House of Commons Hansard Debates for 11 May 1994

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saddened by the failure of Her Majesty's Opposition and of the Liberal Democrat Party to support the necessary fiscal measures to reduce energy consumption ; highlights their failure to evolve effective policy towards the environment and their desire to remove the United Kingdom's influence in the European Union by their insistence on majority voting and the abolition of the veto ; and regrets the way in which they fail to support the Government's insistence that in internal matters it is for the United Kingdom Parliament to decide upon the most appropriate ways of reaching sustainable development goals.

EUROPEAN COMMUNITY DOCUMENTS --

Motion made, and Question put forthwith pursuant to Standing Order No. 102(9) (European Standing Committees).

Weights and Dimensions of Vehicles

That this House takes note of European Community Document No. 11504/93, relating to weights and dimensions of vehicles ; whilst supporting the proposal to consolidate the existing legislation, questions on grounds of subsidiarity the harmonisation of maximum lorry weights for national journeys ; and considers that the proposed general weight limit of 44 tonnes for 6-axle vehicles conflicts with Community and United Kingdom policy intended to encourage combined road/rail transport for environmental reasons.-- [Mr. Robert G. Hughes.]

Question agreed to.

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Deregulation Orders

Motion made, and Question proposed, That this House do now adjourn--[ Mr. Andrew Mitchell .]

7.10 pm

Sir Peter Emery (Honiton) : I wish to support the recommendations of the fourth report of the Select Committee on Procedure. [Interruption.]

Madam Deputy Speaker (Dame Janet Fookes) : Order. I am sorry to interrupt the right hon. Gentleman, but there is far too much noise in the House. It is extremely discourteous. If those present do not wish to listen, they will kindly leave the Chamber.

Sir Peter Emery : I refer to the report entitled "Parliamentary Scrutiny of Deregulation Orders" and to the response received from Her Majesty's Government, which is House of Commons paper No. 238. Before dealing with the details of the report, I will attempt to clear up three matters. First, it was not--and is not--for the Procedure Committee to consider whether Ministers should be given the power to repeal or amend primary legislation by deregulation or any of the principles arising from the Deregulation and Contracting Out Bill. That is a matter for the House as a whole, and the House is proceeding to make a decision about it.

Secondly, it was argued that the Committee should not proceed or report until the Bill became an Act as it was suggested that that would prejudice its legislative passage. The Committee rejected that suggestion, because many people wanted to know how the House would deal with the deregulation orders. If amendments to the Bill were considered necessary because of the Committee's recommendations, it is unlikely that they would be made after the Bill had become an Act.

Lastly, there were adequate examples to allow the Committee to proceed once the Bill had reached the Second Reading stage. The Opposition will understand these illustrations. In 1966 the ombudsman was appointed before the Parliamentary Commissioner Bill received a Second Reading. In 1978, before the Scotland Bill became an Act, money was spent to bring the school in Edinburgh up to the required standard for an assembly. Tens, if not hundreds, of thousands of pounds were spent but to no avail. So the Committee was quite certain that, at the request of the Government, there were enough precedents to allow us to proceed while the Bill was before the House.

Mr. Andrew F. Bennett (Denton and Reddish) : It is a tradition of the Procedure Committee that it attempts to get all-party agreement. Will the right hon. Gentleman accept that he rushed ahead with this inquiry in the face of opposition from the Opposition parties and that he has devalued the report because he made no attempt to carry the whole House with him in the discussions about it ?

Sir Peter Emery : I am sorry to have to tell the hon. Gentleman that that is absolute nonsense. We wanted to attain as much agreement as possible. All the parties on the Committee agreed that we should proceed.

Mr. Nigel Spearing (Newham, South) : All Members on the Committee.

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Sir Peter Emery : All members of the Committee, representing all parties, agreed that we should proceed. All the members decided initially whom we should ask to appear before the Committee.

Mr. David Winnick (Walsall, North) : Will the right hon. Gentleman give way ?

Sir Peter Emery : I will finish this point and then I will be delighted to give way.

The Committee remarked in the report that the hon. Lady the Member for Derby, South (Mrs. Beckett) refused to give evidence before the Committee. She was invited to do so--with the agreement of all members of the Committee--at the same time as other people were invited to appear. That is the first time that any person has refused to give evidence to the Committee. One must remember--but I hope not remember well enough to encourage a repetition--that at that time resolutions between the usual channels had broken down. So as far as I am concerned, the matter would be soonest forgotten, quickest mended.

Mr. Winnick : The right hon. Gentleman chairs the Committee and he knows that it is my view that the Committee works far better when the Conservative majority on the Committee does not act at the behest of the Government. Does he accept that Labour Members voted against the report because, while we accepted that the inquiry should take place--the right hon. Gentleman is correct in that respect--we did not believe that the report should come to the House before the Bill had been passed ? That was the issue at stake, and that is why the hon. Member was quite right to refuse to come to the Committee. She was courteous and explained her reasons, and the right hon. Gentleman should recognise that.

Sir Peter Emery : I hope that, in my speech, I have tried to make it clear that the Committee proceeded in a normal manner. As I have suggested, Labour Governments have taken action and made preparations before a Bill has been enacted. I must thank the hon. Gentleman, who is a member of the Committee and has made his view clear. He took a considerable part in the Committee's deliberations. I am certain that he can make his own speech and that I shall not have to make it for him.

Let me turn to the recommendations which--I am glad to say--were not amended. To explain how they work, I must stress that the deregulation orders will be substitutes for primary legislation. The Committee did not consider that the Government's proposals went far enough, and all Committee members felt that. That is made clear in paragraph 21 of the Committee's report.

We considered that a deregulation order should not be considered as just another statutory instrument. After all, a statutory instrument is secondary legislation and provides for regulations which are empowered by the original Act. A deregulation order is entirely different and must be considered as such by the House, the Clerks and the lawyers outside. It is in effect primary legislation or, if it is not accepted as such, it is a substitute for primary legislation. To illustrate that, let me point out that the Committee said in paragraph 16 of the report :

"In our recommendations we have sought to ensure that no Act of Parliament is repealed or amended under this new power without examination at least as thorough as if the change had been made by a Bill passing through the House."

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Mr. Spearing : The statement which the Chairman of the Procedure Committee has just made is very important. He said that a deregulation order would not be a substitute but would be primary legislation. He also said that it should not be subject to any different form of examination from ordinary legislation. However, it does in the Bill.

The Committee about which we are talking will recommend but will not dispose of matters and it will not necessarily amend the statutory instrument. Does the Chairman of the Procedure Committee agree that there is a major distinction ? The central part of the current Bill, through primary legislation, does exactly what the orders would do.

Sir Peter Emery : I understand the argument made by the hon. Gentleman, whom I respect. He has experience as an ex-Chairman of the Committee on Statutory Instruments. That matter was not for my Committee to consider ; it was for the House. If the House gave Ministers that power, my job was to try to ensure that a full and thorough investigation was carried out

"at least as thorough as if the change had been made by a Bill passing through the House."

The House therefore, we have argued, must be given the power to do that.

The Bill allows a Minister to make an order which is subject to an affirmative resolution in both Houses to amend or repeal primary legislation which imposes a burden, providing that necessary protection is not removed. As a first step, the Minister must consult representatives of those who are likely to be affected. He then lays before Parliament a deregulation proposal, which is a draft of the order, with an explanatory document giving reasons for the measure, the benefits which would result from it, details of any necessary protection provided by the existing legislation, how the protection would be maintained, details of the consultation and how it had been taken into account.

It is at that stage that we must consider how the House should act. The Committee set out certain criteria which are set out in paragraph 21 of our report :

"from the start the Committee would need to establish that the proposal for a deregulation order was within the powers conferred if the Deregulation and Contracting Out Bill is enacted . . . a Committee would have to examine the merits of a deregulation proposal to see whether it did remove a burden without reducing necessary protection . . . an opportunity should be provided for those affected by a deregulation proposal to express their concerns to the House . . . Members other than those serving on the Deregulation Committee should have an opportunity to express their views before the proposal is finalised in an order . . . there should be an opportunity to put forward changes to the deregulation proposal . . . the House should have the advice of a Committee on whether the proposal, as amended following the period for parliamentary consideration, should be made . . . when the House would want to have an opportunity to debate and vote on the final version of the order."

Anybody would accept that those are fairly strong criteria. Having established them, we decided that the Deregulation Committee should be one of the most senior Select Committees of the House, that it should comprise 16 members and that it should be given powers which were different from and greater than those of any other House of Commons Committee. How, then, will the Deregulation Committee work ?

Mr. Winnick : Will the right hon. Gentleman explain why, on his casting vote, he came to the conclusion that the Deregulation Committee should not be chaired by an Opposition Member ? Would not the Deregulation

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Committee have been strengthened for obvious reasons--as Labour and Liberal Democrat Members believe--if it had been chaired by an Opposition Member ?

Sir Peter Emery : As I said at the time, the chairmanship of Select Committees is normally decided by the usual channels and between the Whips. The numbers which are established in the break-up is left to the usual channels and it seemed that, whatever we said, that was going to happen anyway.

Dr. Tony Wright (Cannock and Burntwood) : This is an important issue. The right hon. Gentleman will recall that the great strength of the Public Accounts Committee is that it has a Chairman from an Opposition party and, far from diminishing the standing of that Committee, it vastly enhances its status in the House. In these exceptional circumstances, would not it have been sensible to include such a provision in the report ?

Sir Peter Emery : The hon. Member for Cannock and Burntwood (Dr. Wright) has made a point which I hope was heard by the usual channels. I can understand it and the point could well be argued, but that does not alter the fact that the decision will be made by the usual channels. I believe that it is right that the usual channels should take into consideration the point made by the hon. Gentleman.

Mr. Anthony Steen (South Hams) : Will my right hon. Friend give way ?

Sir Peter Emery : Yes. I am trying to get on, but I am not succeeding.

Mr. Steen : Is it not true that the House has passed far too much legislation during the past 30 or 40 years, and that there is a surfeit of legislation ? We are now getting thousands of directives flooding in from Europe. Will not the Deregulation Committee try to speed up the repeal of legislation which has become antiquated or which is no longer working ?

It is important that the Chairman of the Committee is a Member of the ruling party in order to expedite the deregulation and the repeal of laws which are hostile to the revival and the future of this country, and to speed up the process by which industry and commerce are no longer hidebound and restricted by regulations. The Opposition may appreciate those regulations, but the Government recognise that they must be repealed to expedite the future of our industry.

Sir Peter Emery : The usual channels will have heard that intervention as well.

The Committee therefore believes that the issue will be decided by the usual channels--it will be up to them to make the decision.

Mr. Gordon Prentice (Pendle) : Is the right hon. Gentleman aware that during proceedings on the Deregulation and Contracting Out Bill the Minister envisaged a system involving a Chairman's sift ? The idea was to control the number of matters coming before the Committee. Did the Procedure Committee realise that, in the exceptional circumstances of the operation of a Chairman's sift, it would indeed be right for the Committee Chairman to be a member of one of the Opposition parties ?

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Sir Peter Emery : I hear what the hon. Gentleman says. The Committee decided that there should be 16 permanent members serving throughout a Parliament so that they could become expert in the work.

To return to how the Deregulation Committee would work, it would greatly assist hon. Members if they turned to the appendix to the report, which contains a flow diagram showing how the Committee would carry out its tasks.

I have explained how the Government will lay the draft order. Then, legal views on the vires should be sought. At the same time the Committee should ask the Clerks to consult the Clerks in the House of Lords to find out whether, if evidence is to be taken, it can be taken jointly.

Once the Committee has considered this advice, it will decide whether it needs further evidence or advice, or whether oral and written evidence should be taken. Once again, the Clerks should be consulted.

One of our recommendations was that the Committee should be able to call Ministers. As shown by the Government's response, this was the only recommendation that the Government did not agree with. Indeed, they say :

"The power to summon Ministers, which would be unprecedented, is unnecessary, since Ministers with responsibility for a deregulation proposal will be anxious to assist the Deregulation Committee with its work".

The Government cannot see a time when Ministers

"would refuse to attend the Committee as witnesses if their attendance is requested."

That is the strongest statement I have ever heard by the Government about the attendance of Ministers at such Committees.

Having decided whether or not to take oral evidence, the Committee would then make its first report to the House. That report would say that the proposals had been unanimously agreed, or that amendments were necessary, or that the order should not be made at all. If the order should not be made, the Committee recommends that the proposal be withdrawn, or that the Government revise it, or that they introduce primary legislation.

If the Committee decides, on the evidence, that amendments to the order should be made, those amendments should be sent to the Government. The Government have made it clear that they would pay particular attention to any amendments or proposals recommended by the Committee. When the Government eventually lay an order, the Committee will be able to see whether it has emerged exactly as drafted--if it was unanimously agreed to- -or whether the Government have altered it in any way.

If the Committee decides that the Government's amendments are unsatisfactory, it will adopt a certain approach. If the order has been unanimously agreed to, of course, the Committee will adopt a different approach. If, on the other hand, a majority of the Committee has merely approved the measure, a third approach will be taken.

Mr. Bennett : The right hon. Gentleman suggested that the new Committee would take advice from Speaker's Counsel and from counsel in the House of Lords to decide on the vires. Does he agree that the deregulation Bill is so widely drawn as to make it difficult to decide that any deregulation measure was ultra vires ? Both the Joint Committee on Statutory Instruments and the Select Committee on Statutory Instruments look not only at the vires of a measure but at the clarity of its drafting. Would

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it not therefore be logical for some committee to examine those areas right at the start, instead of discussing the merits ?

Sir Peter Emery : In many ways the hon. Gentleman is correct. I believe that, as with the Statutory Instrument Committees, this Committee should make a decision on the vires at the outset, because it would be nonsensical if the Deregulation Committee started on its work before an order had cleared the hurdle that a Statutory Instrument Committee would usually put before it. To that extent, I welcome the hon. Gentleman's remark.

If there is not unanimous agreement to an order, it will be reported back to the House and a debate of 90 minutes can take place, if that is wanted. Opposition Members or those who voted against the order may, however, decide that a debate is not necessary--but that decision rests with the House. If the Committee unanimously supports an order and believes that it should be proceeded with, it will be put forthwith ; but if the Committee considers that the amendments are unsatisfactory and is against approving the order, it will make a recommendation to the House in those terms.

Before the order can be presented for approval, the Government must put down a motion to disagree with the Committee's recommendation, so an order cannot proceed unless the House disagrees with the Committee. As a number of hon. Members have argued strongly, the House should have a chance to say how it would like an order to be amended. The motion to disagree with the recommendation of the Committee is amendable, so the House will have the chance to express its feelings about the order as amended and about the Government's motion to disagree with the Committee.

Mr. Steen : I recognise my right hon. Friend's distinction as Chairman of the Procedure Committee, but is not the whole point of the deregulation Bill to reduce the amount of bureaucracy and information gathering in the system ? Surely the procedures that my right hon. Friend has outlined will be a nightmare for all involved.

Sir Peter Emery : What my hon. Friend must understand, and I tried to make absolutely clear at the start, is that the deregulation order is the equivalent of primary legislation. If it did not exist, the Government would have to introduce individual Bills to deal with it. It is right that there should be a fast track. If everybody agrees with it, that is fine. My hon. Friend has what he wants, but that is only if everybody agrees with it. If there is some doubt, there must be a debate on the Floor of the House. But if there is disagreement in Committee, the Government must show the House that they disagree with its views. There must be a three-hour debate to do that, and that motion can be amendable. I believe that that is right when one is dealing with primary legislation.

The Government recommended that 40 days be available for the Committee to deal with matters. In paragraphs 78 and 79 of our report we suggested that in some instances, particularly in the event of a detailed inquiry, 40 days might not be sufficient. In that circumstance, the period should be extended to 60 days. I am glad to see that the Government are willing to go ahead with that. What powers did we recommend that the Committee should have ? I ask hon. Members to turn to paragraph 117

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of the report, where we make it absolutely clear that it should have the power to send for persons, papers and records. It says "(including Ministers of the Crown)",

but I have already dealt with that. It continues :

"to sit notwithstanding any adjournment of the House ;

to report from time to time ;

to appoint specialist advisers ;

to adjourn from place to place (within the UK)

it is not to be a Committee that travels around the world "to meet with the equivalent Lords Committees to take evidence ; to appoint a sub-committee with a quorum of two to meet with a sub-committee of the Lords Committee

if necessary ;

to exchange evidence with other Commons Committees ;

to have the assistance of Counsel to the Speaker ;

to be nominated for a whole Parliament ;

and

"to admit Members who are not members of the Committee to ask questions of witnesses when evidence is taken".

Because a Committee of 60 cannot cover every interest and geographical area, and because it will be open to hon. Members to give evidence, a Member may well want to question the Minister or a witness. We have suggested, therefore, that the procedure is used, as in the European Committees, whereby a Member gives notice to the Chairman that he wishes to question the Minister or witness, and the Chairman is given the freedom to call such a person to put a question within the time scale that he has set for the questioning of the Minister. It does not ensure that the Member will be called, but it does allow the Member to argue why he needs to be called--he may be the only Member from the area affected ; or perhaps he is the only Member representing a certain industry. I have no doubt that the Chairman would therefore want to ensure that, where there was special pleading, it could be put. That is indeed a new way of proceeding. I am pleased that the Government were asked in paragraph 121 to report to the House on our recommendations. In their report on Monday, they did so. The power to call a Minister and the addition of bringing to the House a deregulation order prior to the Committee's report in exceptional circumstances, which they suggest at the end of a Session, are the only basic alterations to the whole of our recommendations.

The Procedure Committee, in the words of the Financial Times of Monday last,

"had recommended tough new powers . . . to scrutinise all deregulation proposals."

They are powers that will work. Close examination will allow evidence to be given in detail from whomever the Committee wishes, with a call on Ministers and the use of outside experts advising the Committee. That would ensure a thorough and exhaustive consideration before any recommendation was made to the House, with the Committee ensuring that the House has the last word.

Although our recommendations are tough and comprehensive, the Government have shown that they are willing to go along with them. I congratulate the Government, and particularly my right hon. Friend the Leader of the House who has given evidence and has considered the matters in full, on being so wise.

7.44 pm

The Lord President of the Council and Leader of the House of Commons (Mr. Tony Newton) : I am glad to be able to respond to what think were the wishes of the House, and the expressed wishes of the Procedure

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Committee, by arranging an early debate on its report on the important issue of deregulation orders. I shall be fairly brief, partly because the Government's views were, I hope, clearly set out in the report on Monday, and I cannot add a great deal at this stage, and partly because the principal purpose of the debate is to hear the views of the House on the report and, indeed, the Government's response.

I sense also that a fair number of right hon. and hon. Members wish to make a contribution, and I am anxious to hear them. I am also conscious that there is some pressure tonight on my opposite number on the Opposition Front Bench, the hon. Member for Newcastle upon Tyne, East (Mr. Brown). I shall take this opportunity to say that I appreciate that he will not be able to stay throughout the proceedings as he would have wished.

The whole House should be grateful to my right hon. Friend the Member for Honiton (Sir P. Emery) and his Committee, both for their work and for carrying it out so quickly. That has enabled us to hold this debate--I realise that this is a point of controversy with some--before the House deals on Report with the clauses of the Deregulation and Contracting Out Bill which provide for the deregulation orders. I disagree with those who think that it was inappropriate. If the House was to be invited to decide on whether there should be such orders, it was sensible that it should have a fairly clear idea of the basis on which the machinery should operate before it came to that decision.

As the House will have seen from the detailed response that we published on Monday, and as my right hon. Friend the Member for Honiton kindly acknowledged, the Government were able to respond positively to the Committee's report. There is just one exception--one could say one and a half, but essentially one, on which I will touch later--where we were not able to agree ; apart from that, however, we have agreed to all the Committee's recommendations. I shall not attempt to rehearse them all in view of the effective and comprehensive way in which my right hon. Friend set them out. As I have said, we shall listen carefully to the views expressed in the debate. Once the Bill is enacted--as we hope and expect-- we will introduce proposals for new Standing Orders so that when the first deregulation proposals come before the House the scrutiny procedures will already be in place. In saying that, I should re-emphasise--I am sure that it will come up when my right hon. Friend the Member for Honiton addresses the matters in our debates tomorrow--that the Government do not propose to use, or even try to use, the procedure to deal with large and controversial amendments to primary legislation.

The Bill provides that the power cannot be used to remove any "necessary protection". I appreciate that that entails a degree of subjective judgment, but if the new Deregulation Committee thinks that the Minister's judgment is wrong, it will be able to say so when it considers the proposal that the Minister lays before Parliament. I can give the House an assurance that the Government would be bound to take an adverse recommendation from the Deregulation Committee extremely seriously, and in normal circumstances we would expect either to submit a revised proposal or to withdraw the proposal altogether.

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Mr. Spearing : We understand the different views about protection. Leaving that aside, however, is not the Leader of the House falling into the trap, as have so many Leaders of the House and Ministers over the years, of saying what the present Government are willing or not willing to do, whereas the Standing Orders that he has talked about and the legislation to be debated tomorrow will exist for Government after Government ? The right hon. Gentleman seems to be falling into that rather serious trap.

Mr. Newton : I appreciate that the hon. Gentleman sees that as a trap ; I see it as a point that he can legitimately make. I forget whether he and I entered the House at the same time--he may have been here a little longer than my 20 years--but I must tell him that I have rather more confidence in this place, and in Members of Parliament. In the end, Governments can pass only what this place is prepared to let them pass.

This may seem a curious thing for someone who has been a Minister for 15 years to say, but in my experience Ministers do not lightly ignore clear, strong feelings in the House, and those expressed by Committees of the House. There is a degree of independence among hon. Members which goes beyond what the hon. Gentleman appears to believe.

Mr. Bennett : If the Leader of the House really wants to reassure us, would not the simplest way be to ensure that the Government do not have a majority on the new Committee ?

Mr. Newton : The hon. Gentleman and others have already raised that point, and he will have heard what my right hon. Friend the Member for Honiton said about the chairmanship. He will also know that, under Governments of both parties--for as long as I have been here and, indeed, rather longer--the convention, and the normal expectation, has been for those with a majority in the House to have a majority on its Committees.

Mr. Archy Kirkwood (Roxburgh and Berwickshire) rose

Mr. Newton : I give way to the Liberal Benches.

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