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15 May 2006 : Column 802

For clarification, may I say to the hon. Member for Perth and North Perthshire that he is right. Where matters are devolved, the provision would not apply. It applies only to Westminster legislation that has effect in Scotland.

Mr. Heald: With reference to Scotland, the Minister may be aware that the Law Society of Scotland has pointed out that there is an implied assumption in new clause 21 that all Law Commission and Scottish Law Commission reports and recommendations are non-controversial and may be enacted using the procedure under the Bill. It goes on to state that that is “not necessarily so”. Does she accept that some of the measures that the Law Commissions examine are quite controversial?

Bridget Prentice: The hon. Gentleman is right. Many of the issues that the Law Commission deals with are controversial. That is one of the reasons why, as an independent apolitical body, it is particularly useful to us in the House for examining those very issues. I have no quibble at all with the idea that some of the issues are controversial. To reassure the Law Society of Scotland, I point out that where issues are controversial, as has been said in earlier debates today and as was said in Committee by my hon. Friend the Member for East Renfrewshire, it would not be the Government’s intention to put through this system any measure that was particularly controversial. I hope that gives the House some reassurance.

Secondly, new clause 10 would prevent any order from implementing Law Commission recommendations in the area of family law and rights of occupation or landlord and tenant law in that it relates to the rights of tenants. The Government feel that this is too restrictive because not every proposal is unsuitable for implementation by order. Such blanket prohibitions would create new boundaries. We would need to define family law and the other topics that have been mentioned. We would create, once again, technical limits that have little to do with the merits of the proposal or its suitability for the procedure.

Some family law and landlord and tenant law proposals would be far too contentious to proceed with other than by primary legislation. The Government have made it clear—I make it clear again this evening—that we will not use the procedure for highly controversial measures. The correct approach is not to rule out reform but to allow proposals to come forward to be considered by the scrutiny Committees. New clause 10 would unnecessarily limit our power and, on that basis, I cannot support it.

Mr. Greg Knight: Is there not a weakness in the argument that it is the Government who will determine whether something is highly controversial, in which case the procedure would not be used, or whether something is just controversial, in which case the procedure may be used?

Bridget Prentice: I do not intend to dance on a pin on the difference between highly controversial and controversial. I do not think that controversial issues, as in those terms, would proceed under this system.
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The scrutiny Committees would have reached a strong decision if they felt that something was controversial and should not be subject to the order-making mechanism. The Government have made it clear that they would take that into account.

John McDonnell (Hayes and Harlington) (Lab): I do not want to get into a philosophical debate about the angels on the head of a pin, but what criteria are to be used to define “controversial”?

Bridget Prentice: There are no criteria to define “controversial” other than according to what we understand in our everyday lives and the usage of the word. I am sure that my hon. Friend was involved in issues in the past that were judged to be highly controversial which are now accepted as being relatively mainstream. My hon. Friend may not appreciate my describing anything that he has done as being mainstream, but he will understand my point that things change. On that basis, we have to be able to define what is controversial now and what might be controversial tomorrow. That is quite difficult.

Mr. Gale: Will the hon. Lady give way?

Bridget Prentice: I would like to move on but I will take one more intervention.

Mr. Gale: I am grateful to the Minister.

Hitherto in these arguments the Government have discarded arguments about reasonableness because reasonableness is difficult to define. That has been the Government’s stance. Why should we not apply the same yardstick to the issue before us? Why should it be left to the Government and the Law Commission to decide what is controversial and what is not?

Bridget Prentice: The argument is not left purely to the Government. The scrutiny Committees will have a view. It is not the Government who decide what is controversial. I do not think that it would be possible to find a satisfactory legislative definition of controversial, unlike reasonableness. The reasonableness test is well known in law. Judicial review is an opportunity for people to test the reasonableness of a Minister’s decision.

I will give an example. A 1990s report on divorce and the current project on homicide are plainly unsuitable for implementation by order because people have strong feelings about the principles that they address. Therefore, it would not be appropriate to take them through the proposed system. Equally obviously, other reforms are uncontroversial, often technical “lawyers’ law” reforms; very important, but politically unexciting. Those are the ones that often struggle to find parliamentary time.

9.30 pm

Amendment No. 3 builds on one possible reason why a change may be necessary. Indeed, the longer the delay
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between publication of the Law Commission’s recommendations and the order being delivered, the more likely, as I said earlier, that the law will have to be changed. So it is important to be able to implement the recommendations with the changes necessary to reflect changes in the law. I will not go over the arguments again, because I explained in respect of earlier amendments the reasons why such an approach would be too restrictive.

I hope that the House welcomes Government amendment No. 23, which relates to the limits, already contained in clause 6, on the criminal penalties that can be imposed by order. Currently, these restrictions do not apply to orders implementing Law Commission recommendations. The amendment will make orders implementing such recommendations subject to the same limits on maximum criminal penalties to which all other orders are subject. In Committee, the Government agreed to reflect on amendments that proposed deleting the exception relating to criminal penalties imposed by orders implementing Law Commission recommendations. That exception was created to allow orders implementing Law Commission recommendations, notwithstanding the level of penalties proposed. That caused some concern in Committee, even though it seemed likely that the exception would be little used. We have therefore given careful consideration to that concern during the Bill’s passage.

The Government have always intended that the order-making power should work as an effective vehicle for delivering regulatory reform measures, while maintaining necessary protections and safeguards. I hope that Government amendment No. 23 reassures Members that the Bill’s order-making power will be used to implement only appropriate measures by order, and that, on that basis, they will be willing to accept it.

Government amendment No. 27 relates to the limits already in clause 7 prohibiting the authorisation by order of forcible entry, search, seizure or the compelling of the giving of evidence. Currently, those restrictions do not apply to orders implementing Law Commission recommendations. The amendment will make orders implementing such recommendations subject to the general prohibition on authorising by order forcible entry, search, seizure or the compelling of the giving of evidence. We agreed in Committee to reflect on amendments that proposed deleting the exception for orders implementing Law Commission recommendations, and I hope that Government amendment No. 27 offers the same level of reassurance that the Bill’s order-making power will be used to implement only appropriate measures by order.

Government amendments Nos. 33, 34, 40 and 59 are consequential drafting amendments, so I do not propose to discuss them in detail. Suffice it to say that Government amendment No. 33 is made necessary by the amendments to clauses 1 and 2, but it does not change the effect of clause 11(1)(d). Government amendment No. 34 is also made necessary by amendments to clauses 1 and 2, and does not change the effect of clause 11(2). Government amendment No. 40, also made necessary by amendments to clauses 1 and 2, does not change the effect of clause 12(4). Finally, Government amendment No. 59 replaces the now obsolete reference to “section 1(4)” with a reference to subsection (3) of new clause 21.

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On that basis, I commend the new clause and the amendments to the House.

Mr. Heald: New clause 21 would enable a Minister to make orders to implement

I accept that the Law Commissions are very important, responsible and respectable bodies, and there is no doubt that too few of their recommendations have become law, but one cannot deny that they consider some important and controversial areas. The Minister touched on tenants’ rights, provocation in the law of murder and other areas. The question is not the Minister’s motives, about which I have not the slightest doubt— [ Interruption. ] I heard something sotto voce which I will not repeat. Bearing in mind the ability of Ministers to change recommendations, if a Minister did not agree with the full Law Commission proposal, expanded it and wished to continue with it, there is nothing in the Bill that would entitle the House to have the full debate and scrutiny that it would wish for. In those circumstances, I cannot be satisfied with what is proposed.

New clause 10, which I do not intend to press, would have limited the extent of orders based on the Law Commission recommendations. I welcome the Minister’s amendments Nos. 23 and 27, which to some extent deal with the point that was made in Committee.

Mr. Greg Knight: Before my hon. Friend moves off this point, will he reflect on my point about Standing Order No. 59, which allows for an accelerated procedure in this House for Law Commission proposals? That Standing Order was introduced under the last Conservative Government but has not been used by this Government since 1999, so whose fault is it if a lot of Law Commission reports are gathering dust?

Mr. Heald: As ever, my right hon. Friend makes a telling point. The advantage of the Standing Orders route, if I can put it in that way, is that it has within it the flexibility either to move the Bill through swiftly or, if the House is concerned, to take it through the various stages in our normal way, including a proper Committee stage and Report.

I do not think that we have quite got there on the question of how to tackle Law Commission Bills. I would be only too happy to sit down with the Minister and other colleagues, if required, to consider how we might better approach it and build on what the Standing Orders already provide.

My right hon. Friend the Member for East Yorkshire (Mr. Knight) tabled amendment (a) in his capacity as Chairman of the Procedure Committee. Removing the words, “with or without changes”, would put Ministers in a position whereby they could not expand on what the Law Commission had suggested, which would be a good thing. If it reached the point where the Minister had had a bit of delay and it was necessary to make some change to what the Law Commission had recommended, I am sure that Sir Roger Toulson and his committee would be only too happy to be speedy about it and to turn it round, because I know how frustrated they are that they do not get their measures
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put through. None of these problems is insuperable, but pushing through controversial changes by order without proper protections is not the way forward for the House.

The veto that the Minister mentioned currently exists in a very restrictive form. It does not mean that a Committee can look at a piece of legislation and say, “No, that is not suitable for the order-making power.” It says to the Committee, “If you go through these very rigid steps which are set out in the second part of the veto, you will be able to block the measure.” That is not good enough. If we believe in Select Committees and want to empower them, we should trust them.

Without some serious concession on the veto and perhaps something in Standing Orders as well, I am not satisfied with new clause 21, but if it is passed by the House, I will support my right hon. Friend the Member for East Yorkshire and his Select Committee in their amendment (a).

Andrew Miller: Having listened carefully to what my hon. Friend the Minister said, I think that she reflects very sensibly the desire of the Law Commission and this House to make progress on some of the less controversial issues. Clearly, we have to reflect carefully on how we deal with the more controversial ones. I fully endorse the Opposition spokesman’s view that this leads us to reflect on what kind of veto the House has, where it can be exercised and by whom. There is a very important point that I invite my hon. Friends on the Front Bench to reflect on before we reach the section on the veto. While I am minded fully to support the principles set out in the new clauses that we are dealing with, I am predicating my remarks on a veto of similar power to that which existed in respect of the 2001 legislation, but on the face of the Bill. The ministerial understanding was one that the House would not tolerate being broken; I think that hon. Members on both sides of the House would agree with that. The hon. Member for North-East Hertfordshire (Mr. Heald) is right to say that the Government have proposed a veto, but the qualifications that are being proposed create problems for us.

I want to make a few quick observations on the important contribution made by my hon. Friend the Minister. First, her remarks need to be looked at in the context of the commitment given to the Chairman of the Procedure Committee and me by the previous Minister in the Cabinet Office, my hon. Friend the Member for East Renfrewshire (Mr. Murphy), that there would be significant changes to the Standing Orders available to the House.

I hope that my second observation will take some of the sting out of hon. Members’ concerns. Clause 16 contains provisions that will enable the House to require the Minister to have regard to representations from the outside, as well as any resolution of either House or any recommendations by a Committee of either House charged with dealing with a draft order. On that basis, I believe that new clause 21 makes eminent sense, because the protections are there. However, amendment (b), tabled by the Liberal Democrats, also makes sense. Some of the issues that the Law Commission deals with have gathered dust over a number of years, for the reasons that the Chairman of the Procedure Committee outlined, as well as for many other complex reasons. It might be
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sensible to make provision for such eventualities, as proposed in amendment (b), although I do not think that amendment (a) is necessary, because of provisions contained elsewhere in the legislation.

Rob Marris: Would not amendment (b) result in our ending up having endless debates on what “necessary” meant?

Andrew Miller: In his previous occupation, my hon. Friend spent many a long hour arguing about the meaning of words such as “necessary” and “reasonable” in front of learned courts, and no doubt getting paid considerably more than he is now. Such arguments are among the regular problems that Parliament has to face.

Without getting into a tirade about lawyers and their earnings, my final point is that the Bill will contain a veto. As I said at the beginning of my remarks, the nature of the veto is mission-critical to ensuring that the spirit of my hon. Friend’s remarks can be adhered to throughout the passage of an order. Assuming that the assurances given are delivered on, and with the caveat expressed about the second part of the Liberal Democrat amendment, the new clause ought to be accepted.

9.45 pm

Mr. Heath: The intervention from the hon. Member for Wolverhampton, South-West (Rob Marris) drew attention to the words “necessary” and “reasonable”. I have always felt that I am necessary and reasonable and that what I want to put into a Bill is necessary and reasonable, although I understand that that might engender debate. In this instance, we need not be very concerned.

There should be a mechanism for getting Law Commission proposals into law expeditiously and effectively. The first difficulty is ensuring that it is not abused to bring forward matters that are not non-controversial in any way, but that have important impacts with which many would disagree. The second difficulty is avoiding a Government either amending or cherry-picking those proposals along the way, so that what is enacted is different from what the Law Commission proposed. The third is ensuring that, wherever possible, a primary legislative route is used in preference to an order of this kind. I take seriously the point made by the Chairman of the Procedure Committee about the application, or lack of application, of Standing Orders. It seems preposterous that the Government say that they have had no opportunity to enact the long queue of Law Commission proposals when they have not used the mechanisms available in the House to do that.

It beggars belief to say that there is a lack of legislative opportunity to introduce Law Commission proposals, especially with regard to criminal law, but even with regard to civil law. There is a criminal justice Bill every single year, as I know to my cost because I have served on the Standing Committees on most of them. There is an immigration and asylum Bill every year, without fail. Sometimes, a couple of terrorism Bills are introduced in a single year. There is a queue of legislation coming from the Home Office and the
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Department for Constitutional Affairs, and it does not take a great deal of ingenuity to attach Law Commission proposals to those Bills. Everything else is attached—criminal justice Bills often look like Christmas trees with the number of baubles attached because they are thought worthy of a few column inches in one of the papers.

There are other difficulties. When is a Law Commission recommendation a Law Commission recommendation? I never had that satisfactorily explained by the Minister in Committee. Is it the original recommendations, the draft Bill that the Law Commission will produce, or either one? If it is the recommendations, the point made by the Under-Secretary of State for Constitutional Affairs, the hon. Member for Lewisham, East (Bridget Prentice) about a difference in drafting between parliamentary counsel and the Law Commission is of no importance whatever, as the recommendations are what matter. We need clarity on that.

With regard to amendments (a) and (b) to the new clause, we are still wary about giving Ministers the capacity to introduce changes to Law Commission proposals. We asked time after time in Committee why the Minister needed that power. He repeated five times—I have looked at Hansard to confirm it—that he needed the power for one reason only: to deal with a situation in which a Law Commission proposal had been hanging around for some time, there had been a substantive development in the law since the time when the recommendation was made, and there was a need to reflect that. That is why we formulated our amendment (b) exactly as the Minister had said at the time that he wanted it to be formulated. We formulated it in that way to meet his requirements: we had no other reason to do so.

Some Governments are very hard to please. They tell us exactly what they want, we table an amendment to that effect, and then they want something completely different. There are other reasons for which they want to be able to change recommendations, and it is those other reasons that give us cause for alarm in this instance. If the intention is to implement some recommendations and not others, that may completely change the complexion of what the Law Commission proposes. Is the Minister proposing to cherry-pick certain proposals? Are proposals going to be tweaked to make them more acceptable to Ministers or, indeed, Select Committees? I have worries about that as well. The issue should be put before the House so that everyone has a choice to take part in the discussion, not just a select few.

If the Bill is to contain the mechanism described by the Minister for the fast-tracking of Law Commission proposals—there are new caveats that I welcome, given their applicability to later amendments—it must also incorporate amendment (b), which limits the ability to change the recommendations in a way that the Minister specifically identified in Committee as a necessary prerequisite for effective working of the legislation.

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