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6.45 pm

Mr. Heald: Does my hon. Friend agree—

Edward Miliband: Hon. Friend?

Mr. Heald: I think that the hon. Gentleman is in this case.

Does my hon. Friend the Member for Somerton and Frome (Mr. Heath) agree that in the important example given by my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) yesterday about tax cuts being something that could be fast-tracked using the order-making power, a Select Committee would not be able to veto it because it would have to go through exactly the same hoops as the Minister? As we know, tax cuts are not covered by that process so it is not a real protection in the circumstances outlined by my right hon. and learned Friend.

Mr. Heath: I have hon. Friends on both sides of the Chamber so I, too, shall call the hon. Gentleman my hon. Friend in this matter. He is right. Anything within the terms of the order, and that the Minister has correctly assessed as within the terms of the order, must be so in the view of the Select Committee because it has to apply the same criteria. Therefore, any political judgment on the essential question of what is controversial means nothing in the context of the provision. We were told at the start of the Bill’s proceedings that it would not be used for anything controversial. Then, the Government elevated the threshold slightly and said that it would not be used for anything “highly” controversial. I hope that we have now gone back to “controversial”.

Unless we make the necessary amendments, the whole measure will be meaningless. If the opportunity arises, I shall press hard my amendment (c) to Government amendment No. 46, because removing those constraints is crucial to the work of Select
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Committees. Even if that were achieved, we would still have the problem, alluded to in a short debate between the hon. Member for Huntingdon (Mr. Djanogly) and most of his hon. Friends on the Back Benches, who did not agree with him, about a genuine parliamentary veto.

A Select Committee has a Government majority. If the purpose of the safeguard is to ensure that something that is deeply controversial to a section of the House—whether on the Government Benches or elsewhere—is not put through a fast-track procedure, a simple majority in a Select Committee with a Government majority will not do the job, however assiduously the Committee may attempt to do its job. With the best will in the world, its members may not be aware of the local implications of an order put through by that process that might be deeply controversial. The procedure can be used not only for general public Acts, but for local Acts. The Regulatory Reform Committee or its successor might be completely unaware of a particular local Act, not because Members had not done their research properly, but because there was a burning political issue—we are, after all, politicians, which is why we are sent to this place—of which they were unaware because none of them was from that area.

Andrew Miller: If I might correct the hon. Gentleman, that is why we have a consultation process. That is why the order relating to London museums, to which I referred earlier, was dropped. The consultation process identified an error relating to a local matter, which would certainly not have been an issue in Burnley, the constituency of my predecessor as Chairman.

Mr. Heath: I understand the hard work that goes on in Select Committees to try to deal with such issues, but as we all know—certainly those of us with local authority backgrounds—often there will be no response to a consultation and the matter appears entirely benign, until it is implemented. Then everybody says, “Why didn’t you ask us? Why didn’t you consult us? Why didn’t you allow our objections to be heard?” Of course there was the opportunity, but no one asked the right person at the right time about their problems.

I want to make it clear that we do not suggest the sort of process in new clause 14 from our partisan point of view. We deliberately set the threshold beyond what the Liberal Democrat party has in the House. I do not think that 10 per cent. is an unreasonable figure. If 10 per cent. of the House feel strongly about something, the voice of those hon. Members should be heard, because that subject is controversial by definition. If that 10 per cent. comprise at least two parties represented in the House, it is clear that no simple mechanism on behalf of one party for political advantage is involved.

I believe that if those circumstances apply, it is right that that should apply a brake to the procedure. Let us remember that it would not be a brake on the order. The order can still be translated into primary legislation and go through its normal course of action.
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It is not a question of a minority party preventing legislation; it is simply suggesting that the legislation must be scrutinised. There are Liberal Democrat Members, Conservative Members and Members from the minority parties who very clearly understand the merits of that case.

Mr. Roger Gale (North Thanet) (Con): I have some sympathy with the hon. Gentleman’s view that the House should be able to challenge the view of a Select Committee, and most certainly that of an Executive with overweening power, but I am very concerned indeed about the second part of his proposal because there is a quaint and long-standing belief that Members of Parliament are individuals who speak for themselves and their constituents, based on an assessment of the problem. If he and the Liberal Democrats go down the road of suggesting that any measure in the House must have the support of more than one party, it is a very slippery path indeed.

Mr. Heath: I am most grateful to the hon. Gentleman for his observation. First, parties are established under Standing Orders—we understand what parties are—and secondly, it was a criticism when we first suggested such a proposal that to allow one party effectively to block a parliamentary procedure was inappropriate, because that should require a greater degree of consensus. That is precisely why we suggested the provision. I find it slightly odd that we now hear a quibble from the other direction, suggesting that such things should be in the hands of a single party, but perhaps that could be debated later. However, the proposal has considerable merit in terms of parliamentary procedure. Simply because we do not do it now is not a good enough reason to say that we should not do it in the future.

The hon. Member for Ellesmere Port and Neston made the point about early-day motions being discussed on the Floor of the House. There ought to be a mechanism for that, too, if enough hon. Members want to do so. When an early-day motion is signed by more than half the membership of the House, such as the one on the removal of the Post Office card account, I cannot believe that we as a House cannot insist that we should debate the subject—a majority of hon. Members from all parties very feel strongly about it—yet we do not have the mechanism to do so.

Mr. Heald: Does the hon. Gentleman think that we are in danger of having too many veto proposals in the Bill? The idea of the Select Committee veto—something that we have all pressed for throughout consideration the Bill—should be applauded and strengthened, and we should be pressing for that. However, I wonder about considering other proposals that relate to blocking minorities on the Floor of the House. That would set a major precedent because it could be argued that perhaps a blocking-minority approach should be adopted for every procedure. Surely, if we were to do that we would need a major inquiry and discussion between the parties about how we tackle our procedures on numbers. The next step after that would be to say that we have entrenched majorities for constitutional matters. It would then be a different kind of Parliament, and it may be a good one,
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but to make that change—which would have huge significance constitutionally—piecemeal would be the wrong thing to do.

Mr. Heath: I hear what the hon. Gentleman says, but I simply do not agree with him. We need to set a precedent occasionally. We are discussing an entirely novel procedure, to which a brake needs to be applied, and we have suggested a good brake. That view is clearly shared by the right hon. and learned Member for Rushcliffe (Mr. Clarke), who chairs the august body in the Conservative party that is working on exactly these matters. His opinions should carry some weight among Conservative Members.

We ought to send a signal today, which is why, given the opportunity, I will press new clause 14 to a Division this evening, and I will do so content in the knowledge that it would serve the interests of Back Benchers, minority parties and those who would not otherwise have the opportunity to make their voice heard—and who ought to be heard, either in a Select Committee or a Statutory Instrument Committee—at a later stage. My worry about leaving the issue to another place, as I think the hon. Member for Huntingdon intimated, is that Members of the House of Lords will be very cautious indeed about expressing an opinion, because it is quintessentially a House of Commons matter.

My worry is that they will simply not feel able to make the necessary intervention. That is why tonight’s debate is so important—it may be our last opportunity to make it clear that the procedure that the Government propose will not do. If the Bill is passed today by a Government majority, I do not believe that it will come back to us—I wish it would, but my fear is that the other place will feel inhibited about intervening in House of Commons business for all the reasons that we know, and therefore it will not come back to us for reconsideration. Therefore, tonight is make-your-mind-up time about whether we accept the very flawed mechanism that the Government propose.

Mr. Greg Knight: I only want to correct what I think was a slip of the tongue. The hon. Gentleman said that he wanted to divide the House on new clause 42. I presume that he meant amendment No. 46.

Mr. Heath: I referred to new clause 14. I think that the right hon. Gentleman, who is the Chairman of Procedure Committee, misheard me, but I am grateful to him for intervening because it is important that the discussion of these procedures is not only intelligible but audible. So I repeat that I wish to seek a Division on new clause 14. We had very important debate yesterday. This is the important debate today, because if we get this wrong the procedure, albeit not quite so open-ended as before the Government amendments were accepted yesterday, will nevertheless be too open-ended for the comfort of any hon. Member.

Dr. Tony Wright (Cannock Chase) (Lab): There is, of course, a slight gap between the way in which we talk about Parliament and how it operates, and perhaps we ought to confess to that, in the interests of people who listen to our debates and read the reports of them. That was caught quite nicely by the casual remark of my
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hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller), the Chairman of the Regulatory Reform Committee, when he said as an aside that the Conservative members of that Committee do not turn up. I do not say that to make a trivial party point of the kind that we are prone to make; I say it only because we are talking about the great powers that should live within our Select Committees and how important it is that their will should prevail, and we then go on to talk about the glories of Parliament itself. Yet that is suddenly pierced when we see the reality of how such things work.

It is rather amusing in a way to watch the Opposition parties failing to agree on what would be appropriate for Parliament to do in the circumstances—whether it is better that a Committee should decide, whether the whole House should decide, or whether a percentage of the House should decide, all of which ideas depend on different versions of what Parliament is and how it operates. However, it is quite a perverse argument to suggest that the House itself should not decide on a matter before it. That argument is being put, because the House is governed by parties and inbuilt majorities. That is true; it is how our system works—but it is odd to pick away at that system in one little segment without acknowledging the fact in our wider deliberations.

That is a curious proposition, because anyone looking at it from the outside would think it a rather sensible procedure for the whole House—the Commons bit of parliamentary sovereignty—to exercise its power, so that it can constitutionally trump whatever a part of the House might decide. That would seem the constitutionally proper arrangement. Indeed, that is precisely how we proceed in the entirety of our business. To acknowledge publicly that we do not want to proceed in that way, as is being argued, is to give the game away, in a sense, about how this place operates. If we are going to do that, we should at least follow the argument through and give the whole game away, and not pretend that we can just give a little bit of it away.

7 pm

I take this area of the Bill and the amendments seriously. They are crucial. As the hon. Member for Somerton and Frome (Mr. Heath) just said, we are talking about one of the most objectionable bits of the first incarnation of the Bill. It was right to say that it would become less objectionable, or unobjectionable, only if an effective veto were put into the Bill to provide a mechanism to enable us to say, “It is not appropriate to use this mechanism for this purpose,” and for that view to prevail.

The question is: have the Government inserted such a mechanism? The answer is: partly. We have, perhaps, a qualified veto. We have a recommendation power. However, if it is a veto, it could be argued that we have a provision to veto the veto. Then we are back to the arguments that I have just described about how Parliament works. Parliament can collectively decide what to do—but we know that in reality, that can subvert the mechanism that we think we have established to do a job for us. As has been said, we are talking about a Committee that has a Government majority anyway, so why do the Government need the
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reassurance of a veto on the veto when they have inserted a procedure that, on the whole, is thought to be satisfactory?

There may be disagreements about the mechanisms being recommended, but what unites everybody who is contributing to this discussion is the proposition that we want a strong rather than a weak veto. We want an effective veto, rather than an ineffective one. We are entitled to look to the Government to provide assurances about what is going to happen in the days to come to deliver that effective veto, so that this whole area of concern about the Bill is comprehensively removed. That is my main point.

I have one further point on a matter that has been raised already—trying to specify the grounds on which the qualified veto can be exercised by a Committee. Government amendments Nos. 46, 50, 54 and 55 insert that qualified veto, but they also set out the only grounds that a Committee may properly take into account when deciding whether to exercise that veto. Including in the Bill in that way the grounds on which a Committee may make a decision is entirely new. Previously, that has always been a matter for Standing Orders.

There are two difficult alternatives: either the courts will have the power to review proceedings in Parliament, or the limitation is entirely ineffective because the courts would hold that power without an express provision overriding article 9 of the Bill of Rights. They have no power to examine a Committee’s reasoning, because to do so would be to “impeach or question” proceedings in Parliament. It is constitutionally extremely peculiar to invite the courts to review judicially the validity of parliamentary decisions. That is why a number of the amendments—including one tabled by me—seek to remove those parts of the veto provision.

I hope that when he replies, the Minister will assure us that the concerns being expressed about the effectiveness of the veto will be addressed, and that he will reflect further and deliver a veto that will be strong rather than weak, and effective rather than ineffective. I hope that he will reconsider whether it is necessary, or indeed constitutionally desirable or possible, to specify the grounds on which a Committee of the House can exercise its power.

Mr. Greg Knight: I rise to speak about Government amendment No. 46 and amendment (a) to it, which is in my name and the names of other members of the Procedure Committee. Amendment (a) is a cross-party amendment, although I am aware that some members of the Committee see it as a probing amendment, while others feel very strongly about it. Government amendments Nos. 46, 50, 54 and 55 introduce the Committee veto that we have been discussing in respect of the orders under the Bill.

The Procedure Committee recommended that a veto should be added to the Bill, so I give the Government one cheer for delivering the veto. However, in introducing that veto they have only partly met their commitment to the Committee, because they have sought to define the grounds on which the veto can be exercised. I have serious concerns about that on two grounds. First, as has been said by the hon. Members
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for Somerton and Frome (Mr. Heath) and for Cannock Chase (Dr. Wright), it raises the possibility that the courts might be encouraged to examine how a Committee reached a decision, and whether it did so properly. That would be clearly contrary to the accepted understanding of article 9 of the Bill of Rights, as the hon. Member for Cannock Chase said. It could draw the courts into areas that they have hitherto been at pains to avoid.

Secondly, and most importantly, the grounds themselves are narrowly defined and certainly do not live up to the Government’s previous undertaking that no order would be proceeded with if the relevant Committee judged that it was an inappropriate use of the powers under the Bill—for example, because the matter was controversial. I refer Members to my Committee’s first report of this Session—HC 894—and evidence pages 17 and 18. We received evidence from the Minister who was then at the Cabinet Office, the hon. Member for East Renfrewshire (Mr. Murphy), who gave at least three ministerial assurances on this matter—or perhaps I should say one ministerial assurance that was repeated three times.

The hon. Gentleman was unequivocal about the veto. In answer to questioning, he said:

During the same evidence session, he went on to say:

Later, he returned to the scope of the veto and, referring to what the Committee could do, he said:

There was no mention of restrictions on the use of the veto, which are now before us.

My Committee’s amendment, and others, would remove the definition of the grounds for the use of the veto, thus leaving open the possibility that an additional veto, which could be exercised outside a Committee, could be introduced by Standing Orders.

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