ministers and Departments can reflect on them, make adjustments and offer reassurances to the Committees, has not worked well. However, the amendments   before the Committee would make it compulsory to accept amendments. An order could be lost if the Minister or Department did not accept the amendment from the House or the Committee. Ultimately, the Committee itself could reject an order, on the basis that it would suggest amendments and the Government would have to respond to them.

Committees have rejected previous orders. Civil registration is one matter on which the Regulatory Reform Committee rejected an order. The Committees have powers, but the current system has worked well. As an example, the Regulatory Reform (Business Tenancies) (England) Order 2003 enabled the process to work very well.

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

No, I am concluding; I am on my last sentence.

On the basis that I have outlined, the Government would not be minded to support an amendment that would make it compulsory to accept amendments from the relevant Select Committees or the House. It would be unnecessarily prescriptive and could jeopardise an entire order for the sake of a specific amendment. I again give a reassurance that the Government would not push through an order in the face of opposition from the relevant Select Committees charged by the House of Commons to carry out that task.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I did not necessarily expect the Minister to accept the amendment as drafted, but I am disappointed that he did not even suggest that he might consider the drafting of something that accorded with it in spirit. If both Houses of Parliament or both Committees of both Houses of Parliament insist that an order needs to be amended in a particular way it is the height of arrogance for a Minister to insist on pushing the measure through. For that reason we want to press amendment No. 1 to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 13 Nimrod Review — Statement — Clause 16 - Super-affirmative resolution procedure

Aye: 5 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

We could have avoided this if the Minister had accepted my intervention earlier, but he was not prepared to justify his assertion that I was   disappointed with any concessions that the Government were making; I am only disappointed that their concessions are so modest in the face of the grave powers that they are taking.

On a very small point, when the Minister appeared before the Procedure Committee, he was asked why the wording in clause 16 was slightly different from that in the predecessor 2001 Act. He was slightly taken by surprise, and Ms Jennings, who was there supporting the Minister, said that the Minister would check up on the matter and report back to the Committee. I am not aware of having seen a response to the Procedure Committee in light of that exchange; I wonder whether the Minister could enlighten us about that.

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

Just to reassure the hon. Gentleman, I was not suggesting that he was unhappy that the Government were accepting some amendments; I was suggesting that he would be unhappy that we were not accepting the amendments to the previous clause. Perhaps that was a misinterpretation because of my accent, or perhaps he is hearing things again.

I will investigate whether the response to the question that the hon. Gentleman mentioned has been given to the relevant Select Committee, and will perhaps bring that to the Committee’s attention. I will certainly investigate his point.

Question put and agreed to.

Clause 16 ordered to stand part of the Bill.