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“the Speaker shall declare that the noes have it.”
Standing Orders already provide a blocking mechanism on procedure that requires a fuller hearing of the matter—in this case, the Report stage—than would otherwise be the case. That is precisely what we are trying to do in new clause 14.
Mr. Gale : The hon. Gentleman has the text of the Standing Orders before him, and he is quite right. I do not have the text with me, but I think that I am right
that it does not specify that those Members should come from more than one party in the House.
David Howarth: The hon. Gentleman is quite right—the standing order does not provide that extra protection. However, new clause 14 does so: Members who object to the use of the procedure should not all come from one party.
Mr. Heath: Another blocking mechanism can be deployed by a minority of one. It is often seen and heard on Friday afternoons when we debate private Members’ Bills. It is usually the role of the right hon. Member for Bromley and Chislehurst (Mr. Forth) to shout, “Object”, thus preventing the progress of such Bills. A blocking minority can therefore act to procedural effect.
David Howarth: Indeed, that is a blocking minority of one from one political party.
The purpose of new clause 14 is to protect minorities. It provides geographical protection—we have heard the point about local Acts—and it also protects political minorities in the House and within parties. A matter can be controversial for a substantial number of Back Benchers, but it may not be controversial for their Front-Bench spokesmen. We need a mechanism that allows such minorities not to block the progress of legislation completely, but to demand further debate.
Mr. Gale: The hon. Gentleman is kind in accepting interventions, but he has contradicted himself. He says that the provision is meant to protect minorities, including minorities in a single party. Forgive me, but it is not inconceivable that 70 members of the parliamentary Labour party would disagree with their Front Bench, as they often do so at present. If they wished to object, but did not receive any support from the Opposition, their objection could not be heard under his proposal.
David Howarth: At least the position of those Members would be better than it would be if the new clause is not accepted. The hon. Gentleman, if I may say so, is making the best the enemy of the good.
The purpose of the new clause is to make sure that in circumstances where the matter before the House is controversial in the minds of a sufficient number of Members, the full Bill procedure will be used. The main problem that we have had with the Bill all the way through is that Ministers have told the Committee that they did not intend to use the procedure for controversial matters, but they have not been prepared to offer any substantive definition of “controversial”. That is why, to extract Ministers from that difficulty, Members on the Liberal Democrat Benches and in other parts of the House have tried to solve the problem procedurally. New clause 14 offers, in effect, a procedural definition of what is controversial.
I cannot understand why the Government resist. They do so, presumably, because they do not want written into the Bill matters that could possibly become subject to judicial review. They want to protect themselves from the courts, but, with their own system
of a Committee veto, they are offering a line of argument that may well lead to the Committees of the House being subject to exactly the same review in the courts. I find that to be precisely the wrong way round. It ought to be Ministers, more than Committees of the House or the House itself, who are subject to the courts.
Mr. McFadden: May I begin by offering the House a point of information relating to a point of order raised earlier about the regulator’s compliance code? I am advised that that was sent to the joint Chairmen ofthe Standing Committee which considered the Bill on3 April, and that copies of that draft have been placed in the Libraries of both Houses, so I believe the document is available, even though—
Mr. Heald: The Minister may know that that has been the subject of discussion between one of the Ministers’ offices and my own. I think it was I who raised the matter in Committee and asked that the code be made available to Members, and I was given no notification at all when the letter was sent to the Committee Chairmen. We were left floundering about, not knowing that it was in the Library. That was most unhelpful.
Mr. McFadden: I understand the point that the hon. Gentleman is making. I was trying to be helpful to the House by providing the information that I could find today about how the document had been distributed.
Andrew Miller: For clarification, the letter to which the hon. Member for North-East Hertfordshire(Mr. Heald) referred was the subject of a parliamentary question that I tabled, so it was in the public domain and he could have found it.
Mr. Heald: It is pretty discourteous for the matter to be left in that way, when I had specifically raised it in Committee.
Mr. McFadden: May I suggest that we return to the issue at hand?
Listening to the contributions on the veto power, I am struck by a curiosity. Yesterday there were many contributions from hon. Members who argued that the powers set out in new clause 19, 20 and 21 were perhaps an improvement on the original version of the Bill, but that they were still far too wide. They could be used, for example, to abolish trial by jury—we heard that again a few minutes ago—introduce euthanasia, and possibly even recast our relationship with the European Union, yet today, in the discussion of the veto, which is related to those same clauses, the powers in them appear to have shrunk. We are told that the veto is not worth much because it is related to those powers, which yesterday were criticised as being so wide. Today they seem to have shrunk so much that they might not apply to our friend the Wolverhampton butcher. There is a curiosity in the criticisms of tying the veto to the powers set out in new clauses 19, 20 and 21.
Mr. Gale: In the light of the letter that the Minister kindly sent to me earlier today, which is about powers in new clause 19, can he explain what he had in mind when he wrote that letter?
Mr. McFadden: With the Deputy Speaker’s permission, I am happy to do so.
The legal effect of new clause 19 relates to the power to remove or reduce burdens. The purpose for which the power can be exercised contains two alternatives. The first is the removing or reducing of any burden resulting for any person directly or indirectly from legislation. The second is removing or reducing the overall burdens resulting for any person directly or indirectly from legislation.
Removing or reducing a burden from one person may increase the burdens upon others, so the first alternative could permit an overall increase on persons as a whole. For example, where a regulatory regime is being placed on a risk basis, costs on low-risk businesses could go down, while costs on high-risk businesses may go up.
The second alternative requires a removal or reduction of burdens overall, although this would permit the imposition of new burdens where the overall effect was a removal or reduction of burdens. This is similar to the position under the 2001 Act; if a burden is removed, new burdens may be added. Orders as a whole, including any new burdens, must meet the safeguards, including, for example, being proportionate to the policy objective of the order.
In particular, I draw the hon. Gentleman’s attention to the precondition in clause 3(2)(c), which requires that Ministers consider that the provision as a whole
“strikes a fair balance between the public interest and the interests of any person adversely affected by it”.
This precondition, which is clearly particularly relevant where burdens are imposed or increased, also mirrors the existing position under the 2001 Act. The explanatory document will include both a summary of consultation responses, and an assessment of the extent to which an order to be made under new clause 19 removes or reduces burdens. Also, a detailed impact assessment would be provided, where appropriate, and these documents would explain the rationale behind the proposals.
The expectation is that in most cases the overall burden will have been reduced, but for the reason stated the Government believe that we need the flexibility to add burdens as well as remove them, if these burdens are to be useful in delivering better regulation.
7.45 pm
Mr. Chope: I am grateful to the Minister for that explanation. In summary, when he replied yesterday to my question whether, on his interpretation of new clause 19,
“it may well result in this procedure being used in circumstances where overall burdens will be increased, rather than decreased”—[ Official Report, 15 May 2006; Vol. 446, c. 783.]
and he said no, what he really meant to say was yes.
Mr. McFadden: What I have set out would be the intention in most cases, but there is the possibility that I outlined to the hon. Gentleman a few moments ago.
Sir Robert Smith: Having clarified that and confirmed that the evidence from the Department to the Select Committee on Procedure was to the effect that burdens could be increased under the clause, is the Minister not creating the ground on which we need an effective and sophisticated veto system to ensure proper scrutiny, if the Government are to use a regulatory reform or regulatory deregulation Bill to increase the burdens on society? Measures should be properly and effectively scrutinised in the House to make sure that they do not unnecessarily increase burdens. We therefore need the amendments that we tabled to constrain the procedure through which the House might examine those burdens.
Mr. McFadden: Well, I think that that is what people call “a stretch”, although I agree with the hon. Gentleman that we need effective scrutiny procedures. If hon. Members allow me to proceed with my remarks, I shall set out how those scrutiny procedures will operate.
Government amendments Nos. 46 to 55 fulfil a commitment made in Standing Committee to provide parliamentary Committees in both Houses with a statutory power to veto orders. Noting concerns about the procedural safeguards in the Bill, Government amendments provide that Committees can veto orders under any procedure; negative, affirmative and super-affirmative.
I want to stress at the outset the important point that the Government have given careful consideration to the form that the promised veto should take. We have sought to listen and to respond to views on the issue raised during the passage of the Bill, including those of the Select Committees, most of the Chairmen of which have spoken, and we hope to continue that dialogue. I assure hon. Members that the Government will continue to listen to views on the most appropriate way to ensure that the safeguards in the Bill are effective and workable.
As has been said, the veto is not a blanket veto. Committees will, of course, be able to oppose an order on any basis that they choose, which is the case under the Regulatory Reform Act 2001. Several hon. Members have asked me to clarify that matter, and I reiterate the Government’s commitment not to push through orders in the face of Committee opposition. I must add that the Government have always adhered to that commitment in the operation of the 2001 Act.
Mr. Heath: The Minister has said that the Committee can reflect on any matter in reaching its recommendation. Government amendment No. 46 states that
“A recommendation may be made under subsection (2B) only if the committee considers”
the criteria. How can that mean “anything”?
Mr. McFadden: The statutory veto relates to the powers set out in the Bill. If it were operated, it would mean that the order could not continue to be made by
the Minister. However, it would not constrain the Committee from opposing the order on other grounds, in which case the legal consequences would not be triggered and the Minister would seek to adhere to the terms of the undertaking. The statutory veto relates to the powers in the clauses that we discussed yesterday, but the Committee can express a view in other terms, should it wish to do so.
Mr. Kenneth Clarke: Will the Minister explain the logic of that proposition? He rightly accepts that the Select Committee will be totally unconstrained when it comes to considering the merits of an order, so if it wants to vote against an order or express a view, it can consider anything it likes. When it comes to what procedure should be followed, however, the Select Committee would be tightly constrained by the terms of the statute. What on earth is the point of allowing the Select Committee full discretion on debating the merits of an order, but to confine it so closely on the procedural point of cutting out parliamentary debate? There could be orders that the Select Committee is against, but on which it approves of the procedure, and there could be ones of which it is in favour, but on which it thinks that there should be full procedure, because it knows that many other hon. Members want to consider the matter. Why distinguish between the two?
Mr. McFadden: The position is symmetrical because the statutory veto relates to the powers in the Bill, which is the point made by my right hon. Friend the Minister for the Cabinet Office in her intervention on the Chairman of the Procedure Committee. We were asked to introduce a statutory veto, but we were also asked to narrow the powers in the Bill. The Government amendments include a statutory veto, which relates to the narrowing of the powers in the Bill that the House agreed yesterday.
In the context of amendments to focus the order-making power more explicitly on better regulation objectives, it was considered appropriate for the veto to provide a symmetrical and focused check on that power. The Government consider it right that proposals are judged on the extent to which they deliver the regulatory reform agenda, and it is right that the proposals are judged on whether the conditions in the Bill are met.
First and foremost, the veto is intended to present an effective and workable mechanism to protect against the abuse of the order-making power in the Bill. To that end, the veto builds directly upon the strengths of the existing system for scrutinising orders. The conditions to which the veto is tied are consistent with those contained in the Standing Orders of relevant Committees under the 2001 Act, conditions against which Committees have previously tested and, in one case, rejected regulatory reform orders. The Government believe that those conditions continue to represent key indicators on whether a proposal is suitable for delivery by order.
Additionally, the veto addresses concerns surrounding a Minister’s capacity to implement Law Commission recommendations “with changes”, which has raised questions about the extent to which a recommendation can legitimately be altered when it is
delivered by order. In a case in which a Committee judges a recommendation to have been changed to such a degree that the recommendation can no longer be seen to implement a recommendation of the Law Commission, the Committee can exercise the statutory veto. As has been noted, however, the Government acknowledge the need for continued discussion about the most appropriate way in which to take forward the provision of a veto for Committees, which is a delicate issue. As was said yesterday, one of the reasons why the Bill is delicate is that it touches not only on what the Executive may want to do, but on the relationship between the Executive and Parliament, which is why we are open to continued discussion on those matters.
Andrew Miller: I am grateful to my hon. Friend for the tone that he is adopting and think that further discussion is necessary. Will he ensure that the point made by my hon. Friend the Member for Cannock Chase (Dr. Wright) is covered in that discussion? It would be unacceptable to the House and, indeed, to the Executive if we were to end up in a position in which the work of a Select Committee could be subject to judicial review.
Mr. McFadden: I am happy to take that point on board in the ongoing discussions, in which I hope that the Chairman of the Regulatory Reform Committee will be an active participant.
A number of the Opposition amendments to new clauses 5, 6 and 14 and to Government amendments Nos. 46, 50 and 54 explore alternative arrangements for the veto. I hope that hon. Members will consider the issues raised during the debate and the rationale for focusing the veto on the powers and conditions in the Bill. I also hope that they are assured of our intention to continue to engage with Parliament on that issue.
Some of the amendments deal with the issue of where the responsibility for exercising the veto should lie. They specify that the Committee capable of using the veto should be one
"with responsibility for the matter".
Presumably, the rationale behind the amendments is to open the issue of changes to the structure of Committee scrutiny of orders. For instance, the amendments would allow separate Committees to perform procedural matters and the task of reporting on the substance of a draft order. It seems appropriate for the scrutiny of orders to be performed by a single Committee, which would make best use of the understanding of an order built up by a Committee. The Government have assumed that the Regulatory Reform Committee in the House of Commons and the Delegated Powers and Regulatory Reform Committee in another place will continue to perform those roles, but I stress that those matters are for the House and that, in principle, there would be no objection to other Committees with expert knowledge being involved in the scrutiny of draft orders.
As hon. Members know, it has been agreed to expand the remit of the Regulatory Reform Committee. The Government expect it to be appropriate for Standing Orders to reflect the potential need for the Committee to seek expert views from other Committees on particularly complex orders. As noted, that is ultimately an issue for Parliament to decide.
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