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We continue our consideration of gas transporters and utilities. The amendment raises the question of whether the designation of
“a person who is the holder of a licence” as a “designated gas transporter” should be done by the affirmative or negative procedure. There are some serious financial implications to being so designated. I hope that we do not end up with someone challenging the designation and applying for judicial review. The provision might have serious financial implications for companies; I therefore believe that it ought to be given proper scrutiny by Parliament.
I tend to agree with the hon. and learned Gentleman. If anyone had any doubt about the deficiencies of the negative procedure, they would only have to have been at business questions this morning. My hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) pointed out how extraordinary it is that orders can be made that are subject to that procedure, and despite there being a prayer against such orders, they can come into effect and be in effect for some time prior to any debate taking place in the House. On Tuesday evening, a Minister agreed that an order was deficient and offered to come back with a new one, despite the fact that it had been in place for some time. Such procedural matters are not for the Committee, but they nevertheless need to be addressed in the near future.
When I was a member of the Joint Committee on Statutory Instruments, I learned that although the Committee can consider an instrument and regard it as defective, it does not prevent the Government from going ahead and implementing it under the negative procedure.
The hon. and learned Gentleman is absolutely right. These are not matters that we can consider now, but he underlines the point that the negative procedure is not satisfactory for making rules and regulations that could materially affect the interests of an individual or a company.
It is an interesting debate, and one for which I have some degree of sympathy. Any number of times on Committee I have flipped from the negative to the affirmative in the interests of scrutiny, but I am not going to do so on this one. The matters concerned are of such importance that the sooner, for example, the police are deployed to a particular location, the better. The negative procedure approval mechanism is appropriate in this case. However, I do have a lot of sympathy for what has been said.
I never had the dubious pleasure of being on the Joint Committee on Statutory Instruments, but I am sure that it is very interesting. We have had some fun quite recently with a statutory instrument that it sent back about 10 times as deficient, and we did not lay it until we got it in order for the JCSI—that is the Home Office being cutting-edge as usual in terms of the primacy of parliamentary scrutiny.
On the substance of the amendment, notwithstanding the importance of the potential impact on a designated individual, the negative procedure is appropriate. While the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling and I have anything to do with it, we will deal with the matter when and if such an order is prayed against. For all the reasons outlined, I would rather resist the amendment and stick with the negative procedure in this case, although I have some sympathy with the broader ideals.
I will not press this matter to the vote. I suppose that if we ever get a situation in which the Secretary of State makes a designation, it is challenged by the gas transporter and the issue subsequently gets raised on the Floor of the House, I shall say to the Minister, “I told you so.” Subject to that, I beg to ask leave to withdraw the amendment.