Clause 11 - Consultation

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 4:15 pm on 7 March 2006.

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

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Sir Nicholas, the clause is very important, and I was surprised that the Minister did not want to introduce it. It is the only effective brake that he is offering upon the exercise of the tyranny of the majority. Such a brake is what we are trying to ensure, as the hon. Member for Cambridge referred to—we are trying to protect minority rights. The Minister is saying that the statutory consultation in clause 11 will achieve that. Will he indicate in what circumstances he believes a Minister’s response to a consultation should have to accept the representations that have been made to allow the subject to go to the next stage? I am not suggesting that the Minister would necessarily reply, for instance, “If 95 per cent. of the representations received are in one direction as against another,” but what criteria will he apply to the issue of consultation? How will he assess the weight and merits of the arguments put forward, and whether they should lead to abbreviated procedure or the proposal either being amended or the subject of primary legislation?

I know that clause 11 is explained further by clause 12, but it is incumbent upon the Minister, since he is relying on clause 11 as part of the veto mechanism, to   be a little more explicit about the circumstances in which a public consultation should act as a brake upon the Executive and the exercise of the tyranny of the majority.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 4:30, 7 March 2006

I have three questions on clause 11. First, the Minister talked about the proposals changing the function of a statutory body and subsection (1)(b) states that it would be in order to consult those bodies, which is fair enough. Will the hon. Gentleman comment on the fact that it would be up to the Minister to consult people whom he felt were representative of those bodies rather than the bodies themselves? I am not quite sure where he was driving on that point.

Secondly, exactly what is meant by the Assembly in subsection (1)(c)? Is it the Assembly itself or a Committee of the Assembly? I understand that a Committee of the Assembly tends to take care of this type of discussion. Following the changes proposed in the Government of Wales Bill, is it the Welsh Assembly Executive or its legislative arm?

My third point about consultation follows from the Minister’s helpful letter to members of the Committee about clarifying local acts. The Minister referred to what he said at our sitting last week in column 66 and quoted from “Halsbury’s Laws of England”, which he said confirm that an Act is said to be local if it is limited in respect of area or extent to a relatively small part of the country. The reason for its relevance comes down to the consultation. To give the Minister an example, I choose at random the Forestry Act 1981, where it relates to a statutory body—the Forestry Commission—the Minister would clearly consult the Forestry Commission. The nature of some of these local Acts is that they relate to a particular area and affect everyone who lives in that area. Subsection (1)(e) provides that the Minister must consult

“other persons as he considers appropriate.”

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

I want to pick up on a point in the text which has been drawn to my attention. Throughout, the Minister is referred to as a male. The Bill refers to “he” and “him” throughout. Is that normal in legislation?

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

That was not a point of order. I am sure that the Opposition spokesman will reply.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I understand that when the text states “he” and “him” one is supposed to read “she” and “her” too.

The reason for raising the point about local Acts is that by their very nature they can be extremely important locally and affect the interests of all or many residents in an area. Perhaps the Minister will comment on exactly what implications that would have for the consultation.

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

The hon. Gentleman has done a lot of study on the subject of those Acts. I am less impressed by the definition than he is, as it comes from a text book rather than statute. Does he agree with me that it confirms the Committee’s earlier suspicion that issues of hybridity are very much to be considered when we are dealing with what are described as local Acts? It would be helpful if the Minister were to explain how he will deal with the hybridity issues in future legislation.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

The hon. Gentleman makes a very good point. The next part of the quotation from “Halsbury’s Laws of England” confirms that local Acts comprise all statutes of a local character originating in private Bills. It brings up the subject that we debated at length, but without the clarity of the explanation. It has examples of those authorising the carrying out of work by commercial concerns and therefore raises hybridity issues. Following the Minister’s letter, it would be helpful if he would elaborate on the matter.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. Whatever the hon. Member for Somerton and Frome (Mr. Heath) said, it is my view that hybridity is not involved. I hope that the Opposition spokesman will not trespass too far down that path.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

Thank you for your guidance, Sir Nicholas, but there is no danger of that, as my knowledge of hybridity is much less comprehensive than that of the hon. Member for Somerton and Frome.

The Minister should give us an idea of what scope there is for the Bill to be used to amend local Acts. In a previous debate, he gave the example of harbour Acts, which obviously have a great import for particular localities. What sort of consultation would he think was appropriate under subsection (1)(e)? Will he give an example?

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

I shall of course obey your strictures, Sir Nicholas, and not add to the comments made on hybrid Acts.

Hon. Members will be aware that clause 11 sets out the statutory consultation requirements with which the Minister must comply before making an order. It sets out the first steps in the procedure for making an order, and it is based on section 5 of the 2001 Act, amended to take account of the widened power.

Subsection (1) requires the Minister to consult organisations that

“appear to him to be representative of interests substantially affected by the proposals”.

If proposals relate to the functions of statutory bodies, he must consult them or those persons

“appearing to him to be representative of those bodies”.

The Minister must consult the National Assembly for Wales if a proposal applies to

“any matter in relation to which the Assembly exercises functions”.

I confirm to the hon. Member for Forest of Dean that “Assembly” is defined in clause 30 as the National Assembly for Wales. The Minister must consult the relevant Law Commission if an order implements a commission recommendation. He must also consult

“such other persons as he considers appropriate”.

Subsection (3) provides that if the proposals change as a result of consultation, the Minister must undertake

“such further consultation ... as he considers appropriate”.

That provision is equivalent to section 5(3) of the 2001 Act. The Minister does not have to repeat the whole consultation exercise; the additional consultation should be only what is necessary in respect of those elements of the proposal that have changed, and could involve only those consultees affected by the change.

The consultation process is fundamental. It is the linchpin of the Bill. It will remain a key element, and it must be complied with. The clause ensures that it is not an option but a statutory requirement. That is essential. Consultation will test the quality of proposals and the evidence of their impact, and it will gauge the public’s view of them.

Some points were raised about ministerial conduct in effective consultation. The Government work to a code of conduct to ensure the quality of consultation; it is generally regarded as effective. Given their experience of the 27 orders that been made under the 2001 Act, hon. Members may draw their own conclusions, but I am not aware, from evidence to the Regulatory Reform Committee or from elsewhere, that those principles have not been effective in enabling effective consultation.

I know that the Committee will not wish me to deal with all six subsections in detail. We need to consult widely throughout the policy development process, and at least once, allowing a minimum of 12 weeks for written consultation. We must be clear about the proposals, who may be affected, what questions have been asked and the timescale for responses; ensure that consultation is clear, concise and widely accessible; give feedback on responses and on how the consultation process has influenced policy; and we must monitor Departments’ effectiveness in consultation, including through the use of designated co-ordinators, to ensure that consultation follows better regulation best practice, including the carrying out of regulatory impact assessments when appropriate.

I continue to make the point that we should publish the outcomes of consultations and the responses both in hard copy and on the internet. Indeed, earlier today we confirmed that the consultation responses to the Bill are now available on the Cabinet Office website.

Having dealt with the point about Wales, I shall respond to the additional points that were made. I am not certain that Opposition Members are suggesting it, but it is not a part of the code of practice—nor is it a serious suggestion—that the Government should proactively consult each and every individual who would be affected by a specific proposal. I am not aware that including that in the code of practice has ever been suggested. It is more effective and practical   to consult representatives of those interests, and that is the same approach as the requirement in the 2001 Act. The parties who are consulted will depend on the circumstances and the order.

The 2001 Act provisions on consultation have worked well. The Minister must consult on proposals. Neither the Bill nor the 2001 Act go into detail, but there is guidance on effective consultation practice. The clause sets out the statutory position on consultation and is backed up by the code of conduct and the six principles of effective consultation. That system has operated effectively since 2001 and I am not aware that the Select Committee or anyone else has suggested otherwise.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

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

On a point of order, Sir Nicholas. I have just seen the letter that the Minister wrote to the hon. Member for North-East Hertfordshire (Mr. Heald) about the definition of a local Act. I see with some distress that the final limb of the definition includes statutes relating to a particular charity and educational foundations and institutions. It surprises me that that is part of the definition of a local Act, and I fear that I should have declared an interest at the start of our discussions, because presumably that would include the Universities of Oxford and Cambridge Acts. May I have your guidance, Sir Nicholas?

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

The hon. Member for Cambridge has been truly honourable, as I would expect. Although he should perhaps have declared an interest, he has now done so and it is on the record. I myself am not sure of the entire interpretation of the Minister’s letter but I believe that members of the Committee, including the hon. Gentleman, are behaving truly honourably and appropriately.

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

Further to that point of order, Sir Nicholas, I was grateful for that advice to my hon. Friend. If it is the case that every statute and order that has ever been made is capable of amendment by the Bill, if the Bill is enacted, then inevitably we must all have an interest because every one of those statutes will affect one member of the Committee or another, so I think that my hon. Friend has nothing to fear from not having declared an interest at the start of our proceedings.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I was seeking to be fairly general in my response. I believe that the hon. Member for Somerton and Frome is right, but in this place it is best to be safe rather than sorry, as we have discovered recently, so let us end it there.