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“(6) Before making regulations modifying legislation under this section, the Secretary of State must consult persons who, in his or her opinion, are representative of the sector to which the regulations will apply, or who may otherwise be affected.”
This amendment would ensure there are checks and balances on the use of Ministerial powers.
Amendment 77 again raises the issue of the negative and affirmative procedures. I will not test the Committee’s patience by going through all of that again.
I will resist the temptation of the Whip. If Members look at page 7 of the Bill and see where that is included, they can probably get the gist of what I am trying to achieve with amendment 77. It is worth asking the Government to consider this because clause 9(2)(b) says that the Secretary of State can by regulations make modifications.
To be fair to the Minister, he does attempt to put parameters on what the Secretary of State would be able to do, but he talks about simplifying or modifying the operation of any provision. “Simplifying” and “modifying” are quite subjective terms: what he considers a simplification of a measure, I might consider a drastic change or something that would do harm to those subject to it.
Again, the power in the clause is slightly wider than it ought to be to justify the negative procedure. I would be interested to hear the Minister’s response to that point and whether he might consider, at later stages, amending the “simplifying or improving” terminology to justify his desire for the negative procedure and, if not, whether he might consider making an alteration to allow use of the affirmative procedure.
I come now to amendment 78. What we are trying, in various ways, to do with the Bill is to get some grip on the Government’s intentions and to find ways of influencing what the Government might wish to do with the new powers that they are seeking to gain for themselves. We have tried to do that by asking them to use different procedures. My hon. Friend the Member for Stroud has asked whether the Government might be interested in using piloting, to get greater input into the new powers. It is quite undemocratic and worrying for many of us to see such power being retained by Ministers in the absence of sufficient scrutiny.
Another way in which we think that we might be able to have some oversight, grip and input is through the use of consultation. I tabled this amendment just to find out whether the Government are interested in that approach and whether it is something that they have already decided to do in relation to this clause, although similar arguments could be applied to many of the other clauses, which will have a very direct, severe and long-term impact on those people subject to the measures in the Bill.
We have just been discussing the huge life decisions that farmers will be making after the Bill becomes an Act. It seems to me that there is a need for consultation. When we look at some of the other consultations that the Government take it upon themselves to conduct, we see that there is a very strong argument for requiring the Secretary of State to engage in some sort of consultative process before some of these measures are implemented. I had a look at what kinds of issues the Government think are important enough to consult on at the moment, and it is quite a long list. I found that, this year alone, the Government have launched 774 consultations. That is rather a lot.
I hope that he can name at least 70 of them, because the Department for Environment, Food and Rural Affairs has launched 70 consultations in 2018 so far. They are all on really important things, of course, but I would say that this measure, in clause 9, is as important as some of the things.
Does my hon. Friend agree that although a general consultation might be done on an area of Government policy, specific consultations about specific regulations can very often achieve far more and elicit very specific objections and reasons for modifying or, indeed, dropping those regulations?
I think they can. There is no doubt that there are some very poor examples of consultation—consultations undertaken not just by the Government, but by councils and other public bodies—but consultation can also be an incredibly positive thing to do.
I think that I recall Jacqui Smith, a former Member for Redditch, saying, when she was a junior Health Minister, that she feared that consultation was regarded as just a period of time between having an idea and putting it into practice. That is certainly not what we advocate in any way, but as my hon. Friend the Member for Ipswich says, if consultation is done correctly—if it is on the right issues and involves the right stakeholders—it can have a very beneficial impact.
One of the purposes of consultation that is often overlooked, particularly when dealing with industries or sectors, is to allow input into the process of public policy. Failure to allow that input will often lead to judicial review, particularly if businesses or organisations face a significant loss or disadvantage in the marketplace. The power of the courts is often a stimulus for consultation, which is needed so that any Government can have something to rely on and rest their case on.
I am not sure that I completely understand what the hon. Gentleman is getting at, but where there is a statutory duty to consult, the basis for challenge often rests on how well that consultation took place. To assist public bodies in carrying out consultations, the Cabinet Office has issued guidance on when they are appropriate, who ought to be consulted and how it all ought to be done, which is helpful in addressing that challenge.
My amendment is probing, and I do not necessarily seek to get it into the Bill, but we need to understand the Government’s intended approach to involving sector bodies. The Minister clearly intends to rely on the expertise of various sectors as he goes about implementing the measures in the Bill or—perhaps more accurately—deciding which measures he wishes to implement. He has signalled that there will be a role for third sector organisations in particular. I see that as a very good thing, but we need to better understand how, and on what basis, the Government intend to achieve it. These are not passive bystanders, but people who want to be actively engaged and make a difference to the areas that many of them have spent their whole lives championing.
It is important that we get this right. So far this year, the Government have seen fit to consult on some really important things. To read out a few at random, there has been a very broad consultation on the future of food, farming and the environment, as well as consultations on bovine tuberculosis, on banning third-party sales of pets in England, on air quality and on using cleaner fuels for domestic burning. The measures in clause 9, and indeed elsewhere in the Bill, are equally worthy of engagement with a wider range of voices than seems likely at the moment.
I have therefore tabled a consultation amendment to clause 9 and, I think, to one other clause in the Bill. I chose clause 9 in particular because, as the explanatory notes state, it
“empowers the Secretary of State to make regulations which modify the ‘horizontal basic act’”— which the Minister has helpfully explained to us—
“as incorporated into domestic law carried forward and modified according to the EU (Withdrawal) Act 2018…in relation to England…The horizontal regulations…include rules on application procedures, calculation of aid and penalties, payment windows and payment recovery. They include rules on checks to be carried out, including databases used to check compliance, audits and farm checks and administrative checks. They also include rules for the implementation of the farm advisory system, calculating the funds for public intervention purchase and the establishment of a single beneficiary website”.
Those are all things on which the sector would like a say, because it will have opinions about them.
We have already heard from the Minister on numerous occasions about how the Secretary of State will be speaking to various people in various sectors about what is going to happen, but does she agree that we need something statutory? People need to be certain that they will be consulted, when that will be and that they will be consulted on the precise details of the regulations coming in that will affect them, because they are the ones who know most about these sectors.
I am persuaded by what my hon. Friend says, and he tempts me to insist further upon a duty to consult. I had not intended to do that at this stage, but it might be something that we return to. We need to listen to what the Minister has to say in response.
A lot of the problems rest with “improving”, “simplifying” and “modifying”, because who is to say what those things really mean? It is highly contestable, and challenge could come from a number of quarters. The Minister needs to be far clearer at this stage exactly he means when he says, “We’ll be talking to—” or, “We’ll be involving—”. It seems very casual and quite loose. It is great that the Minister has good relationships with the sector—that is healthy, and I am in no way critical of it. However, I would like a way of ensuring that that good, healthy relationship can be enjoyed by his successors too. The Bill leaves things far too loose, with the potential for voices outside Government to be ignored entirely. Nowhere does it say that the Secretary of State must do many of the things in the Bill, as we have said at length.
I do not want to insist on that as a way of being burdensome to the Government. I understand that it means an extra process, that there is a cost attached and that it requires time; and, as we have discussed, there is a real desire to get on with this, which I share. However, the Cabinet Office guidance on consultations, which was revised only this year and which is therefore something that the Government have a commitment to more broadly—which is a good thing—says that consultations should
“Give enough information to ensure that those consulted understand the issues and can give informed responses”,
“Include validated impact assessments of the costs and benefits of the options being considered when possible; this might be required where proposals have an impact on business.”
The measures we are discussing absolutely have an impact on business—a very direct and immediate one—so I see no justification for not having a way of ensuring that the needs of those who represent the various sectors can be heard.
The Cabinet Office guidance also says that
“Consultations should last for a proportionate amount of time”— they do not have to take forever—and that
“Consulting for too long will unnecessarily delay policy development.”
Responses should be published quickly,
“within 12 weeks of the consultation or provide an explanation why this is not possible.”
The consultation continues:
“Where consultation concerns a statutory instrument” the Government should
“publish responses before or at the same time as the instrument is laid, except in very exceptional circumstances.”
I would like to know what is so exceptional about what the Minister is doing that means it needs to be done so quickly that it leaves no time to undertake some form of consultation. The evidence sessions were great, but that is not the same thing, and the lobbying that is happening is not really adequate and is no replacement for a decent process.
It is slightly different when there is a duty to consult, which is why I am holding back, for the moment, from attempting to persuade the Government that they need to put a duty in the Bill. I wonder whether the Government ought to agree to a duty to consult, and that the Bill ought to say how that consultation should be done. At this stage, this is a probing amendment, but I wonder how aspects of our deliberations might develop, because we might find that there is a stronger desire as the Bill proceeds to hold the Government more firmly to any commitments that they might make.
I checked some legal advice on the duty to consult, because I was mindful of the issues raised by the hon. Member for North Dorset. We need to use these things sparingly, but it may be that it is appropriate in the Bill. That advice says:
“Where the duty to consult is imposed by statute, then the procedure to be adopted is also likely to be prescribed by the legislation.”
If we were to take the path advocated by my hon. Friend the Member for Ipswich, we would need to consider exactly how that ought to be conducted. There are principles that need to be applied in the unlikely event that the Government should voluntarily seek to follow that path, although they may find themselves required to do so. The advice goes on:
“The demands of fairness are likely to be higher when the consultation relates to a decision which is likely to deprive someone of an existing benefit.”
It is quite easy to see how the measures in clause 9 could arguably deprive someone of a benefit that they have enjoyed.
It concerns me that the Government are proceeding in a way that lacks detail and is so vague and woolly that it is difficult for people to see exactly what their situation will be after the Bill comes into force. Better engagement and more interaction now could assist the Government in avoiding making unforeseen mistakes, as hinted at in our discussions on the Bill this week.
I think I have made the points I wanted to make at this stage. I will listen to what the Minister has to say. I do not anticipate that I will put amendment 78 to a vote, but I might want to put amendment 77—about the negative and affirmative procedure—to a vote.
Before we proceed—I am entirely in the Committee’s hands on this—I should say that there may be multiple Divisions on the Budget resolutions. Once a Division is called, I have no power other than to recall the Committee 10 minutes after the last Division. [Hon. Members: “No!”] I think the expression is, “Those who have no stomach for this fight.” There we are. The Government Whip has the opportunity to move the Adjournment motion now or to take his chances, but he cannot move it in the middle of the Minister’s speech.
I will try to be as brief as possible. Amendment 77 repeats the earlier debate on clause 6, which also proposes a negative resolution. For the same reasons, we believe that a negative resolution is appropriate in this case, because it deals with technical issues and the switching off of certain requirements that currently sit in the scheme to try to improve it, simplify it and remove some of the frustrations that we have at the moment. That should be seen in the context that this is a time-limited scheme anyway, which will expire at the end of the transition.
I note what the hon. Member for Darlington says about the term “simplifying” or “improving”; I know the Lords Committee that looked at this also raised that point. We have not quoted the Agricultural Act 1947 today, but I know many hon. Members like it, so let us look at section 1, which talks about the importance of
“a stable and efficient agricultural industry capable of producing such part of the nation’s food and other agricultural produce”,
as it is deemed “desirable to produce”. Now, if I had drafted a clause along those lines and put it in, everyone would have said, “What does ‘desirable’ mean? What does ‘stable’ mean? What does ‘efficient’ mean?” The truth is that we can have false precision on these things. It is clear what we mean by “simplifying” and “improving”.
We should also view this in the context of subsection (2)(a), which is simply the power to switch off certain provisions altogether. It is very clear in the context of subsection (2) that our preference will be to switch off things altogether where they serve no purpose or we think we can do without them, but where we think they serve some purpose we can simplify and improve them. That is understood.
I should also say that we have to understand that at the moment, the best that Parliament will get on things such as this is an explanatory memorandum, explaining the latest thing that the EU has done to us. Most of these sorts of decisions are made by EU delegated acts. There is literally no democratic input at all on some of those requirements, and often things get made up on the hoof by EU auditors working for the Commission, who create all sorts of new processes that have not been discussed or agreed at any level within the European Union.
This is an approach that I believe is right. To explain the types of things that we want to deal with here, I have to deal as Farming Minister with something called RPA appeals. Every month I get a bundle of cases in my box that are farmers who maybe missed a deadline because something got lost in the post or there was a problem with their application form. The system is hideous; I have spent hundreds and hundreds of hours wrestling with lawyers in our Department to try to find a way of doing what is just and fair and finding in favour of farmers, only to find, all too often, with deep frustration, that EU law does indeed require me to find against them. The system we have in the so-called horizontal regulation is manifestly unjust and unfair, and we must resolve to improve it.
I turn now to the hon. Lady’s amendment 78. She explained her approach in great detail, but let me just say that she rather undermined her own argument by pointing out that DEFRA, without any statutory requirement necessarily to do so, is quite capable of churning out a great many consultations. I can tell her that, more often than not, the conversation I have with our officials is, “Do we really need a consultation on something as small as this?” and the answer is invariably, “Yes, because that is what Cabinet Office guidelines require.”
I do not believe that we need a statutory requirement to have a consultation on this. The only area where we have a statutory requirement for a consultation in the DEFRA field is on issues of food safety, where there is a written statutory requirement always to consult, but that does not stop us consulting. We consult on everything, and if it would give the hon. Lady some reassurance, I can give her an assurance, here on the Floor of the Committee, that we would consult on the changes that we intended to make under clause 9.
I would envisage our having a single strike at improving the system and probably not changing it much beyond that. It is inevitable that we would issue a consultation on all the changes that we would seek to make, and we would try as far as possible to do everything in that one go. It might be the case that there was something we missed and at a later date we might want to do a less formal type of consultation, but I take the opportunity here in this Committee to give the hon. Lady an assurance that we would consult on that first major batch of changes that we would seek to make, but we do not need to be forced to do so by a statutory requirement—as I said, we are quite capable of doing that anyway. I hope on that basis that the hon. Lady will withdraw amendment 77 and we can prepare to adjourn.
I have listened carefully to what the Minister has said on amendment 78 and I accept, I think, what he is trying to say. I think he has tried to assure the Committee that there will be some kind of process put in place, so I will ponder that. I might return to that, but what he said was very helpful. In the interest of consistency, I feel I need to press amendment 77.