House of Commons Hansard Debates for 3 Jul 1996 (pt 28)

4.25 pm

Mr. Derek Foster (Bishop Auckland): I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:

"this House declines to give a Second Reading to the Statutory Instruments (Production and Sale) Bill which, while purporting to remedy a long-standing uncertainty, has been principally prompted by the Government's decision to privatise HMSO."

The Chancellor of the Duchy of Lancaster and I really ought to stop meeting like this. We keep having debates on the civil service and Her Majesty's Stationery Office. They may not have the Lobby correspondents gripping their seats, but they certainly keep me off the streets. There is no telling what mischief a former Chief Whip turned bovver boy can get up to.

On 18 December 1995, the Chancellor said:

"I confirm that my advice is that no primary or secondary legislation is needed".--[Official Report, 18 December 1995; Vol. 268, c. 1285.]

Yet now, towards the recess, obviously to invite the House to act hurriedly, the Chancellor is introducing primary legislation.

The Chancellor of the Duchy will argue, and indeed has argued, that the Bill has nothing to do with the privatisation of HMSO. Indeed, the House will have scrutinised his parliamentary answer on 19 June 1996, in which he said:

"Some of the printing of statutory instruments has been contracted out by HMSO for over 30 years as the most cost-effective way of producing them."

He admitted:

"A careful examination has recently been made of the legislation which refers to HMSO and the Queen's Printer. This has revealed that while the Queen's Printer can contract out the printing of statutes, this may not be the case for statutory instruments."--[Official Report, 19 June 1996; Vol. 279, c. 471.]

So it appears that HMSO has been acting outside the law for more than 30 years in contracting out the printing of statutory instruments. The annual cost of such work is about £200,000, while HMSO's turnover is about £375 million.

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The embarrassment for the Government is that the legal force of all statutory instruments so printed by contracting out might be subject to legal challenge on the basis that the statutory instrument was illegally printed. The Government are obviously very concerned that, once that is known, a whole range of organisations could engage in litigation against them, so the Chancellor introduced a Bill on 20 June to put right that defect. The legislation is retrospective, in order to validate those statutory instruments printed by contracting out over the previous 30-odd years.

The written answer mentions 1965 as the date of the earliest reference in the records to the fact that HMSO was sub-contracting the printing of statutory instruments. Clearly the implication is that that happened under Labour Governments--indeed, that it may have begun under a Labour Government. The House will no doubt therefore expect the full co-operation of the official Opposition in rectifying that unfortunate anomaly, which apparently puts in question the validity of thousands of statutory instruments.

What could be more reasonable than for the Chancellor of the Duchy to bring before the House a problem and its remedy at the earliest opportunity? At the same time, he invites the House to enable the Queen's printer, the residual HMSO, to contract out the printing of statutory instruments after privatisation. After all, we are told that that is the most cost-effective method of printing them, as HMSO discovered in 1965 or earlier. So the Minister for open government is behaving openly with the House. He is behaving most scrupulously, properly and courteously, as we have come to expect.

Let us now return to 18 December 1995, and the right hon. Gentleman's statement that no primary or secondary legislation would be required for the privatisation of HMSO. I recall being surprised by that response, because I had asked the Library to check whether primary or secondary legislation would be required. I have here a letter from the Library--surprisingly, it is dated the very same day, 18 December 1995--and I shall make it available to the House. It says:

"An order will be made under part I of the Deregulation and Contracting Out Act 1994, which will deal with the ability of HMSO to fulfil its function as Queen's Printer under the Statutory Instruments Act 1946, and will make clear that, as long as the duty to procure and print is done under HMSO's superintendence and authority, the statutory requirement will be met . . . HMSO will have no in-house printing capability."

How can the Chancellor of the Duchy explain that, on the same day that he told the House that no legislation would be required, it was admitted within his Department that secondary legislation would be necessary? Where else can the Library's information have come from?

I now return to the right hon. Gentleman's written answer of 19 June, and his statement:

"A careful examination has recently been made of the legislation which refers to HMSO and the Queen's Printer."--[Official Report, 19 June 1996; Vol. 279, c. 471.]

The Office of Public Service's background briefing to the Bill, issued after 19 June, says:

"The potential problem was first discovered as part of research into HMSO's statutory functions while options for its future were being evaluated before last year's announcement that it was to be privatised."

When was that announcement made? The right hon. Gentleman made his initial announcement on 27 September 1995, and published a written answer on

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17 October. So--here I come to the point raised by my hon. Friend the Member for Workington (Mr. Campbell-Savours)--the problem was known about as early as late September 1995, and certainly by 17 October.

Indeed, rumours are circulating that the need for retrospection has been known in Whitehall for about two years. If that is true, it casts serious doubt on the veracity of the right hon. Gentleman's statements, and especially on the argument that the need to validate statutory instruments printed under contract is the major purpose of the Bill before us.

Another question arises. If the right hon. Gentleman knew in September 1995 that there was a problem, why did it take him until 19 June 1996 to tell the House? He is the Minister responsible for open government. Was he not failing in his duty to the House, especially when he was pressed on whether primary or secondary legislation would be needed?

The Chancellor of the Duchy will reply that it would have been incompetent and irresponsible to tell the House and the country that there was a problem until he could announce the solution. Such an action would have been tantamount to an invitation to a range of organisations legally to challenge the force of individual statutory instruments on the grounds that they had been printed illegally.

The Department had been advised that it would be inappropriate to deal with the problem by means of a deregulation order, but the House deserves a fuller explanation of this inappropriateness. Was it inappropriate as a vehicle for contracting out the future printing of statutory instruments, or would a deregulation order be an inappropriate vehicle for retrospective action? If it was the latter, I think that the House would agree.

I have done some research on this matter, and I am advised by the Clerk of the appropriate Committee that the Deregulation and Contracting Out Act 1994 has not been used retrospectively hitherto, although it is not impossible that it may be so used at some time in the future. My advice is that it is more likely to have been thought inappropriate because an order under the 1994 Act must remove a burden from business.

Mr. Steen: Is the right hon. Gentleman suggesting that orders might fall within the issue of printing, and that orders under the contracting-out legislation should be printed in-house and included as statutory instruments?

Mr. Foster: No, I was making the more simple point that the Government knew before December 1995 that there was a problem. Originally, they considered that the solution might be to bring in orders under the Deregulation and Contracting Out Act 1994. I was wondering aloud why it was thought inappropriate to deal with the problem in that way.

Mr. Simon Hughes: I am following the argument of the right hon. Gentleman, and I understand it. But the main question remains to be asked and answered--either something needs regulation that allows it to be contracted out or it does not. Yes, people giving advice can change their minds, but the right hon. Gentleman is entitled to hear from the Government--and we are entitled to have it on the record--whether the contracting-out legislation

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will apply to this measure. I encourage him to pursue that argument, as a lot of people outside are waiting for a clear answer.

Mr. Foster: I am grateful to the hon. Gentleman for his intervention. The question that I was entertaining was whether the Deregulation and Contracting Out Act 1994 was about to be used to deal with the problem of contracting out printing, or as a means of retrospectively validating those statutory instruments that have been illegally printed for the past 30 years or so. It struck me that the legislation was probably designed to deal with the former problem.

If the Government were focusing in December 1995 on the former problem and how it was to be dealt with in the future--and if the 1994 Act was the legislative vehicle for dealing with it--retrospection was not part of the solution they were seeking. That is my argument. Was it inappropriate or inconvenient to the Chancellor? That would clearly contradict his statement on 18 December 1995, as it would have been far more difficult to mask the deregulation orders linked with the privatisation of HMSO.

In that event, the Minister with responsibility for open government might even be required to return to the House to admit having misled it on 18 December. Moreover, as he had made his statement on 18 December, when, as I have already demonstrated, the need for legislation was already known within his Department, he might even have had to admit knowingly misleading the House. Of course, he might be able to plead, "No one told me," or, "I was not shown the papers," according to the distinguished precedent of the Prime Minister in front of the Scott inquiry.

To return to his written answer of 19 June, the Chancellor of the Duchy also said:

"Meanwhile, HMSO will enter into no more external printing contracts for statutory instruments."--[Official Report, 19 June 1996; Vol. 279, c. 471.]

Yet I understand that the present contracts continue until 1998. Again, that touches on the point raised by my hon. Friend the Member for Workington--why the Chancellor did not take action to deal with the illegality as soon as it was known, perhaps as early as the end of September 1995.

Although the present contract continues until 1998, my legal advice is that existing contracts for printing statutory instruments cannot exist in law, because they have been entered into ultra vires. So legitimate questions arise: will HMSO continue with the present contractual arrangements, even though the contracts have no legal force; or, if the contracts continue, will they transfer to the residual HMSO or be expected to transfer to the privatised HMSO?

If the contracts are to be discontinued, how will the printing of statutory instruments be arranged? Until the Bill becomes law, HMSO cannot enter into new contracts to have them printed, because the Chancellor has instructed it not to do so. HMSO will be obliged, therefore, to undertake the printing of statutory instruments in-house.

I understand that the Parliamentary Press will be unable to cope with the extra work until the recess, so until then who can legally print statutory instruments? Perhaps the

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Chancellor will deal with that when he replies. Moreover, I understand that the work force at the Parliamentary Press are on contracts that require them to close down during the recess, so it will be unable to take on the printing of statutory instruments then.

Surely, as my hon. Friend the Member for Workington said, the Government were obliged to stop HMSO contravening the law as soon as the illegality was known--as early as September 1995--but certainly as soon as it was publicly admitted. The Government and Parliament cannot condone the continuation of illegality on the basis that it is soon to be rectified. That presumes that the Bill will receive Royal Assent, which is highly likely but not certain.

It is also not certain when it will receive Royal Assent, as it has yet to go to another place. If the Bill did not receive it until after HMSO was privatised, there would certainly be complications, for the privatised Stationery Office could not legally print statutory instruments, and the Queen's printer or the residual HMSO would have no in-house printing facility.