Clause 10 - Procedure: introductory

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

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Amendment proposed [this day]: No. 52, in clause 10, page 5, line 12, at end add—

‘(3)A Minister may not make an order under section 1 where, within the 21 day period, fifty members of the House of Commons signify to the Speaker in writing that they object to the use of this Act to make the order.’.—[David Howarth.]

Question again proposed, That the amendment be made.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I remind the Committee that with this we are discussing the following amendments: No. 53, in clause 10, page 5, line 12, at end add—

‘(4)A Minister may not make an order under section 1 where, within the 21 day period, either House of Parliament resolves that it objects to the use of this Act to make the order.’.

No. 54, in clause 10, page 5, line 12, at end add—

‘(5)A Minister may not make an order under section 1 where, within the 21 day period, a committee of the House of Commons charged with reporting on the order resolves that it objects to the use of this Act to make the order.’.

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

Thank you, Sir Nicholas. You will not be aware that this morning I was in the process of belatedly welcoming the hon. Member for Forest of Dean (Mr. Harper) to his place on the Front Bench, because the Committee was in error in not having done so earlier. We are delighted to have him in his place, as we are to have you in yours. We have made good progress in your absence—those two facts are not connected. I assume that when you appeared on “Question Time” you were not asked about our Bill; otherwise, you would not still be our esteemed co-Chairman. I did not have a chance to see your appearance—

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

I am more of a DVD man. However, from what I hear nobody could accuse you of not having stood by your friends or your principles in your appearance. I was delayed by virtue of the fact that I had to travel to Glasgow, so was not able to watch the programme.

I had commenced my comments on clause 10 stand part, and on amendments Nos. 52, 53 and 54, which were tabled by the hon. Member for Cambridge (David Howarth). The clause introduces the procedural requirements that apply to all orders. An order cannot be made unless all those requirements are met. The procedural requirements introduced by the clause are as follows. First, all orders must be made by statutory instrument. Secondly, the Minister must consult in accordance with the requirements of clause 11 and, after consultation, must lay a draft order and explanatory document before Parliament in accordance with the requirements of clause 12. Finally, the order must be made in accordance with one of the three types of parliamentary procedure provided for in the Bill, and we shall discuss those under later clauses.

Without seeking to reinterpret the words of the hon. Member for Cambridge, I would describe amendments Nos. 53 and 54 as an attempt to define or describe a veto. The hon. Gentleman is aware that we made a commitment in an earlier sitting of this Committee to include a veto in the Bill, and it is important that we do so. The Government will make a specific proposal based on that principle before we debate the issue on Report. I know that that commitment has reassured a number of Committee members. That being the case, I invite the hon. Gentleman to withdraw the amendment.

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

I fully understand the Minister’s commitment to bring forward what has been called in the past a Committee veto, which would cover the ground of amendment No. 54. Can he confirm that he also intends to include in his consideration of what he is calling a veto the ground covered by amendment No. 53, which is a veto for either House, as opposed to a Committee of the House?

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

Without seeking to commit myself in a prescriptive manner, I shall be happy to discuss the matter with the relevant Front Benchers and with the Chairs of the relevant Select Committees in the House of Commons before we reach Report. On that basis, I can reassure the hon. Gentleman.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Is the Minister indicating that he is prepared to accept a veto that would incorporate hon. Members other than members of the relevant Committee? If so, does he think that the amendment tabled by the hon. Member for Cambridge is a pretty good stab at a veto, and the sort of thing that he has in mind?

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

I agree that it is a stab at a veto; whether it is a pretty good stab is something that we shall discuss before Report with the Opposition parties and the relevant Select Committee Chairmen in the House of Commons. Of course, the Regulatory Reform Committee declared an interest and offered some comments, and the hon. Member for Cambridge offered some criticism about conversations with the Front Bench; however, I hope that he will be reassured by the fact that there will also be conversations with   the relevant Select Committee Chairmen. Also, he should not mock his Front Bench in the middle of a reshuffle of his own party. We shall see whether he remains on the Back Benches as the reshuffle works its way through the Liberal Democrat party.

I am sorry to say that I do not have anything so conciliatory to say about amendment No. 52. I hope that that will not create discord in the midst of the consensus that may be developing about discussing the hon. Gentleman’s ideas and some possible principles in the context of amendments Nos. 53 and 54. My difficulty is with the attempt to define what is controversial simply according to the number of Members of Parliament who would sign a declaration of their opinion. Our approach would be to determine the degree of controversy case by case by reference to the content of the proposal or order, rather than by an arbitrary number. The hon. Gentleman fully accepts that it is an arbitrary number. He and the hon. Member for Christchurch (Mr. Chope) had some discussion on that, and about the idea of setting the number at one.

It would not be appropriate to define what was controversial by the number of Members of Parliament who would sign up to any suggestion contrary to what was proposed, in preference to dealing with such decisions on a case-by-case basis.

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

If the Minister does not like the way of dealing with the problem of controversial matters that is set out in amendment No. 52, can he offer another definition of the word “controversial” that we could include in the Bill? So far he has been using the word in a context that assumes that Ministers make the decision and proceed accordingly, with no external check.

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

With respect to the hon. Gentleman, I am doing no such thing. Determination of whether something is controversial would come about first by public consultation—statutory public consultation, which I think the hon. Gentleman welcomes. The Minister would then prepare an explanatory memorandum, responding to the statutory public consultation. That explanatory memorandum, and the decision that the Minister would take about tabling an order, would be open to legal challenge. The Select Committee involvement and the detailed veto principles are an additional way in which constraints and controls could be imposed for highly controversial orders. All sorts of procedural conditions and the preconditions in clause 3 would prevent what the hon. Gentleman has talked about in relation to highly controversial matters.

We are attracted to the principle of a veto, but to define what is highly controversial as the hon. Gentleman is trying to do, by means of an arbitrary number of Members of Parliament—50 Members—is not the right way to go about it. You will be aware, Sir Nicholas, of all sorts of worthy, and some less worthy, early-day motions that have no difficulty in attracting 50 signatures of Members of Parliament. Some are important and some are perhaps less substantive. My hon. Friend the Member for Edmonton (Mr. Love)   alluded, perhaps uncharitably, to the possibility that accepting the number 50 in the provision would enable the Liberal Democrat party, with its 56 Members of Parliament—[Hon. Members: “Sixty-four.”] Is it 64? There you are. Perhaps that should be the number for a veto. Anyway, my hon. Friend thought that the number of Members specified in the amendment might make a party political veto by the Liberal Democrat party possible.

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

Is it entirely unreasonable that a substantial political party in Parliament should be able to ask it to determine a matter that should properly be dealt with by primary legislation in Parliament, rather than by a Minister with a hole-in-the-corner order system?

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

That is in no way what we intend; in fact, it is a parody of our intention. I know that the hon. Gentleman could not be here for the earlier discussion on clause 13, for a good reason. However, to have an arbitrary number of Members of Parliament, based on no science or identifiable logic, is not the way to define higher degrees of controversy in an order. There are other ways to do so—the preconditions in clause 3 and the procedural protections—rather than an arbitrary number.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Could the Minister draw an analogy with what happens on the Security Council? Countries have permanent representation on the Security Council, and only one at any one time can exercise a veto. Does he believe that if one political party represented in this Parliament exercised a veto, that would be effective?

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

Sir Nicholas, you would rightly chastise me if I sought to draw an analogy between our consideration today and the General Assembly or Security Council of the United Nations. I do not think that it would be an effective veto to write into the Bill that one political party should have the right of veto. The hon. Member for Bethnal Green and Bow (Mr. Galloway) represents a political party, and we are not suggesting that his party would have the right of veto over any order.

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

Does the Minister appreciate that his proposals would allow one political party the right of veto over whether something will be debated on the Floor of the House? The Government party will have that right in its Committee, which will determine whether a matter is controversial.

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

That point ignores the culture and dynamism of the way in which the Regulatory Reform Committee works. If the hon. Gentleman wants to assert that the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords operate in a party political manner, I will give him the opportunity to make that point. However, they do not. No one has made that assertion, and I do not suggest that the hon. Gentleman should do so with any great confidence or to any great merit this afternoon.

The specific issues raised by amendments Nos. 53 and 54 will be included in our conversation with the Front Bench spokesmen of both the Conservative and the Liberal Democrat parties. We will consider them further with the Chairs of the relevant Select Committees. However, at this early stage I would like to suggest that the idea of an arbitrary number of Members of Parliament having the opportunity to exercise the veto in the way suggested in amendment No. 52 is not the correct way to proceed. There is an established way of identifying orders that might be highly controversial, involving statutory public consultation and a Minister’s assessment of that.

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich

If the Bill passes without the amendment, what will be the point of having Members of Parliament and having elections for them if law can be made, amended and changed without reference to anyone who is vulnerable at the ballot box? The amendment would ensure that someone who was vulnerable at the ballot box could determine what could or could not be put through on the nod under the Bill.

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

The hon. Gentleman is aware that members of Select Committees in this place are Members of Parliament. They carry out that function in a highly effective way. We have members of the Regulatory Reform Committee in our Committee today. Members of Parliament from all parties in that Committee do a sterling job in considering specific proposals.

We are concerned that only 27 orders have been enacted under the 2001 Act. The Select Committee rejected the civil registration regulatory reform order, and that is an example of when the Government responded to the concerns of the majority of the Committee in a sensible and proportionate way, case by case. I gave evidence to the Regulatory Reform Committee towards the end of last year. There were no Conservatives in the Committee that day. That is unfortunate, but it is just the way that this place works. The hon. Gentleman is aware that the members of that Committee take their responsibilities very seriously and no one, until just now, has suggested that they do not.

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

Does the Minister not understand that I intend no criticism of the existing Committee? That is not the purpose of passing a Bill through a Standing Committee. It is to make the law that will apply to the parliamentary system in the future. We may have a very different Government in future and a very different Committee. They would only have to be mildly different from the present Government to be essentially malign in their intent. That is why we must get this right. It is not a criticism of the hon. Member for Plymouth, Devonport (Alison Seabeck) and her colleagues on the Committee, who do an excellent job.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office) 4:15, 7 March 2006

My hon. Friend the Member for Plymouth, Devonport is delighted by that compliment as is my hon. Friend the Member for Edmonton, who served on the Committee with great honour and who unfortunately lost out this time round.

We must get this right. That is why we are committed to the principle of having a veto. That is why we will have detailed discussions with Opposition parties and the Select Committee Chairs so that we get the veto right. However, plucking an arbitrary number of Members of Parliament from the air does not get this right. There are protections in clause 3 in terms of the preconditions. There is the statutory public consultation to which I was referring when the hon. Member for Somerton and Frome (Mr. Heath) rightly intervened. The Minister must respond to that consultation by laying an explanatory memorandum. If the Minister makes an assessment that differs from the conclusions of the public consultation it is open to legal challenge.

On top of those protections the Select Committees of both Houses will have the power to reject or to amend a proposal. We will have a conversation about the principle of the veto and an amendment to include an operational veto in the Bill will be tabled in time for Report. All those protections will enable a case-by-case assessment to be made about what is highly controversial and what is not. To set an arbitrary number would not be the proportionate or effective way to do it. In the spirit of my earlier comments I ask the hon. Member for Cambridge to withdraw his amendment. If he seeks to press amendment No. 52 to a Division I will ask my hon. Friends to oppose it on the basis that it is an arbitrary figure based on no science or methodology.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Before I call the hon. Member for Cambridge might I suggest that before he sits down he should indicate whether he will press his amendment or withdraw it?

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

Thank you for that guidance, which I shall follow. I accept the Minister’s assurances on amendments Nos. 53 and 54 that he will come together with the other Front Benches to find an acceptable way of putting into the Bill a method by which Committees and the Houses themselves might reject the use of the Bill for a particular order. I will not press those amendments to a vote. Amendment No. 52 is slightly different.

The Minister appears to be saying two things: first, there is the question that has divided us in our discussions about almost every clause, which is whether the other protections in the Bill are adequate. The Minister again referred to clause 3, but did not meet our criticism that that clause is drafted so subjectively that there would be no effective check on a ministerial decision if the Minister considered that the conditions in the clause were satisfied. This morning, we had a rather complex discussion about whether the Human Rights Act 1998 might apply to any such decision with regard to subsection (2). I hope that the   Minister meant what he said then because, as I said at the time, it gives us an opportunity to move a further amendment on Report.

Adding to that this afternoon, the Minister referred to the consultation process. He said that if a Minister disagreed with the weight of material coming to him after a consultation, that would somehow be reviewable in the courts. It seems to me that if the Minister ignored the consultation process altogether and paid no attention to its results, that would be reviewable, but we are dealing with something different. We are talking about a Minister who, in the time-honoured phrase, “hears what they say” when the consultees come to him to say that they disagree, but who continues on the same path to make the order. That does not seem obviously reviewable by the courts.

The point that I made in response to the comments of the hon. Member for Edmonton still applies. We are dealing with a Bill of very great scope. It is different from the Regulatory Reform Act 2001. In those circumstances, it is self-evident that we should seek formal requirements in the Bill, rather than relying on informal arrangements or on the Minister’s good sense.

The Minister’s first reason for rejecting amendment No. 52 is that the procedures are adequate. However, it remains the view among Opposition Members—universally, I think—that the procedures and protections are not adequate. I remind the Minister of the fundamental point that even those procedures could be removed using an order under this legislation.

The Minister’s second reason for disagreeing with the amendment is that the way in which it is set up is not inadequate, in two respects. First, one single party could encourage its members to come together to block the use of the procedure in the legislation. My hon. Friend the Member for Somerton and Frome challenged the assertion that that would somehow be improper. A single political party with 50 hon. Members would seem to represent a substantial section of public opinion and might therefore be entitled to respect for its view that a proposed order was controversial. Nevertheless, I accept that it might command wider support in the House to propose instead of amendment No. 52 a slightly different mechanism that required hon. Members of more than one party to write to the Speaker as the amendment suggests. In that way, we could guarantee that it was not a partisan, party political complaint about the use of the procedure, but a broader concern.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Does the hon. Gentleman share my disappointment that he is almost having to resort to debating with himself, because the Minister is not willing to engage with him and to suggest, for example, what he is suggesting at the moment?

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

Yes, it strikes me as odd that Opposition Members have to play the part of both Government and Opposition. [Interruption.] As my hon. Friend the Member for Somerton and Frome says, it does increase the quality of the debate if we stick to debating among ourselves.

The second point was about the number of hon. Members required to object. As I said in moving the amendment, I am not wedded to the figure of 50; I suggested it as a starting point for thought. The hon. Member for Edmonton and the Minister pointed out that that number would mean that any one of three parties could meet the requirement by itself. I am willing to accept a different figure. The question is what percentage of Members of Parliament we should consider as indicative that a proposal being brought forward under the Bill was controversial. A figure of 10 per cent., which was what I suggested to the hon. Member for Edmonton, seems a perfectly adequate measure of whether a proposal is controversial.

Any figure is subject to the argument that another figure should be given, but that is true of any mechanism for guaranteeing the rights of minorities, which is basically what we are seeking to build into the procedure. We can always argue about what size that minority should be before it gets protection, but a 10 per cent. minority seems perfectly sufficient, and I should like to hear the Government’s argument that it is not.

I intend to come back with a different proposal on Report that will take into account the Minister’s comments. I hope that that will fulfil the criterion of the hon. Member for Christchurch that we should consider both sides of the debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.