Clause 15 - Orders and Regulations

Part of Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 8:55 am on 12 March 2013.

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Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 8:55, 12 March 2013

I beg to move amendment 40, in clause 15, page 12, line 11, leave out subsections (2) and (3) and insert—

‘(2) The following subordinate legislation may not be made unless a draft of the statutory instrument containing the legislation has been laid before, and approved by resolution of, each House of Parliament

(a) an order under section 8;

(b) an order under section 14(1) or (2);

(c) an order under paragraph 1 or 2 of Schedule 2;

(d) an order under section 11(5)(c);

(e) an order under paragraph 2 of Schedule 2;

(f) an order under paragraph 24 of Schedule 4.

(2A) Before the Secretary of State makes an order under subsection (2) he must consult such other persons as appear to him to be likely to be affected by his proposals.

(2B) If, following consultation under the provisions in subsection (2A), the Secretary of State proposes to make an order under subsection (2) he must lay before each House of Parliament a document which—

(a) explains his proposals;

(b) sets them out in the form of a draft order; and

(c) gives details of consultation under subsection (2A).

(2C) Where a document relating to proposals is laid before Parliament under subsection (2B), no draft of an order under subsection (2) to give effect to the proposals (with or without modifications) is to be laid before Parliament until after the expiry of the period of 60 days beginning with the day on which the document was laid.

(2D) In calculating the period mentioned in subsection (2C) no account is to be taken of any time during which—

(a) Parliament is dissolved or prorogued; or

(b) either House is adjourned for more than four days.

(2E) In preparing a draft order under subsection (2) the Secretary of State must consider any representations made during the period mentioned in subsection (2C).

(2F) A draft order under subsection (2) which is laid before Parliament must be accompanied by a statement of the Secretary of State giving details of—

(a) any representations considered in accordance with subsection (2E); and

(b) any changes made to the proposals contained in the document laid before Parliament under subsection (2B).’.

Good morning, Mr Streeter, and welcome to day five. The excitement continues right to the final day. Now that we are here, it is appropriate for us to have a new ball, and that new ball is a constitutional one. Amendment 40, which I tabled with my hon. Friend the Member for East Worthing and Shoreham and the hon. Member for Strangford, is a crowd pleaser, and it can perhaps bring together the crowd here in the Committee in a way we have not seen until now.

On our final day, I will encourage members of the Committee to break free from the shackles of being for or against the redefinition of marriage and to break free—we have not quite got there yet—from the shackles of their iPad inbox. Amendment 40 will give them the freedom to act in the best interests of Parliament by supporting effective scrutiny of the Executive. We have a free vote on all the amendments that come before the Committee, and, on this amendment, I particularly urge Committee members to look to that freedom so that we can hold the Executive to account. I appreciate that at least two members of the Committee may take issue with the amendment, but other Members should look at it carefully.

I am grateful to the Clerks in the Public Bill Office for helping to provide this particular new ball and for their careful work in helping to draft the amendment, which borrows the so-called super-affirmative procedure from other legislation and would include it in the Bill. Given that we are redefining marriage for generations to come, in the midst of great anxiety among millions of people and in the teeth of opposition from all the major religious groups, it is at the very least of concern, if not extraordinary, that the Government are ploughing on at such speed. Ministers seem to have taken the advice—I often do, but not always—of our great Mayor of London, Boris Johnson, who encouraged them to whack the Bill through; it is as if we are dealing with a game of  whiff-whaff or ping-pong. [Interruption.] Well, a lot of people—even those who agree with the Bill—will think that whacking it through is not the best way of legislating on something of this magnitude.

I think you were in the Chair, Mr Streeter, when we debated clause 11, which highlighted that, at the very least, work is to begin on legislation resulting from the Bill. That legislation has various gaps, and there is certainly work to be done. Under clause 15, the Government want that work to be done through the usual process of secondary legislation. Clause 15 enumerates the clauses that enable the Secretary of State to introduce the relevant statutory instruments. One is clause 8, on the Church in Wales. As Members will recall, we had an important debate about that; indeed, we had some reassurances about Report stage. I urge all those who spoke up on behalf of the Church in Wales to look at how the issue can be dealt with. If it is not dealt with on Report, it will be dealt with through minimum scrutiny of delegated legislation.

There are also clauses 14 and 2. The hon. Member for Strangford spoke well about the important issue of the application of provisions to Northern Ireland. Future legislative provision under schedule 2 will be confined to secondary legislation. There is also clause 11, which I mentioned. The clause raises the issue of the coercion of the wife, which is topical. Vicky Pryce was unable to apply it to her situation; the Government are now seeking to see how it applies to the Bill.

One could carry on looking at the areas the Government need to consider. They have mentioned 8,000 references in statute, many of which have to be dealt with in secondary legislation. Then there is schedule 4 and the debate that not all of us wanted to have about adultery, non-consummation and other areas. Committee members have raised the issue of pensions, and if they are not dealt with to the satisfaction of some Members on Report and at other stages during the passage of the Bill, then we are left with the option of statutory instruments. These are significant issues which need to be dealt with properly and scrutinised and probed effectively, if not by Her Majesty’s official Opposition, by the dissenters in the House.

The question is whether it is right to delegate these matters. Amendment 40 seeks to take it a stage further and say that if we are going to introduce secondary legislation, and not have the opportunity properly to scrutinise the measure, or to add provisions to the Bill in Committee and on Report, then at the very least we need to ensure that the way in which we scrutinise secondary legislation is fit for purpose. Some may say—as they have done throughout these five days of Committee sittings—that this is making a fuss about nothing; that I am over-baking my soufflé or over-spinning my ball or whatever; that this is a “live and let live” Bill and we should let them get on with it.

Paul Begala, an adviser to Bill Clinton, once said of Executive orders:

“Stroke of the pen. Law of the land. Kinda cool”.

Perhaps this is a “kinda cool” clause, but it does Parliament no service not to have the highest level of scrutiny for this important legislation. I do not want to quote Paul Begala. I would rather quote Erskine May. I know the hon. Member for Rhondda can probably recite this particular bit of Erskine May, but I shall do so for the benefit of the Committee:

“The super-affirmative procedure has been implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate…It provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the order remains with the Minister: the two Houses and their Committees can only recommend changes, not make them.)”

That is not in any way a blocking measure. It does not necessarily seek to get in the way of the momentum of the Executive, but at least it allows us have a proper look at the proposals and make recommendations through the proper Committee to the Government.

As Committee members will see from the amendment, the Minister is obliged by the super-affirmative procedure to give some account of his decision-making process and to consult. That is important, particularly when dealing with these issues, because the procedure has been used in local government legislation, local transport legislation, and, most recently, in the Digital Economy Act 2010. According to a guide for policy officials on legislative reform orders published by the Department for Business and Skills the

“Super-Affirmative Resolution is used for complex policy changes or ones that could be controversial. It is a two-stage procedure during which there is opportunity to revise the draft LRO. Parliament has 60 days followed by a further period of up to 25 days depending whether changes are needed for scrutiny. The LRO then needs to be approved by each House of Parliament. The LRO then needs to be approved by each House of Parliament...The super-affirmative procedure is the only one that gives the Parliamentary Scrutiny Committees a chance to recommend changes to the LRO. It is therefore the most appropriate procedure for complex and wider-reaching LROs”.

The super-affirmative procedure was used in section 17 of the Digital Economy Act to make provision about injunctions preventing access to locations on the internet. It was used to scrutinise the Legislative Reform (Local Authority Consent Requirements) (England and Wales) Order 2008 and the Legislative Reform (Insolvency) (Miscellaneous Provisions) Order 2009 among others.

If it was good enough for those somewhat miscellaneous and perhaps not the most controversial of provisions, it must be good enough for one of the most controversial, sensitive and complex issues—redefining marriage—to come before Parliament in recent days and months, if not years. I therefore hope that the Minister will consider the good intent behind the amendment to adopt the super-affirmative procedure and show that there is a real commitment to scrutiny and a understanding of the complexity and sensitivity of the legislation. I also hope that, on the fifth day of Committee consideration, members of the Committee will show their freedom and independence from the Executive and support amendment 40.