Clause 53 - Procedure for service, etc

National Security and Investment Bill – in a Public Bill Committee at 11:25 am on 10th December 2020.

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Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy) 11:25 am, 10th December 2020

I beg to move amendment 29, in clause 53, page 32, line 30, leave out “may” and insert “shall”.

This amendment would require the Secretary of State to set out the process to be followed.

Photo of Derek Twigg Derek Twigg Labour, Halton

With this it will be convenient to discuss clause stand part.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

We start today’s proceedings with the most innocuous amendment imaginable—it is so innocuous that it is in the realms of “barely noticeable”. It is particularly innocuous in terms of the debates the Committee has already had on the use of the word “may” and the words “shall” or “must”. On this occasion, the amendment merely suggests that in subsection (1)—

“The Secretary of State may by regulations make provision for the procedure which must be followed in giving a notice or serving an order under this Act”—

“shall” should be substituted for “may”.

What is interesting about making provision for procedure that must be followed in giving a notice or serving an order is that the impact assessment assumes that that will be done and analyses how those notice-giving arrangements might work. The impact assessment assumes that the Secretary of State will do that, but the Bill does not state that the Secretary of State must do it.

I cannot think of any good reason why that change should not be made. I can see virtually no circumstances in which the current wording will do anything either way in relation to the issuing of the notices and what those notices might consist of. A requirement that the Secretary of State “shall” do those things would be an unalloyed advance in assuring that they happened. It would not have any consequences for national security or for company considerations, other than that companies might consider it rather more comforting that the Bill requires those details, which are important to them, to actually be produced.

The Minister can perhaps enlighten us on the wider issue. I have been on the other side, constructing and putting a Bill together, years ago in my brief but glorious—or inglorious but brief—ministerial career.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

I think we can agree that it was brief. Bills would come to Ministers, fresh from the wells of construction and the pushing of pens to get them into good shape. I wonder whether there is a style guide, deep in the bowels of a building somewhere in Whitehall, that says, “Whenever the Minister is supposed to do something, write ‘may’ in small print.” It is such a long-serving style guide that people have forgotten why the word was ever put in the Bill in the first place.

The Minister would do a great service to the writing of Bills if he were able to say, “I don’t want to go along with the style guide. If someone is supposed to do something, I want to have that written in the Bill.” I appreciate that if the Minister were to say that when sitting around with a number of people who had a freshly minted copy of the proto-Bill in front of them, there would be much stroking of chins and suggestions of, “That is a rather brave method of proceeding, Minister.” But the Minister has the opportunity today, entirely divorced from all those influences, simply to say, “Yes, we will accept this amendment as a stake in the ground for the uprating of the style guide, wherever it happens to be.” That would be a great service to the Committee and to the nation, by getting us into a position where Bills are written to mean what they say and say what they mean.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

I do not want to anticipate what the Minister will say, but he has said, with regards to similar amendments, that stating that the Secretary of State will do something does not mean that he definitely must do it. Does my hon. Friend agree that for the sake of clarity—for us in Parliament but also for businesses, particularly those affected by this—changing that one word would greatly improve the understanding of how the Bill will work?

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

My hon. Friend is absolutely right. If I went to my bank manager, who had called me in about my overdraft, and I said, “I don’t need to say anything other than, ‘I may pay it back,’ but don’t worry, because I will pay it back,” my bank manager might be a little upset and might have something to say about it.

It is curious that we have locutions in the putting together of Bills that fly in the face of common-sense parlance. I agree with my hon. Friend that it really is no great defence to say, “Don’t worry. We don’t need to change this, because we are going to do it.” It would be far better all round if we were straightforward, accurate and clear and put this wording in the legislation, so that everybody knows what we are doing for the future. If, by so doing, the Minister can banish that style guide from the bowels of the building forever, that would be a great service.

Photo of Nadhim Zahawi Nadhim Zahawi Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy), The Parliamentary Under-Secretary for Health and Social Care

I beg you indulgence, Mr Twigg: I intend to speak first to clause stand part and then to amendment 29, which was tabled by the hon. Member for Southampton, Test. Clause 53 gives the Secretary of State the power to make regulations that set out the procedure that the Secretary of State must follow when giving a notice of, or serving, an order once the Bill becomes an Act. The level of detail that these provisions will involve is most appropriately dealt with in delegated legislation. That will also allow the provisions to be modified more easily if changes are deemed appropriate—in the light of operational experience, for example. I know all colleagues will share with me the wish for the unit’s operations to be as efficient and as slick as we can make them.

Examples of notices and orders include information notices, attendance notices, interim orders, final orders or penalty notices issued by the Secretary of State for non-compliance. The clause sets out what may be included in the regulations. For example, they may include the manner in which a document must be given or served and whether it is allowed to be served electronically—for example, by email.

Amendment 29 would require the Secretary of State to make these regulations, which returns, if I may say so, to the recurring theme raised by the hon. Member for Southampton, Test, about the difference between “may” and “shall”. At the risk of becoming predictable, my thoughts here carry certain echoes of our previous discussions.

As hon. Members will know, clause 53 gives the Secretary of State the power to make regulations that will set out the procedure that must the Secretary of State must follow when giving a notice or serving an order once the Bill becomes an Act. It is an entirely laudable objective to ensure that the Secretary of State provides those affected by this regime with the right information on the operation of the regime, and it is one that I shall always support. In practice, though, the amendment is unnecessary.

Although the Secretary of State may make regulations to that effect, in practice, for the regime to function effectively, he must do so. I assure hon. Members that the Secretary of State certainly does not propose to commence the regime without first making these procedural regulations. I therefore assure the hon. Member that the amendment is not required, as he and the Government seem to be in hearty agreement on the importance of such regulation. I ask him to do the honourable thing and withdraw the amendment.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

It is an honour to serve under your chairship again, Mr Twigg. I detect a slight rise in temperature, at least on this side of the Committee Room. I do not know whether that is due to the heated exchanges over “may” and “should”—

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

Warm exchanges. It is certainly something to be welcomed.

I would like to say a few words to clause 53 stand part. As my hon. Friend the Member for Southampton, Test observed, this is another example of a “may” rather than a “will”. The clause exists purely to enable the Secretary of State to make regulations—that is its function—and yet it places no requirement on the Secretary of State to do so.

While the Minister gave a warm response, saying that he and my hon. Friend are on exactly the same page and so on in our desires, I remind him that the Bill is not about our desires; it is about a legislative framework that protects our national security and gives, as much as possible, clarity and certainty to those impacted by it. It is because we recognise the importance of the clause that we wish it to have some effect in law, as opposed to being the gentle suggestion it seems to be at the moment.

Photo of Alan Whitehead Alan Whitehead Shadow Minister (Department for Business, Energy and Industrial Strategy) (Energy and Climate Change), Shadow Minister (Business, Energy and Industrial Strategy)

The Minister has used a bank manager defence. If my bank manager wrote to me to say, “You have an overdraft that you must pay,” and I wrote back and said, “Dear Bank Manager, I may repay my overdraft,” and then the bank manager called me in and said, “What is the meaning of this letter?” and I said, “Don’t worry, I will pay the overdraft soon. No problem. That letter stands,” that would be a problem for me, but apparently not as far as legislation is concerned. The Minister has effectively said, “Don’t worry. This is definitely going to happen. We are all agreed it will happen,” so why not write it in legislation?

I will not pursue this matter to a Division, because we have exhausted this mine in Committee. The Minister knows that this is not the first time I have raised this issue during the passage of Bills, and I will continue to do so because it is an important principle that legislation should say what it will actually do. Perhaps that is a bit basic, but that is what I think is important. I will indeed withdraw the amendment. I thank the Minister for his reply this morning, although it does not dent my crusading zeal for this particular change to be made in legislation generally. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 ordered to stand part of the Bill.