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Our support for the insertion of the procedural veto into the Bill meant that we welcomed the then Minister’s announcement in Committee—I see him in his place today—that he would introduce a parliamentary veto on the use of the procedure. The Conservative party welcomes the Government’s amendments on the statutory veto as a significant step in the right direction. It is accepted in most quarters that the Bill requires adequate safeguards so that it is
not used in future as a tool for the Executive to abuse their power and discard Parliament. The amendments are meant to carry through the Government’s pledge to build in a veto over an order for the relevant Committees of both Houses of Parliament. However, the amendments fall far short of introducing the robust and firm veto that we would expect to see inserted in such an important and constitutionally significant Bill.
Our concerns were heightened when we read the wording of the amendments. The Minister needs to explain exactly what the amendments entail. A Select Committee of either House may recommend that the relevant draft order should not be proceeded with. That recommendation, however, can be discarded if it is rejected by a resolution of the relevant House. Furthermore, when making such a recommendation, the Committee must have considered a range of factors, including those listed in clause 3. Our primary concern is that the conditions imposed on the relevant Committee, by which it is able to exercise such a veto, are excessive.
The primary difference between the Government’s amendments and the amendment tabled by Conservative Members in Committee and now in new clause 5 is that the Government’s proposals allow for the veto to be exercised only by a Select Committee, whereas our proposals allow for a veto by either the Committee or the Houses of Parliament. I note that the Procedure Committee, which recently produced an insightful report on the Bill, recommended that the power of veto should be exercised
“outside the Committee as well as within it”.
While the Government’s amendments allow both Houses to become involved in the process, they do not contain an automatic right of veto. If either House is unhappy with an order, it cannot veto it until a Committee has acted. The Procedure Committee’s report noted that there was no need for the Bill to include a power of veto exercised beyond the Committee. It recommended that the mechanism by which the House of Commons exercised the veto should rest on House of Commons procedure. Is the Government’s failure to empower Parliament by including an automatic veto in the Bill a result of that recommendation? If so, what steps will be taken to amend the House’s procedure to ensure that it possesses a veto and that the mechanics are fully in place? More urgently, why will the Government not accept that this is a matter of great concern to Opposition parties and other Members who have voiced concerns and deal with the matter now, setting out the balances and stating the powers in the Bill?
While the Opposition are concerned about the lack of a parliamentary veto under the Government’s amendments, we are also concerned that a Committee could have its veto overridden by a resolution of the relevant House. According to the wording of the Government’s amendments, the veto of a Select Committee, which the Cabinet Office proudly proclaimed in its press release on 4 May, is effectively nothing more than a recommendation. The difference between a veto and a recommendation is obvious and needs no further explanation. Were a Commons Committee to recommend that no further proceedings were to take place, is it not likely that the Government
would simply use their majority in the House to overrule it? Would not that negate completely the introduction of the veto?
If the Government have their way on this set of provisions, how will Parliament be able to ensure that the more contentious issues are dealt with in the Lords, where the veto is not capable of being vetoed by majority party votes?
Mr. Greg Knight (East Yorkshire) (Con): The Government deserve credit for listening to representations and giving ground in some other areas, but does my hon. Friend accept that in this area they have failed to meet the assurances given by the previous Minister, the hon. Member for East Renfrewshire (Mr. Murphy), to the Procedure Committee? Is he aware that on 7 February this year, the then Minister told the Procedure Committee:
“so our commitment is very clear, that we will not seek to do anything which is highly controversial. The Select Committee will make a judgment on that and the Select Committee can veto any recommendation from a minister.”
The veto now proposed falls far short of that commitment.
Mr. Djanogly: My hon. Friend is absolutely right. Part of the problem is that the Government have been consistently late in responding to comments made in Committees and in producing draft clauses for review. We have been treating Report, to some extent, like Second Reading because we have not seen the clauses to comment on them.
Mr. Kenneth Clarke: My hon. Friend is making sound points in criticising the adequacy of the veto offered. Will he reflect on whether a veto is totally reassuring? As my right hon. Friend the Member for East Yorkshire (Mr. Knight) just pointed out, the former Minister repeatedly gave assurances in various forums that nothing that was controversial would be taken through in this way. I take that to mean that a substantial number of Members of the House saying that a measure should be subject to the parliamentary process should be adequate to stop the order making procedure being used. If all that is offered can simply be overridden by the working majority of the Government of the day, very controversial measures could be taken through using this simple, scarcely parliamentary procedure. Just a bare majority of Members of the House of Commons would make sure that an unsuitable process was used to override a significant section of public and parliamentary opinion.
Mr. Djanogly: My right hon. and learned Friend makes an important point. Were the matter concerned to be dealt with in the Lords, where the veto is more likely to be effective, I can imagine Ministers moaning and groaning that unelected Members of the House of Lords should not concern themselves with administrative or deregulatory issues. As a result, we could be caught in a cleft stick.
Mr. Heath: Actually, what the right hon. and learned Gentleman said was entirely in line with the new clause
that we shall discuss in this group, which my hon. Friend the Member for Cambridge (David Howarth) and I tabled and which I believe the hon. Gentleman has set his mind against. It is no good his saying that his right hon. and learned Friend has made an important point if he disagrees with the fundamentals of it when it comes to a vote.
Mr. Djanogly: I will come on to the hon. Gentleman’s new clause, which has its problems, although, as he will hear, I believe that it merits further discussion.
We believe that the best course of action is to follow through the spirit of Government amendment No. 46. However, that amendment needs improvement to allow the veto to be exercised by either of the Houses or by Committees. I shall now deal with the point made by the hon. Member for Somerton and Frome (Mr. Heath) about new clause 14, as I know that he wants me to address it.
The Liberal Democrats’ new clause 14 seeks to grant the House a statutory veto over orders introduced by virtue of this Bill. It suggest a novel alternative to relying on the recommendations of a Select Committee, already burdened and restricted in its freedom of action by the factors, as set out in the Government amendments, that must be considered when rejecting a draft order. That alternative is that a parliamentary veto may be exercised by a quorum of at least 10 per cent. of the House. The new clause also contains a safeguard of its own, in that those exercising their veto must encompass more than a single parliamentary party. That would prevent a single political group from rejecting the Government’s measures on purely partisan grounds. It has been suggested that an order introduced under the Bill, which, if we are to believe the Government’s words, would relate only to deregulation and Law Commission proposals, should be stalled by a parliamentary veto only if it is controversial. If that is the case, the order should be presented to Parliament in the form of primary legislation.
I agree that new clause 14 would in practice mean that only controversial measures would be vetoed, and I understand the spirit of it. However, it goes too far by setting a precedent in other areas of procedure. Issues such as what should be a relevant percentage and entrenching minority rights would need a much wider review.
Pete Wishart (Perth and North Perthshire) (SNP): The hon. Gentleman mentioned minorities. I think that the Liberal Democrats’ new clause has its merits, in that the minority parties would be included. The hon. Gentleman is more than aware that we are not included on all Select Committees. In fact, we are on very few of them. That means that we would have no say in any veto. The Liberal Democrat proposal would allow us at least an opportunity to participate.
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Mr. Djanogly: The hon. Gentleman has just demonstrated his ability to participate. I do not think anyone is saying that he cannot participate in the
progress of legislation. We maintain, however, that establishing a veto has significant implications for the flexibility of the way in which the House works, and would require a full review.
Sir Robert Smith (West Aberdeenshire and Kincardine) (LD): The hon. Gentleman told the hon. Member for Perth and North Perthshire (Pete Wishart) that he had demonstrated the ability of minority parties to exercise this right in the Chamber. The point is that the Government’s procedures require them to exercise it in a Select Committee. We are trying to enable the whole House to influence what happens to procedure. Members of a Select Committee are, by their nature, select.
Mr. Djanogly: I hear what the hon. Gentleman says. I gave some time to his party’s proposal because I think there could be some merit in it, but I also think that we need a full, much wider review than it proposes.
Mr. Kenneth Clarke: The difficulty is that we cannot reflect fully in the time before the Bill leaves the House of Commons. I find myself in the slightly embarrassing position of supporting what the Liberal Democrats have said. At a meeting, the hon. Member for Cambridge (David Howarth) and I urged that view on the then Minister, and I think that it has considerable merit.
Of course I accept that we cannot normally allow minority vetoes on the processes of the House or on ordinary parliamentary procedure, but yesterday I accepted new clause 19—reluctantly, as did my hon. Friend—as a step in the right direction. I was prepared to allow some flexibility in abandoning parliamentary procedure for non-controversial measures. Surely, though, if 65 Members say that a measure merits being subject to the full parliamentary process, it is not a non-controversial deregulatory measure. If we were in office, I would take the view that even if the 65 were shell-backed left-wing members of the Labour party with a stray Welsh Nationalist added, they would be entitled to the full parliamentary process, and to be allowed to veto a short-cutting of the whole parliamentary procedure, which we are all prepared to contemplate only in the case of genuinely non-controversial deregulatory measures.
Mr. Djanogly: I hear what my right hon. and learned Friend says. It is an interesting debate. According to company law, 10 per cent. of members can call an annual general meeting but cannot scrap a resolution. The percentage figure would need to be reviewed carefully in the context of the way in which the House works. Let us not forget that these proposals were presented to the House a matter of days ago. I respectfully suggest that to say that there should have been or could have been adequate time is not realistic, but, as I said to Liberal Democrat Members, I do not discount it as an argument, and it may be followed up in the other place.
Andrew Miller: Perhaps I can help the hon. Gentleman in his difficulties with the right hon. and learned Member for Rushcliffe (Mr. Clarke). I am sure
he would accept that all motions before the House tabled by Back Benchers must have equal status. According to his logic, the House would be forced to debate any early-day motion that attracted more than 65 signatures. That would tie down parliamentary time to an impossible degree.
Mr. Djanogly: The hon. Gentleman makes an important point, if only in saying—as I think I have been saying—that a good many of the issues will need to be examined in the round. It is not just a question of slapping down a clause and saying “Isn’t that a great idea? Let us put it into legislation.” The Minister might even agree with me about that.
David Howarth: Will the hon. Gentleman give way?
Mr. Djanogly: I will give way one last time.
David Howarth: The problem that new clause 14 at least attempts to solve is precisely the question of what counts as controversial for the purpose of a choice between the procedure proposed by the Bill and ordinary legislation. I am sure that the hon. Gentleman has read the report of the Committee proceedings. During those proceedings, his hon. Friend the. Member for Christchurch (Mr. Chope) suggested that if one Member objected, the matter would be controversial and should be treated as a Bill.
Mr. Djanogly: The hon. Gentleman has made the same point again. He has heard what I have had to say. I shall move on now, but I think the Minister has received the message that Members would like to hear his views.
Mr. Chope: Does my hon. Friend now accept that there may well be scope for common ground between all Opposition Members, so that when the Bill goes to the other place an amendment along these lines will be able to command common support among Liberal Democrats and Conservatives, and receive applause when it returns to the House of Commons?
Mr. Djanogly: I think that the matter should be seen in a wider context, and in that context I cannot answer my hon. Friend’s question. What I can say is that our party will discuss it with our noble Friends.
Another of our concerns is that the amendments severely restrict the period during which the Committee’s veto can be exercised. Amendments Nos. 46 and 50 allow for the exercise of the veto in the negative and affirmative resolution procedure respectively only after a 30-day period commencing with the day on which the draft order is laid before Parliament. That means that the period during which the veto may be exercised is limited to just 10 days.
While I understand the time limit, I wonder on reflection whether there is really a need to prevent a Committee from exercising its veto in the first 30 days following the laying of a draft order before Parliament. Perhaps the Minister could explain. In any event, we look forward to hearing the debate on the issue, particularly the debate on amendment (a), which was tabled by members of the Procedure Committee.
Amendments Nos. 54 and 55 allow for the veto to be exercised under the super-affirmative procedure only during the period between the moment when the Minister lays a statement before Parliament detailing representations made on the draft order and the moment at which the order is voted on in both Houses and therefore approved. It is unclear how long the gap between the two events is estimated to be. Is it not feasible that they could occur within a matter of days of each other?
We are also concerned about the conditions that must be met for a recommendation from a Committee to be valid. They appear onerous, and may provide the Government with a simple excuse to reject a Committee’s recommendation rather than resorting to an attempt to defeat the recommendation in the House.
The factors listed in clause 3 that a Minister must take into account when introducing an order are essential. They provide a valuable safeguard, one of the few originally contained in the Bill before widespread criticisms forced the Government to back down. For that reason it is right that the Minister must consider those factors, but is it necessary for a parliamentary Committee—consisting, I am sure, of competent and respected parliamentarians—to have to take account of the same factors and more?
The changes to the Bill announced recently by the Cabinet Office are vital from a constitutional viewpoint. They will help to prevent a Government from abusing the Bill and from being able to amend any legislation on the statute book, but imposing conditions on a Committee of Parliament that is carrying out its function of holding the Executive to account and preventing abuses of power is surely unnecessary and over-restrictive. Do the Government not consider a parliamentary Committee sufficiently responsible to make a wise enough decision on a draft order introduced under the Bill? For that reason we tabled amendment (b) to the Government’s amendments Nos. 50, 54 and 55, calling for the removal of subsections (2B), (4B) and (6B). We believe that such changes would create the robust and flexible veto that so many constitutional experts believe is vital to ensuring that the Executive do not abuse the power conferred on them by the Bill.
Our concerns about the Government amendments appear to be shared by the Procedure Committee. I note that it has also tabled amendments to all the Government’s amendments relating to the statutory veto, calling for the omission from amendment No. 46 of proposed new subsections (2B) and (2C) and the corresponding subsections in amendments Nos. 50, 54 and 55. They would allow a Committee of either House to recommend that no further proceedings be taken in relation to the draft order. There would be no factors to consider and the onerous conditions imposed on the Committee by the Government amendments would cease to exist.
I shall now discuss our further amendments to the Government amendments, which would prevent a Minister from tabling a draft order for a period of two years if the same or similar order had been vetoed by the relevant Select Committee. A two-year moratorium has been imposed on altering the regulatory reform order, but no such standstill period is contained in the proposals. I noted with interest that such a moratorium
was also recommended in the Regulatory Reform Committee’s report. It was aimed at preventing a Minister who has just had an order vetoed from laying a similar order before Parliament.
In recent years, we have seen a growing culture in which the Executive ignore the will of Parliament or, should I say, the people. Certainly, we see that happening in the European Union with underhand plans, now being implemented, to bring in by stealth elements of the failed constitution. In the UK, we see it in the Government bringing in their regionalisation plans—whether it be through primary care trust mergers, about which we heard earlier today, or in respect of the police—despite losing heavily in the north-east referendum. Our amendments are aimed at stopping that move towards legislation by stealth and regurgitation of failed plans.
An important point about the statutory veto concerns the make-up of the Committee of either House charged with reporting on the draft order. It is unclear in the Bill what type of Committee it should be. Is there to be a permanent Committee, charged with reviewing all orders issued under the Bill? If so, I draw the Minister’s attention to the Procedure Committee’s conclusion that parliamentary scrutiny of draft orders should not necessarily be in the hands of a single Committee responsible for all orders, as in the Bill, but be discharged by whatever Committee has the relevant subject expertise, including the departmental Select Committee. Will the Minister clarify which Committees the Government envisage undertaking those crucial roles?
The Conservative party believes that the exercise of this veto, which was a central plank in the Government’s effort to placate the fears of opponents of the Bill and was recommended by both the Public Administration Committee and the Regulatory Reform Committee, should be far more flexible than is envisaged in the amendment. The opinion of a Select Committee charged with reporting on a draft order laid before Parliament under the Bill should carry more force. There should be a less restrictive time period for the exercise of the Committee’s recommendation, and fewer conditions should be imposed on the exercise of that recommendation.
Andrew Miller: I think this is the first time, Madam Deputy Speaker, that you have had to listen to our long and complicated debates on the Bill, so welcome to the Chair. To make it even more complicated, as the hon. Member for Huntingdon (Mr. Djanogly) was speaking, my glasses fell apart, so I shall have to ask the Minister to hold my notes a little further away until my spare glasses arrive.
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