Clause 43 - Power to make consequential provision

Local Audit and Accountability Bill [Lords] – in a Public Bill Committee at 12:15 pm on 21st November 2013.

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Photo of Andy Sawford Andy Sawford Shadow Minister (Communities and Local Government) 12:15 pm, 21st November 2013

I beg to move amendment 151, in clause 43, page 30, line 15, leave out subsection (2).

The Minister may be able to give me a simple explanation and reassurance and completely allay my fears, but I hope he will understand why the Opposition have tabled an amendment. As we read through the Bill and came to clause 43, we saw that it contains two subsections. The first says:

“The Secretary of State may by regulations make such consequential, incidental or supplementary provision as the Secretary of State considers appropriate in connection with any provision of, or made under, this Act”.

That seemed to us to be reasonable. We could have a challenge around the procedure whereby those regulations would be made, and we had some discussion about Henry VIII clauses and so on, but it seemed to be a reasonable provision.

The second subsection did not seem so reasonable:

“The power in subsection (1) includes power to amend, repeal or revoke any provision of or made under an Act (including this Act) whenever passed or made”.

That is either a necessary and technical form of words that the Minister can explain, or it is an extraordinary clause that renders our debate throughout the passage of the Bill redundant, in that it would grant the Secretary of State the power, in future, to amend, repeal or revoke any provision of, or made under, this Act. I assume that my simple reading of the Bill is wrong, and that that is neither the intention nor the effect of subsection (2) and I ask the Minister to clarify what its purpose and effect will be.

Photo of Chris Williamson Chris Williamson Labour, Derby North

Like my hon. Friend the Member for Corby, I am mystified by this clause and I hope that the Minister can give us the reassurances that my hon. Friend has sought. Reading it as a simple person, as I have made clear in the Committee’s previous discussions, this seems to me to give the Secretary of State untrammelled power. I suggested when we were debating clause 38 that it seemed that the Secretary of State was basing himself on the supreme leader of North Korea and was looking to declare himself the supreme leader of local government. I think I suggested at the time that he was probably looking to change his name to Kim Jong Pickles.

As my hon. Friend said, we clearly have a curious situation. Why is the Secretary of State seeking a power

“to amend, repeal or revoke any provision of or made under an Act (including this Act)”?

It seems he can do anything he wants, and he makes that clear, just in case there was any doubt, by using the words “including this Act”. On a simplistic reading, that seems to imply, as my hon. Friend suggested, that we have been wasting our time here. Now, some of us might feel we have been wasting our time anyway, because the Government have not taken on board any of my hon. Friends’ sensible amendments. However, this provision seems to be a step too far.

I sincerely hope, therefore, that when the Minister responds, he can reassure us that the Secretary of State—Kim Jong Pickles—is not looking to become the supreme leader of local government, and that there is some perfectly valid and reasonable explanation why this power is being sought. I also hope he can tell us whether there is any precedent. It would have saved us spending a lot of time deliberating over the past few weeks if we had known before that the Secretary of State is, indeed, taking such a power and that he can, on the face of it, do whatever he wants. I wait to hear the Minister’s explanation of the proposition before us.

Photo of Brandon Lewis Brandon Lewis The Parliamentary Under-Secretary for Communities and Local Government

Normal service is resumed between myself and the hon. Member for Derby North; I was getting concerned that we were in too much agreement. I appreciate his comments about his humbleness, which he has made at various points in the Committee, and I will do my best to explain the provisions. I started life as a paperboy and then worked behind the bar in a pub, and my first proper job was in a warehouse, so I am pretty sure that I can match the hon. Gentleman in terms of coming from a relatively sensible background and that I can, therefore, explain the provisions in detail.

If the hon. Gentleman looks at Hansard and is present on Report, he will find that I have taken on board some of the comments that the Opposition have made, looked at various bits and pieces of them and given assurances on them. However, we can discuss that at a later date.

I hope I can give Opposition Members some reassurance on the clause and allay their concerns. Clause 43(2) enables existing secondary legislation to be revoked or amended. For example, it removes references to the Audit Commission from various statutory instruments. It is very unusual for such consequential amendments to be set out on the face of the primary legislation, as they can often be technical and numerous. Although we have captured all known consequential repeals and  amendments of provisions in other primary legislation, further minor amendments may be required. Such amendments might be necessary, for example, to reflect the impact of certain provisions in secondary legislation made under the Bill.

I appreciate that both hon. Gentlemen may be concerned that the power in clause 43 appears extremely wide and, therefore, potentially attractive to any Secretary of State. It might be helpful to note, therefore, that similar provisions in a range of existing legislation confer power on Ministers and allow them to make consequential amendments to primary legislation. For example, the Housing and Regeneration Act 2008 has a similar section, and a number of consequential orders have been made under it. In addition, section 116 of the Local Democracy, Economic Development and Construction Act 2009 has a similar power. That provision has recently been used to enable the order that set up the Greater Manchester combined authority. Those are just two examples of similar provisions contained in recent enactments, and I hope that gives Members some reassurance that this is a standard provision.

Photo of Andy Sawford Andy Sawford Shadow Minister (Communities and Local Government)

What the Minister is saying is very reassuring. Clearly, there is a precedent for including such a provision, and the intentions behind it are entirely understandable. However, are there any limitations on the process under which it may be exercised?

Photo of Brandon Lewis Brandon Lewis The Parliamentary Under-Secretary for Communities and Local Government

As happened early in our proceedings, the hon. Gentleman has had a premonition of my very next words. I can give him that very assurance: any such repeal or amendment of any provision in an Act would require the Government to introduce regulations, which would be subject to the affirmative procedure and, therefore, debate in both Houses. Any amendment to secondary legislation would be subject to the negative procedure, so further scrutiny could be afforded to any such measures.

The Delegated Powers and Regulatory Reform Committee expressed no concern about the power when the Bill was considered in the other place. I hope that my explanation will enable the hon. Gentleman to withdraw his amendment.

Photo of Andy Sawford Andy Sawford Shadow Minister (Communities and Local Government) 12:30 pm, 21st November 2013

I thank the Minister for his helpful response and clarification, which I believe satisfies the points raised by my hon. Friend the Member for Derby North and myself. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Schedule 13 agreed to.

Clause 45 ordered to stand part of the Bill.