(2) The Secretary of State may not make an order under this Chapter unless the Secretary of State has laid a draft of the order before each House of Parliament and the remaining provisions of this section have been complied with.
(3) The Secretary of State must have regard to
(a) any representations,
(b) any resolution of either House of Parliament; and
(c) any recommendations of a committee of either House of Parliament on the draft order, made on or with regard to the draft order during the 60-day period.
(4) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order in the terms of the draft, he must lay before Parliament a statement
(a) stating whether any representations were made under subsection (3)(a); and
(b) if any representations were so made, giving details of them.
(5) The Secretary of State may after the laying of such a statement make an order in the terms of the draft if it is first approved by a resolution of each House of Parliament.
(6) However, a committee of either House may, at any time after the laying of a statement under subsection (4) and before the draft order is approved by that House under subsection (5), recommend under this subsection that no further proceedings be taken in relation to the draft order.
(7) Where a recommendation is made by a committee of either House under subsection (6) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (5) unless the recommendation is, in the same Session, rejected by resolution of that House.
(8) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order consisting of a version of the draft order with material changes, he must lay before Parliament
(a) a revised draft order; and
(b) a statement giving details of
(i) any representations made under subsection (3)(a); and
(ii) the revisions proposed.
(9) The Secretary of State may after laying a revised draft order and statement under subsection (8) make an order in the terms of the revised draft if it is first approved by a resolution of each House of Parliament.
(10) However, a committee of either House may, at any time after the revised draft order is laid under subsection (8) and before it is approved by that House under subsection (9), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(11) Where a recommendation is made by a committee of either House under subsection (10) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (9) unless the recommendation is, in the same Session, rejected by resolution of that House.
(12) Where a person making representations under subsection (3)(a) has requested the Secretary of State not to disclose them, the Secretary of State must not disclose them under subsections (4)(b) or (8)(b)(i) if or to the extent that to do so would (disregarding any connection with proceedings in Parliament) constitute a breach of confidence actionable by any person.
(13) If information in representations made by a person in response to consultation under subsection (3)(a) relates to another person, the Secretary of State need not disclose the information under subsection (4)(b) or (8)(b)(i) if or to the extent that
(a) it appears to the Secretary of State that the disclosure of that information could adversely affect the interests of that other person; and
(b) the Secretary of State has been unable to obtain the consent of that other person to the disclosure.
(14) Subsections (12) and (13) do not affect any disclosure that is requested by, and made to, a committee of either House of Parliament charged with reporting on the draft order.
(15) For the purposes of subsections (5) and (9) an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.
(16) In this section the 60-day period means the period of 60 days beginning with the day on which the draft order was laid before Parliament under subsection (2)..
The amendment is fairly self-explanatory and there has already been lengthy debate about ITAs. The reasons behind the amendment relate back to our discussions about the controversial nature of the ITAs. In line with previous amendments tabled by my hon. Friend the Member for Lewes and me, this one would afford greater parliamentary scrutiny of any orders made under this chapter relating to those ITAs.
I tabled a similar amendment, which would have the effect of replacing an affirmative order with a regulatory reform order or the super-affirmative process. That is a more appropriate way of dealing with a medium-sized local government reorganisation.
Why is that way better? The Government are proposingafter local consultations which may or may not be controversialto make an affirmative order and local government will be reorganised, so electors will lose their power to elect people who will directly implement certain highways and transport functions. That is a major change in local government.
Is an affirmative order, even after thorough and good local consultation, the right way to do that? Even if there is an hour and halfs debate, it will be whipped. It is just an opportunity, if the ruling party has a majority, for people who disagree to make their case and lose a whipped vote. That does not seem a proper way of dealing with local government reorganisation.
The alternative, which I do not think would be appropriate either, would be to have a Bill, go through the full legislative process and change the primary legislation. There could be two or three such measures a year, perhaps more in some years, which would take a huge amount of parliamentary time.
However, the regulatory reform order answers the question by pointing out the Governments proposals and the obvious alternative of primary legislation, because regulatory reform orders are a different parliamentary pathway for altering primary legislation. I think that is what we are doing. The Government have taken powers. One way of looking at the Bill is that it is one whopping Henry VIII clause that gives the Secretary of State a lot of power to make orders. That does not seem a sensible way to deal with local government reorganisation.
Many hon. Members will not be familiar with the super-affirmative process or regulatory reform order. The process is similar to making an order, but a Committee sits and it is possible for individuals to petition and make representations to alter the order. The Committee is able to call the Secretary of State or the Minister responsible and to ask for changes, so it is a very thorough process in both Houses. When it has been usedI think the process was introduced in 1992it has almost inevitably led to better legislation. It is a recognised parliamentary process for changing primary legislation, rather than just giving the power to the Secretary of State. That seems to me a more appropriate way of proceeding than just a straightforward affirmative resolution.
My hon. Friends, and especially the Minister, need a long perspective when they are taking Henry VIII powers. It is easy when one party is in control to think This is good; this will get things done more easily, but the Labour party will not be in control for ever. People may think that I am referring to last weeks elections, but if Opposition Members look at similar debates in Committees on regional assemblies and various other debates in which I have been involved, they will see that I have made that point repeatedly. It is better to have proper procedures that do not merely pay lip service but are part of the democratic process and use the full parliamentary process properly rather than trying to take short cuts. Everybody benefits, whether one is in opposition or government.
It is certainly worth the Minister considering the amendment. It proposes a thorough parliamentary process which addresses, as I have said previously, the fact that the Bill is unbalanced, not in its desire to improve transport but in the way that it treats the local democratic process. The amendment is one way of re-establishing some of the balance. We talked about other ways, such as referendums, vetoes for councils and direct elections earlier this morning. The proposed parliamentary process would re-balance that part of the Bill. I hope that my right hon. Friend will look seriously at a well-established parliamentary procedure for dealing with changes in primary legislation, rather than taking the power to herself or to the Secretary of State.
I know how concerned my hon. Friend is about the issue, as we have had a number of discussions about it. I accept that the Bill provides for some quite significant reforms to be made via secondary legislation, but that is why we have provided for the affirmative procedure to apply in those cases, so that all such orders would need to be approved by both Houses of Parliament. That is completely consistent with the House of Lords Delegated Powers and Regulatory Reform Committee, which looked carefully at the issue, but it noted the procedures and safeguards that were included in the Bill and concluded that
we do not consider these delegations inappropriate.
The powers in the Bill are not unprecedented. To give another example, the Local Government and Public Involvement in Health Act 2007 provides a power to establish unitary authorities in place of existing local authority structures. That power, too, is exercised by secondary legislation subject to affirmative resolution.
I think we have been through the proper procedures in relation to the points made by the hon. Member for Manchester, Withington, and we feel that the provisions are appropriate, given the advice we received from the Committee.