Orders under Part 2

I beg to move Amendment No. 33, in Clause 34, page 16, line 16, leave out from ‘Part’ to end of line 17 and insert

‘may not be made unless a draft of the instrument had been laid before, and approved by resolution of, each House of Parliament.’.

I was confused by the numbers. I heard 33 and assumed that it was the amendment. My apologies for that, Mr. Chope.

As hon. Members will see, clause 34 refers to various orders that Ministers may present to complete this legislation through this part of the Bill. The amendment seeks to ensure that they require the positive resolution of both Houses before becoming law. Part 2, which we are considering at the moment, introduces primary authorities which will affect most employers and every single local authority in our constituencies. Primary authorities will mean that many businesses in our constituencies will no longer be subject to the authority of our local authorities, and that is something that we need to consider. It is a radical departure from current practice. It is important that we, as hon. Members of this House, ensure that the workings of the new system are subject to proper scrutiny. Given that the LBRO will not be directly accountable to the House, is it not important that we ensure that the system is accountable to us? Rather than pursuing the negative resolution, I think that it is important to ensure that the system is covered by the positive resolution. I look forward to hearing the Minister’s response.

I support the hon. Gentleman. It is extremely important that with legislation of this nature, we should have the positive resolution. I hope that the Minister will give some thought to implementing this one important Amendment.

There are two amendments that one can guarantee will be moved during the passage of any Bill. One is the Amendment that turns the word “may” into “shall” and the other will raise negative and affirmative order-making powers. Therefore, such an amendment was always going to come up.

Clause 34 is specifically about the order-making powers under part 2 of the Bill. There are various other order-making powers that are subject to affirmative resolution procedures, which we will discuss in part 3. This is about the order-making powers in part 2. There are four specific order-making powers in this part. The first of these, under clause 24, allows for the legislative scope of the primary authority scheme to be defined for Scotland and Northern Ireland. The next two orders in clauses 28 and 29 allow for exclusions and exemptions to the primary authority scheme to be specified. We discussed those in the debate on clause 29.

Finally, schedule 4 allows for detailed provision to be made for procedures in which matters raised by the primary authority scheme go to arbitration. The Government made it clear in their submission to the Delegated Powers and Regulatory Reform Committee that we believed these to be essentially technical matters, and that the negative resolution procedure was appropriate in those circumstances. None of the powers can be used in a way that would either extend the scope of the Bill or make other amendments to primary legislation—there is no sense of a Henry VIII power. We therefore believe that the negative resolution procedure is appropriate.

Two issues were raised in the debate on this in the other place. The Delegated Powers and Regulatory Reform Committee did not comment on the negative resolution procedure. However, that was on the condition that the orders establishing Northern Ireland and Scotland’s scope should not specify functions that did not already appear in schedule 3, which we discussed this morning. This is still about those headings set out in the enactments in schedule 3 about trading standards, fire safety and so on. It does not go broader than that.

There was also a view expressed in the other place that it should be made clear that the exemption orders should be required to exclude cases in which serious harm might result from the delay that the primary authority provisions could create. We are happy to make both of those changes, which are reflected in the Bill. We will shortly be consulting on the orders and will focus the consultation on enforcement specialists in local authorities and businesses, because they are likely to be highly technical, as I have said.

There is always a debate about whether orders should be subject to the negative or affirmative procedures. We certainly do not take the blanket view that the negative procedure should be used throughout the Bill. As I have said, order-making powers under part 3 will be subject to the affirmative resolution procedure, but we feel that the negative resolution procedure should suffice in relation to the orders covering the issues in this part of the Bill—particularly because the matter has been discussed in the other place and considered by the Delegated Powers and Regulatory Reform Committee.

This has been a helpful debate. I accept that a number of the orders principally relate to technical matters. As the Minister highlighted, the orders in parts 1 and 3 are subject to the positive resolution. However, that is not the case here. I considered the issue with some care and looked at the matter in terms of schedule 4. Enforcement action is quite an extensive part of the Bill in relation to the way it reaches the operations of the LBRO. That is particularly the case in those areas  where the actions of the LBRO will impinge upon the businesses concerned—the regulated person, as it were.

My problem is that the LBRO itself is not accountable to us. Therefore it is important that we strengthen our ability to scrutinise the Government’s actions wherever else we can. Although I accept that, for the most part, the principal purpose of the orders for this part is technical, the enforcement action is nevertheless important. If I might refer to the metaphor used by the Minister, enforcement action will be the teeth that are often seen and, indeed, felt by the regulated persons. It is therefore important that we have the opportunity—no more than that—to debate these matters in an appropriate fashion. Although I understand the assurances of the Minister and do not always think it is appropriate to pursue the positive resolution on technical matters, on this occasion it is. I therefore seek to press the Amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.