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Both in partnership with my fellow members of the Select Committee and subsequently in exploring practical ways forward, I have carefully considered the matter of the veto. I was certainly left with the impression, as reinforced by the Chairman of the Procedure Committee, that we were not being offered a qualified veto and I have discussed with Ministers where that would leave us. I have expressed to my hon. Friends privately and put it on the record that I am uncomfortable with the Government’s amendment, so I
am anxious to listen to the views of the Chairman of the Procedure Committee when he moves his amendments, particularly when I have amended his amendments further in respect of the two-year rule.
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What powers does the Minister envisage the Committee having? That is the most important issue. The Secretary of State said in a letter of 11 May—I referred to it yesterday and confused the hon. Member for Huntingdon—that the statutory veto was not “a blanket veto”. There may be good technical reasons for that. I am not a lawyer, but am always prepared to listen to them. Often one has to listen to them at length; I do not want to disparage the profession of the right hon. and learned Member for Rushcliffe(Mr. Clarke), but he might be happier with a bigger Bill.
I am more interested in the practical ways of how the House deals with its business. That issue was raised by the Liberal Democrat MP, Brian Cotter, in 2001. In the Second Reading debate on the Regulatory Reform Bill 2001, Brian Cotter, then the Liberal Democrat Member for Weston-super-Mare, asked the then Minister, the hon. Member for Manchester, Blackley (Graham Stringer), to explain what he meant about a ministerial undertaking. The undertaking given has proved to be mighty effective; only 27 orders were dealt with through the process in the last Parliament. The reason is probably that a ministerial undertaking given to the House is an absolute one.
If the Parliamentary Private Secretary would like to pick up my glasses from over there—I have just seen them through the corner of my eye—I would be extremely grateful, especially as the next part of my speech is written in micro-dot. What a wonderful service we get here. That’s better, I can read my notes now. The ministerial undertaking given is, I think, a very powerful vehicle. I would like to establish clearly and unambiguously with the Minister whether he is prepared today to restate that ministerial undertaking. I cite what the then Minister said when he gave it:
“First, I am happy to confirm that the order-making power will not be used for large and controversial measures”—
“Secondly, the Government would not proceed with an order against the Committee’s wishes.”—[ Official Report, 19 March 2001; Vol. 365, c. 117.]
No qualifications there; it was said clearly that the Government would not proceed against the wishes of the Committee. If the Minister can today, irrespective of the partial statutory veto, give a similar undertaking, that would make a forceful point. As I look around at hon. Members in their places who have been or are Ministers, I know that they realise that such an undertaking would be of very considerable significance.
Lynne Jones (Birmingham, Selly Oak) (Lab): A ministerial undertaking is no substitute for stating something in the Bill. Government amendment No. 46 includes no such statement; in fact, the restrictions on the use of the so-called veto are so great that it is difficult to imagine any circumstances in which it would be impossible for an order not to serve the purposes specified.
Andrew Miller: I hear what my hon. Friend says, but I am talking about practical politics; about a Committee’s ability to say to a Minister without fear of judicial review that it is not prepared to let them continue along a particular course. That has proved an effective mechanism; that said, I would prefer to adopt an approach in keeping with the views of the Chairman of the Procedure Committee. The key is to ensure that this House has a practical means of stopping in their tracks a Minister who is going too far.
Mr. Heath: I am listening carefully to the hon. Gentleman and I know that his intention is good, but the point is that Government’s extraordinary proposal is to impose a statutory bar on what a Select Committee of this House can do. The hon. Gentleman is asking the Minister to assert that he will not use two thirds of the provision, which seems absurd. The only way that the Minister could make that binding is to be the only Minister involved with it, and to stay in office for ever, which is unlikely. If he has no intention of using the provision, why on earth include it in the Bill?
Andrew Miller: Given the Minister’s experience over the past 24 hours, he probably wants to move on rapidly, like his predecessor, despite his sterling work. A ministerial undertaking is understood by this House to be binding on the Government. [Interruption.] Does the right hon. and learned Member for Rushcliffe want to intervene?
Mr. Kenneth Clarke: My understanding of ministerial undertakings is that they are regarded as binding only on the Government of whom the Minister in question is a member. Leaving aside the history of ministerial undertakings not being adhered to by some Governments—and although I am sure that, if we took office, we would be impeccably deregulatory and simultaneously sensitive to the procedures of the House—the fact is that many undertakings given by the present Government would not be regarded as binding on successor Governments. I envisage that in 10 years’ time, ministerial undertakings will be regarded as somewhat irrelevant. Indeed, that is why we did not accept assurances—given constantly by the previous Minister in response to complaints—that the original Bill would not be used in the way that it plainly allowed for if someone stuck to the law.
Andrew Miller: I have some sympathy with that point, but I am simply trying to find a practical way forward. We have yet to hear the Minister’s views on this issue, but I am sure that the House will agree that the restating of the undertaking to which I have referred would be more than a nuance and would shift the ground, albeit slightly.
Sir Robert Smith: I understand where the hon. Gentleman is trying to come from, but under the previous regime, a Committee could communicate its concern and the Minister could then invoke his undertaking not to go against its wishes. How would the ministerial undertaking work under the terms of this new provision, which would constrain a Committee in expressing its reservation?
Andrew Miller: I know where I am coming from—it is where I am going to that sometimes proves a little difficult. In practice, I would expect a Committee of this House to make use of the potential veto at any stage up to the point at which the order in question is issued; I would not want to insist that it be used only when the draft order is published.
Let us consider the following example. An innocent-looking draft order affecting London museums met with the approval of the original consultees and, at first glance, of my predecessor Committee. But when it went out for broader public consultation, a legitimate authority expressed reservations and demonstrated to the Minister in question that an error had been made and that it was not appropriate. So one needs the power to exercise the veto at any stage, with or without statutory restrictions. Such a view is based on the undertaking given by the then Minister on Second Reading of the 2001 Act.
Mr. Greg Knight: Surely the point is this: we were given a ministerial undertaking on 7 February and what we need now is not a second one, but the delivery of the first. That can be done today if the Minister accepts the Procedure Committee’s amendments.
Andrew Miller: As I said earlier, I have some sympathy with the views of the authors of those amendments, which provide a more clinical way of dealing with this issue. However, it seemed to me appropriate at least to explore this idea and to invite comments from the Minister, in order to help inform our proceedings. I understand where the right hon. Member for East Yorkshire (Mr. Knight) is coming from, but I have yet to hear the Minister explain why the veto was drafted in this way, rather than according to the right hon. Gentleman’s understanding, which is based on evidence given to his Committee.
I turn to the amendments standing in my name and that of my hon. Friend the Member for Plymouth, Devonport (Alison Seabeck) relating to the two-year rule. Essentially, they are probing amendments that seek to discover what will happen when a Minister is hell-bent on introducing an order, despite opposition from a Committee of the House. Clause 16, which deals with the super-affirmative resolution procedure, clearly sets out the reporting procedure. There are mechanisms that enable Ministers to tweak and amend an order in the light of discussions with Committees of both Houses, and with public bodies and individuals. So what starts as a draft order is not necessarily the final text. It may be amended or qualified in writing, or the body or organisation for which it is promulgated may make appropriate assurances. Yesterday, I gave the example of the assurance given to both Houses by the chairman of the Forestry Commission that satisfied the concerns expressed by my Committee.
Those possibilities are available in the tweaking process, but what happens if the Minister says that he will keep coming back even though the Committee does not like what he says? First, the parliamentary business managers would not be terribly enamoured of that and the Minister would not survive for long without being ridiculed for trying to repeat the same mistake over and over again—
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Mr. Heath: He would get promoted.
Andrew Miller: The hon. Gentleman must not tempt me. The alternative to that is that practical politics might stop a proposal returning to the House within the lifetime of a Parliament.
These are probing amendments, designed to elicit an explanation from the Government of when it would be sensible, in the lifetime of a Parliament, for a Minister to bring back to the House an order that a Select Committee had decided was not suitable for regulatory reform. Under what circumstances would the Minister consider that appropriate?
I am trying to break these complex legal issues into simple and practical procedures that would allow hon. Members to do their job and examine the work of the Executive in an effective manner. The work of the Regulatory Reform Committee would be strengthened if Conservative Members bothered to turn up, as I noted previously to the hon. Member for Huntingdon (Mr. Djanogly), but that is a matter for him to deal with.
An effective mechanism is in place, but we are trying to make it stronger so that it can deal with the enhanced powers set out in the Bill. I hope that my comments will inform that debate, and I look forward to the response from my hon. Friend the Minister. That, in turn, will help the House to determine the best way forward.
Mr. Heath: I am intrigued by the notion expounded by the hon. Member for Ellesmere Port and Neston (Andrew Miller) that ridiculing Ministers causes them to be sacked. In my experience, they get promoted or retain their salaries when their jobs are taken away. However, he clearly knows more about that than me.
We are dealing with one of the three most important elements in the Bill. Yesterday, I set out the three ways to secure some safety with the proposals. I said that that could be done by prescription of what could be dealt with by the Bill, by proscription of what could not be so dealt with, and by protection—that is, using the safeguards available to the House to influence the use of procedure.
This group of amendments is entitled “Parliamentary veto”, but that is an unfortunate misnomer. A better alternative might be “Parliamentary caveat”, as we are certainly not talking about Parliament vetoing what the Government propose. We have heard a great deal about the value of ministerial assurances and a Select Committee of the House was assured, right at the start of our consideration of the Bill, that there would be a Select Committee veto on proposals. The former Minister, who is now Minister for Employment and Welfare Reform, originally thought that that mechanism was already in the Bill. It was gently pointed out to him that that was not the case, but he seemed to retain that misapprehension even as the Committee stage began. Eventually, he promised that it would be brought in later.
The tenor of the Government’s response to the quite proper criticism of the Bill voiced by hon. Members of
all parties has been that the Select Committee structure would have primacy in the procedural arrangements. It therefore bodes very badly for the exercise of the powers in the Bill that Ministers are not prepared, even now, to accept the recommendations of the Procedure Committee or of the Regulatory Reform Committee. The members of those Committees have great knowledge of these matters, but their proposals were not adopted by Ministers when they put forward their amendments.
Mr. Oliver Heald (North-East Hertfordshire) (Con): Does the hon. Gentleman agree that it would be a fine thing to trust our Select Committees with the responsibility that he describes? If Ministers are not prepared to do that, they should say so. They gave the impression early on that they were prepared to trust the Select Committee with the responsibility, so can he understand why they will not do so now?
Mr. Heath: I do not understand anything about the Government’s approach to the Bill. They have been dragged, kicking and screaming, to the realisation that they could not get through their entirely preposterous original proposals. They are in full retreat, making concession after concession, but even now they do not seem to understand the basic principles that underlie the many criticisms levelled at the Bill from many quarters, and so are unable to respond to them adequately.
The Government do not propose a Select Committee veto on procedure. It is transparently obvious that the most that Select Committees can do is to make a recommendation in that respect. I emphasise that we are not talking about a veto on an order itself, as Ministers could always use an alternative procedure to bring forward an order if the original procedure were rejected. They could use for that purpose the primary legislation that in normal circumstances would be the proper vehicle for introducing an order and, in turn, that would mean that an order would be properly scrutinised by this House and the other place.
That alternative was always open to Ministers, but the idea was to institute a fast-track procedure that would avoid that level of scrutiny before an order went into a Statutory Instrument Committee. No controversial measure was to have been put through the fast-track procedure, but the proposal under consideration would allow a Select Committee to consider an order only under a very constricted time scale. The result would be that that Committee would not be able to consider an order for too long, or to listen too carefully to the voices from outside the House. The few hon. Members serving on the Select Committee concerned would be able to make a recommendation, but that could be overruled by an order of the House.
In those circumstances, what would the motion put before the House contain? Would it allow a proper debate and give people an opportunity to express their concerns and say why they did not consider the fast-track procedure appropriate? Of course it would not. The matter would be dealt with at the end of the day in a business motion requiring a negative or an affirmative resolution of the House, and if anyone had the temerity to say no it would be pushed through on a
deferred Division on a Wednesday afternoon. I would bet my life that the Government would have their way because no one would know about any of the arguments why they should not.
What considerations can a Select Committee make in even making such a recommendation? Can it follow its instincts? Can it listen to the advice that it was given? No, it cannot. The proposals from the Minister lay down the limited range of criteria that the Committee can use in coming to a conclusion. It is improper to constrain a Select Committee’s considerations in that way. I know of no circumstances in which Ministers have tried by statutory means to restrict the activities of a Select Committee of the House.
Andrew Miller: That is why I wanted to explore whether it would be better to address the problem through a different route. It is a real issue and we have to deal with it, but I want to find the best solution.
Mr. Heath: I understand that the hon. Gentleman is trying to reach the right outcome, but I do not share his optimism that an assurance from Ministers on the Treasury Bench that they will not apply what is clearly laid out in statutory form in their proposals would have any value whatever. The Select Committee would be very constrained in the criteria that it could use to determine whether the procedure was right. It is transparently obvious that if a Minister did not like the result of the Select Committee’s considerations, he would overrule it in the House. There is nothing in the provisions to stop a Minister behaving in that way. Even if the excellent new Minister on the Treasury Bench was absolutely determined that he would not use the provisions in that way, I do not believe that the writ of the Parliamentary Secretary to the Cabinet Office—or is it to the Duchy of Lancaster, I am not sure of the exact title?—would run to the Home Secretary or to the Secretary of State for Constitutional Affairs.
The Parliamentary Secretary, Cabinet Office (Edward Miliband): The hon. Gentleman underestimates my hon. Friend on the Treasury Bench.
Mr. Heath: I may be underestimating the Minister, but I have seen dodgy procedure from past Home Secretaries and I do not believe that a Home Secretary would listen to a junior Minister in the Cabinet Office. No assurances from the Treasury Bench will hold water.
For that reason, if the Government press ahead with the proposals in their amendments Nos. 46, 50, 54 and 55, it is essential that we amend them today to remove those appalling restrictions on the latitude allowed to Select Committees in undertaking their work, both in terms of time and the criteria they must use to assess whether an instrument is appropriate for the fast-track procedure.
Mr. Kenneth Clarke: I think that I am correct in saying that if a Select Committee was contemplating a recommendation that the process should not be used it would almost certainly be advised by its Clerk that it
was not able to make such a recommendation unless it addressed the terms of the legislation. It would be open to the Committee to make a recommendation only if it could demonstrate that it was complying with the conditions put on it. If the Select Committee decided as a matter of parliamentary principle that the process was not appropriate it would receive professional advice from the Clerk that it was not in a position to make a recommendation on that basis.
Mr. Heath: The right hon. and learned Gentleman is absolutely right. Such statutory constraints on the exercise of a Select Committee’s discretion are unique, but it is clear that, as the hon. Member for Birmingham, Selly Oak (Lynne Jones) said earlier, most, if not all, of the good reasons for assessing that an order was inappropriate for the accelerated procedure would be declared ultra vires. We would have the absurd prospect that a Select Committee decision was justiciable—reviewable—on the basis that it had not followed criteria set down in statute in reaching its decision. When has a Select Committee ever been bound by statute, and justiciable in the courts, in the exercise of its discretion? The suggestion is preposterous.
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