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Mr. Fabricant: I confess that I have sent e-mails to my hon. Friend the Member for Buckingham to which I have never received replies. That is not because he is rude to me, but because he never checks his inbox. In this instance, he has not checked his inbox in relation to subsection (6), which deals with the issue.
Mr. Bercow: My hon. Friend is right and I concede the point. I am reassured that there is such a provision and apologise for detaining the Committee.
Mr. Fabricant: I wish to ask a couple of questions, and to talk about subsection (6). Mention has been made of to where notices should be delivered, and registered offices are well understood in terms of the Companies Acts. The Minister will appreciate that it is some years since I left university.
Mr. Bercow: Thirty, to wit.
Mr. Fabricant: My hon. Friend says 30, in reference to a comment that I made last week. I realise that I did an injustice to myself, and it is less than 30 years. Clause 39(2)(c) and clause 39(3) refer to:
the principal office of the partnership
Clause 39(3) also refers to the principal office within the United Kingdom of an organisation that has a registered office outside the United Kingdom. Does ``principal office'' have a meaning in law? In other words, is it clearly defined elsewhere and, if so, where?
Subsection (6) deals with the electronic transmission of notices. I am not sure how familiar the Minister is with the use of e-mail.
Mr. Charles Clarke: Very.
Mr. Fabricant: He will know, then, that an e-mail does not always arrive at its destination. I believe that, normally, when a notice is served, it is sent by Royal Mail recorded delivery. One is thereby assured that a notice had been delivered to a premises. Perhaps the Minister will clarify that point.
Although I embrace electronic communication with enthusiasm and use it daily, I know that sometimes, not often, e-mails are not delivered. In the past, I have even asked for an electronic receipt. Sometimes, the e-mail goes to a server that automatically sends me a receipt, but the server has failed to deliver the e-mail to the addressee. The e-mail has simply sat on the server.
How can the Minister be sure that an e-mail notice is delivered? Does he agree that a great injustice could occur if someone is prosecuted for not acting in accordance with a notice served on them, if he or she never received the notice?
Mr. Clarke: I am a regular e-mail user and find it an effective means of communication. I am glad that the hon. Gentleman also uses e-mail. I know that his experience of running pirate radio stations when he was younger—I was told on Friday that he was an entrepreneur in his field—informs his questions.
The issue of the principal office is well defined in legislation, such as the Limited Liability Partnerships Act 2000 or the Partnership Act 1890. This part of the Bill is drafted in accordance with current practice, including e-communication practice. No particular aspect of the Bill concerns the forms of communication involved.
A great deal of expertise exists on the development of e-Government. One question asked is, what is the legal standing of a signature sent electronically? The wording of the clause is in accordance with that practice. I cannot answer the hon. Gentleman's detailed point about confirming that an e-mail notice has been delivered. I accept that it is a point of substance and do not deride it in any way. I can only say that we are working in accordance with what is happening generally. I am happy to write to the hon. Gentleman about that. I believe that the legislation that the clause addresses is consonant with other legislation in this area.
Mr. Miller: My hon. Friend the Minister is right that the clause is consistent with other legislation. The parallel that the hon. Member for Lichfield drew between e-mail and the postal service is a fair observation, but one that can be answered. Even in the context of recorded delivery letters, one does not know that the person within the body corporate to whom the letter is addressed has signed for it; all that one knows is that a receipt has been received.
Mr. Clarke: That is very helpful. My hon. Friend has more expertise than me on these matters.
Subsection (6), to which the hon. Member for Lichfield referred, includes the phrase:
provided the text is received by that person in legible form.
If they do not receive it, a case for prosecution is unlikely to stack up. However, I acknowledge that the hon. Gentleman raised a real issue about how communication between the state, private enterprise and individuals will be dealt with in the future. I hope that the Committee will agree that clause 39 should stand part of the Bill.
Question put and agreed to.
Clause 39 ordered to stand part of the Bill.
Clause 40
Orders and regulations under this act
Mr. Bercow: I beg to move amendment No. 90, in page 23, leave out lines 29 and 30.
The clause deals with orders and regulations under the Act. The amendment proposes to delete lines 29 and 30, and its effect would be to remove the facility to exercise discretion. I doubt why the Secretary of State should have the power,
to make different provision for different cases...or for different purposes or different areas.
Several points relevant to this matter were aired in the Committee's discussion of clause 34, but the arguments are worth batting around again.
The provision seems to allow the Secretary of State the flexibility to implement the EU end-of-life vehicles directive. Is that not dangerous? The provision appears to say that the statutory instrument would give the Secretary of State greater power to make different provisions for different areas. How much power does the Secretary of State want? What are the different scenarios in different areas, or involving different purposes, which justify the accretion to the Secretary of State of more power that he can choose to exercise in varying degrees, or not at all? For example, if the provision on notification is to apply, surely it should apply equally to all businesses in all areas? After all, the Driver and Vehicle Licensing Agency is a national body and it should be able to rely on a standard, uniform service from scrap metal dealers.
In the name of specificity, and therefore of predictability, the Bill and the clause should, as far as possible, be prescriptive rather than permissive. The Committee has debated this subject at length. I have argued for tying down the powers of the Secretary of State and his Ministers as far as possible, so that the nature and extent of those powers are apparent and the manner in which they may be exercised can be foreseen with reasonable confidence and precision. By contrast, Ministers have tended to pray in aid the unforeseen or the unpredictable, arguing that it justifies the accretion to them of more power, which they can decide how to exercise at some unspecified time in the future. I am uncomfortable about that.
I am minded, therefore, to raise again the concern that I mentioned when the subject was previously debated: namely, that what bothers me about much of the legislation, and certainly about lines 29 and 30 of the clause, is that there is so little specific information or reassurance by way of example. I hope that the Minister will be willing and able today to give me and my hon. Friend the Member for Lichfield examples of when and how differential application of ministerial power would be exercised. The Minister claims that he must have maximum flexibility as different scenarios might arise and that it is sensible not to tie the clause down in a way that might not permit him, or agents acting on his behalf, to exercise powers that were subsequently judged necessary.
I would be more comfortable if he were able and willing to say that the provision is needed because business X and Y might differ in their size, location, or another material factor. He has not yet been specific about differential application, and that lack of specificity makes me uncomfortable. It is our duty to probe the Minister and to try to get him to offer a more concrete justification of the unamended clause. I do not object—and neither does my hon. Friend—to the principle of vesting power in the Secretary of State. Nor are we objecting to the exercise of power by statutory instrument. Our objection is that, if such a power is to exist, it should be clearly described and applied in a way that does not inappropriately discriminate between one motor salvage operator and another, one registered plate supplier and another, or one scrap metal dealer and another.
11.15 am
Mr. Fabricant: I have been sent to this legislature to scrutinise legislation, as well as to represent the interests of my constituents. Last week, I spoke about the predilection of the Government to include blank cheques in legislation, whereby later they can completely negate tight clauses. Clause 40(2)(a) is a blank cheque, if ever there was one. It allows the Secretary of State to introduce an order
to make different provision for different cases or descriptions of case or for different purposes.
It is the blankest of blank cheques.
Mr. Bercow: I acknowledge that the Minister might be able to reassure us as to the benign character of the unamended clause, but the official Opposition have expressed concern about the Henry VIII character of such an exercise of power by regulations. It would be helpful if the Minister could provide a sample draft copy of the regulations before Report and Third Reading.
Mr. Fabricant: Draft regulations certainly would be helpful, but in response to inquiries from my hon. Friend the Member for Buckingham, the Minister wrote to members of the Committee on 22 January, saying:
we do not intend to provide any draft regulations before the Bill is enacted.
He went on to say:
We consulted major stakeholders before the Bill was introduced and they agreed to work out matters of detail at a later stage so that we can take account of any amendments to the Bill.
I understand what the Minister wrote in his letter, but he wants us to rubber-stamp a Bill that has gaping holes. We have to trust his integrity—about which there is little doubt—but, more to the point, we have to trust the integrity of future Ministers. Subsection (2)(a) leaves too much to chance and, for that reason, I join my hon. Friend in asking for it to be deleted.
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