Clause 12 - Draft order and explanatory document laid before Parliament

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 4:30 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

I thought that the Minister gave his response to clause 11 on the basis that the argument is just about process. Our concerns, however, are about the substance, and there is nothing in clause 12 that can allay the concerns of those of us who feel that the Minister is giving himself power, in effect, to override substantial objections that are raised during consultation. There is no limit to the Minister’s ability to proceed, notwithstanding what most people would describe as an adverse consultation experience. Will the Minister elaborate on how he envisages that the consultation process will work, and where he thinks, looking at subsection (1), that it would be inappropriate for the Minister to proceed with the making of an order in the light of the consultation experience?

The way in which the clause is drafted at the moment, suggests that the consultation is just a process rather than an opportunity to see if there are substantive objections and, if there are objections, to respond accordingly. [Interruption.]

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 4:45, 7 March 2006

Order. May I say, without making any accusations, that I hope that all mobile phones are on silent? I will make no further reference, but I have just heard a tinkle in my ear.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I sometimes hear noises in my head. [Laughter.] I think, Sir Nicholas, that it is something to do with anno domini.

Subsection (2)(d) says that the explanatory document must,

“to the extent that it is appropriate to do so having regard to the likely effect of the order, include an assessment”.

And so on. How is the judgment to be made of whether it is appropriate to do so having regard to the likely effects of the order? If the likely effect of the order is to impose substantial costs, the Minister might regard it as rather inappropriate to give an estimate of those costs because it might be embarrassing. Perhaps the Minister could explain how he envisages that the word “appropriate” will operate in subsection (2)(d).

Does the Minister accept that the further wording in subsection (2)(d) demonstrates that far from the procedure being designed to reduce the burdens, as they were under the 2001 Act, there is quite a strong possibility, now admitted on the face of the Bill, that there will be increases in costs resulting from the operation of legislation under those procedures—not only costs, but what are described as “disbenefits”?

Will the Minister explain exactly how those costs and disbenefits will be expressed? Will they be in the form of a cost-benefit analysis? In relation to subsection (2)(f), will he indicate why there is no requirement, should representations made during the consultation process be rejected, for the Minister to set out specifically why those representations were rejected? That is in significant contrast to the provisions in subsection (3) in which the Minister is under an obligation to explain why.

In my submission it is all the more important that, under subsection (2), the Minister should explain why. The powers contained in the Bill are so great; the whole   structure is based upon the Minister having a veto over everything, and only being accountable, in a sense, to himself. We are relying on ministerial good behaviour, and I hope that the Minister will be able to expand on how we will be able to judge that good behaviour.

Photo of Andrew Love Andrew Love Labour, Edmonton

I thank the hon. Gentleman for giving way and I apologise for the noise earlier, Sir Nicholas. Let me reassure the hon. Gentleman that some of the concerns that he raised about the orders can be taken on board by the Select Committee, which can carry out further consultation, make judgments about the opposition to an order and report back to the Minister. Although I accept that concerns exist, they will be taken on board as part of the workings of the Act and the Select Committee.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am grateful to the hon. Gentleman for that intervention and I am sure that he is right that the concerns expressed in the consultation would generate the activity to which he referred if he were a member of the Select Committee. The question that concerns me and Committee members more generally is who appoints Select Committees? In effect, it is the patronage secretaries on both sides of the House.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

Does my hon. Friend share my concern about the change that the proposed relationship will bring about in the status of Select Committees? Select Committees currently have independence in their investigations, but will that independence be lost and their relationship to the Executive be changed if they are to scrutinise legislation and report to the Minister?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

That is an important point, which was touched on earlier. The Executive always want to exercise their power with the minimum of interference, so when they realise the extent of the powers that the Bill has given them and that a Select Committee might be a slight brake on the exercise of those powers, there might be an overwhelming temptation to ensure that the appropriate stooges are serving on that Committee. The Minister looks at me in disgust, but in the past the Executive have moved heaven and earth, or provided alternative incentives, if I can put it like that, to relieve a Select Committee Chairman of his or her position and to discourage people from continuing to serve on a Committee. That has happened not only under the present Government, but even—I am not sure whether I shall refer to anything involving you, Sir Nicholas—under former Governments. [Hon. Members: “No!”] Although this may have been for the most innocent of motives, some of the most effective Select Committee Chairmen under the previous Conservative Government were offered Government jobs to encourage them to leave their Select Committee posts and create a vacancy that could be filled by, dare I say it, a Government stooge. You could never be accused of being a Government stooge, Sir Nicholas, and most other members of the Committee would never have come into that category.

Notwithstanding the comments by the hon. Member for Edmonton, the temptation to act in the way I have outlined will be great. That is why, to return   to our earlier debate, the veto must go further than just a Select Committee. If matters are left to such a Committee, the Executive will soon realise that the way to change things is to change its membership.

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

I was amused by the references that the hon. Member for Christchurch made to the Ministers’ misbehaviour. We always hope that Ministers will not misbehave, and our expectations are constantly dashed. Nevertheless, we continue to hope.

I want to ask about the specific application of subsections (5), (6) and (7), which deal with the release of material that derives from the consultation. I might be entirely mistaken, and I will happily accept correction if I am, but I do not recall having seen analogous provisions in other statutes that lay out terms for consultation. I therefore have one simple question. Given that the clause provides for Ministers not to publish representations in response to consultation on certain grounds; is that on the basis that it falls within a category of the Freedom of Information Act 2000 that comprises advice to Ministers? If so, if anyone who writes to a Minister is deemed to be providing advice, that rather extends the definition. Or do other categories in the Act apply? How do the provisions relate to the Act?

Finally, subsection (7) correctly suggests that a Committee of the House can require the disclosure of responses even if they fall within the definitions in subsections (5) and (6). It sounds like a sensible provision, but it changes the relationship between right hon. and hon. Members who serve on a specific Select Committee and general Members of the House, who will not be allowed to read certain information. The negative resolution procedure leaves it open to any Member of the House to table a prayer for the annulment of such an order, but, apparently, not in possession of the same information that one would have were one fortunate enough to be on the relevant Select Committee. That seems a little anomalous and surprising. I would be grateful for the Minister’s explanation.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

Sir Nicholas, your earlier comment about hearing things brought to mind the joke that if one talks to God it is called a prayer, and if one hears voices from God it is time to worry.

When the Minister replied to the Chairman of the Regulatory Reform Committee, the hon. Member for Ellesmere Port and Neston (Andrew Miller), he said that the specific objectives of the Bill were to reduce the amount of bureaucracy around the implementation of European Community law, and to make it quicker and easier to reform outdated, unnecessary or over-complicated legislation. That implies that it will reduce costs and increase benefits or reduce disbenefits.

My hon. Friend the Member for Christchurch has already hit upon this in relation to sub-paragraphs (i) and (ii) of subsection 2(d), in which it is specifically accepted that an order made under the Bill might well increase costs or disbenefits by recognising that the Minister would have to publish an assessment if he felt that to be appropriate. We keep being told that the whole point of the Bill is to deregulate. We have had   some discussion on whether it would be possible to have a deregulatory bias in the Bill that would point in that direction, but this part of the Bill is worrying because it recognises that it might do the opposite of what we are told it is intended to do. Perhaps the Minister will comment on that.

My second point is about subsection (3). I have read it a number of times, and it strikes me that it either is not brilliantly drafted or does not make sense. It says:

“In the case of any provision contained in the order which is made solely for the purpose in section 1(1)(a)”— which is reforming legislation—

“if the Minister considers that the provision would” either simplify or modernise

“making the overall effect of legislation less onerous, or ... removing inconsistencies or anomalies ... he must under subsection (2)(b) explain why.”

Surely there is a “not” missing somewhere. The way it is drafted, the measure says that if the order is doing those things, which we would generally consider to be good things, the Minister must explain why. It therefore implies that if the order does the opposite of those things—things that we would consider to be bad—such as making legislation more complicated, un-modernising it, or whatever the opposite of modernising it is, making it more onerous or adding inconsistencies or anomalies, he does not have to explain why. That does not make sense, but it might be a simple drafting error, or there might simply be a word missing. Will the Minister tell us what he means by that?

Finally, I shall pick up on a point made by the hon. Member for Somerton and Frome about disclosure. Subsection (7) talks about disclosure not being affected by Committees. Could the Minister clarify whether those Committees would report on draft orders to the House or to the Minister? If people contributing to the consultation make it clear that they do not wish things to be disclosed and the Committee says that things should be disclosed, does that have any impact on the adequacy of the consultation? The hon. Gentleman said that he had not typically seen such drafting before, so I wonder whether any new issues have been raised about how consultation is conducted.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office) 5:00, 7 March 2006

This has been an interesting debate. Hon. Members opposite have posed some interesting questions and I seek to respond in like terms.

I start by agreeing with you, Sir Nicholas, that no one is suggesting that the hon. Member for Cambridge has done anything other than carry out his duties as a constituency MP and Member of this place in an entirely appropriate manner, in respect of the Register of Members’ Interests or declaring an interest. He is right that the letter yesterday to the hon. Member for North-East Hertfordshire refers to particular charitable and educational foundations and institutions. That is helpful and I do not think that any member of the Committee would suggest anything to the contrary on how the hon. Member for Cambridge has conducted himself.

I draw the Committee’s attention to the comments that I made in our second sitting, when in response to the hon. Member for Forest of Dean I said:

“Local Acts cover limited areas and deal with matters such as port and harbour authorities, charities or education institutions.”—[Official Report, Standing Committee A, 28 February 2006; c. 64.]

I am sure that all hon. Members would acknowledge that the hon. Member for Cambridge has acted entirely appropriately and you are right to make that point, Sir Nicholas.

Clause 12 sets out the requirements on a Minister to lay an explanatory document and draft order before an order can be made. That constitutes another key procedural safeguard. The Minister may consider it appropriate to proceed once he has carried out the consultation required by clause 11—my hon. Friend the Member for Plymouth, Devonport has already asked about the gender-specific wording of such provisions, but that is a wider debate and I do not wish to draw the Committee into it. I do not know whether we operated like that when we had our only woman Prime Minister or whether we referred to the Prime Minister then as “he”.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

This discussion is entirely relevant given that tomorrow is international women’s day.

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

I do not know how the House or elsewhere plans to celebrate international women’s day, but—this is not the Government’s position—perhaps my hon. Friend would like to launch her one-woman crusade for changing the gender-specific descriptions in legislation. However, that is a much wider issue, which is not before the Committee for discussion this afternoon.

The Minister must lay a draft order along with an explanatory document, which will set out all the relevant information about his proposals as required by the clause. Subsection (2) specifies that the explanatory document must contain considerable detail. That includes an explanation of whether the provision reforms legislation, implements Law Commission recommendations or both, an introduction to the provision and reasons for it, an explanation of why he considers the relevant preconditions in clause 3 to have been met and an assessment of the savings or costs, or the other—elegantly titled—disbenefits or benefits that are expected to arise.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister is reading his brief effectively, but I asked whether he could give an example of a situation in which a Minister would not think it appropriate to proceed with the making of an order under the clause.

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

I shall happily give way to the hon. Gentleman on that point later. There is a responsibility to identify the benefits, disbenefits, details of and reasons for any power to legislate that the order confers on the procedural requirement attaching to that power; and details about the consultation that has been carried out, the responses received and any   changes to the proposal made as a result. That will ensure that any concerns about the proposals are identified.

Let me turn to some of the comments that have been made and the matters that have been raised. On the question of the way in which the decision of or assessment by the Minister made after the consultation can be challenged, as I have said, the Minister cannot proceed with a proposal if he is not satisfied that the preconditions given in clause 3 have not been met. If he reaches an unreasonable view as to whether clause 3 conditions are met—an adverse consultation response will be part of the evidence—then he can be challenged in the courts, open to judicial review.

On the additional questions about the costs and the extent to which it is appropriate to give details, in the case of an order with substantial costs it will be appropriate to give details. However, in the case of an order with genuine but less significant benefits, fewer details will be appropriate. They will be available as part of the public consultation. Benefits and disbenefits include environmental and social gains and losses, and such impacts cannot be considered purely in financial terms.

The hon. Member for Upminster (Angela Watkinson) again performed as a speaking Whip. We are delighted to hear from her, but I am glad to note that hers is not a habit that my hon. Friend the Member for Gloucester (Mr. Dhanda) seeks to emulate, except at the end of each sitting. She asked a genuine question and deserves a straightforward response. Her question was on whether the measure might change the way in which Select Committees carry out their duties. All that I would say in response is that the relevant Select Committees, in this place and in the other place, already have responsibilities under the 2001 Act that enable them to carry out investigations into orders and legislation. In that respect, there would be no change in the way in which Select Committees operate. In the House of Commons, a Select Committee has allowed 27 orders to proceed under the 2001 Act. I can reassure the hon. Lady that there is to be no change in the way in which Select Committees operate.

In respect of the just process of the consultation, which was identified by the hon. Member for Christchurch, all consultation responses are given to the relevant Committees of this and another place. Therefore, the Select Committees of this and another place can additionally make their own assessments of the responses to the consultations and the feedback. The results are analysed in the explanatory document, and it is not possible in that context for the Minister to ignore substantive proposals—if he were to do so, the Select Committee members in this and another place would rightly raise their concerns.

On the changes that the Minister might wish to make under this part of the legislation, the Minister could lay a draft order even if there were adverse comment to some of the proposals from some individuals. However, the Committees would be aware of the consultation responses, as I have said, so in some   cases they might take the view that the order suggested by the Minister was not appropriate for the order-making process of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Everything that the Minister has said so far suggests that he does not envisage any situation in which a Minister would be persuaded by the consultation process not to proceed with the making of a draft order.

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

What I am dealing with today is part of the discussion of the enabling power, setting out the specific principles and the operation of the clause. I have said on several occasions, but it bears reinforcing, that all the matters would be dealt with case by case, through a specific consultation. Today we are considering an enabling power, with respect to explanatory documents that would be laid before Parliament, and the setting of parameters and constraints on the document.

The hon. Member for Somerton and Frome asked about clause 12(5), (6) and (7) and I confirm that those subsections are similar to provisions in the 2001 Act. I am advised that the only change is with respect to taking into account the Freedom of Information Act 2000. I hope that that will reassure the hon. Gentleman. I would say in addition that there is an exemption from disclosure of information under the Freedom of Information Act, where that disclosure would be actionable breach of confidence. I know that the hon. Gentleman will be aware of that. It is reflected in clause 12(5).

Perhaps I may contribute some of my own experience to the debate. In publishing the responses to the consultation on the Bill we have made it clear that only those consultation responses that are not confidential will be placed on the Cabinet Office website. That is the correct and appropriate way to proceed. I recall another experience that concerned consultation on a proposal from the Scotland Office. As a constituency Member I made a specific recommendation based on my considerations, and the opportunity was then available to me to have it dealt with in confidence. I shall not detain the Committee over whether I took it, but the opportunity was there and I am certain it was available to others who participated in the Scotland Office consultation.

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

I do not want to labour the point, but I want to be clear about the relationship with the Freedom of Information Act 2000. The Minister is right that a potential exempt category under subsection (5) is actionable breach of confidence, but under subsection (6) the test is that it appears to a Minister that disclosure would adversely affect the interests of another person. I am not sure that that falls clearly within an exempt category under the Freedom of Information Act. I think that that Act would trump the statutory provision that we are considering, but I leave it to the Minister to re-examine the matter and satisfy himself as to their compatibility.

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

I shall happily do that.

The hon. Member for Forest of Dean talked about hearing things, and then mentioned a missing word; I have no idea whether there is a connection. He asked if a “not” was missing, and I am advised that it is not.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Perhaps on reflection the Minister will accept that he has not answered my question about how what is appropriate is to be judged, under subsection (2)(d), and why, where representations set out in subsection (2)(f) are rejected by the Minister, there should not be accompanying reasons.

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

As I have said several times in discussion of clause 12, the Bill is an enabling Bill and this is an enabling clause. I have made the protections that exist clear. The Minister must adhere to the preconditions under clause 3, as I have mentioned. If the Minister violated or ignored those preconditions that would be open to legal challenge. The evidence from the consultation process would be made public, if the respondents so wished, and the Select Committee would receive the information as well. There are important protections and safeguards that ensure that the things that the hon. Gentleman is genuinely concerned about cannot happen in respect of the preconditions and the operation of the clause.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 5:15, 7 March 2006

I raised two points. One concerned the reference to increases in costs and disbenefits in subsection (2)(d)(i) and (ii). In his letter to the Chairman of the Regulatory Reform Committee the Minister said:

“The better regulation aims in Clause 12 give an indication of the intended use of the power.”

The only thing in the clause that I can find that indicates an intended use of the power is the suggestion that costs and disbenefits could increase. That is quite worrying.

Secondly, given that no words are missing and the subsection means what the Government meant it to mean, the Minister’s answer to my question about the drafting of subsection (3) simply does not make sense. As currently drafted it says that if the Minister is reforming legislation under clause 1(1)(a) he has to provide an explanation only if he considers that it would be effectively better. If he thinks that it will be worse he does not have to explain why. We would prefer that he had to explain in both cases or, if in only one case, in the case where he is making a deleterious change to the law, not an improvement. That subsection does not make any sense at all.

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

In respect of the explanatory memorandum that is laid before Parliament, I can do no more than reiterate my comments about the way in which the order, the explanatory document and the related conditions are specified in subsection (2)(a) to (f). On the letter to the Chairman of the Select Committee, I can confirm that when laying a draft order before Parliament a Minister must explain, where appropriate, how an order furthers better regulations in the explanatory document. That is the important point here in terms of simplifying or   modernising legislation, making the overall effect of legislation less onerous or removing inconsistencies or anomalies.

That is the better regulation aim in subsection (3). These aims are statutory expressions of some of the ways in which the Government intend to use these powers. They do not provide specific limits on the power but this is in effect a statement of the intention of how it will be used. The power is intended to be flexible enough to remove regulatory burdens—

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

I am under some pressure to make progress, but I will give way briefly.

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

The Minister appears to be saying that subsections (3)(a), (b) and (c) provide the definition that we sought under clause 1(1)(a) for reforming legislation. The Minister rejected our suggestions. If that is a comprehensive definition it would be helpful if it were written elsewhere in the Bill rather than simply in the notes and the explanatory document and it would assist the Committee considerably to know what the Government’s intentions are.

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

That is a helpful intervention. This is not a closed list. We do not want to recreate some of the technical complexities of the 2001 Act, which is a general assessment of the weakness of that Act. This is indeed the sort of thing that the Government intend to do under this clause. I hope that is a helpful response.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.