Legislative and Regulatory Reform Bill

Public Bill Committee, 7 March 2006.

Legislative and Regulatory Reform Bill - Standing Committee A

Clause 4 - Subordinate legislation

Alison Seabeck (Labour, Plymouth, Devonport)

I beg to move amendment No. 22, in clause 4, page 3, line 8, leave out from ‘on’ to ‘unless’ in line 9 and insert ‘any person’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following amendments:

No. 49, in clause 4, page 3, line 9, leave out from ‘otherwise’ to end of line 18.

No. 62, in clause 4, page 3, line 14, leave out paragraph (a).

No. 23, in clause 4, page 3, line 18, at end add—

‘(5)Subsection (1) does not apply to—

(a)provision conferring a function of regulating a profession on a body elected by members of the profession;

(b)provision conferring a function of regulating a trade on a body elected by members of the trade; or

(c)provision conferring on a local authority, within the meaning of section 1 of the Local Government Act 2000 (c. 22), the function of legislating with respect to its area.’.

Alison Seabeck (Labour, Plymouth, Devonport)

As a novice in Standing Committee, I am delighted to move my first amendment under your chairmanship, Mr. Caton. I have already stepped out of line during our proceedings, albeit unwittingly, and I hope not to do so again. However, if I say something that is not entirely in order or pop up at the wrong moment, I hope again to receive the benefit of your guidance.

I shall endeavour to be brief. Having been on the other side of the fence during the Committee stage of the Greater London Authority Act 1999, to which thousands of amendments were tabled—it was the longest Bill since the Government of India Act 1935—I have learned the value of brevity. Indeed, brevity is particularly important in relation to one of the Bill’s aims, which is the speeding up of over-lengthy processes.

I seek through the amendments to probe the Minister’s thoughts on whether part 1, and particularly clause 4, should apply greater constraints when conferring a power on an official body, individual officials, a private company or private individuals. It is legislating in a way that bypasses the normal affirmative and negative resolution procedures for statutory instruments.

The Regulatory Reform Act 2001 did not provide for the sub-delegation proposed in the Bill. In the past, Parliament has delegated powers to outside bodies. For example, the Building Societies Commission was given substantial powers in the 1980s; but it was answerable to the Treasury, and Treasury Ministers were answerable to Parliament.

Sub-delegation is one of the streamlining procedures designed to speed up the deregulatory process. That is all very well, but it seems that there is scope not only for legislative sub-delegation but for the dropping of constraints from the regulatory reform order procedure in respect of burden and activities. The Minister will correct me if I am wrong, but it appears that a legislative reform order could be sub-delegated to anyone, without that person or group of people being answerable to Parliament. I am sure that the Minister does not mean that power to remain in the Bill.

The Regulatory Reform Committee was concerned about the need to tighten the power of legislative delegation yet allow orders to cover genuine trade and professional regulations and byelaws. I am sure that the Minister will say that there is no intention to give additional powers to inappropriate bodies, but I am concerned about who will decide what constitutes an inappropriate body.

I accept that Ministers never feel comfortable with lists in Bills, as they can be restrictive—in general, I share that concern—but amendment No. 23 contains a list. It is a probing amendment to concentrate the Minister’s mind on some of the groups that could be affected by the clause. I would therefore welcome his consideration of the Select Committee’s special report before ruling out any change.

Oliver Heald (Conservative, North East Hertfordshire)

I read amendment No. 23 as saying that Ministers should not be given functions that were previously fulfilled by professions or trade unions—in other words, that if there is no provision and a trade union or a profession regulates itself, or if there is provision for those bodies to regulate themselves, it should not be possible under subsection (1) to take that function from the body and give it to the Minister.

Alison Seabeck (Labour, Plymouth, Devonport)

That is an interesting point. It serves to flag up the confusion that exists on clause 4. That is why I am asking the Minister to reconsider the provision and to clarify the matter before Report.

Oliver Heald (Conservative, North East Hertfordshire)

I start with amendment No. 22, but I shall make the odd remark about the other amendments; I tabled one, and the Liberal Democrat amendment is likely to be spoken to.

Amendment No. 22 would, as the hon. Lady said, extend the clause 4 test on the conferring of legislative functions so that it applies not only to Ministers but to any person who is given a function under part 1. In effect, amendment No. 49 brings a stand part debate into Committee. The hon. Member for Cambridge (David Howarth) has set out his position and is suggesting that it should not be possible to confer a function of legislating on a Minister of the Crown under section 2(1). I should be interested to hear his introduction to the proposal. It is certainly well worth considering whether it is needed.

However, the amendment could provide conditions on which conferring on the Minister of the Crown the function of legislating would apply. Although we do not like it, it might be in the category of, “It’s better than nothing.” By tabling amendment No. 62, I would delete subsection (3)(a) so that any statutory instrument giving the function of legislating to a Minister of the Crown would have to be conferred by affirmative resolution procedure. It should not be possible to take such action without debate. If I say so myself, that is a sensible proposal. [Laughter.] To confer on a Minister the function of legislating is an important action to take. It is giving an order-making power to a Minister by order, and that should not happen without debate.

I understood that amendment No. 23 was designed to protect professions, trade unions and local government in the sense that it would not be possible to give a Minister order-making functions that are currently in the hands of such bodies. It is a good amendment because it would prevent those bodies from meddling by Ministers. I am inclined to support it, but I am looking forward to what the Minister has to say about this interesting group of amendments.

Martin Caton (Labour, Gower)

Order. As has been said, when dealing with the amendments, we will be debating the substance of the clause. I therefore do not intend to hold a separate stand part debate. Will hon. Members remember that when making their contributions?

David Howarth (Liberal Democrat, Cambridge)

I wish to speak briefly to amendment No. 49. Given that the Committee, unfortunately from the point of view of Opposition Members, decided to allow clause 2 to stand part of the Bill, amendment No. 49 is now more of a probing than an operative amendment. However, it allows us to ask the Government why they want to give Ministers such a power. For what purposes is the power granted under the Bill to create in Ministers legislative power, which on the face of it is a fundamental violation of the separation of powers?

Will the Minister tell us precisely what sort of legislation he has in mind? When he does so, we can then table more specific amendments that would allow, as far as they are reasonable, such powers to be given, but do not go as far as the Bill, which will give a general power. The fundamental objection that many of us have to the Bill is that it seems to grant powers that are over-broad and go way beyond any reasonable purpose that the Government might have.

What is the Minister’s understanding of the limits of ministerial power to legislate that can be granted under the Bill? Will any limitations on the use of the powers of the Bill that apply to orders also apply to ministerial legislation granted under such an order? For example, will any parliamentary scrutiny be required of orders made under the clause? It seems to me that the equivalent of a regulatory reform order could be passed, giving a Minister the power to create new law and obligations on the public, and that that power would not be subject to any of the restrictions in the Bill. For example, such an order could create crimes punishable by more than two years’ imprisonment, increase taxation or create powers of forcible entry.

The Parliamentary Under-Secretary of State for the Cabinet Office (Mr. Jim Murphy)indicated dissent.

David Howarth (Liberal Democrat, Cambridge)

The Minister is shaking his head, which is good news. If that is not his understanding, will orders that Ministers might bring be subject to parliamentary scrutiny? That is, will they be subject to negative, affirmative or super-affirmative procedures in the same way that an originating order will be? If so, we need that to be made clear in the Bill. It must be clear that nothing that can be done by a Minister under clause 4 can go beyond the scope of the Bill.

Jim Murphy (Labour, East Renfrewshire)

I am pleased to have the chance to respond to this brief debate, and I shall try to do so equally briefly. First, the Committee will be pleased to be informed that, arising from our discussion last Thursday on the commitment to introduce a specific power of veto, arrangements have been put in place for us to have conversations with Front Benchers from the Conservative party and the Liberal Democrats on the specific shape of any amendment in principle. I also confirm that responses to the consultation on the Bill have now been placed on the website, as recommended by the Regulatory Reform Committee.

Clause 4 places restrictions on any order that confers a function of legislating on a Minister, by setting out two conditions that must be satisfied. Where the power to legislate is conferred on someone other than a Minister, the conditions will not apply. There are many forms of secondary legislation, not all of which are appropriate for exercise by a Minister. Some matters that are uncontroversial or apply only on a local basis are suitable for legislation by someone other than a Minister. For example, a local authority may be given a power to make byelaws or orders relating to roads. However, where a power to legislate is conferred by order on someone other than a Minister, it must be given to an appropriate person or body, and a suitable level of procedure must be required depending on the nature of the instrument.

I turn to the points made by the hon. Members for North-East Hertfordshire (Mr. Heald) and for Cambridge, and by my hon. Friend the Member for Plymouth, Devonport (Alison Seabeck). Amendments Nos. 22, 23, 49 and 62 relate to conditions in clause 4 placed on the conferring of powers to make subordinate legislation. I will therefore address those amendments simultaneously.

Amendment No. 49 would prevent orders from conferring powers to legislate on a Minister, but not on someone other than a Minister. That would create an arbitrary restriction on the order-making power and prevent orders from delegating legislative powers that would most appropriately be conferred on a Minister. Of course, sub-delegation is common practice, and because we are considering an enabling power, there are protections, preconditions and procedures in place to ensure that all sub-delegation is considered appropriate. The amendment may be meant to be considered in conjunction with amendment No. 45, thereby removing the power to confer legislative functions on any person by order. The question of removing the power to confer legislative powers by order falls within the remit of clause 2, which has already been discussed.

As I understand it, the rationale for amendments. Nos. 22, 23 and 62 is to ensure that the Bill’s order-making power to confer powers of legislation is exercised appropriately. The Government have no intention to confer new powers of legislation where that would be inappropriate, or to give them to inappropriate persons or bodies. The amendments would therefore impose an unnecessary degree of inflexibility on the power to sub-delegate legislative functions by order.

Christopher Chope (Conservative, Christchurch)

The Minister says that the Government have no intention to do that in inappropriate circumstances. Where does that appear in the Bill?

Jim Murphy (Labour, East Renfrewshire)

If the hon. Gentleman will allow me to make further comments, I shall make that point clear.

Amendment No. 22 would effectively require any person given the power to legislate to exercise that power by making a statutory instrument. That SI would be subject to negative or affirmative resolution procedure. A wide variety of persons and bodies are currently given powers to legislate, and it is not always appropriate for legislation to be subject to statutory instrument. The amendment, tabled by my hon. Friend the Member for Plymouth, Devonport, is a probing amendment to seek further information. She brings to this Committee her experience from her time on the Regulatory Reform Select Committee.

The Government feel that to require statutory instrument for all sub-delegation would not be appropriate. Local authorities, for example, must often have powers to make byelaws on local matters, and those powers are generally authorised by the relevant power or authority. Sub-delegation involving local authorities or other bodies of that nature should not have to go through the statutory instrument procedure.

Railway operators are also given powers to make byelaws by the Railways Act 2005. They are not subject to any parliamentary procedure, but must be authorised by the Secretary of State and by traffic authorities, including county councils and Transport for London, which can make traffic regulations orders under section 1 of the Road Traffic Regulation Act 1984. The rationale for the list of proposed exemptions in amendment No. 23 is understandable, but the Government do not consider that providing such a list in the Bill would be a measured response to the issue. It would also inevitably become outdated.

I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition, and I have stated that we will consider the options for veto in the Bill. The Committees would undoubtedly consider whether the new power to legislate was appropriately conferred and would reject orders that did not meet that standard. I also reassure hon. Members that the Government do not intend by the provision to conduct a review of local authority powers or byelaws. The inclusion of the power is part of a holistic approach to reducing bureaucracy and unnecessary legislation wherever it falls.

Amendment No. 62 seeks to amend the conditions that must be met when a Minister is exercising legislative powers conferred by order. Where the powers must be exercised by statutory instrument, the amendment removes the option of negative resolution procedure. If subordinate measures are particularly minor or technical, it would be valuable to have the option to deliver them by SI, subject to negative resolution procedure. That is already the case in other areas of legislation.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister is right that there some minor and technical changes are made to regulations by the negative procedure, although some of them are a bit more substantial than that. The difference is that we are talking about giving the power to make law, which is more substantial. The House has always guarded that power pretty jealously. Is it not concession enough for us to agree, as the amendment would allow, that the Minister may do this extraordinary thing—give a law-making power to somebody and expand it? That is quite a major change. It should at least be debated.

Jim Murphy (Labour, East Renfrewshire)

The power already exists in respect of sub-delegation. Ministers already sub-delegate to other bodies or individuals. The relevant Select Committees of this place and another place will still have the ability to refer any procedure upwards. Sub-delegation will be subject to the negative, affirmative and super-affirmative procedures and the power of veto.

The veto is the ultimate sanction. If inappropriate sub-delegation were suggested by Ministers, or if Ministers showed inflexibility on suggestions by the Regulatory Reform Committee or from the Committee in another place, the relevant Select Committees could exercise the veto, as we shall see from the discussion that we shall have over the next few weeks about the nature of the veto. The veto is a power that could be exercised over the whole order.

Notwithstanding the point made by the hon. Gentleman, we are confident and comfortable that we have got the balance right, and the Select Committees can make alternative recommendations if it is considered that the Government are suggesting inappropriate sub-delegation.

David Howarth (Liberal Democrat, Cambridge)

Obviously, it is difficult for the Minister to address both the clause and the amendment, because the amendment would completely change the nature of the clause. The clause does not at all confer power to legislate on other persons, but on Ministers of the Crown. The question that I should like the Minster to answer is why he believes that Ministers of the Crown should be granted powers to legislate without going through the statutory instrument process. That is what I understood him to mean.

If that is not what he means, and if any power to legislate by order could allow only that legislation, and subsequent legislation, itself to go through by statutory instrument, then we are fine. The problem is that that is not what the Bill appears to say. The Bill appears to allow power to legislate to be given to a Minister, and for the Minister then to be allowed to legislate further, without any parliamentary procedure at all. I find that disturbing. I hear what the Minister says about procedural protection, and we can talk about that in a while, but the problem is that the scope and purpose of the Bill are so broad that there is no inherent limitation on what Ministers could do.

Jim Murphy (Labour, East Renfrewshire)

Ministers currently have such powers in a whole series of Acts that are debated and enacted—either themselves or by sub-delegation. Ministers have power to sub-delegate to bodies that are considered appropriate. The difference in the present case is that the relevant Select Committees of the House of Commons, and of the other place, would have the power to make alternative proposals on whether sub-delegation as the Minister suggested would be appropriate—or indeed to veto the whole proposal. I am advised that there must be a parliamentary procedure—either negative or affirmative—for any statutory instrument made by a Minister. I hope that that reassures the hon. Gentleman.

Alison Seabeck (Labour, Plymouth, Devonport)

I am pleased to hear from the Minister that the responses to the consultation have been placed on the website. That is a positive response to the Select Committee report.

I remain slightly unclear about what is meant by “appropriate” in relation to amendments Nos. 22 and 23. I have a marginal worry about that, but I take the Minister’s reassurances on board and I note his clear dependence on the proposed veto. Obviously, we want to see what is proposed on Report, but on that basis I shall not press my proposed amendments.

Oliver Heald (Conservative, North East Hertfordshire)

Having heard the Minister’s explanations, I think that the area is one to which I need to give further thought. On that basis, I do not object to the hon. Lady withdrawing her amendment, and I shall not seek a separate Division on amendment No. 62.

David Howarth (Liberal Democrat, Cambridge)

We are all in the same position. Having heard the Minister’s explanations, we need to go away and think about the implications, so I shall not press my amendments either. However, I should like the Committee to note that the Minister’s position appears to be that the Government will accept no any limitation on the purposes to which the Bill can be put and the subject matter to which it applies. In each of the Minister’s responses, he has relied entirely on the possibility of procedural protection. I am afraid that, from my point of view, that will not be enough; as the Bill goes forward, I will be looking for more reassurance than simply procedural protection.

Alison Seabeck (Labour, Plymouth, Devonport)

I beg to ask leave to withdraw the amendment.

Clause 5 - Taxation

Christopher Chope (Conservative, Christchurch)

I have some questions regarding clause 5 that I hope the Minister can answer.

Why are the Government proposing the exemption in clause 5 when almost everything else seems to have been included? Under the clause, does taxation include stealth taxes? Many people regard the power to increase administrative fines and penalties as effectively stealth taxes. Indeed, yesterday, there was a debate on orders that would allow local authorities to impose penalties for what is described as “mass dog-walking”. At the moment, those penalties are limited to £80 per dog, or perhaps per incident per dog. However, it was suggested that that was effectively a stealth tax. As I understand it, under the legislation before us, that could still be introduced as a stealth tax, notwithstanding the provisions of clause 5.

Oliver Heald (Conservative, North East Hertfordshire)

My hon. Friend made an important point. I recall that when the Pension Protection Fund was brought into force, the amount that was to be paid into the fund was not called “taxation”, but a “levy”, which raises the question of whether it would be possible, under clause 5, to raise a levy across industry which would not count as taxation. Does my hon. Friend think that the Minister should address that point?

Christopher Chope (Conservative, Christchurch)

I do indeed. The Minister was helpful when he wrote us a letter in which he defined “local Act”. Perhaps he could write us another letter to explain the definition of “taxation”, for the purposes of the Bill, because it is not defined on the face of the Bill. Obviously, that is a controversial area.

The other question that I have for the Minister is regarding the connection between subsections (1) and (2). Subsection (2) states that

“Subsection (1) does not apply to provision which merely restates legislation.”

As I understand it, if legislation restates taxation, the Government have the opportunity to increase those taxes without offending against the provisions in the Bill before us. It seems that the Government could restate legislation and increase taxation at the same time, and not be caught by the provisions in clause 5. Will the Minister confirm that that is an accurate reading and interpretation of the powers that the Government are taking?

David Heath (Liberal Democrat, Somerton and Frome)

I think that the hon. Member for Christchurch (Mr. Chope) has done a valuable job for the Committee in questioning the meaning of “taxation” in the context of the Bill. I have a further two information requests for the Minister.

Many statutory instruments will deal not so much with taxation as with fees and charges, which, if unavoidable, come to the same thing as taxation, particularly local authority fees and charges. If a person is required to buy a plastic bag in which to put their rubbish and the cost of that bag goes up, that is effectively an increase in their tax. For business, that can be a relatively large amount in the context of its turnover. Are we to assume that the word “taxation” includes fees and charges, or not? I suspect that the latter is the case and therefore that the apparent protection there is not as real as it might seem.

The other important point is that there is no provision to prevent an order made on this basis from mitigating any form of credit against tax. In other words, one could reduce a tax credit, which has the effect of increasing tax, but the instrument is silent on that matter. This is a way that the Government very much like to do business: they like to set a tax and then have a variety of complicated measures which reduce the impact of that tax on individuals. Rebates sometimes appear in an election year, for example council tax, and then disappear like the winter snow after the election. That would be an example of a rebate against taxation which it would still be possible to change in the context of the clause in that it does not affect the taxation, but the amount that is given back from tax as a result of an instrument of Government. I should be grateful if the Minister could explain exactly what the scope of the clause is.

Oliver Heald (Conservative, North East Hertfordshire)

I have just one point. How does that interrelate with the tax rewrite provisions that have previously been agreed? Clearly we would not want to sanction or agree to a major reform of the law of taxation similar to the tax rewrite proposals being dealt with under this order-making power. We would expect it to continue to be dealt with in the way that it has been. Perhaps the Minister can give us an assurance about that.

Jim Murphy (Labour, East Renfrewshire)

Again, we have had a brief debate and I will try to address the points that hon. Members have made. Any visitor to our Committee in the last 10 minutes or so might think that they had walked into a Finance Bill debate rather than a regulatory reform debate. This restriction was not in the 2001 Act and it forms a new safeguard to ensure that the power is used appropriately. The restriction in clause 5 is one of a number of restrictions on the power in clause 1. Other topic-specific restrictions are contained in clauses 4, 6 and 7, along with the conditions in clause 3 and the procedural requirements that we have already discussed in some detail, not least the veto principle.

This protection would prevent the imposition of tax under the Bill. There is a standard definition of tax and rather than exchanging different interpretations of any agreed definition of taxation I accept the suggestion made by the hon. Member for Christchurch and will share with him the acknowledged definition of tax, which has operated through time regardless of which Government have been in power. That is not a contentious request. Fees and charges would not be considered to be taxes under the Bill’s definition. I hope that that reassures the hon. Member for Somerton and Frome (Mr. Heath). Removing a tax credit in the way he described it would appear to be an increase in taxation and so equally that would not be appropriate.

As I said, this protection was not in the 2001 Act and any proposal would have to be part of a statutory public consultation. It is important to emphasise that. The Minister would have to lay an explanatory memorandum and the relevant committees would make a judgment and would have this new veto power. It is a new protection with additional safeguards and I will provide the hon. Member for Christchurch and others with the legal definition of taxation.

Christopher Chope (Conservative, Christchurch)

Will the Minister give way?

David Howarth (Liberal Democrat, Cambridge)

Will the Minister give way?

Jim Murphy (Labour, East Renfrewshire)

I have finished my remarks, but I will briefly give way to the two hon. Gentlemen.

Christopher Chope (Conservative, Christchurch)

I am disappointed that the Minister says he has finished his remarks because he has not addressed my question about interaction between subsections (1) and (2). My reading of the interaction of those two subsections is that the Government could restate income tax law with a new income tax Act, purporting just to be a restatement, but in the same tax Act increase the rates of income tax. If that is not a fair interpretation, why will the power to increase taxation remain even in legislation that is restated?

David Howarth (Liberal Democrat, Cambridge)

The Minister has not dealt with the simple point raised by the hon. Member for Christchurch, who asked why taxation is allowed to constitute a restriction on the purposes for which the Bill can be used, but human rights are not. In every other debate the Minister talked about procedural protections and the Committee veto, which is not yet in the Bill, yet the Bill restricts the purposes to which it can be put. Why the distinction between taxation and human rights?

Jim Murphy (Labour, East Renfrewshire)

I was bringing my remarks to a close, but I will refer to those points. The hon. Member for Cambridge mentioned human rights and as he and other members of the Committee well know, the protection of human rights is contained within the clause 3 preconditions about necessary protections and continuing to exercise any right or freedom, which is the right and appropriate way to deal with the protection of human rights.

I say to the hon. Member for Christchurch that subsection (2) makes it clear that it does not prevent an order merely restating legislation which itself imposed or increased taxation. Restating legislation means replacing legislation with alterations only of form or arrangement; removing an ambiguity is not restating legislation for these purposes. I hope that the hon. Gentleman finds that helpful.

Christopher Chope (Conservative, Christchurch)

This is a Committee and I hope that there can be an iterative process when matters are still not clear. Is it possible for a restatement of legislation to include a provision for an increase in the rate of tax? It seems in the Bill that it is.

Jim Murphy (Labour, East Renfrewshire)

The hon. Gentleman asked a straightforward question and I will give him a straightforward answer; no.

Oliver Heald (Conservative, North East Hertfordshire)

I asked the Minister if it was envisaged that the tax rewrite programme would in future be dealt with using this provision or whether the current safeguards were to be retained, but he did not address that question.

Jim Murphy (Labour, East Renfrewshire)

The hon. Gentleman is right; I omitted to do so. I will correspond with him on that specific technical question, certainly before Report. I cannot give him a technical explanation this morning.

Clause 6 - criminal penalties

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 71, in clause 6, page 3, line 23, leave out from ‘offence’ to end of line 29 and insert

‘or increase the penalty for an existing offence.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following amendments:

No. 63, in clause 6, page 3, line 25, leave out paragraph (a).

No. 72, in clause 6, page 3, line 30, leave out subsection (2).

No. 73, in clause 6, page 3, line 35, leave out subsection (3).

No. 74, in clause 6, page 4, line 3, leave out subsection (4).

No. 75, in clause 6, page 4, line 9, leave out subsection (5).

No. 64, in clause 6, page 4, line 15, leave out subsection (6).

No. 76, in clause 6, page 4, leave out lines 17 and 18.

Christopher Chope (Conservative, Christchurch)

The amendment would introduce some necessary safeguards and prevent the powers under the Bill being used to create new offences or to increase penalties for existing offences. Responding to the previous debate, the Minister said that as a result of the extra powers being taken by the Government it was reasonable that there should be an increase in safeguards, and he cited clause 5 as such a safeguard. I submit that clause 6 should be drafted on a similar basis to clause 5 covering all increases in penalties for existing offences and the creation of new offences irrespective of the maximum penalty for imprisonment.

This subject was referred to on Second Reading by the hon. Member for Wolverhampton, South-West (Rob Marris) and the Committee is less effective because of the hon. Gentleman’s absence from the Government Back Benches. [Interruption.] As the hon. Member for Cambridge said, he was not selected to serve on the Committee, and I wonder why.

The hon. Member for Wolverhampton, South-West said, in effect, that under the clause as drafted it would be possible for the Bill to be used to increase the maximum penalty for driving while using a mobile phone to 18 months’ imprisonment. It would be possible to incorporate minimum sentences of imprisonment up to two years. The Government have not often taken the route of minimum sentences but it would be possible to introduce a series of minimum sentences as long as they did not exceed two years. Those powers are far too extensive. If we believe in the liberty of the subject why should we not make it incumbent on any Government wanting to increase the penalties or to create new offences to do so using primary legislation?

This morning on the radio there was a bit of what I suppose was Government spin suggesting that the law relating to rape was inadequately defined because not enough people who were charged were convicted, and that the Government might wish to change the system relating to the criminal law covering rape.

If the Government think that when people are charged under the existing law and acquitted it is all rather embarrassing, what hope is there if they decide to amend what they would describe as anomalies or shortcomings using the accelerated procedure? It is impossible to conceive of situations in which any person who was subject to new criminal penalties or offences would not as a result suffer the loss of

“any right or freedom which that person might reasonably expect to continue to exercise.”

I quote from one of the preconditions in clause 3. That short point does not need to be laboured in debate, but I hope that the Minister will explain why he wishes to take these extensive powers and why he is not making criminal offences and criminal penalties subject to the same safeguards as he applied on taxation in clause 5.

Martin Caton (Labour, Gower)

After we have discussed this group of amendments I hope we will have tackled the substance of the clause and therefore will not need a separate stand part debate. I ask hon. Members to remember that when they contribute to the debate on the amendments.

Mark Harper (Conservative, Forest of Dean)

The explanatory notes to the Bill try to pretend that the limits are the same as they were in the 2001 Act. That is true, but it neglects the fact that the scope of the Bill is much wider than the Act and the restrictions do not apply to the extent that the order implements Law Commission recommendations. We hope that the Minister will comment in detail on the amendments tabled by the hon. Member for Christchurch, which tests the logic of having the restrictions in the Bill, and the reasons for it.

My hon. Friend the Member for North-East Hertfordshire and I tabled probing amendment No. 63 to give the Minister and others an opportunity to comment on the scope to which creating indictable offences, albeit with less than a term of imprisonment exceeding two years, is appropriate and on whether the Bill should really just tackle offences that are amenable to summary conviction.

I shall concentrate most on amendment Nos. 64 and 76 and the Law Commission recommendations. The working programme of the Law Commission on criminal law is considering two very important and controversial matters: provisional proposals for reforming the law of murder—it invites comments on that consultation paper by 13 April—and codifying the general principles of criminal law, considering corporate liability, corporate manslaughter, the law relating to children and incapacity mental disorder. Consultation on those matters will be published during 2006.

Those are both incredibly important areas of law. It seems that any proposals in that regard would, almost by definition, be controversial, especially those affecting the law of murder. They would therefore merit being debated in full along the lines of primary legislation and usual parliamentary procedure. Despite what the Minister said about not wishing to use the Bill for non-controversial measures, it does not say that in the Bill. If the Law Commission made recommendations on those controversial and other areas in the future, there is a danger under the Bill that changes could be made to them by order. We would prefer amendment No. 76 or amendment No. 64 to be implemented as they would remove the Law Commission’s aspects of the proposals. Will the Minister focus on that point and decide either to accept the amendments or draft the Bill a little tighter so that it excludes specifically some controversial policies?

David Howarth (Liberal Democrat, Cambridge)

The hon. Member for Forest of Dean (Mr. Harper) referred to two of the points that I was about to make, so I shall not detain the Committee long. To reinforce his argument about the Law Commission, I have every confidence that my former academic colleagues on the commission and their judicial colleagues would not put forward proposals that would be fundamentally destructive to human rights.

Oliver Heald (Conservative, North East Hertfordshire)

I just wondered if the hon. Gentleman was referring to Stuart Bridge, who happened to be in my chambers for a period.

David Howarth (Liberal Democrat, Cambridge)

Yes, indeed. Among others, I was referring to Mr. Bridge. I am sure that they would not propose measures that would fundamentally violate human rights. Nevertheless, the question is whether their proposal be exempt from the limitation in the Bill in respect of creating new criminal offences punishable by more than two years’ imprisonment. I cannot see any reason to exempt their proposals from the general limitation of what can be done by order.

My second point concerns why the hon. Gentleman is so worried that the restriction is simply reproduced in the form that it took in the 2001 Act. I am sure that the Minister will say that there is hardly any difference between the Bill and the Act, and ask why worries are being expressed. The difference is that the scope of the Bill is so much wider than the scope of the 2001 Act. We are dealing not only with deregulatory measures that reduce burdens, but with measures that can change any legislation. That is why it is not adequate simply to reproduce the terms of the 2001 Act.

David Heath (Liberal Democrat, Somerton and Frome)

I want to reinforce briefly the point that was amply made about the excellent amendment No. 76. There can be no argument that imprisonment beyond two years should in any circumstances be exempt from full parliamentary examination and scrutiny. We cannot substitute the opinion of the Law Commission, however well informed, for the will of Parliament on the liberty of citizens of this country. It is extraordinary that the exemption was even suggested for the areas that we discussing.

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman makes a good point. One matter that worries me and which has been mentioned is the danger of giving a wide exemption for recommendations from the Law Commission that would enable controversial measures to be used. That would change the nature of the Law Commission. The Government would be tempted to change its membership and use it as a method by which to legislate in some areas where they could not get measures through the Houses of Parliament.

David Heath (Liberal Democrat, Somerton and Frome)

That point is well made. I am always wary of government by expert, however eminent the experts. That is why we have a Parliament. Members are elected to this place to protect the interest of the citizen against the expert who knows best. That is why such protection is so important. It is inconsistent for there to be a general protection in the clause, but for it not to apply to the most likely source of a change in criminal sanction.

My final point is that there is no argument on expedition on this point. There is no good argument that there are not legislative vehicles available to change criminal law. We have a criminal justice Bill and an immigration and nationality Bill every year. We have no difficulty in finding Home Office legislation.

David Howarth (Liberal Democrat, Cambridge)

We had yet another one yesterday.

David Heath (Liberal Democrat, Somerton and Frome)

Indeed. The police, having been reformed, apparently need reform again this year. One of our difficulties with the queue of criminal justice legislation is that we often amend one piece of legislation with another before the first has even been implemented. That is explicit in the clause’s reference to sections of the Criminal Justice Act 2003, which were a matter of great urgency at the time. I remember staying up until the early hours of the morning to consider those provisions, yet we find in 2006 that sections have not yet been implemented. So much for urgency and expedition. We have available vehicles for change, and I do not believe that the Minister needs a power to put people in prison for longer than two years through an Order in Council. I hope that he will reflect on that.

Jim Murphy (Labour, East Renfrewshire)

As hon. Members will know, clause 6 places another limitation on the order-making power in clause 1. It sets the maximum penalties both for any new offence created by an order and for any existing offence for which an order increases the penalty. It maintains the limits in the 2001 Act. However, those limits applied only when the order-making power was used to create a new criminal offence. The limits in clause 6 will apply also when the penalty for an existing offence is increased. Parliament has already considered the limits in the 2001 Act, and as a result they will be amended by the Criminal Justice Act 2003 when the relevant sections of that Act are commenced. The drafting of clause 6 therefore reflects the fact that the limits will remain lower until the relevant parts of the Criminal Justice Act 2003 come into force.

The maximum penalty that can be imposed when an offender is convicted on indictment is two years’ imprisonment. The maximum for an offender convicted summarily is 51 weeks for a summary offence in England and Wales, 12 months for an either way offence in England and Wales, six months in Scotland and Northern Ireland, or a fine up to level five on the standard scale. However, until section 281(5) of the 2003 Act comes into force, the order must provide that for any summary offence committed in England and Wales before that date, any reference to the maximum of 51 weeks must be read as a reference to the current maximum of six months; that is subsection (4).

Until the day on which section 154(1) of the 2003 Act comes into force, the order must provide that for any offence triable either way in England and Wales committed before that day, any reference to the maximum of 12 months must be read as a reference to the current maximum of six months; that is subsection (5). As I have said, that complex provision reflects the position under the 2001 Act following the amendments made by the Criminal Justice Act 2003 that, as has been alluded to, have yet to be commenced.

Subsection (1) does not apply to provisions implementing Law Commission recommendations, about which I will speak in a moment. Such recommendations are based on expert consideration by the Law Commission and extensive consultation. To limit the commission’s ability to make recommendations on appropriate penalty levels would mean that more Law Commission recommendations would not be delivered by order. Due to the pressure on the legislative programme, the proposals might not reach enactment for several years. The Committee has already discussed the fact that, on average, Law Commission recommendations—the ones that the Government actually accept—take seven and a half years to implement.

Amendment No. 63 would mean that orders could create or increase penalties only for offences punishable on summary conviction and not for those punishable on indictment. Crimes tried on indictment will have limits of two years, and the amendment would remove that protection.

Amendments Nos. 71 to 75 would prevent orders from creating new criminal offences or increasing the penalties for existing ones. A number of safeguards prevent orders from inappropriately reforming the law regarding criminal penalties. Orders are subject to public consultation, must meet the preconditions in clause 3 and are scrutinised by the parliamentary Committees. The Government have also made a commitment not to deliver any highly controversial proposals by order.

Christopher Chope (Conservative, Christchurch)

Will the Minister guarantee that minimum sentences will not be introduced under the powers where none exist at the moment, and that retroactive changes will not be made in the criminal law?

Jim Murphy (Labour, East Renfrewshire)

I shall come to the points that the hon. Gentleman made earlier as well. The most important point is that the limits on criminal penalties in clause 6 have been carried over from the 2001 Act, and there is no evidence that the limits in that Act are too broad or too high. I think the Committee will accept that the hon. Gentleman has not sought to make the case that the powers in the 2001 Act have not operated appropriately, or that there has been concern about the Act. We cannot therefore accept the amendments.

The fire safety RRO amended legislation relating to criminal offences, such as penalties for failing to comply with important fire safety duties. The order modernised the fire safety regime and delivered significant benefits. Amendments Nos. 63 and 71 to 75 could prevent orders from delivering beneficial proposals and are unnecessary, as existing safeguards will prevent orders from delivering inappropriate reforms relating to criminal penalties.

Amendments Nos. 64 and 76 would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. Amendment No. 64 goes further, as it would prevent the any orders under clause 1 from merely restating legislation on criminal penalties above those limits. Amendment No. 64 would therefore prohibit orders that would not alter existing criminal penalties but would make the law more accessible and readily understandable by bringing different pieces of legislation together in a single document. That would be an undesirable restriction, and the Government will therefore not accept amendment No. 64.

Amendment No. 76, which was spoken to by the hon. Members for Forest of Dean and for Christchurch, would prevent orders from delivering Law Commission recommendations that would impose criminal penalties above the levels generally imposed by clause 6. That would mean that some well considered and worthwhile reforms recommended by the Law Commission after detailed research and extensive consultation could be implemented only by primary legislation. However, I believe that Law Commission recommendations that include criminal penalties above the levels specified in clause 6 and that are suitable for implementation by order are likely to be rare indeed.

I also believe that where higher penalties are recommended, they might well make the orders highly controversial and therefore inappropriate for delivery by order. I agree to reflect on amendment No. 76, and on that basis I urge the hon. Member for Christchurch to withdraw it.

Mark Harper (Conservative, Forest of Dean)

I welcome the Minister’s commitment to look at the matter again. He said just before he concluded that any well considered Law Commission recommendations involving a greater penalty would be rare. If so, to legislate for them in one of the annual Home Office Bills—or, indeed, in criminal law more generally—would not be an incredible burden. That is a serious point that the Minister might want to consider. Given the current Administration and the focus on home affairs legislation, there is effectively an annual Home Office Bill. He might want to talk to his colleagues about that, and it might be sensible to effectively reserve a slot in those Bills for some of the Law Commission proposals. They are all pretty weighty Bills, and that would be a sensible legislative improvement that he might want to discuss with his colleagues in the Home Office.

Jim Murphy (Labour, East Renfrewshire)

I give way to the hon. Member for Somerton and Frome (Mr. Heath), and then I will conclude.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, although the hon. Member for Forest of Dean expressed most of what I was going to say in his short speech or intervention.

I am grateful to the Minister for agreeing to reconsider the matter. He might want to reflect on what he said earlier—praying in aid the apparent delay in implementation of Law Commission proposals. It is inconceivable that a Law Commission proposal that increases criminal sanctions and deals therefore with criminal law and serious offences cannot fall within the scope of a criminal justice Bill and is better done by order. There is therefore no harm to the Government’s legislative programme. The delay—if there is a delay—is entirely in the Government’s hands because they have had the legislative opportunity every year to introduce Law Commission proposals in the area of criminal justice. I accept that there might be an argument in civil law, but not in criminal law because there is always an appropriate Bill.

Jim Murphy (Labour, East Renfrewshire)

In responding to the short speech or long intervention by the hon. Member for Forest of Dean—he made his point, as have others in respect of the Law Commission recommendations—I reiterate that there is a generally accepted difficulty. Across Governments and time, securing legislative space to implement non-controversial Law Commission proposals—

Christopher Chope (Conservative, Christchurch)

Will the Minister give way?

Jim Murphy (Labour, East Renfrewshire)

I am about to wind up.

There is a general acceptance that, across time, there is a delay in implementing the important Law Commission recommendations. On average, the ones that this Government accept have waited seven and a half years for implementation. Opposition Members make their own suggestions for how that could be remedied.

I shall say by way of a conclusion, that after giving careful consideration and thought to amendment No. 76 in the name of the hon. Member for Christchurch, I have given an undertaking to reflect on the matter in order to overcome the genuine concerns that have been expressed. I urge him therefore to withdraw the amendment.

Christopher Chope (Conservative, Christchurch)

Some progress might have been made as a result of the amendments that we are debating, but at the fringes only of my submission, because amendment No. 76 would prevent legislation from going through the process by which a maximum penalty is increased beyond two years in prison. That is very much at the extreme end. Even then, instead of accepting the amendment, the Minister has said that he will go away and consider the matter. Obviously I accept that relatively speaking that is good news.

However, the Minister has not responded directly to my request for an undertaking that the powers under clause 6 will not be used to impose retrospective criminal legislation, which is why I sought to intervene. I shall give way to the Minister if he has been prompted to the extent that he can give such an undertaking. Nor has he dealt with the question whether the powers under clause 4 could be used to introduce a series of minimum penalties for offences, thereby removing the courts’ discretion on what level of penalty they should impose. Minimum penalties are being used more often now—for example, for parking and speeding offences—and they are causing an enormous amount of anguish among our constituents. It could be argued that it would be administratively much simpler if all that had to be done was tick a box and send the bill to the person who had committed the offence. There would be no problem about the courts having to consider mitigation, the circumstances of the case or even the particular circumstances of the individual.

I seek an undertaking that the clause will not be used to introduce minimum penalties, but I wait more in hope than expectation for the Minister to seek to intervene to give us those pretty fundamental and basic assurances. I should have thought that that would have been very much in line with his reasoning for almost accepting amendment No. 76. Surely it would be controversial, and an order would not be able to make progress, if we were talking about making retrospective changes in the criminal law or increases in penalties.

Jim Murphy (Labour, East Renfrewshire)

I do not often seek to intervene, but the hon. Gentleman has tempted me with specific questions. I am not sure that he is going to be pleased with my response on minimum penalties. In a sense it would be appropriate to fix minimum limits for regulatory offences on such matters as health and safety or environmental protection. However, they would have to go through all the procedures of which we have already spoken in respect of protections, vetoes and so on. The limits on retrospectivity in the context of criminal law are appropriately to be found in the Human Rights Act 1998. I hope that I have reassured the hon. Gentleman. [Interruption.]

Christopher Chope (Conservative, Christchurch)

As the hon. Member for Cambridge said from a sedentary position, the human rights legislation could be changed under the Bill.

I am grateful to the Minister for intervening, but I am disappointed to hear that he would use the Bill to introduce a series of minimum sentences. Minimum sentences would effectively remove the courts’ ability to judge cases on their merits and to consider mitigating circumstances. I find that an extremely worrying development. We have at least teased that out of the Minister, but I hope that the Committee will think that it strengthens the argument in favour of removing the power to increase penalties or introduce new criminal offences.

The Minister says that the safeguards are the same as those found in the 2001 Act, but it is puerile to argue that because the Act was circumscribed by the need to find a reduction in burden. That has been taken away from the Bill, as have the safeguards in relation to the super-affirmative procedure, and so on. The Minister may say, “It was all right under the 2001 Act, so it is all right under the Bill,” but that would not be borne out by reasonable men when considering the matter.

The best thing to do is to test the will of the Committee on amendment No. 71. I accept that if the matter were to be the subject of a further Government amendment, it would be some progress, but it would be very small progress in proportion to the great increase in Government powers and their ability to legislate without going through the proper parliamentary processes.

Clause 7 - Forcible entry etc

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment No. 50, in clause 7, page 4, line 21, after ‘any’, insert

‘arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act or’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following amendments: No. 65, in clause 7, page 4, line 23, leave out subsection (2).

No. 66, in clause 7, page 4, line 26, leave out subsection (3).

No. 51, in clause 7, page 4, leave out lines 28 and 29.

David Howarth (Liberal Democrat, Cambridge)

I should like to refer first to amendment No. 51, which has a similar effect to amendment No. 76. The Minister has just agreed to reflect further on that amendment and I hope that he will do the same for this one. It would remove the exemption for Law Commission recommendations when it comes to the restriction on the purpose of the Bill with regard to forcible entry, search or seizure. I would have thought that the same argument applied to amendment No. 51 as applies to amendment No. 76.

Any Law Commission report that affected forcible entry, search and seizure, which are fundamental rights, would, of necessity, be controversial, if not highly controversial. The same argument applies that it would be inappropriate to use the procedure in the Bill for such a proposal and so such proposals should be introduced only as part of primary legislation. Indeed, in so far as they are matters to do with police powers, the arguments that have been put forward about how many opportunities there are to affect such rights also apply in these circumstances.

The point that the hon. Member for Forest of Dean mentioned about the Law Commission is one that the Minister should take seriously. There is a problem with the Bill as a whole when it deals with the Law Commission. If it becomes apparent to a future Government that an easy way of getting through increases in burdens and reductions in rights of the population is to use the Law Commission route, especially remembering that that can affect the common law, unlike the legislative route in the other part of clause 1, it might well adversely affect the nature of the Law Commission and make it a more political body. Some future Government might be tempted to use the powers they have under the legislation setting up the Law Commission to choose a different sort of commissioner. It might be necessary at some point to insert further safeguards into the legislation that establishes the Law Commission against that sort of political interference if the Bill were to go forward in its present form.

Amendment No. 50 is perhaps our last opportunity to consider the question of restricting the purposes for which the Bill’s procedures can be used. It adds to the list in clause 7 about forcible entry, search, seizure and a whole list of other fundamental civil liberties—not to be arrested, not to be detained and not to have one’s property confiscated or compulsorily purchased, and a host of other rights that are covered in the Human Rights Act—and protects them from the procedure in the Bill. If there were to be a proposal that would affect those rights, primary legislation would have to be used, not the regulatory order.

The Minister has said several times that the reason why he is not tempted by the restrictions on purpose is that there are already safeguards in the Bill. When I asked him the difference between taxation and human rights he referred me to clause 3, the preconditions clause. But many of us are not satisfied with the state of that clause because it is drafted in such a subjective way. The Minister has to give way either on how clause 3 works or on the purposes to which the Bill can be put if he wants to allay our serious concerns.

In the end the Minister must answer the following questions and he cannot use clause 3 as protection against it. Under what circumstances would the Government bring forward under the Bill an order that affected arrest, detention, confiscation and Human Rights Act rights? Why does not the argument apply that any such circumstances are sure to be those in which it would be reasonable to say that the proposal was controversial? If that is the case, why cannot the Government accept the amendment?

Mark Harper (Conservative, Forest of Dean)

At the risk of repetition, which has never stopped anyone before, the clause refers back to the 2001 Act. Again, it is not sensible to argue that there were the same protections in that Act because, as we have already said, part of the problem here is that the scope of the Bill is much wider than that Act. As the scope of the Bill is wider, the scope of the protections should be wider too.

Amendments Nos. 65 and 66, tabled by my hon. Friend the Member for North-East Hertfordshire and me, are reasonably similar in nature and have the same thrust as amendments Nos. 50 and 51, tabled by the Liberal Democrats. On amendment No. 65, we welcome the fact that subsection (1) puts restrictions on what order-making powers can be used for, but subsection (2), which allows the extension of such powers, is unacceptable. If it is not appropriate to use order-making powers to authorise forcible entry, search, seizure or the compelling of giving of evidence, it also should not be possible to extend such powers. That should also have to be done by primary legislation. Including the safeguard that the purposes must be similar is so loose a drafting that it provides no safeguard at all. Amendment No. 65 would remove that derestriction and make it clear that order-making powers under section 2(1) could not be used either to authorise forcible entry, search, seizure or the compelling of the giving of evidence or to extend the cases where that may happen.

Amendment No. 66 is rather wider and I am prepared to accept that amendment No. 51 is more narrowly and perhaps more appropriately drafted, which refers again to whether the Law Commissions should effectively make law here. I have one more point to make on the Law Commissions. It is unquestionably the case that the Lord Chancellor appoints very good lawyers to the Law Commission, but they are not elected by anybody. They come with their own views as well as their legal expertise. It is therefore not appropriate to give them the power to make law. They are the right people to make recommendations and to use their expertise to make suggestions. However, it should remain for this place to make law rather than be governed by experts, especially when such recommendations are particularly controversial.

Martin Caton (Labour, Gower)

Order. Before we continue, let me say that I have been forgetting to indicate whether I intend to have a stand part debate. In this case, most of the substance will be dealt with earlier, so I am hoping that we shall not need a separate stand part debate. If Members could remember that when contributing it will not be needed.

Mark Harper (Conservative, Forest of Dean)

Briefly, Mr. Caton, I believe I said that subsection (1) of the clause is welcome because of its restrictive effect, but that we would also welcome the removal of the derestriction represented by subsection (2), and that is what amendment No. 65 would do. We are content to have the stand part discussion now.

Jim Murphy (Labour, East Renfrewshire)

I am happy to be able to respond to the specific points that arose in what was a brief debate.

Clause 7 limits the enforcement powers that can be conferred by an order made under clause 1. Powers of forcible entry, search and seizure and powers to compel people to give evidence may be conferred only in similar circumstances to those in provisions that were already made for that purpose in the legislation being reformed. Those limits have been carried over from the 2001 Act and were also in the Deregulation and Contracting Out Act 1994.

In response to the point made by the hon. Member for Cambridge about amendment of the Human Rights Act 1998, it is clear that the protections in clause 3 would prevent the type of thing that he suggests.

David Howarth (Liberal Democrat, Cambridge)

It is an important point, because clause 3 says,

“unless he”—

that is, the Minister—

“considers that the conditions ... where relevant, are satisfied in relation to that provision.”

So we are not talking about whether the conditions are objectively fulfilled, but whether the Minister thinks so. The Minister might think that the Human Rights Act is simply an inconvenience that he can do without, but that would not be the view of other reasonable people or, perhaps, of the courts.

Jim Murphy (Labour, East Renfrewshire)

The Minister is under a duty and a responsibility to confirm that any order is in line with the Human Rights Act. That assessment is justiciable like any other assessment made by a Minister. The protections are in clause 3, as preconditions.

Although orders cannot create new conditions for forcible entry, search or seizure or to compel the giving of evidence, subsection (3)(a) clarifies that the limitation does not prevent orders from restating legislation containing such provisions. Orders will also be able to reform legislation in the area of enforcement, such as by simplification.

I made a commitment that the Government will not deliver highly controversial proposals by order. As the hon. Member for Forest of Dean (Mr. Harper) commented, the fact that something has been said does not prevent it from being restated, so I shall restate again: in addition to the point about not delivering highly controversial proposals, there are requirements for statutory public consultation, for the Minister to lay an explanatory memorandum and for the Minister’s assessment to be open to legal challenge. The Select Committees, charged by the House with the relevant responsibilities, can oversee and reject specific proposals made by the Minister. The veto that we shall also discuss in some detail before Report is an additional restriction.

The restriction in clause 7 derives from section 3(5) of the 2001 Act. In addition to the current restriction in clause 7(1) on what orders may provide, amendment No. 50 seeks to prevent the authorisation of

“arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act”.

That would be strange to say the least. Like the 2001 Act, clause 6 permits the creation of criminal offences with penalties of up to two years in prison in the appropriate circumstances. Having considered clause 6 and the permitting of the creation of criminal offences with penalties of up to two years in prison, it would seem strange to be able, under clause 7, to create new offences but restrict the ability to arrest or detain anyone.

David Howarth (Liberal Democrat, Cambridge)

My understanding is that because of recent legislation, all criminal offences are now arrestable, so I do not think that that point arises.

Jim Murphy (Labour, East Renfrewshire)

The point, however, is that in clause 6 we have set up an arrangement whereby we are able to create offences, with important limits. My understanding is—I will seek to clarify it—that amendment No. 50 would limit that ability which was already agreed to in clause 6. In addition, of course, the hon. Gentleman’s suggested list takes us back to the conversation about the preconditions in clause 3.

I know that the hon. Gentleman says repeatedly in Committee that the Bill could be used to undermine human rights and even to revisit the Human Rights Act—they might have said that from time to time—but I draw the Committee’s attention back to the preconditions in clause 3 about the necessary protections and not preventing a person from

“continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”

David Howarth (Liberal Democrat, Cambridge)

The Minister repeats his point, as I have repeated the opposite point. Perhaps I should put it slightly differently. When the Prime Minister talks about the rules of the game having been changed, is he not referring to what the Minister might consider to be a necessary protection that a

“person might reasonably expect to continue to exercise”

as a right? The problem is the subjective nature of clause 3(1), not the particular matters referred to in clause 3(2).

Jim Murphy (Labour, East Renfrewshire)

I think that it is clear in clause 3 that those protections are in place, and any comment, in this Committee or elsewhere, is superseded by what appears on the face of the Bill. Those protections and preconditions are in clause 3. That is the text that we have before us and the debate that we should be having. Although I understand why the hon. Gentleman makes his comments and sometimes must make them, I contend that he seeks to minimise the protections and preconditions in clause 3.

The two conditions in clause 3 ensure that orders cannot create inappropriate powers to authorise

“arrest, confiscation ... compulsory purchase of property or any interference with ... the Human Rights Act”.

As I have already alluded to, the Minister must give an undertaking, when laying an order, that that order is in line with the Human Rights Act.

Amendment No. 65 provides that orders could not extend existing powers

“for purposes similar to those to which the power applied before the order was made”

to

“authorise forcible entry, search or seizure”,

or to

“compel the giving of evidence”.

That provision derives from the 2001 Act and there is no evidence to support the suggestion that it should be changed.

Removing the provision could prevent worthwhile reforms from being delivered by order. For example, amendment No. 65 would prevent the extension of an existing statutory power to search vehicles or boats for a substance harmful to health to include a power to search buildings for that same substance. The hon. Gentleman has not made a strong enough case that the 2001 Act needs to be changed in that respect. I cannot therefore support amendment No. 65.

Amendment No. 51 would apply the restrictions in clause 7(1) to provisions implementing Law Commission recommendations, preventing the implementation by order of Law Commission recommendations authorising forcible entry, search or seizure or compelling the giving of evidence. Accepting the amendment could mean that well-considered and worthwhile reforms recommended by the Law Commission after detailed research and extensive consultation could be implemented only by a Bill. None the less, I accept that circumstances in which that power might be useful are likely to be limited and occasional. I am therefore willing to reflect further on amendment No. 51.

Amendment No. 66 would have the same effect on Law Commission recommendations as amendment No. 51, but would also prevent the use of any orders under clause 1 to restate legislation on topics covered by the restriction in clause 7(1). The hon. Member for Forest of Dean was fair enough to acknowledge that point about his amendment’s deficiencies, and accepted that amendment No. 51 would be a much more attractive suggestion.

Amendment No. 66 would prohibit orders that made the law more accessible and easy to understand by bringing together different pieces of legislation in a single order or putting the provisions into plainer language. We hear all too often that the law is complicated or distributed over several sources. Occasionally we need to simplify it or consolidate it to make it simpler for those who are regulated to access the law. That saves time, money and energy, as well as occasional frustration, for those affected by it. I therefore cannot accept amendment No. 66.

Government undertakings and safeguards in the Bill, including the preconditions set out in clause 3, will ensure that the powers described in clause 7 are used appropriately. I agree to reflect on amendment No. 51 and therefore invite the hon. Member for Cambridge to withdraw it, but I cannot support amendments Nos. 50, 65 and 66, which would restrict the 2001 Act and could unnecessarily rule out the delivery of beneficial reforms by order.

David Howarth (Liberal Democrat, Cambridge)

I am grateful for the Minister’s offer to reflect on amendment No. 51, which works as a pair with amendment No. 76, on which he also agreed to reflect. I hope that he will reflect on the Bill’s possible effects on the Law Commission’s work and the long-term consequences of relying heavily on Law Commission recommendations in that way.

I return to amendment No. 50, however, on which I should like to press the Committee to a Division. The Minister’s defence fell into two categories. One was an argument about the effect of the amendment on powers of arrest. As I said in an intervention, I do not accept that. My recollection is that due to recent legislative change, all offences are now arrestable. Therefore, any new offence created would also be arrestable. I do not think that that is a problem.

More generally, the Minister’s defence mentioned the protections provided in the rest of the Bill. On that matter we simply disagree. The most fundamental question is the effect of clause 3. He seems to be saying that if a Minister acting under clause 3(1) said that he considered that the preconditions in clause 3(2) had been satisfied, and if that Minister was wrong in a way that violated the Human Rights Act 1998, that in itself would be a violation of the Human Rights Act. I hope that that is correct, but it is a new idea to me that considering something might be a violation of the Human Rights Act. Normally, the Act is violated when people do things rather than consider them. That does not seem a sufficient protection.

Furthermore, if that is the Minister’s understanding of how clause 3(1) works, I am surprised that he did not mention it when we talked about clause 3(1) earlier. That would have been an interesting and perhaps acceptable basis on which to discuss an amendment to clause 3(1). It is a tempting option to put forward such an amendment on Report. I shall press amendment No. 50 to a Division, but in view of the Minister’s offer to reflect on the terms of amendment No. 51, I no longer intend to press thatQuestion put, That the amendment be made.

Clause 8 - Scotland

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment No. 67, in clause 8, page 4, line 32, after ‘(4)’, insert

‘and pursuant to a resolution of the Scottish Parliament’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss amendment No. 68, in clause 9, page 4, leave out line 40.

Mark Harper (Conservative, Forest of Dean)

The clause generally precludes the possibility of making orders under the Bill that fall within the legislative competence of the Scottish Parliament, apart from those made under clause 2(4), which will be orders that

“make such consequential, supplementary, incidental or transitional provision ... as the Minister making it considers appropriate.”

To what extent does the Minister feel that the Sewel convention, with which I am sure he is familiar, should relate to orders under clause 2(4)?

For those who are not familiar with it, the Sewel convention effectively says that the Westminster Parliament will not legislate on matters devolved to the Scottish Parliament, even where it has the power to do so, unless the Scottish Parliament gives its consent. It is an agreement not between Parliaments but between the Scottish Executive and the UK Government, but it has typically been held to. Does the Minister propose that it should apply under section 2(4)? If not, what are his reasons? The Sewel convention is not set out in statute, but will he set out why he feels that it does not apply under clause 2(4)?

Jim Murphy (Labour, East Renfrewshire)

Are we considering amendments Nos. 67 and 68?

Martin Caton (Labour, Gower)

Yes, we are.

Andrew Love (Labour, Edmonton)

I also seek clarification, Mr. Caton. Amendment No. 68 refers to clause 9, which is separate from clause 8.

Martin Caton (Labour, Gower)

This is not the first time that the Committee has considered amendments that deal with different parts of the Bill in common debate. Clearly, we cannot vote on the amendments except when we are dealing with the appropriate clause, but we can debate both amendments Nos. 67 and 68 now. When we come to the voting, we will do it in the proper procedural order. There will also be a clause stand part debate on clause 9.

Mark Harper (Conservative, Forest of Dean)

In that case, I shall say a word or two about amendment No. 68 to clause 9, which refers to the Welsh Assembly. Because it would be a significant constitutional change, the clause as drafted rightly states:

“An order under section 1 may not make any provision—

(a) conferring a function on the Assembly,

(b) modifying or removing a function ... or

(c) restating any provision ... except with the agreement of the Assembly.”

That means, in effect, that if the Assembly agrees that it wants lots more powers or wants to change significantly the powers that it already has, the Minister could use an order to make those changes. That seems rather strange. The recent Government of Wales Bill was considered a significant constitutional measure and was therefore taken at length on the Floor of the House. It is odd that if, under the clause as drafted, the Assembly decided that it wanted lots of powers or to change them, the Minister by order could make such changes, when we have just decided that such changes need to be discussed at length on the Floor of the House because they are significant constitutional changes. Amendment No. 68 would leave out line 40, which would get rid of the provision that states that if the Assembly agrees, the Bill can be used to make the orders. The clause, as amended, would then make it clear that orders under clause 1 could not change the scope of the Welsh Assembly’s powers. That would be a significant, and necessary, change to the Bill.

Christopher Chope (Conservative, Christchurch)

Mine is more a stand part point. If we are to have a separate debate on clause 8 stand part, I will reserve my remarks until then.

Martin Caton (Labour, Gower)

There will be a separate debate.

Jim Murphy (Labour, East Renfrewshire)

I think I know where we are, Mr. Caton—Committee Room 12. On clause 8 stand part and our discussion on amendments Nos. 67 and 68, clause 8 places a restriction on what orders can do in relation to Scotland.

Martin Caton (Labour, Gower)

Order. Forgive me, but we are not debating clause stand part. There will be a separate debate on clause 8 stand part and, indeed, on clause 9 stand part. The debate is specifically on amendments Nos. 67 and 68.

Jim Murphy (Labour, East Renfrewshire)

Thank you for that helpful steer, Mr. Caton. I think I am the only Scot here, except for my hon. Friend the Member for Ochil and South Perthshire (Gordon Banks). I do not know whether there are any Welsh Members on the Committee, but I will obviously accept interventions from my hon. Friend, partly because his constituency is a lot closer to the Scottish Parliament than mine.

Clause 8 places restrictions on what orders can do in relation to Scotland. The hon. Member for North-East Hertfordshire and others tabled amendment No. 67, which I suspect is a probing amendment. I confirm that we would consult with the Scottish Executive if we sought to make—

Mark Harper (Conservative, Forest of Dean)

If I could make a helpful intervention, amendment No. 67 would put the civil convention in the Bill. It was tabled to discover why the general prohibition on using powers under the Bill that affected devolved areas did not apply to the powers under clause 2(4) when they apply to the rest of the Bill.

Jim Murphy (Labour, East Renfrewshire)

That is helpful. As the hon. Gentleman knows clause 8 provides that an order may not make provision which is within the legislative competence of the Scottish Parliament. It reflects the usual position in relation to Scottish devolution, whereby it is for the Scottish Parliament to legislate on devolved matters. The exception, as the hon. Gentleman knows, is set out in clause 2(4), which enables a Minister to make such consequential, supplementary, incidental or transitional provision as he considers appropriate. There is no restriction on making such a provision in relation to Scottish legislation or to Westminster legislation within the competence of the Scottish Parliament.

An example of when the ability to make such a provision would be helpful is when an order restates a piece of Westminster legislation to simplify it and, in doing so, renumbers some of the provisions. If a Scottish Act cross-referred to those provisions, the changes to the numbering made by the order would mean that the Scottish Act referred to the wrong provisions. However, the order itself could be used to tidy up the Scottish Act by updating the references in the Act, so that they referred to the correct provisions. It would mean that there was no need for the Scottish Parliament itself to legislate to bring about the consequential amendments that were needed. That position has been agreed with the Scottish Executive. If, however, at any point we sought to make such orders, there would be further consultation with the Scottish Executive.

The situation reflects the devolution settlement as well as the position under the 2001 Act. The Committee may wish to know that matters are set out in devolution guidance note 10 from the Department for Constitutional Affairs. I reassure the hon. Gentleman that there would be continued consultation between the United Kingdom Government Department and the Scottish Executive. We believe that there would not be a need for a separate motion of the Scottish Parliament for the consequential tidy-up to which I have alluded. That has been agreed with Ministers in the Scottish Parliament.

I turn now to amendment No. 68. The provisions of the Bill for Wales are broadly similar to the powers of the 2001 Act. The amendment would mean that an order could not confer, modify or restate a function of the Assembly. Clause 9 makes it clear that, in all the situations listed, the Assembly’s agreement must first be obtained. However, as well as obtaining the Assembly’s agreement to proposals, all the other safeguards apply to an order that affects the Assembly’s functions. Additionally, the preconditions and the procedural protections that we have already talked about in some detail—it is almost as though they are repeated in each clause stand part debate—in connection with statutory public consultations, relevant Select Committees and the principle of a right to a veto would also be in place. Accepting the amendment would prevent orders from doing what orders under the 2001 Act can currently do, and that is clearly unacceptable.

Line 40 of the clause, to which amendment No. 68 refers, means that the Welsh Assembly’s permission would be sought in advance of conferring on it new powers or responsibilities. The amendment is unnecessary. We shall respect the devolution settlement, which is set out in devolution guidance note 10 of the DCA. Amendment No. 68 would prevent us from seeking the Assembly’s agreement for conferring on it additional responsibilities. I urge the hon. Member for Forest of Dean to withdraw his amendment on the basis of my comments.

Mark Harper (Conservative, Forest of Dean)

Amendment No. 67 was very much a probing amendment. The Minister has made the Government’s position clear. I shall not press the amendment to a Division.

I am still not clear about clause 9. One of the reasons for the repetition is that we are not convinced that the protections and procedures under the Bill are adequate. Agreement has been reached between the Front Benches that there will be discussions about the veto powers, but the difficulty is that, because they have not taken place in Committee, it is still necessary for us to repeat such matters at each stage that we are worried about because we have not reached agreements. If agreements had been made earlier, we would not need to have repetitive discussions. The flaw is that, if the Assembly agrees, the Bill enables the Minister to make significant changes. He is right, if one reads and agrees with his interpretation of the preconditions in the procedural safeguards. If one does not agree with it, and we have our concerns, the Bill without our amendment allows significant constitutional changes to be made. Having said that and given that the Minister said that we shall discuss the veto powers—there is always the option of tabling further amendments on Report if those discussions are unsuccessful—I beg to ask leave to withdraw the amendment.

Christopher Chope (Conservative, Christchurch)

I wonder whether the Minister can help us. Clause 8 envisages making legislation outwith the legislative competence of the Scottish Parliament, using the accelerated procedures outlined in the Bill. I cannot understand in what circumstances the Government should wish to use those procedures, when they have already accepted that it would be wrong to delegate such actions to the legislative independence that is part of the Scottish devolution settlement. If we cannot trust the Scottish Parliament to deal with it, why should we trust ministerial edict rather than the full UK parliamentary procedure with primary legislation? I would be grateful if the Minister could give some examples of where he thinks that the provisions in the Bill will be used for legislation that is outwith the legislative competence of the Scottish Parliament.

The Regulatory Reform Committee produced a helpful checklist on page 20 of its report. It said that specific limits on the powers of the Scottish Parliament are set out in statute. The Committee’s argument, which I support and which is the subject of a Liberal Democrat amendment, is that there should be exemptions in which the Bill should not operate.

In summary, the only limits on the powers of the Scottish Parliament and Executive is that they

“cannot enact provisions incompatible with the European convention on human rights or modify the Human Rights Act 1998; they cannot enact provisions incompatible with European Community law ... ; they cannot legislate in respect of the Crown; they cannot legislate in respect of Parliament; they cannot legislate in respect of the Union of Scotland and England; they cannot legislate in respect of the senior Scottish courts; they cannot legislate in respect of the registration and funding of political parties; they cannot legislate in respect of international relations; they cannot legislate in respect of the civil service;

they cannot legislate in respect of defence; they cannot legislate in respect of treason.”

If the Scottish Parliament cannot do that, in what circumstances does the Minister think that the UK Parliament should be able to do that using the powers in the Bill? As one would say if one were a university lecturer, “Please give examples with your answer.”

David Howarth (Liberal Democrat, Cambridge)

I shall add to the hon. Gentleman’s points an additional point that brings us back to a point that we made previously: since the Bill can apply to the Scotland Act 1998, the legislative competence of the Scottish Parliament can be changed by order under this Bill. Although the Minister will say that it is a controversial matter, that it will not be brought forward under the Bill and that there are protections in the Bill against it, it is still a serious aspect of the debate about the Bill’s powers and those that it gives Ministers. The Bill allows structural change by that mechanism.

My only other point, which I could easily make under clauses 8 or 9 is a point that my hon. Friend the Member for Somerton and Frome (Mr. Heath) was going to make. Unfortunately, he cannot be present for this part of the debate. Why are there clauses about Scotland and Wales, but none about Northern Ireland? Is that a gap in the Bill that the Government intend to fill on Report?

Jim Murphy (Labour, East Renfrewshire)

The hon. Member for Cambridge asked me about the ability to change the Scotland Act by order. I live in Scotland for three days of the week and for all of the summer when this place is in recess. The idea that we could make any meaningful change to the Scotland Act by order without it being entirely controversial is an interesting assertion. As I said, clause 8 allows us to make consequential, supplementary, incidental or transitional amendments to Acts of the Scottish Parliament. For example, Acts of the Scottish Parliament refer to UK legislation from time to time by way of referencing and numbering. If there were a change to UK legislation, the clause would allow a consequential tidy-up by renumbering and referencing changes to such Acts. That is important, because Acts of the Scottish Parliament would otherwise be incorrectly referenced. The provision will create a minimum of confusion and is an important tidy-up and protection.

The idea that we should have a separate motion of the Scottish Parliament whereby all 129 of its Members would be asked to vote on consequential amendments on referencing and numbering is not an appropriate way to go. The Scottish Executive have not requested it, and I am not aware of the Scottish Parliament having requested it either. The clause represents a sensible way to progress with consequential amendments and tidy-ups.

On the point made by the hon. Member for Cambridge, I am advised that clause 1(3) excludes Northern Ireland legislation.

Christopher Chope (Conservative, Christchurch)

The Minister has addressed his remarks to clause 2(4), which relates to matters within the competence of the Scottish Parliament. Clause 8 will enable the Government to legislate on such matters where they are pursuant to clause 2(4). My question was about matters that are not within the competence of the Scottish Parliament. I asked the Minister whether he could give a specific example of such matters that he envisages legislating on using the powers in the Bill.

Jim Murphy (Labour, East Renfrewshire)

I apologise to the hon. Gentleman—I should, of course, have addressed his point. An example of legislation outwith the competence of the Scottish Parliament is that the Bill could enable the implementation of the recommendations in the joint report by the Law Commission and the Scottish Law Commission on the Third Parties (Rights Against Insurers) Act 1930. That would be an example of the order-making processes mentioned on page 19 of the explanatory notes to the Bill. I hope that that is helpful to the hon. Gentleman.

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment No. 52, in clause 10, page 5, line 12, at end add—

‘(3)A Minister may not make an order under section 1 where, within the 21 day period, fifty members of the House of Commons signify to the Speaker in writing that they object to the use of this Act to make the order.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following amendments: No. 53, in clause 10, page 5, line 12, at end add—

‘(4)A Minister may not make an order under section 1 where, within the 21 day period, either House of Parliament resolves that it objects to the use of this Act to make the order.’.

No. 54, in clause 10, page 5, line 12, at end add—

‘(5)A Minister may not make an order under section 1 where, within the 21 day period, a committee of the House of Commons charged with reporting on the order resolves that it objects to the use of this Act to make the order.’.

David Howarth (Liberal Democrat, Cambridge)

We now come to the third way in which the Bill can be restricted so as to become less dangerous.

We have already looked at attempting to restrict the Bill in terms of the potential purposes of orders that could be made, and the Government have resisted every such attempt. We also discussed—at great length—subject-matter restrictions, whereby the Bill could not be used to change particular areas of law or particular statutes. With the possible exception of matters concerning the Law Commission that we have discussed this morning, the Government have been unwilling to accept any substantial change of that type. That leaves only procedural protections.

The Minister has already indicated that he is prepared to negotiate on what has been called the Committee veto, which is the idea that a Committee of the House could somehow reject an order made under the Bill. Amendment No. 54 is a possible draft of such a Committee veto, and I am interested to hear the Minister’s view of the proposal.

First, it says:

“A Minister may not make a order under section 1 where, within the 21 day period, a committee of the House of Commons ... resolves that it objects to the use of this Act”

for a certain purpose.

The reason that it refers to the power of the Minister is to make it very clear that we are talking about what Ministers, not Parliament, can do. In turn, that would make it clear to the courts that they would be empowered to intervene in such a case.

Secondly, the amendment refers to

“ a committee of the House, charged with reporting on the order”.

That leaves open how the House carries out the task, because I do not think that it is appropriate for legislation to instruct the House of Commons on how to organise itself internally, and in the amendment we have striven to avoid that as far as possible. I should appreciate the Minister’s thoughts on how best to proceed with such an amendment.

The third element of the amendment is that the resolution would be one whereby the Committee

“objects to the use of the Act to make the order.”

That is, it would not necessarily have to object to the substance, but it would be objecting on the grounds that the proposal should be the subject of primary legislation rather than statutory instrument. That is the fundamental issue—how things are done, rather than just what they are. Our fundamental objection to the way that the Bill works is that it allows too many changes to legislation to be brought in by statutory instrument rather than primary legislation. The Committee of the House would be invited to make a judgment on that issue.

Amendment No. 53 addresses an obvious gap in the way in which the Bill currently works—the fact that the House itself cannot resolve that the Bill should not be used for a particular order. Throughout the debate the Minister has talked about Committee vetoes and rejections of proposals by Committee, but so far not only has that not been in the Bill, but the power of the House to reject has not been in the Bill either.

The lead amendment, amendment No. 52, goes some way beyond what the Minister has agreed so far, and in many ways is the crucial amendment in the group. The problem with a Committee veto is that Committees of this House reflect the state of the House itself, and therefore every Committee has a majority of Government Members. It is true that Committees of the House tend on some occasions to act in a more considered way than the House itself, and it might be easier to persuade Committee members to reject a proposal than to persuade the House as a whole.

Andrew Love (Labour, Edmonton)

In amendment No. 52, the hon. Gentleman uses the number of 50 Members. I can see why 50 would be an appropriate figure when compared with the number of Liberal Democrat Members of the House, but can he give some constitutional precedent for his use of that number?

David Howarth (Liberal Democrat, Cambridge)

I am prepared to talk to Committee members from all parties about what that number should be. One possible way forward is to say that it should be 10 per cent. of the number of Members of the House, which would make it 65 if we round up rather than down. The number that I am putting forward is well in excess of the number suggested by the hon. Member for Christchurch in his definition of “controversial”, which said that it would be enough if any Member objected. The number 50 is a pretty large concession to begin with.

One problem is the built-in Government majority on any Committee. The other problems are the ease with which Committee membership can be changed and the influence of the Government Whips on that membership. The hon. Member for Christchurch has referred to the absence from this Committee of the very distinguished hon. Member for Wolverhampton, South-West (Rob Marris), which illustrates the power of the Whips in Committee selection. The Committee veto is far from an absolute guarantee that the powers in the Bill will not be used in what Opposition Members consider to be an inappropriate way.

In addition, the long-term nature of Select Committees might be a problem if they become part of the legislative process. Select Committees work in a largely consensual way, focusing on the topic to be discussed rather than the political positions of the parties within the Committee. If the Select Committees became a regular part of the legislative process, it would attract the attention of the Government Whips in a way that would be detrimental to how Select Committees work, and might even be the end of the Select Committee system as we have come to know it. It would make Select Committees into versions of Standing Committees, which would be an undesirable development.

Amendment No. 52 would cure those defects in the proposed Committee veto. The method is familiar in many walks of life from local government to company law: giving a certain number of members of the institution the collective power to halt a particular process. We are not proposing that 50 Members of the House—or whatever number of Members we might eventually agree—should be able to prevent legislation from passing. We are simply proposing that a certain number of Members should be able to object to legislation by statutory instrument under the Bill. That would provide the sort of guarantee that we have been looking for.

The amendment would avoid another problem: the consensus of the Front Benches. During my short time in the House, I have observed quite often that the “usual channels”—marvellous not to behold—achieve a great number of things. They work towards the smooth working of the institution, but they sometimes do things that are not necessarily in line with the view of Back Benchers, either on the Government side or in the Opposition parties. The mechanism in the amendment would put real power in the hands of Back Benchers, which would be a useful development in itself. It would change the relationship between the Front and Back Benches in all parties.

Andrew Love (Labour, Edmonton)

I thank the hon. Gentleman for his kindness in giving way. His approach is entirely too pessimistic. In the previous Parliament, there was a form of what I would call quasi-pre-legislative scrutiny in which, because of the onerous consultations and other mechanisms that had to be undertaken, Departments would speak to the Regulatory Reform Committee before any proposal was introduced. There was an opportunity for the Committee to take a view as to whether it would be an appropriate order to introduce. Does the hon. Gentleman accept that there are informal mechanisms that will protect against his worries?

David Howarth (Liberal Democrat, Cambridge)

I accept what the hon. Gentleman says. That is the way it has worked so far, given the terms of the 2001 Act. However, the problem we keep returning to is that the terms of the Bill are so much more extensive than those of the 2001 Act that we require more formal, on-the-face-of-the-Bill protection. Informal agreements have no legal effect. If we are asked to accept assurances on the basis of trust, we have to accept that the problem with such an approach is that we have to trust the Government—not necessarily this one, but some Government in the future—not to act in a particular way. If they were to act in such a way and ignore the informal conventions on a particular occasion, the resulting instrument would have the force of law. We are trying to avoid that by writing into the Bill procedures to prevent the Government from claiming that the product of the process is as good as an Act of Parliament in circumstances where that should not be the case.

I want the Committee to include a kind of safeguard that would go a long way to reassure those of us in my party who are very disturbed indeed about the breadth of the Bill and the breadth of the purposes to which it could be put. Procedure, in the end, is only as good as the people involved in operating it. I accept that, and it would be better to have those other protections on purpose and subject-matter as well. Nevertheless, procedural protections are valuable in themselves and I recommend the amendment to the Committee.

Martin Caton (Labour, Gower)

This is another clause whose substance we can deal with during the debate on the amendments. I hope that we will not need a separate stand part debate. If any Member wants a stand part debate, could they please indicate that during any contribution that they make on the amendments?

Mark Harper (Conservative, Forest of Dean)

I would like to touch briefly on amendments Nos. 54 and 53. The hon. Member for Cambridge is right about amendment No. 54: the danger with putting all of the onus on Committees is that Committee membership is determined by Whips and can be influenced by them. The hon. Member for Edmonton (Mr. Love) is quite right to say that the procedure has worked well in the past, but, as we keep saying, the scope of the Bill is tremendously wider than the 2001 Act, so I do not think that the same protections will work. Amendment No. 53 has more substance in the sense that either House of Parliament can object to the use of the Act. That means that in the other place, where there is a significant number of Cross Benchers and the House is not as amenable to being guided, there might be more significant protection.

I am not entirely happy with the way that amendment No. 52 is drafted. I think that what the hon. Member for Cambridge is getting at is that the amendment is in lieu of the lack of a definition, on the face of the Bill, of what is controversial. The Minister has said on many occasions that the Bill would not be used to introduce controversial measures. The amendment says that the definition of a “controversial measure” is one to which more than 50 Members of the House of Commons object. That effectively is what the amendment says.

As has been said, that is a significant concession compared with the proposal by my hon. Friend the Member for Christchurch, which was that if just one Member objected the measure would be “controversial”. He made that proposal because local Acts fall within the powers under the Bill. As the Minister outlined in his letter on the definition of “local Acts”, that could incorporate legislation that only affects small parts of the country, and those could be issues about which only one Member was concerned.

The amendment would define controversy—if more than 50 Members of the House of Commons object, the measure would be deemed controversial. Alternatively, if the Minister does not accept the amendment—I suspect that he will not—we could put on the face of the Bill a definition, which could be discussed and agreed, of “controversial”. A definition on the face of the Bill of “controversial” and “non-controversial” would have the same substance as the amendment. Perhaps that would be a helpful way of looking at the issue.

Christopher Chope (Conservative, Christchurch)

This is effectively the first stab that we have had at the issue of a veto. The Minister has said that he will come forward with some ideas that he will discuss with the Front Benches, but sadly not with all members of the Committee.

The Minister wants to discuss proposals for a veto. The hon. Member for Cambridge, who moved amendment No. 52, has had a go at that, and we should congratulate him on doing so—although he is willing to say that 50 might not be the right answer. I think that the idea inherent in his suggestion is probably the best way forward. Let us recall that there used to be a time when what we blandly call “statutory instruments” and “affirmative resolution instruments” were dealt with on the Floor of the House.

On the basis of those matters being dealt with upstairs in Standing Committee, not just the members of that Committee but other Members were allowed to come along and speak. However, it is almost unheard-of for the Government to be defeated on such statutory instruments, which shows what powerful tools they are in the hands of the Executive, and how much power was lost to ordinary Members of Parliament when that procedural change was made.

Here we are talking about areas in which the Government say, “Trust us because we are all in it together. We want to deregulate; we hate the administrative burden of bureaucracy and if the law is too complicated, let’s make it easier for people to understand, and reduce the costs and burden on business.” If that is the objective, and what legislation introduced under the Bill will generate, what is the problem? There will not be a problem because that Member or group of Members who get up and say that they want to block a piece of legislation—for some sort of procedural fun—will be made to look foolish in the eyes of the public.

Indeed, if they continued to do that for no good reason, the procedures might be changed, as has happened in the past. I am told that even at this very moment the Government, with all their talk about giving power to Parliament and Back Benchers, are thinking seriously about limiting the ability of Members of Parliament to table as many written parliamentary questions as they wish. I hope that the Minister will tell us that the Government would never think of doing that and that the situation that I describe will not emerge, but I have it on quite good information that the Government may be actively talking about such a proposal. Where does that stand with the idea of trust and doing only those things that are non-controversial or “not highly controversial”, to use the Minister’s chosen phraseology?

If proposals are innocent and receive the support of the relevant scrutiny Committee, there will be no problem. However, if the Executive are given this draconian power and it is used, as we fear that it will be, to promote their will at the expense of parliamentary democracy and debate, it will be so much easier for the Government to bypass the process, and we heard earlier how trying the Minister finds debating points. If proposals are controversial, and 50 Members of Parliament—to take the suggestion made by the hon. Member for Cambridge—think that the scrutiny of them should be more intense, who is the Minister to say that it is unreasonable of those Members to seek to veto the process by which this democratic House of Commons considers those proposals? I therefore hope that he will tell us in due course that amendment No. 52 is the basis for introducing an effective veto into the Bill to give power back to Back Benchers—or at least reduce the amount that this procedure would take away—and to introduce important safeguards.

As the Minister will know, the full implications of legislation often become apparent only when it is subject to scrutiny. How many times have Government officials not realised the full implications of what they have written down? Even Parliamentary Counsel has drafted great big Bills, only for somebody to ask, “What are the implications of that? What does that mean?” and that has led to whole series of Government amendments. Even when legislation has been carefully considered by the Government and the counsel who drafted it, it is often defective and produced in a cavalier way.

If the Government are indeed going to resist amendment No. 52, why are they suggesting that we disregard 50 Members of Parliament who think that proposals should be subject to more scrutiny under the traditional primary legislation route? If the Government do indeed reject the amendment tabled by the hon. Member for Cambridge, that would be thoroughly unreasonable.

As I said in answer to the hon. Member for Edmonton, my concern as regards the suppression of individual rights, is that we are often talking just about one case, which has been brought up by one Member of Parliament. If a constituent, group of constituents or town is adversely affected by a piece of legislation that is pushed through using the accelerated procedure before us, should a responsible Member of Parliament not have the opportunity to veto it or to have it vetoed by bringing other Members together?

Andrew Love (Labour, Edmonton)

The hon. Gentleman’s comments made me think of an order that went through in the previous Parliament to end the last vestiges of the Sunday Observance Act 1780. One Member, or perhaps even 50 Members, might feel that that was inappropriate, but the overwhelming majority of Parliament might not. How do we ensure that in protecting Members’ rights we do not lose the essential business of Parliament?

Christopher Chope (Conservative, Christchurch)

Essentially, we ensure that measures are brought forward using the primary legislative route unless they are non-controversial. As we know, the Government could use the provisions of the Bill more or less to remove the need for any of the soft handout Bills that are given to those who are lucky enough to win the private Members’ ballot. Those Bills would no longer be necessary because they could be dealt with by the accelerated procedure. The Government might regret the demise of soft handout Bills and find it embarrassing to be confronted with much more controversial legislation on Fridays.

To deal with the hon. Gentleman’s point, he knows, as a veteran of debates on Fridays, that the fact that only one person has objections to a piece of legislation does not mean that they are in the wrong. Quite often, the points made in the debates on Fridays are responded to by the promoter of the Bill or the Government, and people realise that Parliament by definition contains a host of individuals with specialist knowledge of various subjects—not generalists, knowing about everything—who understand and know how to probe in relation to certain proposals. We know that the one or two Members who object to a piece of private Member’s legislation might be right.

Andrew Love (Labour, Edmonton)

I put it to the hon. Gentleman that if the Regulatory Reform Committee thought that one Member or 50 could veto the lengthy consultation and other necessary procedures that a Department has to go through to bring forward an order, all possibility of using that mechanism would in effect be ended.

Christopher Chope (Conservative, Christchurch)

The hon. Gentleman’s suggestion prompts the question whether that lengthy consultation process has addressed the consultees’ concerns. So often we see the Government going through the process of consulting but not responding to the views that are expressed in that consultation. The hon. Gentleman is jumping to the conclusion that consultation alone is a necessary safeguard, but consultation is a safeguard only if the Government respond to it. What better way could there be of ensuring that they do respond than to have an effective veto, which is the substance of amendment No. 52? Such a veto would not come from one individual Member but 50 hon. Members and would have to be exercised pretty quickly. It would not be a veto on the substance of the legislation but on the process by which it could be put on the statute book. That seems a perfectly reasonable suggestion.

Amendment No. 53 is also an important safeguard, to which I hope that the Minister will respond positively. If we are talking about two Houses of Parliament, there is not much point in having the accelerated procedure if it removes all rights from the other place to engage in debate on legislation that is brought forward under that procedure. We know that the powers that are being taken are so extensive that they could be used to have another go at aspects of legislation that the other place has already disapproved of. I hope that when we resume this afternoon the Minister will say that he thinks that the proposals are a good starting point for the veto process.

Jim Murphy (Labour, East Renfrewshire)

I take the opportunity to respond briefly to the debate on the clause so far. The hon. Member for Cambridge referred to the power of the Front Bench. I erred by not welcoming on behalf of the Committee the hon. Member for Forest of Dean to his position on the Front Bench—I am not damning him by mentioning that, but congratulating him. He is a defence spokesman for the Conservative party, and we welcome him to his place and welcome the reasonable tone that he strikes from the Front Bench.

Legislative and Regulatory Reform Bill - Standing Committee A

Legislative and Regulatory Reform Bill

Nicholas Winterton (Conservative, Macclesfield)

Order. I am back in the Chair and I am sure that good progress will continue to be made, as it was under my co-Chairman, Mr. Caton.

Clause 10 - Procedure: introductory

Nicholas Winterton (Conservative, Macclesfield)

I remind the Committee that with this we are discussing the following amendments: No. 53, in clause 10, page 5, line 12, at end add—

‘(4)A Minister may not make an order under section 1 where, within the 21 day period, either House of Parliament resolves that it objects to the use of this Act to make the order.’.

No. 54, in clause 10, page 5, line 12, at end add—

‘(5)A Minister may not make an order under section 1 where, within the 21 day period, a committee of the House of Commons charged with reporting on the order resolves that it objects to the use of this Act to make the order.’.

Jim Murphy (Labour, East Renfrewshire)

Thank you, Sir Nicholas. You will not be aware that this morning I was in the process of belatedly welcoming the hon. Member for Forest of Dean (Mr. Harper) to his place on the Front Bench, because the Committee was in error in not having done so earlier. We are delighted to have him in his place, as we are to have you in yours. We have made good progress in your absence—those two facts are not connected. I assume that when you appeared on “Question Time” you were not asked about our Bill; otherwise, you would not still be our esteemed co-Chairman. I did not have a chance to see your appearance—

Nicholas Winterton (Conservative, Macclesfield)

It is on video.

Jim Murphy (Labour, East Renfrewshire)

I am more of a DVD man. However, from what I hear nobody could accuse you of not having stood by your friends or your principles in your appearance. I was delayed by virtue of the fact that I had to travel to Glasgow, so was not able to watch the programme.

I had commenced my comments on clause 10 stand part, and on amendments Nos. 52, 53 and 54, which were tabled by the hon. Member for Cambridge (David Howarth). The clause introduces the procedural requirements that apply to all orders. An order cannot be made unless all those requirements are met. The procedural requirements introduced by the clause are as follows. First, all orders must be made by statutory instrument. Secondly, the Minister must consult in accordance with the requirements of clause 11 and, after consultation, must lay a draft order and explanatory document before Parliament in accordance with the requirements of clause 12. Finally, the order must be made in accordance with one of the three types of parliamentary procedure provided for in the Bill, and we shall discuss those under later clauses.

Without seeking to reinterpret the words of the hon. Member for Cambridge, I would describe amendments Nos. 53 and 54 as an attempt to define or describe a veto. The hon. Gentleman is aware that we made a commitment in an earlier sitting of this Committee to include a veto in the Bill, and it is important that we do so. The Government will make a specific proposal based on that principle before we debate the issue on Report. I know that that commitment has reassured a number of Committee members. That being the case, I invite the hon. Gentleman to withdraw the amendment.

David Howarth (Liberal Democrat, Cambridge)

I fully understand the Minister’s commitment to bring forward what has been called in the past a Committee veto, which would cover the ground of amendment No. 54. Can he confirm that he also intends to include in his consideration of what he is calling a veto the ground covered by amendment No. 53, which is a veto for either House, as opposed to a Committee of the House?

Jim Murphy (Labour, East Renfrewshire)

Without seeking to commit myself in a prescriptive manner, I shall be happy to discuss the matter with the relevant Front Benchers and with the Chairs of the relevant Select Committees in the House of Commons before we reach Report. On that basis, I can reassure the hon. Gentleman.

Christopher Chope (Conservative, Christchurch)

Is the Minister indicating that he is prepared to accept a veto that would incorporate hon. Members other than members of the relevant Committee? If so, does he think that the amendment tabled by the hon. Member for Cambridge is a pretty good stab at a veto, and the sort of thing that he has in mind?

Jim Murphy (Labour, East Renfrewshire)

I agree that it is a stab at a veto; whether it is a pretty good stab is something that we shall discuss before Report with the Opposition parties and the relevant Select Committee Chairmen in the House of Commons. Of course, the Regulatory Reform Committee declared an interest and offered some comments, and the hon. Member for Cambridge offered some criticism about conversations with the Front Bench; however, I hope that he will be reassured by the fact that there will also be conversations with the relevant Select Committee Chairmen. Also, he should not mock his Front Bench in the middle of a reshuffle of his own party. We shall see whether he remains on the Back Benches as the reshuffle works its way through the Liberal Democrat party.

I am sorry to say that I do not have anything so conciliatory to say about amendment No. 52. I hope that that will not create discord in the midst of the consensus that may be developing about discussing the hon. Gentleman’s ideas and some possible principles in the context of amendments Nos. 53 and 54. My difficulty is with the attempt to define what is controversial simply according to the number of Members of Parliament who would sign a declaration of their opinion. Our approach would be to determine the degree of controversy case by case by reference to the content of the proposal or order, rather than by an arbitrary number. The hon. Gentleman fully accepts that it is an arbitrary number. He and the hon. Member for Christchurch (Mr. Chope) had some discussion on that, and about the idea of setting the number at one.

It would not be appropriate to define what was controversial by the number of Members of Parliament who would sign up to any suggestion contrary to what was proposed, in preference to dealing with such decisions on a case-by-case basis.

David Howarth (Liberal Democrat, Cambridge)

If the Minister does not like the way of dealing with the problem of controversial matters that is set out in amendment No. 52, can he offer another definition of the word “controversial” that we could include in the Bill? So far he has been using the word in a context that assumes that Ministers make the decision and proceed accordingly, with no external check.

Jim Murphy (Labour, East Renfrewshire)

With respect to the hon. Gentleman, I am doing no such thing. Determination of whether something is controversial would come about first by public consultation—statutory public consultation, which I think the hon. Gentleman welcomes. The Minister would then prepare an explanatory memorandum, responding to the statutory public consultation. That explanatory memorandum, and the decision that the Minister would take about tabling an order, would be open to legal challenge. The Select Committee involvement and the detailed veto principles are an additional way in which constraints and controls could be imposed for highly controversial orders. All sorts of procedural conditions and the preconditions in clause 3 would prevent what the hon. Gentleman has talked about in relation to highly controversial matters.

We are attracted to the principle of a veto, but to define what is highly controversial as the hon. Gentleman is trying to do, by means of an arbitrary number of Members of Parliament—50 Members—is not the right way to go about it. You will be aware, Sir Nicholas, of all sorts of worthy, and some less worthy, early-day motions that have no difficulty in attracting 50 signatures of Members of Parliament. Some are important and some are perhaps less substantive. My hon. Friend the Member for Edmonton (Mr. Love) alluded, perhaps uncharitably, to the possibility that accepting the number 50 in the provision would enable the Liberal Democrat party, with its 56 Members of Parliament—[Hon. Members: “Sixty-four.”] Is it 64? There you are. Perhaps that should be the number for a veto. Anyway, my hon. Friend thought that the number of Members specified in the amendment might make a party political veto by the Liberal Democrat party possible.

David Heath (Liberal Democrat, Somerton and Frome)

Is it entirely unreasonable that a substantial political party in Parliament should be able to ask it to determine a matter that should properly be dealt with by primary legislation in Parliament, rather than by a Minister with a hole-in-the-corner order system?

Jim Murphy (Labour, East Renfrewshire)

That is in no way what we intend; in fact, it is a parody of our intention. I know that the hon. Gentleman could not be here for the earlier discussion on clause 13, for a good reason. However, to have an arbitrary number of Members of Parliament, based on no science or identifiable logic, is not the way to define higher degrees of controversy in an order. There are other ways to do so—the preconditions in clause 3 and the procedural protections—rather than an arbitrary number.

Christopher Chope (Conservative, Christchurch)

Could the Minister draw an analogy with what happens on the Security Council? Countries have permanent representation on the Security Council, and only one at any one time can exercise a veto. Does he believe that if one political party represented in this Parliament exercised a veto, that would be effective?

Jim Murphy (Labour, East Renfrewshire)

Sir Nicholas, you would rightly chastise me if I sought to draw an analogy between our consideration today and the General Assembly or Security Council of the United Nations. I do not think that it would be an effective veto to write into the Bill that one political party should have the right of veto. The hon. Member for Bethnal Green and Bow (Mr. Galloway) represents a political party, and we are not suggesting that his party would have the right of veto over any order.

David Heath (Liberal Democrat, Somerton and Frome)

Does the Minister appreciate that his proposals would allow one political party the right of veto over whether something will be debated on the Floor of the House? The Government party will have that right in its Committee, which will determine whether a matter is controversial.

Jim Murphy (Labour, East Renfrewshire)

That point ignores the culture and dynamism of the way in which the Regulatory Reform Committee works. If the hon. Gentleman wants to assert that the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in the House of Lords operate in a party political manner, I will give him the opportunity to make that point. However, they do not. No one has made that assertion, and I do not suggest that the hon. Gentleman should do so with any great confidence or to any great merit this afternoon.

The specific issues raised by amendments Nos. 53 and 54 will be included in our conversation with the Front Bench spokesmen of both the Conservative and the Liberal Democrat parties. We will consider them further with the Chairs of the relevant Select Committees. However, at this early stage I would like to suggest that the idea of an arbitrary number of Members of Parliament having the opportunity to exercise the veto in the way suggested in amendment No. 52 is not the correct way to proceed. There is an established way of identifying orders that might be highly controversial, involving statutory public consultation and a Minister’s assessment of that.

Douglas Carswell (Conservative, Harwich)

If the Bill passes without the amendment, what will be the point of having Members of Parliament and having elections for them if law can be made, amended and changed without reference to anyone who is vulnerable at the ballot box? The amendment would ensure that someone who was vulnerable at the ballot box could determine what could or could not be put through on the nod under the Bill.

Jim Murphy (Labour, East Renfrewshire)

The hon. Gentleman is aware that members of Select Committees in this place are Members of Parliament. They carry out that function in a highly effective way. We have members of the Regulatory Reform Committee in our Committee today. Members of Parliament from all parties in that Committee do a sterling job in considering specific proposals.

We are concerned that only 27 orders have been enacted under the 2001 Act. The Select Committee rejected the civil registration regulatory reform order, and that is an example of when the Government responded to the concerns of the majority of the Committee in a sensible and proportionate way, case by case. I gave evidence to the Regulatory Reform Committee towards the end of last year. There were no Conservatives in the Committee that day. That is unfortunate, but it is just the way that this place works. The hon. Gentleman is aware that the members of that Committee take their responsibilities very seriously and no one, until just now, has suggested that they do not.

David Heath (Liberal Democrat, Somerton and Frome)

Does the Minister not understand that I intend no criticism of the existing Committee? That is not the purpose of passing a Bill through a Standing Committee. It is to make the law that will apply to the parliamentary system in the future. We may have a very different Government in future and a very different Committee. They would only have to be mildly different from the present Government to be essentially malign in their intent. That is why we must get this right. It is not a criticism of the hon. Member for Plymouth, Devonport (Alison Seabeck) and her colleagues on the Committee, who do an excellent job.

Jim Murphy (Labour, East Renfrewshire)

My hon. Friend the Member for Plymouth, Devonport is delighted by that compliment as is my hon. Friend the Member for Edmonton, who served on the Committee with great honour and who unfortunately lost out this time round.

We must get this right. That is why we are committed to the principle of having a veto. That is why we will have detailed discussions with Opposition parties and the Select Committee Chairs so that we get the veto right. However, plucking an arbitrary number of Members of Parliament from the air does not get this right. There are protections in clause 3 in terms of the preconditions. There is the statutory public consultation to which I was referring when the hon. Member for Somerton and Frome (Mr. Heath) rightly intervened. The Minister must respond to that consultation by laying an explanatory memorandum. If the Minister makes an assessment that differs from the conclusions of the public consultation it is open to legal challenge.

On top of those protections the Select Committees of both Houses will have the power to reject or to amend a proposal. We will have a conversation about the principle of the veto and an amendment to include an operational veto in the Bill will be tabled in time for Report. All those protections will enable a case-by-case assessment to be made about what is highly controversial and what is not. To set an arbitrary number would not be the proportionate or effective way to do it. In the spirit of my earlier comments I ask the hon. Member for Cambridge to withdraw his amendment. If he seeks to press amendment No. 52 to a Division I will ask my hon. Friends to oppose it on the basis that it is an arbitrary figure based on no science or methodology.

Nicholas Winterton (Conservative, Macclesfield)

Before I call the hon. Member for Cambridge might I suggest that before he sits down he should indicate whether he will press his amendment or withdraw it?

David Howarth (Liberal Democrat, Cambridge)

Thank you for that guidance, which I shall follow. I accept the Minister’s assurances on amendments Nos. 53 and 54 that he will come together with the other Front Benches to find an acceptable way of putting into the Bill a method by which Committees and the Houses themselves might reject the use of the Bill for a particular order. I will not press those amendments to a vote. Amendment No. 52 is slightly different.

The Minister appears to be saying two things: first, there is the question that has divided us in our discussions about almost every clause, which is whether the other protections in the Bill are adequate. The Minister again referred to clause 3, but did not meet our criticism that that clause is drafted so subjectively that there would be no effective check on a ministerial decision if the Minister considered that the conditions in the clause were satisfied. This morning, we had a rather complex discussion about whether the Human Rights Act 1998 might apply to any such decision with regard to subsection (2). I hope that the Minister meant what he said then because, as I said at the time, it gives us an opportunity to move a further amendment on Report.

Adding to that this afternoon, the Minister referred to the consultation process. He said that if a Minister disagreed with the weight of material coming to him after a consultation, that would somehow be reviewable in the courts. It seems to me that if the Minister ignored the consultation process altogether and paid no attention to its results, that would be reviewable, but we are dealing with something different. We are talking about a Minister who, in the time-honoured phrase, “hears what they say” when the consultees come to him to say that they disagree, but who continues on the same path to make the order. That does not seem obviously reviewable by the courts.

The point that I made in response to the comments of the hon. Member for Edmonton still applies. We are dealing with a Bill of very great scope. It is different from the Regulatory Reform Act 2001. In those circumstances, it is self-evident that we should seek formal requirements in the Bill, rather than relying on informal arrangements or on the Minister’s good sense.

The Minister’s first reason for rejecting amendment No. 52 is that the procedures are adequate. However, it remains the view among Opposition Members—universally, I think—that the procedures and protections are not adequate. I remind the Minister of the fundamental point that even those procedures could be removed using an order under this legislation.

The Minister’s second reason for disagreeing with the amendment is that the way in which it is set up is not inadequate, in two respects. First, one single party could encourage its members to come together to block the use of the procedure in the legislation. My hon. Friend the Member for Somerton and Frome challenged the assertion that that would somehow be improper. A single political party with 50 hon. Members would seem to represent a substantial section of public opinion and might therefore be entitled to respect for its view that a proposed order was controversial. Nevertheless, I accept that it might command wider support in the House to propose instead of amendment No. 52 a slightly different mechanism that required hon. Members of more than one party to write to the Speaker as the amendment suggests. In that way, we could guarantee that it was not a partisan, party political complaint about the use of the procedure, but a broader concern.

Christopher Chope (Conservative, Christchurch)

Does the hon. Gentleman share my disappointment that he is almost having to resort to debating with himself, because the Minister is not willing to engage with him and to suggest, for example, what he is suggesting at the moment?

David Howarth (Liberal Democrat, Cambridge)

Yes, it strikes me as odd that Opposition Members have to play the part of both Government and Opposition. [Interruption.] As my hon. Friend the Member for Somerton and Frome says, it does increase the quality of the debate if we stick to debating among ourselves.

The second point was about the number of hon. Members required to object. As I said in moving the amendment, I am not wedded to the figure of 50; I suggested it as a starting point for thought. The hon. Member for Edmonton and the Minister pointed out that that number would mean that any one of three parties could meet the requirement by itself. I am willing to accept a different figure. The question is what percentage of Members of Parliament we should consider as indicative that a proposal being brought forward under the Bill was controversial. A figure of 10 per cent., which was what I suggested to the hon. Member for Edmonton, seems a perfectly adequate measure of whether a proposal is controversial.

Any figure is subject to the argument that another figure should be given, but that is true of any mechanism for guaranteeing the rights of minorities, which is basically what we are seeking to build into the procedure. We can always argue about what size that minority should be before it gets protection, but a 10 per cent. minority seems perfectly sufficient, and I should like to hear the Government’s argument that it is not.

I intend to come back with a different proposal on Report that will take into account the Minister’s comments. I hope that that will fulfil the criterion of the hon. Member for Christchurch that we should consider both sides of the debate. I beg to ask leave to withdraw the amendment.

Clause 11 - Consultation

Christopher Chope (Conservative, Christchurch)

Sir Nicholas, the clause is very important, and I was surprised that the Minister did not want to introduce it. It is the only effective brake that he is offering upon the exercise of the tyranny of the majority. Such a brake is what we are trying to ensure, as the hon. Member for Cambridge referred to—we are trying to protect minority rights. The Minister is saying that the statutory consultation in clause 11 will achieve that. Will he indicate in what circumstances he believes a Minister’s response to a consultation should have to accept the representations that have been made to allow the subject to go to the next stage? I am not suggesting that the Minister would necessarily reply, for instance, “If 95 per cent. of the representations received are in one direction as against another,” but what criteria will he apply to the issue of consultation? How will he assess the weight and merits of the arguments put forward, and whether they should lead to abbreviated procedure or the proposal either being amended or the subject of primary legislation?

I know that clause 11 is explained further by clause 12, but it is incumbent upon the Minister, since he is relying on clause 11 as part of the veto mechanism, to be a little more explicit about the circumstances in which a public consultation should act as a brake upon the Executive and the exercise of the tyranny of the majority.

Mark Harper (Conservative, Forest of Dean)

I have three questions on clause 11. First, the Minister talked about the proposals changing the function of a statutory body and subsection (1)(b) states that it would be in order to consult those bodies, which is fair enough. Will the hon. Gentleman comment on the fact that it would be up to the Minister to consult people whom he felt were representative of those bodies rather than the bodies themselves? I am not quite sure where he was driving on that point.

Secondly, exactly what is meant by the Assembly in subsection (1)(c)? Is it the Assembly itself or a Committee of the Assembly? I understand that a Committee of the Assembly tends to take care of this type of discussion. Following the changes proposed in the Government of Wales Bill, is it the Welsh Assembly Executive or its legislative arm?

My third point about consultation follows from the Minister’s helpful letter to members of the Committee about clarifying local acts. The Minister referred to what he said at our sitting last week in column 66 and quoted from “Halsbury’s Laws of England”, which he said confirm that an Act is said to be local if it is limited in respect of area or extent to a relatively small part of the country. The reason for its relevance comes down to the consultation. To give the Minister an example, I choose at random the Forestry Act 1981, where it relates to a statutory body—the Forestry Commission—the Minister would clearly consult the Forestry Commission. The nature of some of these local Acts is that they relate to a particular area and affect everyone who lives in that area. Subsection (1)(e) provides that the Minister must consult

“other persons as he considers appropriate.”

Alison Seabeck (Labour, Plymouth, Devonport)

I want to pick up on a point in the text which has been drawn to my attention. Throughout, the Minister is referred to as a male. The Bill refers to “he” and “him” throughout. Is that normal in legislation?

Mark Harper (Conservative, Forest of Dean)

Sir Nicholas?

Nicholas Winterton (Conservative, Macclesfield)

That was not a point of order. I am sure that the Opposition spokesman will reply.

Mark Harper (Conservative, Forest of Dean)

I understand that when the text states “he” and “him” one is supposed to read “she” and “her” too.

The reason for raising the point about local Acts is that by their very nature they can be extremely important locally and affect the interests of all or many residents in an area. Perhaps the Minister will comment on exactly what implications that would have for the consultation.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has done a lot of study on the subject of those Acts. I am less impressed by the definition than he is, as it comes from a text book rather than statute. Does he agree with me that it confirms the Committee’s earlier suspicion that issues of hybridity are very much to be considered when we are dealing with what are described as local Acts? It would be helpful if the Minister were to explain how he will deal with the hybridity issues in future legislation.

Mark Harper (Conservative, Forest of Dean)

The hon. Gentleman makes a very good point. The next part of the quotation from “Halsbury’s Laws of England” confirms that local Acts comprise all statutes of a local character originating in private Bills. It brings up the subject that we debated at length, but without the clarity of the explanation. It has examples of those authorising the carrying out of work by commercial concerns and therefore raises hybridity issues. Following the Minister’s letter, it would be helpful if he would elaborate on the matter.

Nicholas Winterton (Conservative, Macclesfield)

Order. Whatever the hon. Member for Somerton and Frome (Mr. Heath) said, it is my view that hybridity is not involved. I hope that the Opposition spokesman will not trespass too far down that path.

Mark Harper (Conservative, Forest of Dean)

Thank you for your guidance, Sir Nicholas, but there is no danger of that, as my knowledge of hybridity is much less comprehensive than that of the hon. Member for Somerton and Frome.

The Minister should give us an idea of what scope there is for the Bill to be used to amend local Acts. In a previous debate, he gave the example of harbour Acts, which obviously have a great import for particular localities. What sort of consultation would he think was appropriate under subsection (1)(e)? Will he give an example?

Jim Murphy (Labour, East Renfrewshire)

I shall of course obey your strictures, Sir Nicholas, and not add to the comments made on hybrid Acts.

Hon. Members will be aware that clause 11 sets out the statutory consultation requirements with which the Minister must comply before making an order. It sets out the first steps in the procedure for making an order, and it is based on section 5 of the 2001 Act, amended to take account of the widened power.

Subsection (1) requires the Minister to consult organisations that

“appear to him to be representative of interests substantially affected by the proposals”.

If proposals relate to the functions of statutory bodies, he must consult them or those persons

“appearing to him to be representative of those bodies”.

The Minister must consult the National Assembly for Wales if a proposal applies to

“any matter in relation to which the Assembly exercises functions”.

I confirm to the hon. Member for Forest of Dean that “Assembly” is defined in clause 30 as the National Assembly for Wales. The Minister must consult the relevant Law Commission if an order implements a commission recommendation. He must also consult

“such other persons as he considers appropriate”.

Subsection (3) provides that if the proposals change as a result of consultation, the Minister must undertake

“such further consultation ... as he considers appropriate”.

That provision is equivalent to section 5(3) of the 2001 Act. The Minister does not have to repeat the whole consultation exercise; the additional consultation should be only what is necessary in respect of those elements of the proposal that have changed, and could involve only those consultees affected by the change.

The consultation process is fundamental. It is the linchpin of the Bill. It will remain a key element, and it must be complied with. The clause ensures that it is not an option but a statutory requirement. That is essential. Consultation will test the quality of proposals and the evidence of their impact, and it will gauge the public’s view of them.

Some points were raised about ministerial conduct in effective consultation. The Government work to a code of conduct to ensure the quality of consultation; it is generally regarded as effective. Given their experience of the 27 orders that been made under the 2001 Act, hon. Members may draw their own conclusions, but I am not aware, from evidence to the Regulatory Reform Committee or from elsewhere, that those principles have not been effective in enabling effective consultation.

I know that the Committee will not wish me to deal with all six subsections in detail. We need to consult widely throughout the policy development process, and at least once, allowing a minimum of 12 weeks for written consultation. We must be clear about the proposals, who may be affected, what questions have been asked and the timescale for responses; ensure that consultation is clear, concise and widely accessible; give feedback on responses and on how the consultation process has influenced policy; and we must monitor Departments’ effectiveness in consultation, including through the use of designated co-ordinators, to ensure that consultation follows better regulation best practice, including the carrying out of regulatory impact assessments when appropriate.

I continue to make the point that we should publish the outcomes of consultations and the responses both in hard copy and on the internet. Indeed, earlier today we confirmed that the consultation responses to the Bill are now available on the Cabinet Office website.

Having dealt with the point about Wales, I shall respond to the additional points that were made. I am not certain that Opposition Members are suggesting it, but it is not a part of the code of practice—nor is it a serious suggestion—that the Government should proactively consult each and every individual who would be affected by a specific proposal. I am not aware that including that in the code of practice has ever been suggested. It is more effective and practical to consult representatives of those interests, and that is the same approach as the requirement in the 2001 Act. The parties who are consulted will depend on the circumstances and the order.

The 2001 Act provisions on consultation have worked well. The Minister must consult on proposals. Neither the Bill nor the 2001 Act go into detail, but there is guidance on effective consultation practice. The clause sets out the statutory position on consultation and is backed up by the code of conduct and the six principles of effective consultation. That system has operated effectively since 2001 and I am not aware that the Select Committee or anyone else has suggested otherwise.

David Howarth (Liberal Democrat, Cambridge)

On a point of order, Sir Nicholas. I have just seen the letter that the Minister wrote to the hon. Member for North-East Hertfordshire (Mr. Heald) about the definition of a local Act. I see with some distress that the final limb of the definition includes statutes relating to a particular charity and educational foundations and institutions. It surprises me that that is part of the definition of a local Act, and I fear that I should have declared an interest at the start of our discussions, because presumably that would include the Universities of Oxford and Cambridge Acts. May I have your guidance, Sir Nicholas?

Nicholas Winterton (Conservative, Macclesfield)

The hon. Member for Cambridge has been truly honourable, as I would expect. Although he should perhaps have declared an interest, he has now done so and it is on the record. I myself am not sure of the entire interpretation of the Minister’s letter but I believe that members of the Committee, including the hon. Gentleman, are behaving truly honourably and appropriately.

David Heath (Liberal Democrat, Somerton and Frome)

Further to that point of order, Sir Nicholas, I was grateful for that advice to my hon. Friend. If it is the case that every statute and order that has ever been made is capable of amendment by the Bill, if the Bill is enacted, then inevitably we must all have an interest because every one of those statutes will affect one member of the Committee or another, so I think that my hon. Friend has nothing to fear from not having declared an interest at the start of our proceedings.

Nicholas Winterton (Conservative, Macclesfield)

I was seeking to be fairly general in my response. I believe that the hon. Member for Somerton and Frome is right, but in this place it is best to be safe rather than sorry, as we have discovered recently, so let us end it there.

Clause 12 - Draft order and explanatory document laid before Parliament

Christopher Chope (Conservative, Christchurch)

I thought that the Minister gave his response to clause 11 on the basis that the argument is just about process. Our concerns, however, are about the substance, and there is nothing in clause 12 that can allay the concerns of those of us who feel that the Minister is giving himself power, in effect, to override substantial objections that are raised during consultation. There is no limit to the Minister’s ability to proceed, notwithstanding what most people would describe as an adverse consultation experience. Will the Minister elaborate on how he envisages that the consultation process will work, and where he thinks, looking at subsection (1), that it would be inappropriate for the Minister to proceed with the making of an order in the light of the consultation experience?

The way in which the clause is drafted at the moment, suggests that the consultation is just a process rather than an opportunity to see if there are substantive objections and, if there are objections, to respond accordingly. [Interruption.]

Nicholas Winterton (Conservative, Macclesfield)

Order. May I say, without making any accusations, that I hope that all mobile phones are on silent? I will make no further reference, but I have just heard a tinkle in my ear.

Christopher Chope (Conservative, Christchurch)

I sometimes hear noises in my head. [Laughter.] I think, Sir Nicholas, that it is something to do with anno domini.

Subsection (2)(d) says that the explanatory document must,

“to the extent that it is appropriate to do so having regard to the likely effect of the order, include an assessment”.

And so on. How is the judgment to be made of whether it is appropriate to do so having regard to the likely effects of the order? If the likely effect of the order is to impose substantial costs, the Minister might regard it as rather inappropriate to give an estimate of those costs because it might be embarrassing. Perhaps the Minister could explain how he envisages that the word “appropriate” will operate in subsection (2)(d).

Does the Minister accept that the further wording in subsection (2)(d) demonstrates that far from the procedure being designed to reduce the burdens, as they were under the 2001 Act, there is quite a strong possibility, now admitted on the face of the Bill, that there will be increases in costs resulting from the operation of legislation under those procedures—not only costs, but what are described as “disbenefits”?

Will the Minister explain exactly how those costs and disbenefits will be expressed? Will they be in the form of a cost-benefit analysis? In relation to subsection (2)(f), will he indicate why there is no requirement, should representations made during the consultation process be rejected, for the Minister to set out specifically why those representations were rejected? That is in significant contrast to the provisions in subsection (3) in which the Minister is under an obligation to explain why.

In my submission it is all the more important that, under subsection (2), the Minister should explain why. The powers contained in the Bill are so great; the whole structure is based upon the Minister having a veto over everything, and only being accountable, in a sense, to himself. We are relying on ministerial good behaviour, and I hope that the Minister will be able to expand on how we will be able to judge that good behaviour.

Andrew Love (Labour, Edmonton)

I thank the hon. Gentleman for giving way and I apologise for the noise earlier, Sir Nicholas. Let me reassure the hon. Gentleman that some of the concerns that he raised about the orders can be taken on board by the Select Committee, which can carry out further consultation, make judgments about the opposition to an order and report back to the Minister. Although I accept that concerns exist, they will be taken on board as part of the workings of the Act and the Select Committee.

Christopher Chope (Conservative, Christchurch)

I am grateful to the hon. Gentleman for that intervention and I am sure that he is right that the concerns expressed in the consultation would generate the activity to which he referred if he were a member of the Select Committee. The question that concerns me and Committee members more generally is who appoints Select Committees? In effect, it is the patronage secretaries on both sides of the House.

Angela Watkinson (Conservative, Upminster)

Does my hon. Friend share my concern about the change that the proposed relationship will bring about in the status of Select Committees? Select Committees currently have independence in their investigations, but will that independence be lost and their relationship to the Executive be changed if they are to scrutinise legislation and report to the Minister?

Christopher Chope (Conservative, Christchurch)

That is an important point, which was touched on earlier. The Executive always want to exercise their power with the minimum of interference, so when they realise the extent of the powers that the Bill has given them and that a Select Committee might be a slight brake on the exercise of those powers, there might be an overwhelming temptation to ensure that the appropriate stooges are serving on that Committee. The Minister looks at me in disgust, but in the past the Executive have moved heaven and earth, or provided alternative incentives, if I can put it like that, to relieve a Select Committee Chairman of his or her position and to discourage people from continuing to serve on a Committee. That has happened not only under the present Government, but even—I am not sure whether I shall refer to anything involving you, Sir Nicholas—under former Governments. [Hon. Members: “No!”] Although this may have been for the most innocent of motives, some of the most effective Select Committee Chairmen under the previous Conservative Government were offered Government jobs to encourage them to leave their Select Committee posts and create a vacancy that could be filled by, dare I say it, a Government stooge. You could never be accused of being a Government stooge, Sir Nicholas, and most other members of the Committee would never have come into that category.

Notwithstanding the comments by the hon. Member for Edmonton, the temptation to act in the way I have outlined will be great. That is why, to return to our earlier debate, the veto must go further than just a Select Committee. If matters are left to such a Committee, the Executive will soon realise that the way to change things is to change its membership.

David Heath (Liberal Democrat, Somerton and Frome)

I was amused by the references that the hon. Member for Christchurch made to the Ministers’ misbehaviour. We always hope that Ministers will not misbehave, and our expectations are constantly dashed. Nevertheless, we continue to hope.

I want to ask about the specific application of subsections (5), (6) and (7), which deal with the release of material that derives from the consultation. I might be entirely mistaken, and I will happily accept correction if I am, but I do not recall having seen analogous provisions in other statutes that lay out terms for consultation. I therefore have one simple question. Given that the clause provides for Ministers not to publish representations in response to consultation on certain grounds; is that on the basis that it falls within a category of the Freedom of Information Act 2000 that comprises advice to Ministers? If so, if anyone who writes to a Minister is deemed to be providing advice, that rather extends the definition. Or do other categories in the Act apply? How do the provisions relate to the Act?

Finally, subsection (7) correctly suggests that a Committee of the House can require the disclosure of responses even if they fall within the definitions in subsections (5) and (6). It sounds like a sensible provision, but it changes the relationship between right hon. and hon. Members who serve on a specific Select Committee and general Members of the House, who will not be allowed to read certain information. The negative resolution procedure leaves it open to any Member of the House to table a prayer for the annulment of such an order, but, apparently, not in possession of the same information that one would have were one fortunate enough to be on the relevant Select Committee. That seems a little anomalous and surprising. I would be grateful for the Minister’s explanation.

Mark Harper (Conservative, Forest of Dean)

Sir Nicholas, your earlier comment about hearing things brought to mind the joke that if one talks to God it is called a prayer, and if one hears voices from God it is time to worry.

When the Minister replied to the Chairman of the Regulatory Reform Committee, the hon. Member for Ellesmere Port and Neston (Andrew Miller), he said that the specific objectives of the Bill were to reduce the amount of bureaucracy around the implementation of European Community law, and to make it quicker and easier to reform outdated, unnecessary or over-complicated legislation. That implies that it will reduce costs and increase benefits or reduce disbenefits.

My hon. Friend the Member for Christchurch has already hit upon this in relation to sub-paragraphs (i) and (ii) of subsection 2(d), in which it is specifically accepted that an order made under the Bill might well increase costs or disbenefits by recognising that the Minister would have to publish an assessment if he felt that to be appropriate. We keep being told that the whole point of the Bill is to deregulate. We have had some discussion on whether it would be possible to have a deregulatory bias in the Bill that would point in that direction, but this part of the Bill is worrying because it recognises that it might do the opposite of what we are told it is intended to do. Perhaps the Minister will comment on that.

My second point is about subsection (3). I have read it a number of times, and it strikes me that it either is not brilliantly drafted or does not make sense. It says:

“In the case of any provision contained in the order which is made solely for the purpose in section 1(1)(a)”—

which is reforming legislation—

“if the Minister considers that the provision would”

either simplify or modernise

“making the overall effect of legislation less onerous, or ... removing inconsistencies or anomalies ... he must under subsection (2)(b) explain why.”

Surely there is a “not” missing somewhere. The way it is drafted, the measure says that if the order is doing those things, which we would generally consider to be good things, the Minister must explain why. It therefore implies that if the order does the opposite of those things—things that we would consider to be bad—such as making legislation more complicated, un-modernising it, or whatever the opposite of modernising it is, making it more onerous or adding inconsistencies or anomalies, he does not have to explain why. That does not make sense, but it might be a simple drafting error, or there might simply be a word missing. Will the Minister tell us what he means by that?

Finally, I shall pick up on a point made by the hon. Member for Somerton and Frome about disclosure. Subsection (7) talks about disclosure not being affected by Committees. Could the Minister clarify whether those Committees would report on draft orders to the House or to the Minister? If people contributing to the consultation make it clear that they do not wish things to be disclosed and the Committee says that things should be disclosed, does that have any impact on the adequacy of the consultation? The hon. Gentleman said that he had not typically seen such drafting before, so I wonder whether any new issues have been raised about how consultation is conducted.

Jim Murphy (Labour, East Renfrewshire)

This has been an interesting debate. Hon. Members opposite have posed some interesting questions and I seek to respond in like terms.

I start by agreeing with you, Sir Nicholas, that no one is suggesting that the hon. Member for Cambridge has done anything other than carry out his duties as a constituency MP and Member of this place in an entirely appropriate manner, in respect of the Register of Members’ Interests or declaring an interest. He is right that the letter yesterday to the hon. Member for North-East Hertfordshire refers to particular charitable and educational foundations and institutions. That is helpful and I do not think that any member of the Committee would suggest anything to the contrary on how the hon. Member for Cambridge has conducted himself.

I draw the Committee’s attention to the comments that I made in our second sitting, when in response to the hon. Member for Forest of Dean I said:

“Local Acts cover limited areas and deal with matters such as port and harbour authorities, charities or education institutions.”—[Official Report, Standing Committee A, 28 February 2006; c. 64.]

I am sure that all hon. Members would acknowledge that the hon. Member for Cambridge has acted entirely appropriately and you are right to make that point, Sir Nicholas.

Clause 12 sets out the requirements on a Minister to lay an explanatory document and draft order before an order can be made. That constitutes another key procedural safeguard. The Minister may consider it appropriate to proceed once he has carried out the consultation required by clause 11—my hon. Friend the Member for Plymouth, Devonport has already asked about the gender-specific wording of such provisions, but that is a wider debate and I do not wish to draw the Committee into it. I do not know whether we operated like that when we had our only woman Prime Minister or whether we referred to the Prime Minister then as “he”.

Alison Seabeck (Labour, Plymouth, Devonport)

This discussion is entirely relevant given that tomorrow is international women’s day.

Jim Murphy (Labour, East Renfrewshire)

I do not know how the House or elsewhere plans to celebrate international women’s day, but—this is not the Government’s position—perhaps my hon. Friend would like to launch her one-woman crusade for changing the gender-specific descriptions in legislation. However, that is a much wider issue, which is not before the Committee for discussion this afternoon.

The Minister must lay a draft order along with an explanatory document, which will set out all the relevant information about his proposals as required by the clause. Subsection (2) specifies that the explanatory document must contain considerable detail. That includes an explanation of whether the provision reforms legislation, implements Law Commission recommendations or both, an introduction to the provision and reasons for it, an explanation of why he considers the relevant preconditions in clause 3 to have been met and an assessment of the savings or costs, or the other—elegantly titled—disbenefits or benefits that are expected to arise.

Christopher Chope (Conservative, Christchurch)

The Minister is reading his brief effectively, but I asked whether he could give an example of a situation in which a Minister would not think it appropriate to proceed with the making of an order under the clause.

Jim Murphy (Labour, East Renfrewshire)

I shall happily give way to the hon. Gentleman on that point later. There is a responsibility to identify the benefits, disbenefits, details of and reasons for any power to legislate that the order confers on the procedural requirement attaching to that power; and details about the consultation that has been carried out, the responses received and any changes to the proposal made as a result. That will ensure that any concerns about the proposals are identified.

Let me turn to some of the comments that have been made and the matters that have been raised. On the question of the way in which the decision of or assessment by the Minister made after the consultation can be challenged, as I have said, the Minister cannot proceed with a proposal if he is not satisfied that the preconditions given in clause 3 have not been met. If he reaches an unreasonable view as to whether clause 3 conditions are met—an adverse consultation response will be part of the evidence—then he can be challenged in the courts, open to judicial review.

On the additional questions about the costs and the extent to which it is appropriate to give details, in the case of an order with substantial costs it will be appropriate to give details. However, in the case of an order with genuine but less significant benefits, fewer details will be appropriate. They will be available as part of the public consultation. Benefits and disbenefits include environmental and social gains and losses, and such impacts cannot be considered purely in financial terms.

The hon. Member for Upminster (Angela Watkinson) again performed as a speaking Whip. We are delighted to hear from her, but I am glad to note that hers is not a habit that my hon. Friend the Member for Gloucester (Mr. Dhanda) seeks to emulate, except at the end of each sitting. She asked a genuine question and deserves a straightforward response. Her question was on whether the measure might change the way in which Select Committees carry out their duties. All that I would say in response is that the relevant Select Committees, in this place and in the other place, already have responsibilities under the 2001 Act that enable them to carry out investigations into orders and legislation. In that respect, there would be no change in the way in which Select Committees operate. In the House of Commons, a Select Committee has allowed 27 orders to proceed under the 2001 Act. I can reassure the hon. Lady that there is to be no change in the way in which Select Committees operate.

In respect of the just process of the consultation, which was identified by the hon. Member for Christchurch, all consultation responses are given to the relevant Committees of this and another place. Therefore, the Select Committees of this and another place can additionally make their own assessments of the responses to the consultations and the feedback. The results are analysed in the explanatory document, and it is not possible in that context for the Minister to ignore substantive proposals—if he were to do so, the Select Committee members in this and another place would rightly raise their concerns.

On the changes that the Minister might wish to make under this part of the legislation, the Minister could lay a draft order even if there were adverse comment to some of the proposals from some individuals. However, the Committees would be aware of the consultation responses, as I have said, so in some cases they might take the view that the order suggested by the Minister was not appropriate for the order-making process of the Bill.

Christopher Chope (Conservative, Christchurch)

Everything that the Minister has said so far suggests that he does not envisage any situation in which a Minister would be persuaded by the consultation process not to proceed with the making of a draft order.

Jim Murphy (Labour, East Renfrewshire)

What I am dealing with today is part of the discussion of the enabling power, setting out the specific principles and the operation of the clause. I have said on several occasions, but it bears reinforcing, that all the matters would be dealt with case by case, through a specific consultation. Today we are considering an enabling power, with respect to explanatory documents that would be laid before Parliament, and the setting of parameters and constraints on the document.

The hon. Member for Somerton and Frome asked about clause 12(5), (6) and (7) and I confirm that those subsections are similar to provisions in the 2001 Act. I am advised that the only change is with respect to taking into account the Freedom of Information Act 2000. I hope that that will reassure the hon. Gentleman. I would say in addition that there is an exemption from disclosure of information under the Freedom of Information Act, where that disclosure would be actionable breach of confidence. I know that the hon. Gentleman will be aware of that. It is reflected in clause 12(5).

Perhaps I may contribute some of my own experience to the debate. In publishing the responses to the consultation on the Bill we have made it clear that only those consultation responses that are not confidential will be placed on the Cabinet Office website. That is the correct and appropriate way to proceed. I recall another experience that concerned consultation on a proposal from the Scotland Office. As a constituency Member I made a specific recommendation based on my considerations, and the opportunity was then available to me to have it dealt with in confidence. I shall not detain the Committee over whether I took it, but the opportunity was there and I am certain it was available to others who participated in the Scotland Office consultation.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to labour the point, but I want to be clear about the relationship with the Freedom of Information Act 2000. The Minister is right that a potential exempt category under subsection (5) is actionable breach of confidence, but under subsection (6) the test is that it appears to a Minister that disclosure would adversely affect the interests of another person. I am not sure that that falls clearly within an exempt category under the Freedom of Information Act. I think that that Act would trump the statutory provision that we are considering, but I leave it to the Minister to re-examine the matter and satisfy himself as to their compatibility.

Jim Murphy (Labour, East Renfrewshire)

I shall happily do that.

The hon. Member for Forest of Dean talked about hearing things, and then mentioned a missing word; I have no idea whether there is a connection. He asked if a “not” was missing, and I am advised that it is not.

Christopher Chope (Conservative, Christchurch)

Perhaps on reflection the Minister will accept that he has not answered my question about how what is appropriate is to be judged, under subsection (2)(d), and why, where representations set out in subsection (2)(f) are rejected by the Minister, there should not be accompanying reasons.

Jim Murphy (Labour, East Renfrewshire)

As I have said several times in discussion of clause 12, the Bill is an enabling Bill and this is an enabling clause. I have made the protections that exist clear. The Minister must adhere to the preconditions under clause 3, as I have mentioned. If the Minister violated or ignored those preconditions that would be open to legal challenge. The evidence from the consultation process would be made public, if the respondents so wished, and the Select Committee would receive the information as well. There are important protections and safeguards that ensure that the things that the hon. Gentleman is genuinely concerned about cannot happen in respect of the preconditions and the operation of the clause.

Mark Harper (Conservative, Forest of Dean)

I raised two points. One concerned the reference to increases in costs and disbenefits in subsection (2)(d)(i) and (ii). In his letter to the Chairman of the Regulatory Reform Committee the Minister said:

“The better regulation aims in Clause 12 give an indication of the intended use of the power.”

The only thing in the clause that I can find that indicates an intended use of the power is the suggestion that costs and disbenefits could increase. That is quite worrying.

Secondly, given that no words are missing and the subsection means what the Government meant it to mean, the Minister’s answer to my question about the drafting of subsection (3) simply does not make sense. As currently drafted it says that if the Minister is reforming legislation under clause 1(1)(a) he has to provide an explanation only if he considers that it would be effectively better. If he thinks that it will be worse he does not have to explain why. We would prefer that he had to explain in both cases or, if in only one case, in the case where he is making a deleterious change to the law, not an improvement. That subsection does not make any sense at all.

Jim Murphy (Labour, East Renfrewshire)

In respect of the explanatory memorandum that is laid before Parliament, I can do no more than reiterate my comments about the way in which the order, the explanatory document and the related conditions are specified in subsection (2)(a) to (f). On the letter to the Chairman of the Select Committee, I can confirm that when laying a draft order before Parliament a Minister must explain, where appropriate, how an order furthers better regulations in the explanatory document. That is the important point here in terms of simplifying or modernising legislation, making the overall effect of legislation less onerous or removing inconsistencies or anomalies.

That is the better regulation aim in subsection (3). These aims are statutory expressions of some of the ways in which the Government intend to use these powers. They do not provide specific limits on the power but this is in effect a statement of the intention of how it will be used. The power is intended to be flexible enough to remove regulatory burdens—

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister give way?

Jim Murphy (Labour, East Renfrewshire)

I am under some pressure to make progress, but I will give way briefly.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister appears to be saying that subsections (3)(a), (b) and (c) provide the definition that we sought under clause 1(1)(a) for reforming legislation. The Minister rejected our suggestions. If that is a comprehensive definition it would be helpful if it were written elsewhere in the Bill rather than simply in the notes and the explanatory document and it would assist the Committee considerably to know what the Government’s intentions are.

Jim Murphy (Labour, East Renfrewshire)

That is a helpful intervention. This is not a closed list. We do not want to recreate some of the technical complexities of the 2001 Act, which is a general assessment of the weakness of that Act. This is indeed the sort of thing that the Government intend to do under this clause. I hope that is a helpful response.

Clause 13 - Determination of Parliamentary procedure

Nicholas Winterton (Conservative, Macclesfield)

Before I ask the hon. Member for Forest of Dean to move amendment No. 14, I am not sure whether the usual channels have yet decided at what time they wish to break this evening. From the Chair, I am happy to stay very late to ensure proper debate on this important Bill, but I make those remarks so that the Committee is aware that progress must be made.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment No. 14, in clause 13, page 7, line 24, leave out paragraph (a).

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment No. 17, in clause 13, page 7, line 26, at end insert—

‘(1A)Unless the Minister is satisfied that there are reasonable grounds for applying the negative resolution procedure or the affirmative resolution procedure, he must recommend that the super-affirmative procedure shall apply to any draft order laid under section 12.’.

Mark Harper (Conservative, Forest of Dean)

There are many amendments to clause 13. Fortunately, it was possible to group them for the purposes of this discussion. There is a series of amendments standing in my name and that of my hon. Friend the Member for North-East Hertfordshire and, in the case of amendment No. 6, in the name of the hon. Member for Plymouth, Devonport.

Nicholas Winterton (Conservative, Macclesfield)

Order. The hon. Gentleman is jumping the gun. We are on amendment No. 14, with which it is convenient to take amendment No. 17. The group of amendments that includes amendment No. 6 comes next. I ask him to discuss amendment No. 14.

Mark Harper (Conservative, Forest of Dean)

Thank you for that guidance, Sir Nicholas. The clause deals with the determination of parliamentary procedure, and includes three alternatives: the negative resolution procedure, the affirmative resolution procedure and the innovative super-affirmative resolution procedure. Amendment No. 14 would leave out subsection (1)(a), which is the negative resolution procedure.

The logic for doing that is that it seems sensible to ensure that any proposals tabled under the Bill would at least be debated rather than put through on the nod, thereby making it much more difficult for Members to control them. If the amendment were accepted, we would have either the affirmative or super-affirmative resolution procedure. Given the scope of the Bill and the fact that the protections in procedure and in the scope of the Bill that my party wanted have not been accepted so far—although that may change later—removing the option of using the negative resolution procedure and thereby beefing up the procedure may well go some way towards reassuring us that the uses to which the Bill could be put would be much more modest.

The effect of amendment No. 17 would be that, unless the Minister had specific reasons which he would have to give and which would therefore be justiciable, the super-affirmative procedure would be the default setting for any changes under the Bill. That would be the normal course of events, unless the Minister had good reasons why a lesser form of procedure should apply.

Again, given the scope of the Bill, we believe that that is the right default. It is fairly modest though, because if the Minister is satisfied that there are reasonable grounds he can use one of the other procedures. The amendment would set the default high, and force the Minister to consider the appropriate procedure and to set out reasons why he wishes to use the more straightforward rather than the more onerous procedure. That is not an unreasonable request, and I urge the Committee to accept both amendments.

Jim Murphy (Labour, East Renfrewshire)

I have a brief contribution to make about the amendments. Time may be a little against us, so I will try to be relatively brief.

As you rightly say, Sir Nicholas, it is appropriate to address amendments Nos. 14 and 17 simultaneously. I am grateful to the hon. Member for Forest of Dean for highlighting through amendment No. 17 that the Minister should have reasonable grounds for recommending negative or affirmative procedures. Ministers are under a public law duty to act reasonably, as we have discussed, and that is a duty that can be subject to challenge by judicial review. That would certainly extend to the process by which a Minister determines what level of parliamentary scrutiny is appropriate for orders.

Moreover, the Bill already requires a Minister to set out his reasons for recommending a procedure when laying an explanatory document alongside a draft order. If the Minister had no good reason for recommending a procedure, that would be exposed in the explanatory document available to Parliament. The amendment is therefore unnecessary, since it does not change the legal effect of the Bill. In any event, if Parliament does not agree with the reasons given for the Minister’s recommendation, it can require a more onerous procedure to be applied to the order.

Amendment No. 14 would remove the option of a Minister recommending that the negative resolution procedure should be followed for a particular order. It seems unnecessary. The procedure requirements ensure that the scrutiny of orders is appropriate and proportionate, a matter to which the Regulatory Reform Committee has rightly drawn attention in the past. The procedures act as an incentive to Departments to bring forward beneficial proposals and, additionally, help to change the culture across Whitehall. If a Minister considers the negative resolution procedure to be appropriate, it seems somewhat arbitrary to introduce a restriction that would prevent him from putting forward those views to the Committee. In any case, Parliament remains the final arbiter of the appropriate level of scrutiny for orders.

Mark Harper (Conservative, Forest of Dean)

I ought to have mentioned that these amendments would effectively put on the face of the Bill some of the recommendations made by the Regulatory Reform Committee in its report. Specifically, it was keen that there should be more parliamentary scrutiny of orders. In each of its three recommendations, it said that no order should undergo negative procedures. It recommended that orders should undergo super-affirmative procedures by default. When we come to the later amendments, we will return to the recommendations that the Committee made on the length of time involved. Since the recommendations in the amendments came from the Committee as well as us, even if the Minister does not like amendment No. 17 perhaps it would be worth his reflecting on amendment No. 14, to take into account what we and the Committee have said and to see whether he wants to tighten anything up.

Jim Murphy (Labour, East Renfrewshire)

When we get to the debate on the other substantial number of amendments, I will be happy to show that the Government are minded to move on some aspects of the Regulatory Reform Committee’s recommendations about the timings and operation of some procedures. However, my point is not intended to criticise the Select Committee, but to make a reasoned case as to why in this instance—unlike many others, which we will discuss later—such an amendment would not be necessary.

I will highlight a couple of examples of where it might be appropriate for the negative procedure to apply. The Regulatory Reform (Trading Stamps) Order 2005, which eased burdens on the retail sector by updating and harmonising the legal framework regulating the use of trading stamps, might be one such example. The proposals to reduce administrative burdens such as form-filling requirements might be another. It is the Government’s assessment that such non-contentious, straightforward orders could be initially be taken by negative procedure, but the Regulatory Reform Committee, on which my hon. Friend the Member for Plymouth, Devonport serves so well, could in any instance say, “We do not agree. It is not appropriate. The Minister has not kept to the spirit of the consultation or recommended the appropriate procedure.”

The Government feel that, as part of cutting out unnecessary bureaucracy, much of the legislation involved will be non-contentious and cross-party and will be simplification or the removal of form-filling.

Christopher Chope (Conservative, Christchurch)

If that is so, why does paragraph 56 of the explanatory notes, on this clause, refer specifically to the Minister’s view of

“the complexity of the order”

rather than its level of controversy, which is the issue that the Minister has just addressed?

Jim Murphy (Labour, East Renfrewshire)

Without going over the discussions that we have already had, the level of controversy will be decided on a case-by-case basis.

On the complexity of an order, if it is a straightforward simplification—the phasing of two forms into one or the lightening of the burden on business or public services—the Government’s instinct is to reserve the opportunity to have the negative resolution procedure. However—it is an important “however”—the Select Committees will have the absolute right to reject the Minister’s proposal and recommend the affirmative or super-affirmative procedure. That is a reasonable way to progress, and will still allow the Bill to enable the delivery of minor administrative simplifications by the lightest available procedure, but with the safeguard that the Select Committee can recommend an alternative.

The hon. Member for Forest of Dean has made entirely reasonable points, but given that we will reflect on some of the amendments that we will consider next and based on the undertakings that I have given, I invite him to withdraw his amendment.

Mark Harper (Conservative, Forest of Dean)

Since the Minister has given those assurances, and we are going to talk about time limits and some of the other things in the next group of amendments, I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment No. 2, in clause 13, page 7, line 30, leave out ‘21’ and insert ‘30’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments: No. 77, in clause 13, page 7, line 30, leave out ‘21-day’ and insert ‘preliminary’.

No. 8, in clause 13, page 7, line 30, leave out ‘21’ and insert ‘60’.

No. 3, in clause 13, page 7, line 39, leave out ‘21’ and insert ‘30’.

No. 9, in clause 13, page 7, line 39, leave out ‘21’ and insert ‘60’.

No. 24, in clause 13, page 7, line 39, leave out ‘21-day’ and insert ‘preliminary’.

No. 4, in clause 13, page 7, line 46, leave out ‘21’ and insert ‘30’.

No. 10, in clause 13, page 7, line 46, leave out ‘21’ and insert ‘60’.

No. 25, in clause 13, page 7, line 46, leave out ‘21-day’ and insert ‘preliminary’.

No. 5, in clause 13, page 8, line 7, leave out first ‘21’ and insert ‘30’.

No. 11, in clause 13, page 8, line 7, leave out first ‘21’ and insert ‘60’.

No. 26, in clause 13, page 8, line 7, leave out ‘21-day’ and insert ‘preliminary’.

No. 6, in clause 13, page 8, line 7, leave out second ‘21’ and insert ‘30’.

No. 12, in clause 13, page 8, line 7, leave out second ‘21’ and insert ‘60’.

No. 7, in clause 13, page 8, line 8, at end insert—

‘(8)The “30 day period” in this section may be increased by not more than 30 days subject to—

(a)a resolution of either House of Parliament, or

(b)a recommendation from the relevant committee of either House of Parliament that is not rejected by a resolution of that House.’.

No. 78, in clause 13, page 8, line 8, at end add

‘(“period A”) unless, before the expiry of period A, either House of Parliament requires (by the same method as is available for requiring a procedure under this section) that period A shall be extended by a further period of days (not exceeding 30) specified in the requirement (“period B”), in which case it means period A extended by period B’.

No. 16, in clause 13, page 8, line 8, at end insert—

‘(8)The “60 day period” in this section may be increased by not more than 60 days subject to—

(a)a resolution of either House of Parliament, or

(b)a recommendation from the relevant committee of either House of Parliament that is not rejected by a resolution of that House.’.

No. 79, in clause 14, page 8, line 20, at end add

‘(“period C”) unless an extension of a further period of days has been required under section 13(7) (“period B”), in which case it means period C extended by period B’.

No. 15, in clause 15, page 8, line 25, leave out ‘40’ and insert ‘60’.

No. 80, in clause 15, page 8, line 25, leave out ‘40-day’ and insert ‘examination’.

No. 19, in clause 15, page 8, line 30, leave out subsection 4 and insert—

‘(4)In this section, “the 60 day period” means the period of 60 days beginning with the day on which the draft order was laid before Parliament under section 12.’.

No. 81, in clause 15, page 8, line 30, leave out ‘40-day’ and insert ‘examination’.

No. 83, in clause 16, page 9, line 6, leave out ‘60-day’ and insert ‘examination’.

No. 84, in clause 16, page 9, line 19, leave out ‘60-day’ and insert ‘examination’.

No. 85, in clause 16, page 9, line 20, at end add

‘(“period D”) unless an extension of a further period of days has been required under section 13(7) (“period B”), in which case it means period D extended by period B’.

No. 82, in clause 16, page 8, line 40, leave out ‘60-day’ and insert ‘examination’.

Mark Harper (Conservative, Forest of Dean)

Without stepping through all of the amendments in order—I am sure that the Committee will be grateful about that—I shall point out their effect would be to put in the Bill one of the three recommendations that the Regulatory Reform Committee included in its report to the House. The options are mutually exclusive and in ascending order of the Committee’s preference.

The first option is to maintain a full range of procedures and time limits, increase the 21-day time limit to 30 days and provide that parliamentary time limits should be adjustable upwards if a resolution of either House recommended it—a small tightening. The second option is to remove the negative procedure completely and merge time limits. It is clear from the Committee’s report that they were keen for the negative procedure to be removed. We feel that that would be advantageous as it would at least ensure debate on the orders. The Committee also noted that under the 2001 Act there was at least a 60-day period for scrutiny, which in their view was the minimum period necessary. The current Bill provides a smaller period of time, and this group of amendments would change that.

The third option is to remove the negative procedure, and effectively to make the super-affirmative procedure the default setting. That is a more radical possibility and one that the Regulatory Reform Committee invited the House to consider. That would also merge all time limits into a standard 60-day time limit and, again, allow Parliament, on a part 1 order, to adjust upwards the time limit, if a Committee of the whole House, or the House, recommended so.

The Select Committee set out some choices for this Committee to consider. We would prefer to go towards the upper end and tighten things up, unless we were given further reassurances on the scope of the Bill. The Minister indicated that he is prepared to think about some of the issues, and I hope that he will say what he has in mind. I shall leave the matter there and see what other members of the Committee and the Minister have to say before we decide on how we will proceed.

Alison Seabeck (Labour, Plymouth, Devonport)

I rise to speak to the amendments, which I will not list by number. They relate to clauses 13 to 16, which I understand, following a discussion earlier today, will be formally considered when we reach the appropriate clauses.

Through my amendments, I seek to probe the Minister on some of the issues flagged up by the Select Committee’s special report produced prior to Second Reading, and to progress them a little. The report raised a number of concerns about the way in which parliamentary procedure will be determined, including the reduction in the time that the Committee has to scrutinise the RROs, which could, if the Bill is passed unaltered, be less than is currently the case—60 days.

I suspect that the reason for the change to the timetable, as set out in the Bill, that reduces the period for consideration by either House of Parliament to only 21 days, if the Minister’s proposal for the negative, affirmative or super-affirmative procedure is to be followed, is that it is believed incorrectly that the existing parliamentary procedures, rather than the failure of the Government to identify and introduce proposals, have been the cause of the relatively small number of RROs made so far.

Overall, parliamentary scrutiny accounts for only 20 per cent. of that period, when measured from consultation to the making of the order. That means that to cut the time spent on making an order by even 10 per cent., the scrutiny period would have to be cut in half. Clearly, that would undermine effective scrutiny, and in my view, would squeeze the wrong end of the process. It is also worth noting that the Cabinet Office’s website states that it requires 90 days in which to assess practical proposals for regulatory simplification that are submitted by the business, voluntary or community sectors, or public sector front-line staff and any of their representatives. I am therefore not clear on why 21 days is deemed long enough for parliamentary scrutiny.

In addition to seeking an automatic increase from 21 to 30 days for deciding on procedure, as proposed in amendment No. 6, I have sought to use the term “preliminary”, rather than define a specific number of days in order to introduce some flexibility into the process. The first preliminary period would be the period in which the responsible Committee of either House can vary the Minister’s recommendation as to the procedure that can be used. That starts out at 30 days and can be increased by no more that another 30.

The eighth recommendation in the Regulatory Reform Committee’s special report suggested that it would be more appropriate to consider a period up to 30 days. Amendment No. 78 would achieve that, allowing fewer days to be taken if the measure was non-controversial, and be in keeping with the general thrust of the legislation, which is to speed up the whole process.

One of the reasons for trying to put some flexibility into the process, and why I feel that the amendments are potentially more appropriate—that dreaded word “appropriate”—than those tabled by Opposition Members is simply that it is not always clear at first sight whether an RRO will be controversial, and therefore whether there will be a need for a significantly and rigidly extended time limit.

Often it is the public’s response to the consultation that draws attention to the fact that an order might need more detailed consideration and should not be rushed. With the changes proposed in the Bill, there would be no flexibility and inadequate time. For example, the media are only just beginning to understand the constitutional significance of some parts of this Bill. It is evident from my mailbag that the wider public and other bodies are only now seriously beginning to consider what the Bill could mean some 26 days after the Bill’s Second Reading, which is well outside the 21-day period proposed by the Minister. Therefore, 30 days is a much better starting point, and I hope that he will consider that figure seriously.

If the responsible Committee is to be able to report to the House, it should do so on the basis of informed, not rushed, decisions. It will need to scrutinise the text and consultation responses and may need to return to the relevant Department with further questions for answer. The Department, too, will need time to respond and the notion that one can speed a response from a Government Department in what could only be a few days is fanciful. They rightly need time to consider and to take advice. Compressing the period into 21 days will therefore cause real problems, even when assessing whether the Minister has recommended the appropriate procedure.

It would be far better to consider extending the time allowed for not following the Minister’s recommendation into a 30-day preliminary time limit and then allow for the parliamentary time limits of a part 1 order to be adjusted upwards with a maximum adjustment of 30 days on a resolution of either House or on the recommendation of the responsible Committee of either House.

On the amendments relating to clauses 14, 15 and 16, I propose consideration of the inclusion of the term “examination period” in the Bill. On a negative instrument, that is the period within which the responsible Committee of either House can stop the order being made, and it starts out as 40 days. On an affirmative instrument, it is the period after the end of which the Minister can make the order if both Houses approve of it, and starts out as 40 days. On a super-affirmative order, it is the period within which the responsible Committee of either House can reach conclusions that the Minister must have regard to, and after the end of which the Minister can make the order if both Houses approve it, and it starts out as 60 days.

The eight recommendation in the Select Committee’s special report proposed that if the preliminary period set out in amendment No. 78 to clause 13(7) jumped from 30 by another number of days, the examination period would jump by exactly the same period of days as an automatic consequence. That is achieved primarily by amendment No. 79 to clause 14(4), and amendment No. 81 to clause 15(4) which refers back to clause 14(4) and amendment No. 85 to clause 16(8).

I do not profess to being a parliamentary draftsperson nor do I have the academic background in this field of the hon. member for Cambridge, so I accept that there may be flaws in the drafting of the amendments. However, I hope that the Minister will accept that these changes are a consequence of the flexibility that I want to build in to clause 13. I ask the Minister to consider the value of the amendments together because one does not work without the other. I hope that he will agree that there is a case both for extending the period available to Parliament for consideration and for viewing positively the flexibility that the amendments allow to speed up the process.

As I said, these are probing amendments. I look forward to hearing the Minister’s comments.

Jim Murphy (Labour, East Renfrewshire)

In rising to respond to this brief debate, I do not intend to address each of the amendments in turn. Despite your desire that we stay here all evening, Sir Nicholas, it would incur the wrath of members on both side of the Committee if I did so.

I can tell my hon. Friend the Member for Plymouth, Devonport that we will reflect on some of the amendments in the group and the proposal in the excellent report of the Select Committee on Regulatory Reform. Interestingly, four of the amendments on which we wish to reflect were tabled by my hon. Friend, four stand in the names of the hon. Members for North-East Hertfordshire and for Forest of Dean and others, and one amendment appears under all their names. I do not wish to detain the Committee in a discussion of how such things come about.

Mark Harper (Conservative, Forest of Dean)

I should say for the benefit of the career of the hon. Member for Plymouth, Devonport that we had no discussions in advance. I simply went through and signed lots of amendments, of which hers happened to be one. I did not want to get into trouble with the usual channels.

Jim Murphy (Labour, East Renfrewshire)

I am sure that my hon. Friend the Member for Plymouth, Devonport is pleased that that clarification has been made. My hon. Friend the Member for Gloucester can relax once more.

I welcome the rationale for the amendments, which support the principle of proportionate parliamentary procedures for orders and which are designed in different ways to ensure that orders are subject to effective and appropriate levels of parliamentary scrutiny. I shall seek to deal with the specific issues raised by the amendments.

A number of the amendments would increase the period available for Parliament to determine the appropriate level of procedure for an order from 21 to 30 days. The recent report by the Regulatory Reform Committee commented that 30 days would be a more appropriate period for completing that initial stage of scrutiny. I reiterate that the procedures in the Bill are intended to provide an effective and, above all, workable mechanism for scrutinising orders. However, in the light of the views expressed in the RRC report and through the amendments, the Government will consider carefully the idea of extending the determination period.

I hope that my hon. Friend the Member for Plymouth, Devonport, whose comments focused primarily on the 30-day period, will feel able not to press her amendments, on the basis that we will reflect on the specific suggestions that she made. However, the Government want to avoid extending the initial scrutiny period beyond 30 days or, as some amendments suggest, up until the end of the overall scrutiny period. I hope that hon. Members appreciate that requiring the period for determining the parliamentary procedure to last as long as the overall scrutiny period would not be a workable outcome because, in relation to the negative resolution procedure, it would allow no time for hon. Members to pray against an order.

Several amendments would extend the overall scrutiny period for orders. Amendments Nos. 15 and 19 would extend the affirmative resolution procedure scrutiny period from 40 to 60 days. Amendments Nos. 16, 79 and 85 are designed to extend the overall period of scrutiny available for orders by providing that Parliament may require additional scrutiny for certain orders.

Extending to 60 days the scrutiny period for orders undergoing the affirmative resolution procedure is unnecessary. Let us say that Parliament requires a particular order to be subject to a more onerous procedure. It may in all cases require that an order proceed by affirmative or super-affirmative resolution procedure. That is on a case-by-case basis. The super-affirmative procedure available under the 2001 Act has proved to be appropriate for larger or more complex reforms. Committees have used that procedure to assess effectively larger and more controversial reforms. Providing in the Bill for an extension of the overall scrutiny period would compromise the principle of proportionality, which hon. Members on both sides of the House support and which underpins these procedures. The scrutiny procedure should be proportionate to the nature of the reform proposed.

Christopher Chope (Conservative, Christchurch)

Does the Minister think that a good rule of thumb is to ensure that the scrutiny period is proportionate to the gestation period?

Jim Murphy (Labour, East Renfrewshire)

Many of the orders originate from consultations and recommendations from business, the public sector, charities and voluntary organisations. It would not be appropriate to link the scrutiny period to the gestation period as the hon. Gentleman suggests.

If orders are simple and straightforward, it might be appropriate to deliver them by a more proportionate procedure than is currently possible, and the Bill is designed to provide for that. A straightforward reform like the Regulatory Reform (Local Commissioner for Wales) Order 2004 or the Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005, for example, should be deliverable by negative or affirmative resolution procedure. The latter order removed an anomaly that had required NHS bodies to prepare two sets of accounts. If Parliament believes that an issue is so clear-cut that there are no points to debate, and the order can be properly considered within 40 days, the negative resolution procedure could be used. If an order can be fully considered within 40 days but a short debate on the Floor of the House and a Division are none the less warranted, the affirmative process could be used.

The review of the 2001 Act found that disproportionate procedures were a disincentive to delivery of smaller or simpler orders. The range of procedures provided for in the Bill is intended to encourage delivery of such orders. Not all draft orders have the impact or complexity of the Regulatory Reform (Fire Safety) Order 2005, and therefore not all orders require 60 days’ scrutiny.

I reiterate that the procedures in the Bill are designed to provide Committees with the flexibility to require a more onerous procedure for a certain order, and so to extend the time available to scrutinise it. Varying the Committee’s flexibility to scrutinise orders undergoing super-affirmative resolution procedure for more than 60 days could also be reviewed when any necessary changes to Standing Orders are discussed.

Committees have previously extended their scrutiny of larger and more complex proposals beyond 60 days, partly through Standing Orders, as with the proposed civil registrations and fire safety RROs. Moreover, the effect of the Committee veto on appropriateness is such that if Committees go beyond the 60-day limit—as they did for the fire safety and civil registration proposals—in practice, Departments will always wait until the Committees have reported before laying the second-stage order. We see no reason for a formal extension of the super-affirmative procedure.

Christopher Chope (Conservative, Christchurch)

Does the Minister recognise that there may be a very large cumulative burden upon the Select Committee? The Executive decide when such orders are first laid, and if a whole lot of orders are laid at the same time, the Committee will still have to deal with them in the confined time limit. Does the Minister not think that the overall burden on the Committee should be taken into account?

Jim Murphy (Labour, East Renfrewshire)

We have an excellent working arrangement with the Committee; of course we will discuss the issue with it. One of the recommendations in the excellent Select Committee report was an extension of the Committee’s terms of reference. That would not be appropriate for this Committee, but extending the Select Committee’s remit would be an appropriate matter for conversation between the Select Committee and the Leader of the House.

We should develop a situation wherein, when the Government starts statutory public consultation on a proposed order, the relevant Select Committees in the Commons and the other place should receive an indication from the relevant Department. That would be an important way to give Select Committees a sense in advance of the nature of a possible order, the areas that it might cover and the powers it seeks. It may be possible as part of widening the remit of the Regulatory Reform Committee. One of the Committee’s concerns is that it would like to widen its ability to call for evidence and to investigate the better regulation agenda in general.

Giving the Select Committee information from Departments as a norm when those Departments start consultation on a proposed order would be an early indication to those Committees of what orders might come, when and how they might come and their possible content. That would be an important way to work. Some of that already happens, but we might tighten it up more effectively through Standing Orders or in some other appropriate manner, so that it becomes the norm.

I have mentioned our intention to reflect on nine specific amendments. That is not to suggest that there is no merit in amendments that require a lengthier period. If the relevant Select Committee thinks that an order is wider or more controversial than it is comfortable with, or if it has any other reason for seeking a more onerous procedure, it has the absolute right in every instance to do so.

Mindful of that, the Government wish to reflect on the proposals made in amendments Nos. 2, 3, 4, 5, 6, 24, 25, 26 and 77. Of those nine amendments, four were tabled by my hon. Friend the Member for Plymouth, Devonport, four were tabled by the hon. Member for North-East Hertfordshire and one was a joint effort. Given the assertion and commitment that we will include in the Bill a provision that Select Committees will be able to use an alternative procedure, I encourage the Committee not to withdraw those amendments. Based on the undertakings and understandings that I have given today, we will of course reflect on those nine amendments.

The rest of the debate is in Hansard.