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Mr. John Garrett (Norwich, South): If the defect attaches both to a private contractor and to a public body--HMSO--why is this not a hybrid Bill?
Mr. Freeman: Because the 1946 Act refers specifically to HMSO. The private printer has not contravened the law technically, whereas HMSO has. I am the Minister accountable to Parliament for the acts of HMSO, so the Bill is a public Bill, not a hybrid one.
As things stand, defendants charged with contravening an SI could be acquitted solely on the technical argument that an SI not printed by HMSO had not been properly produced; case law suggests that this is unlikely, but it is not impossible. It is more likely that procedure in the courts might become obstructed, and that individual SIs would need to be specifically proved.
In any event, it is clear that urgent action is needed to confirm the validity and evidential status of existing individual copies of SIs. That would be effected by the passage of the Bill at the earliest opportunity, and that is why the Government seek to complete the remaining stages of the Bill in the House tonight.
Mr. D. N. Campbell-Savours (Workington):
Will the Minister clarify this point? At some stage, he must have known that the practices taking place were illegal. At the moment he learned that, did he stop all illegality? Did he stop the contracts, or did he allow further illegalities to take place?
Mr. Freeman:
If the hon. Gentleman is referring to HMSO, no, I did not, at the time I first become aware of the problem. Yes, I did and have done so--I shall report on this to the House in a moment--once the agreement of my colleagues and Government was obtained. The Bill was then presented.
Mr. Campbell-Savours:
So that we have this on the record, did the Minister therefore permit an illegality to persist?
Mr. Freeman:
I have to present a Bill to Parliament to clarify and rectify the situation. I will come to the instructions I have given HMSO a little later. I have already answered the hon. Gentleman's question. The moment I became aware personally of the matter, I did not instruct HMSO to cease production. I took further advice, and then discussed the problem with my colleagues. That is a fair and full answer to the hon. Gentleman's perfectly proper question.
It is therefore essential that the Bill confirms the status of existing SIs, allows contracting out to continue in the best interests of all concerned, and closes an outdated loophole. As drafted, it does precisely that. It would allow HMSO to contract with others for the printing and distribution of SIs on exactly the same terms as those currently applying to all other material, including Acts of Parliament.
This is a simple step, and requires only this short Bill. All that is required is to amend the wording of the 1946 Act in each place, so that, instead of specifying that SIs must be printed, issued and sold directly by HMSO, it merely requires that they may be printed, issued and sold by others working under contract to it. That is the substance of the Bill, and forms the first part of clause 1(1).
The second part of that subsection deals only with a related document--the list showing when each statutory instrument was issued. Again, there is no reason why this should be printed and distributed directly by HMSO, and again, HMSO has in the past contracted out this work. This subsection both verifies that practice and provides that it may continue. As a consequence, the statutory instruments issue list would not bear the imprint of the Queen's printer, but would state "printed for HMSO" rather than "printed by HMSO". The House will see that this is a minor point.
Clause 1(2) is slightly more complex. The Bill would amend retrospectively section 3(2) of the 1946 Act. This section states that proceedings for an offence consisting of a contravention of a statutory instrument may be defended on the grounds that the SI concerned had not been issued by HMSO at the time the alleged offence took place.
Subsection (2) prevents the amendment from applying to proceedings that commenced before 21 June. Thus the Bill does not deprive an accused person of any argument that he might have had. In particular, it does not prevent a defendant from calling into question the validity of the statutory instruments issue list, and thus argue that there was no conclusive evidence of the date of issue of a statutory instrument. I am not aware of any proceedings that commenced before 21 June to which a defence under section 3(2) would be relevant.
The Bill makes no other changes to the scope of the defence under section 3(2), or to the rights of defendants. It would simply change the criteria by which a statutory instrument might be deemed to have been properly printed, focused and issued, and the formalities for producing the statutory instrument issue list.
The Bill is not necessary for the privatisation of HMSO. That will proceed to completion irrespective of the Bill's passage. Shortlisted bidders are all aware of the position, and each is proceeding on the basis that statutory instrument printing would be carried out in the public sector. The House should be aware that the total value of sales of statutory instruments represent less than 1 per cent. of HMSO's turnover, so the work is of no more than marginal importance to bidders.
I have also instructed HMSO to cease putting statutory instrument printing out to third parties as soon as practicable. If I might add to my earlier remarks to the hon. Member for Southwark and Bermondsey (Mr. Hughes), that means as soon as the House rises. It is simply not practicable in the time available for HMSO to
make other arrangements. When the House has risen, the volume of work will reduce substantially, permitting HMSO to print all statutory instruments internally.
Mr. Simon Hughes:
I am grateful to the Minister for that announcement. He was dealing with technical defences in the courts. Can he tell us--or take advice and let us know later--whether there is a technical defence if a statutory instrument has a starting date when it is deemed to come into effect, but Parliament has not yet debated and approved it? Sadly, that is an increasing practice, which has been the subject of complaint from hon. Members on both sides of the House in recent years.
Mr. Freeman:
If the House allows me, and it is appropriate in replying to the debate, I shall seek advice and reply to the hon. Gentleman.
The Bill will allow the residual HMSO which will remain within Government after the sale--with the Queen's printer and an appropriate staff--to contract out the production of statutory instruments. It could do that under contract either with the privatised Stationery Office or with another printer, and in effect would be acting in the same way as HMSO does now.
Mr. Anthony Steen (South Hams):
The Opposition are making a song and dance about the failure to include the contracting out of statutory instruments to private printers. They appear to be suggesting that there a sinister plot or something mischievous is going on. Will my right hon. Friend confirm that it has been a practice of Labour and Conservative Administrations, and that there is nothing much in the Bill other than that a mistake has been made and the Government are putting it right. Has he any idea why it was excluded in the first place?
Mr. Freeman:
I am not quite sure that I take the drift of my hon. Friend's last comment. I give way to him again.
Mr. Steen:
I was wondering why it was excluded from the 1946 Act. Was it just a mistake?
Mr. Freeman:
I cannot speak for the 1946 Parliament, but I would venture to suggest that it was not regarded as an important matter. It may not have been discussed in Committee or on Report. No doubt the then Labour Government had more important matters to hand. Perhaps Parliament did not focus on the same degree of detail as it does now.
It is hard, therefore, to see any difference in the service that would be provided. The Bill merely puts its legitimacy beyond doubt.
The Bill is not required for the sale of HMSO. If it is not enacted before the sale, the residual HMSO would arrange to print all statutory instruments directly itself. Detailed arrangements for how that would be done are being drawn up. The residual HMSO would employ its own printers and rent the night-time use of equipment at HMSO's Sovereign press at Elephant and Castle.
That would, though, be a most unattractive option. It would require Government to maintain a capacity that was rarely fully used, and which would therefore involve needless extra costs. Without a subsidy from the taxpayer,
those extra costs would need to be passed on in the form of higher cover prices for statutory instruments. Estimates suggest that, if that course were to be followed--the Government are perfectly prepared to follow it--the average cover price of statutory instruments would rise by about one third. Failure to pass the Bill would mean that privatisation would certainly not be obstructed, but the cost of statutory instruments to the public would rise, to the detriment of wider public access.
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