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The Minister for the Cabinet Office (Hilary Armstrong): It might help the House if I remind the right hon. Gentleman that the evidence that he is citing was given before the amendments to limit the powers with regard to the orders were tabled. The Government have been very careful to limit those powers in the manner for which the House asked through the Select Committees that examined the matter. They simply linked the veto to the new restricted powers. Part of the almost circular argument that we are having is that although we have agreed the limit on the powers, it is said that the powers are now so narrow that the veto must be widened. I hope that the right hon. Gentleman understands what the Government were trying to do. During this debate, yesterday’s debate on narrowing the
powers is being forgotten. The Government tried to link the veto to the new definition of the powers.
Mr. Knight: I am not sure that that is a valid point. The powers in the Bill may well have been narrowed, but that has been done only in line with what Ministers said the purpose of the Bill would be anyway. Ministers have introduced provisions that achieve what they told us, through assurances, that the Bill would be used for. I do not accept the point that the right hon. Lady is making.
We do not want to widen the veto, but we think that it should be exercised as was indicated by the former Minister when he gave evidence to the Procedure Committee: if a measure is controversial—although controversy is outwith the scope of the veto—a Committee should be able to veto it. That would not stop the Government getting their legislation through. As the hon. Member for Somerton and Frome said, we are merely suggesting that we should be able to say to the Government that the fast-track procedure is not appropriate in a specific case, so the measure should be subject to greater scrutiny. With the greatest respect to the right hon. Lady, she did not make a valid point at all.
If the Government are not ratting on a promise, they are certainly guilty of backsliding on an unequivocal ministerial assurance given to a Select Committee of the House. I hope that we will be able to vote on amendment (a) to Government amendment No. 46. Quite simply, the House should not put up with this.
Alison Seabeck: As a member of both the Regulatory Reform Committee and the Standing Committee that considered the Bill, I am generally pleased by the progress that has been made. However, I still have concerns about this group of amendments, especially Government amendments Nos. 46, 50, 54 and 55. Those concerns have been voiced with greater knowledge and expertise than mine by my hon. Friends the Members for Ellesmere Port and Neston (Andrew Miller) and for Cannock Chase (Dr. Wright).
Although the Regulatory Reform Committee’s special report, which has been much quoted, has, it appears, provided the basis for many of the revisions that have been made to the Bill, no further amendment has been made to one or two aspects. However, there is still a case for both this House and another place to consider those aspects. That is why I have put my name to several amendments tabled by my hon. Friend the Member for Ellesmere Port and Neston.
In my view, and in that of the Regulatory Reform Committee and the Public Administration Committee, it is preferable that after an order has been laid, no draft order to the same effect, or any which, although it has been reworded or modified, would have the same effect, should be laid within two years. The veto as it stands does not bring with it the two-year moratorium that the Regulatory Reform Committee felt was appropriate as a matter of course. I hope that my hon. Friend the Minister will again consider proposing further changes, which could be brought forward in another place, to introduce such a measure.
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The Regulatory Reform Committee felt that the demand for a two-year breathing space did not expect more from Ministers than at present, as they already voluntarily respect that rule. However, in the interests of our peace of mind, and with regard to possible abuse by future Governments and Ministers who are not so well disposed or responsible as the present incumbents, this matter demands further ministerial consideration.
Unless a Committee’s veto was overturned by the House, the Committee would have significant powers—although, as hon. Members have said, its precise role is not exactly clear. The hon. Member for Huntingdon (Mr. Djanogly) raised concerns too, so I hope that the Minister will clarify the time scale in which the veto must be exercised, because it is 10 days in the case of Government amendment No. 54, but a less specific period in the case of Government amendment No. 55.
There appears to be no scope for a formal veto if the real problem is an order being categorised as controversial or inappropriate. Members of the Standing Committee will recall that we could not get a clear definition of those terms, despite the then Minister’s best efforts to provide reassurance. The Bill is thus narrower than the informal undertaking that has been respected since the introduction of the Regulatory Reform Act 2001. Will the Minister confirm whether such an undertaking remains on offer this time? If not, will he consider including it more formally in the Bill?
The Minister’s predecessor said to the Public Administration Committee:
“to get the veto provision correct will take a great deal of work and thorough consideration”.
There has been a great deal of thorough consideration, but we may still have work to do to ensure that the Bill meets the concerns raised in the House today. I hope that my hon. Friend the Minister will not rule out amendments that would insert the two-year restriction, following the gentle and friendly probing of Labour Members.
Mr. Kenneth Clarke: I almost stopped trying to catch your eye, Madam Deputy Speaker, because I agreed with everything said by my hon. Friend the Member for Huntingdon (Mr. Djanogly) when he moved new clause 5 and everything said by my right hon. Friend the Member for East Yorkshire (Mr. Knight) and the hon. Members for Somerton and Frome (Mr. Heath) and for Cannock Chase (Dr. Wright). On these questions of parliamentary procedure, we are Members who are usually brought together across the Floor in such discussions. I speak only to underline the importance of the points that are being made for the benefit of those in another place. The general understanding outside is that the Government have made a substantial retreat, and it might be felt that the worst problems have somehow been solved and that there is not a great deal left to do. Unless the Minister makes an extremely generous response to the debate, I hope that Members of another place will examine seriously whether we are adequately reassured by what has been done.
I regard the Bill as dangerous because we are talking about circumventing the ordinary parliamentary processes of considered debate and judgment and using instead a fast-track procedure that might have broad application. I am prepared to take the risk of passing such a Bill because of my enthusiasm for deregulation. I have no reason to doubt the bona fides of either Minister who has handled the Bill in detail because both genuinely endeavoured to have as wide a Bill as possible so that they can deliver deregulatory measures. I look forward to reading the reports and finding out what has been delivered. I think that the Minister will be contending with the culture of Westminster and Whitehall, but I hope that his good intentions will produce something worth while.
We need the strictest safeguards when introducing a procedure that can further reduce the use of the proper parliamentary process for potentially difficult subjects. As my right hon. Friend the Member for East Yorkshire said, we should hold the Government precisely to the undertakings that the former Minister gave. I thus echo everything that has been said about the Select Committee having the right to exercise a veto at its own discretion, bearing in mind the concern that we have all expressed that the procedure should not be used to circumvent parliamentary procedure when a significant body of interest is entitled to be heard.
I have to say—this is about the only note of dissent that has arisen between any two Members who have spoken, because we have not yet heard the ministerial reply—that I have never been completely reassured by the Select Committee veto. Select Committees have an in-built Government majority. A year or two ago, the House was given the opportunity to reconsider the way in which Select Committees are appointed because of concerns that the powers of ministerial and Whips Office patronage were being brought to play in appointments to Select Committees. I do not want to discuss whether that is still true, but the danger is only too obvious—and it might recur. At present, there is a great deal of patronage. We are lucky that such good Chairmen as the ones who have spoken have emerged from the process. Nevertheless, there is an in-built Government majority.
The undertakings that were given from the outset were outlined in a precise quotation from my right hon. Friend the Member for East Yorkshire. We were reassured that the full parliamentary process would be used for any controversial procedure. In my opinion, that means giving an adequately large minority the opportunity to have their views heard and debated, and to insist that an important change goes through the correct process.
Mr. Walker: Is my right hon. and learned Friend concerned that the Government could lean on the more ambitious and younger members of the Select Committee to ensure that they come round to the Government’s way of thinking, although that would go against the rules of the House?
Mr. Clarke: The hon. Member for Cannock Chase gave some candid views on how the House works in reality. We should be careful about too much candour,
but I have not the slightest doubt that Governments of all complexions use the process to which my hon. Friend refers if a Select Committee looks like it will be too difficult. There is, of course, a political process behind that, which we all realise has to be borne in mind.
I reiterate my belief that if a substantial body of opinion in the House wishes to insist on the full procedure, it should have the opportunity of doing so. I apologise to my hon. Friend the Member for Huntingdon for putting him in a slight difficulty, but I have no way of getting out of this because I shared a platform with the hon. Member for Cambridge (David Howarth) from which we advocated such an idea. In the end, that is the only satisfactory reassurance we can have.
The Liberals have been quite generous in putting the limits they propose beyond their reach as a single party. I am not sure why one of the three major parties of the House should be prevented from having a full parliamentary procedure if it so wishes, but I agree with my Front-Bench colleagues that that would involve much wider considerations, including the whole question of who determines what we debate on the Floor of the House and how we do it. That needs to be addressed.
I continue to hold the view that the one thing that will be completely beyond the control of the Government is stopping 10 per cent. of the Members of the House indicating, in some formal fashion, that they believe that the full process should go ahead. If we can get 10 per cent. to insist on that, it means that there is some interest, with which I probably profoundly disagree, that is entitled to have the full parliamentary process before the legislative machinery is changed.
My hon. Friends are worried about precedent. One of the most common arguments used by the civil service and others against deregulation is the precedent that might be created if we reopen something. Precedent has to be approached with caution. Let me make it clear: I do not think that the proposal establishes any precedent for allowing a minority to block legislation that has gone through the legislative process. It sticks in our craw when we have lost a measure by one vote, but one vote is sufficient in this place for the majority to overrule the minority. However, we must go through a process before that conclusion can be reached. I do not see precedent being created because of the unique nature of the Bill. We are talking about altering primary legislation by a process that cuts out all the ordinary legislative process precisely because of the need for speed and to avoid delay, and because we are so keen on deregulation.
Dr. Tony Wright: Was not the right hon. and learned Gentleman’s reference to the political factors the key consideration? Surely if the relevant Select Committee, with, as we keep saying, a Government majority, recommended that it was not appropriate to use the order-making power for the purpose proposed, and if the Government nevertheless sought to overturn that by using their majority to get a resolution of the House, there would be political consequences and it would be decided politically, which is how we decide everything in this place.
Mr. Clarke: That is why the constraint on the Select Committee to make that recommendation has to be removed. If the Select Committee makes a recommendation exercising a discretion and a political judgment that the process is unsuitable, I accept that it would be a bold Government indeed who went ahead with the change, although the point made was valid: we are not talking about the Government having to expose themselves to a full debate on the Floor of the House or some particular process to get their resolution through. We have now reached a stage at which half the time votes on orders and procedures have been reduced to a ritual part of the process of the House. If we are talking about the reality, the change would probably be decided by a deferred Decision on Wednesday, as I think the hon. Member for Somerton and Frome said. If we are being indiscreetly candid, probably a very high proportion of the Members of Parliament ticking the piece of paper would not bother to inquire closely exactly what subject they were voting on. It is too trivial a procedure to override such a change.
I do not accept that the small body of Members who have the privilege of being on the Select Committee should be our only protection. A substantial body of the membership is enough.
Mr. Clarke: I welcome the Minister to her new task. She is doing her best, with all these concessions, to sort out a rather miserable process that she inherited. I acknowledge all that. However, my right hon. Friend the Member for East Yorkshire precisely and brilliantly responded to her main point. The undertakings were given by a Minister who said that the Bill would be used for only narrow purposes. I shall not go back to yesterday’s debate, but I do not believe that the Bill as it stands has narrowed the scope of the powers to the scope described by the former Minister. It allows for far more than ordinary deregulation. That must be looked at again.
I hope lots of the orders go through. I hope the Government make liberal use of their new process. I undertake not to vote in deferred Divisions for trivial reasons to block deregulatory measures and upset the Government’s timetable, or to cause difficulty. However, I want the reassurance that if a big body of opinion wants something debated, we will all be obliged to debate it and subject it to the full parliamentary process.
Hilary Armstrong: I want to make a point that I was never allowed to make in my previous incumbency, but none the less learned. The official Opposition can bring matters to the Floor of the House. When they chose to do so, the usual channels agreed with them, and such things were debated on the Floor of the House.
Mr. Clarke: I am being tempted to go into much wider issues on Supply days. That relates only to the Front Bench. There are occasions when Back Benchers feel frustrated that the leaders of their party do not wish to bring to the Floor of the House things that they want to debate. I do not often feel the frustration that a left-wing member of the Labour party must
sometimes feel about the priorities given to business by his Front Bench, but there were times during the Iraq war when I was slightly impatient about the opportunities we had, the timing of the debates and the form of the motion proposed through the usual channels to be debated on the Floor of the House. On deregulatory matters to do with forestry and the licensing of vendors of game, one might often find that the two Front Benches and the usual channels do not have the monopoly of the views of every hon. Member about what the proper procedure should be.
I do not understand why Ministers are being so cautious. I have not doubted their good will because when I debated this matter with the previous Minister I believed him, and when I listen to these Ministers I believe them when they say that they have no intention of undermining Parliament and they intend to deregulate only on non-controversial measures. They give us every assurance that it has never crossed their minds to introduce politically controversial measures that might upset a significant minority or to avoid proper debate by taking it through their proposed process. I still cannot understand why the Government will not include that in the Bill, as they would bind all their successors—and not just themselves—if they did so. They are receiving advice from someone in the Department who does not share their deregulatory enthusiasm or who has a sneaking hope that one day a Government will get stuff through Parliament quicker and with less inconvenience. Why do the Government keep tabling late and mealy-mouthed amendments that do not live up to their undertakings? My praise for their deregulatory intentions would be followed by praise for their sensitivities to sentiments in the House if they tabled amendments—alternatively they could accept the amendments tabled by the Conservative spokesmen and by the Liberal Democrats—and include in the Bill something that they have been telling us since they first introduced it. I do not understand their reluctance to do so.
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David Howarth: I agree with every word that the right hon. and learned Member for Rushcliffe (Mr. Clarke) said, and I do not intend to add to his contribution. I shall, however, make a few points that have not been made in our debate.
Our debate has focused on two amendments tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath) that I am happy to support. Amendment (c) to Government amendment No. 46 removes from the Government’s so-called veto—it is not, in fact, a veto—the requirement on the Committee to consider various things under clauses 2 and 3. New clause 14 attempts to provide a genuine parliamentary veto. I wish to make only one point about amendment (c). Yesterday, the Government were keen to tell us that their judicial review of ministerial discretion did not require the insertion of the word, “reasonably”, in the Bill. That creates a problem, as what is sauce for the goose is sauce for the gander. The word, “reasonably”, does not appear in Government amendment No. 46, but “considers” does. That leaves scope for judicial review, as long as the problem of the Bill of Rights is overcome, as the hon. Member for Cannock Chase(Dr. Wright) said.
The Government should therefore say categorically in reply to the debate that they do not intend the amendment to override provisions in the Bill of Rights that forbid the courts from interfering with what happens in the House. However, as the hon. Gentleman said, if they say that that statutory form of words is not intended to have legal effect, why have they introduced the provision, as there does not appear to be an enforcement mechanism? They are therefore left in an obvious dilemma: either they add words to the statute that do not have any effect, or they must do what should always be done in the circumstances—if one does not want words to have legal effect, one leaves the matter to convention or to the Standing Orders ofthe House, which are not justiciable. I fail to see why the Government have not taken that route.
My main argument concerns new clause 14. The procedural protections against the misuse of the Bill are still required, even though yesterday changes were made to the purposes for which the Bill can be used and to the subject matter to which it can apply. It can no longer be used to change itself, or to change the Human Rights Act 1998. However, we did not debate a far more important restriction—the proposal that the Bill should not be used to change any of the country’s constitutional arrangements. We did not discuss that amendment, so it is possible to use the Bill for those purposes. Yesterday, we examined the example of changes to trial by jury, which is not protected by the Human Rights Act. The Bill could be used to make dramatic changes to that right, and it is still possible to reform local government using an order under the Bill. There is therefore a great need for procedural protections, which is why we have proposed such protections in new clause 14 in addition to the so-called Committee veto, which, as everyone knows, is not a veto.
The only argument against our proposal is that it will set a dangerous precedent. That argument suggests that we should not do the right thing now for fear that our slightly dim successors will not be able to tell the difference between the problem that we face and the problem that they face. Nevertheless, new clause 14 is not a departure, because there are such mechanisms, albeit with a slightly different construction, in Standing Orders. Standing Order No. 92 deals with what happens when a Bill has been considered by a Second Reading Committee or by the Scottish Grand Committee. The Report stage could take place in a Special Committee or in a Scottish Grand Committee. Standing Order No. 92 says that if a motion is introduced in the House to allow for that and 20 Members rise in their place and object,
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