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7 Nov 2006 : Column 741

Madam Deputy Speaker: With this, we may discuss Lords amendments Nos. 8, 10 to 13, 20 to 25, 28, 36 and 46.

Mr. McFadden: This matter was the subject of considerable discussion both here and in the other place. The Delegated Powers and Regulatory Reform Committee and the Constitution Committee in the House of Lords also commented on it. After careful consideration, the Government proposed that clause 3 should be removed from the Bill, and the other place agreed. However, it is clear that the problem that clause 3 sought to address will require action. The various Committees that have reviewed the matter seem to have reached consensus about that, and Members of both Houses have spoken about the chronic backlog and delay that have been caused. Many have said that something must be done about the problem. As the House will know, discussions are still going on as the Government continue to seek a better mechanism to allow suitable Law Commission recommendations to be enacted more quickly.

The other amendments are all consequential on the removal of clause 3.

Mr. Andrew Turner: I shall be brief. The Government’s acceptance of the Lords amendments—and especially of amendment No. 7, which relates to clause 3—is welcome. There may be a need for more rapid implementation of Law Commission proposals, but the power originally included in the Bill was not appropriate, as such proposals deserve far greater parliamentary scrutiny. We welcome the Government’s acceptance of these amendments.

Andrew Miller (Ellesmere Port and Neston) (Lab): The hon. Member for Somerton and Frome (Mr. Heath) said that my hon. Friend the Minister was a breath of fresh air. I am not going to disagree with him, but I raise a serious query about how we are to deal with these matters. It is unacceptable for this House—not just this Government—to leave the matters unattended. The Law Commission has dealt with some important items over many years. A huge amount of work has been undertaken, and the House has yet to find a way to create an adequate mechanism. The arguments about whether the Bill was the correct way are in a sense done and dusted now that the Government have withdrawn clause 3. However, I plead with hon. Members, especially the Chairman of the Procedure Committee and other senior Members, to reflect on the matter. We need to find a way through this very difficult problem.

Mr. Heath: I agree with the hon. Member for Ellesmere Port and Neston (Andrew Miller) that there is a need to return to this issue. Our criticism of the original proposal was not that there should not be an accelerated way of dealing with non-controversial Law Commission proposals; it is clear that there should be. We had three objections to what was proposed. The first was that there was an unrestricted power to amend, abolish or codify common law, which frankly is not something that can be done in a Committee.

The second objection—this was the most important stumbling block for many hon. Friends—was the ability that the Bill gave to Ministers to amend Law Commission proposals and put them through the
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accelerated procedure without the House having the opportunity to debate what essentially would be new law that did not have the approval of the Law Commission in place. Thirdly, the absence of any ability for parliamentary amendment of Law Commission Bills was important. As we know, sometimes there is a necessity for amendment.

All those objections have been swept away by the removal of clause 3 and of the references to the Law Commission from the title of the Bill, but the fact remains that we need to find a better way of dealing with this matter. The Minister knows that Baroness Ashton of Upholland has been speaking to Lord Goodhart and Lord Kingsland in another place to find a way through this impasse. They have brought into those discussions Mr. Justice Toulson, the former chairman of the Law Commission. It seems to me that something will emerge from that.

May I urge the Minister to use his best endeavours to ensure that we have a similar discussion in this House? It is not purely a matter for the legal brains in the Lords. I would have expected the Leader of the House to talk to us corporately—both to Front-Bench Members and to colleagues on the Back Benches who take an interest— about the appropriate way forward so that we can make real progress and so that changes in Standing Orders can be introduced, if that is required, to enable us to do a better job of dealing with Law Commission proposals.

I am delighted that the Government have realised that what they proposed was not acceptable. I urge my hon. Friends to support the amendment.

Mr. Greg Knight: On this issue, I find myself nearer to Somerton and Frome than to Ellesmere Port. I have always taken the view that clause 3 was not acceptable. Worthy though the Law Commission is—as is the Scottish Law Commission and the Northern Ireland Law Commission—clause 3 would have allowed, under the fast-track process, laws to be abolished, common law to be codified, bodies or offices to be abolished and any previous enactment to be amended or repealed. I am pleased that at last the Minister has agreed to take it out of the Bill.

I agree that we ought to look at ways of dealing with suitable Law Commission proposals, but I emphasise, as the Minister did—I hope that it was not a slip of the tongue—the word “suitable”. He did not say thathe would look at ways of fast-tracking all Law Commission proposals; he used the word “suitable”, so will he confirm that that is indeed his view and that he accepts the argument that the Law Commission could propose certain provisions that are not suitable for a fast-track process and that should be subjected to the full rigour of scrutiny? Some of the proposals examined by the Law Commission are highly controversial and are not settled issues across the political divide. When an issue is controversial, our normal processes should apply.

I welcome the Minister’s decision and the other changes that he now supports. I do not regard it as a matter for criticism that he has been prepared to make those changes: quite the reverse—he deserves praise for accepting the majority of the opinion of both Houses on the issue. I hope that other Ministers will follow his excellent example.

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When the Bill hits the statute book, I understand that the Minister may be hoping to bring forward measures as early as March. If that is the case, will he put my right hon. Friend the Member for Wokingham (Mr. Redwood) out of his misery and give one or two examples of the issues to which he will give priority?

Mr. Redwood: I have sympathy with the points made by the hon. Members for Ellesmere Port and Neston (Andrew Miller) and for Somerton and Frome (Mr. Heath). Although it was wise of the Minister to accept the Lords amendment and to recommend to the House that we share that acceptance, there is a big problem, which is not confined to Law Commission recommendations. The problem is over what the Government choose to do by statutory instrument and what they choose to do by primary legislation.

Sometimes, a Committee of the House is faced with a 50 or 100-page wide-ranging statutory instrument of great complexity and considerable importance. A limited number of colleagues hold a short debate and they have to vote on a take-it-or-leave-it basis; nothing can be amended. When constituents write to us some time later to ask how a measure could become law with no fuss, no argument and no debate, we have to reply that it was easy, because it had been decided that the matter was a statutory instrument, under a general framework from a piece of primary legislation—such as the European Communities Act 1972, to name but one such piece. Wide-ranging provisions can go through as an SI under an Act with no proper scrutiny or debate, and certainly without the opportunity to amend, which is crucial to the proper examination of legislation.

Although it is prudent of the Government to recommend withdrawing from the Bill such a comprehensive power over law reform, the House really needs proposals from them to enable us to decide that something is contentious and thus needs proper scrutiny and debate. Even if it is contentious only for a minority of Members they should have a right to decent time and a procedure that can explore the possibilities and the options. If there are many other less contentious, or completely uncontentious issues, under the Law Commission, perhaps we need a much easier form than the full panoply of primary legislation procedure.

Mr. Heath: I believe that I am right in saying that one of the areas being explored by colleagues with Ministers is precisely how that sort of parliamentary trigger for debate could be occasioned.

Mr. Redwood: I encourage all those who are making such deliberations. That is extremely good news, but I hope that when the Minister thinks further about the matter he will take on board the problem that the traditional balance between primary legislation and statutory instruments is being eroded, and that more and more weight is being put on the statutory instrument. Often, nowadays, there are truncated guillotine debates—albeit rather longer debates, with the opportunity to amend and probe—on primary legislation, in which we are told that all the interesting
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things about which we want an answer will become apparent only under the secondary legislation that will follow. That means that debate is not only truncated but hollowed out, because we do not know in principle whether we would like to adopt the measure, as all the interesting detail is left out.

5.15 pm

There is a real muddle; we should allow the House to do its job, but we should accept that there are time pressures. We should make sure that the job is done really thoroughly only when we are dealing with matters of great significance or controversy—but on those occasions, we would appreciate the right to be thorough. It is the duty of the Leader of the House to speak for the whole House on such matters, and to protect the rights of the minority, so that when that minority has a legitimate reason to disagree, the House can at least have it out in proper debate, before the Government use their majority to get their way, if they see fit. I am happy with the recommendation to remove clause 3, but I hope that something much more substantial and comprehensive will result from the rethink, so that we can legislate better across the piece.

Rob Marris: Lords amendment No. 13 refers tosome of the Bill’s powers being used for legislationthat merely consolidates other legislation. My understanding is that, on occasion, the Law Commission makes recommendations on the consolidation of legislation—for example, it might recommend pulling together several disparate Acts that have built up over the years into one, comprehensive Act that does not change the law, but merely puts it together in one recorded place. Do the Government intend to use Lords amendment No. 13 to implement Law Commission reports that deal merely with the consolidation, and not the changing, of legislation?

Mr. McFadden: With leave of the House, I shall respond to the points raised. To some extent, this debate illustrates a problem for Government in general. On one hand, if we introduce a Bill and resist all amendment to it, we are criticised for not listening to debate, for being inflexible and for ramming things through using the will of the parliamentary majority—or at least a House of Commons majority. On the other hand, if we amend a Bill, we are accused of admitting that the original version was flawed. I am grateful to the right hon. Member for East Yorkshire (Mr. Knight) for his comments on that point.

It strikes me that I have been remiss in not thanking the Opposition Front-Bench spokesman, the hon. Member for Isle of Wight (Mr. Turner), and in not welcoming him to our deliberations. I can only say that he has missed a great deal of fun.

To return to the dilemma that amendment poses for a Government, we added the measure to the Bill because the Government recognised—as did hon. Members on both sides of the House, as has been mentioned—that there is a problem: Law Commission recommendations have been piling up, but parliamentary process being what it is, they often do not make the final cut when the Government decide what should be included in the Queen’s Speech.

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Mr. Heath: I understand that argument entirely, but most Law Commission recommendations—although not all of them—propose changes to matters that fall within the remit of the Home Office, which has Bill after Bill. It has had more Bills in the lifetime of this Government than it did in the entire previous century. Why on earth could the Law Commission proposals not be tacked on, as everything else is, to the Home Office Bills that we are asked to consider almost continuously?

Mr. McFadden: I will relay the hon. Gentleman’s request for more and longer Home Office legislation to the Home Secretary. I am sure that if my right hon. Friend can squeeze anything in between now and next week he will do so.

Mr. Redwood: Many hon. Members, including myself, are pleased that the Government have listened both to the other place and to the views of many hon. Members, and have backed amendments to improve the Bill and remove problems. There is still an underlying problem that needs to be solved, but that does not mean that the original version was the right way of proceeding.

Mr. McFadden: I accept that. As I said, hon. Members on both sides of the House have acknowledged that there is a problem. The hon. Member for Somerton and Frome (Mr. Heath) referred to discussions outside the Chamber, and I agree that they are a matter for the House, too. I hope, however, that he will understand if I do not go into too much detail about the way in which we will deal with those matters. The original proposition was whether they should be dealt with in the Bill, but that is no longer the case. I hope that, for the purposes of today’s debate, we can leave it there. In answer to the right hon. Member for East Yorkshire, my understanding is that those discussions would consider suitability and proportionality. Some of the proposals are controversial and rest on issues of proportionality and extent, which must be taken into account.

I hope that this clarifies matters for my hon. Friend and neighbour, the Member for Wolverhampton, South-West (Rob Marris). Lords amendment No. 13 provides a definition of “restate”, which is used in clauses 5 to 8. It does not replace consolidation Bills with orders, which will continue to be used in the usual way. On that note, I urge the House to agree the amendments made in the other place.

Lords amendment agreed to.

Lords amendment No. 8 agreed to.

Clause 4


Lords amendment: No. 9.

Mr. McFadden: I beg to move, That this House agrees with the Lords in the said amendment.

Madam Deputy Speaker: With this we may discuss consequential amendment (a).

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Mr. Heath: One of our principal concerns about the Bill centres on the absence of prescription, either by direct statement or by negation, of measures that can be amended by virtue of the fast-track proposals. From the outset, we made it quite clear that it would be entirely inappropriate for the Bill, if enacted, to be used to effect constitutional change. We made it plain in amendments that we tabled in Committee and on Report, and in speeches on Second and Third Readings, that matters of constitutional significance should be excluded from the scope of the Bill. That proposition was rejected in Commons proceedings on the Bill, but it has been accepted in another place. We strongly support Lords amendment No. 9, which adds an extra condition that Ministers must take into account when determining whether a matter is suitable for the fast-track procedure. It states that a provision can be considered if it

So much, so good, although that does raise some questions about what is, and what is not, of constitutional significance.

I notice that among the Members present is the Under-Secretary of State for Scotland—and possibly for Constitutional Affairs, too, as I am never sure nowadays exactly what his title is. However, whichever Department or Departments he belongs to, he is an ornament to it or to both of them. He knows what I am about to say, because we have discussed this matter elsewhere. I would like to hear a clear statement from the Government that there are no circumstances in which this procedure could be used to amend the Scotland Act 1998. I think that it is his view that he cannot envisage any circumstances in which it could be used for that purpose. But, for some reason that I am not entirely clear about, it is not appropriate for the Government either to put that into statute or to say it out loud. It would be extremely helpful if he, or the Minister, were to stand up at the Dispatch Box today and explicitly say, “This procedure will not be used to amend the Scotland Act 1998.” This matter is of some concern north of the border, and a clear statement would be helpful both to Members and to those watching our proceedings.

Pete Wishart (Perth and North Perthshire) (SNP): Does the hon. Gentleman agree that it is the view of the Scottish Parliament that all of the Scotland Act is to be considered constitutionally important? This Government gave that assurance to the Scottish Parliament in the course of the Sewell motion’s passage through the Scottish Parliament.

Mr. Heath: The hon. Gentleman is absolutely right. That is why it is so perverse of the Government here and now not to say that and restate that this procedure will not be used to amend the Scotland Act. However, I am sure that they will say that, when the Minister responds to this debate.

I want to make it very plain that if the Government do not agree to amendment (a), it will be our intention to press it to a Division, should Lords Amendment No. 9 be accepted by the House. It is clear to us that what comprises a constitutional matter—a provision “of constitutional significance”, as the Bill will say—is a matter that is objective; it is not a matter for the
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decision or opinion of a Minister. Because of the arrangement of the terms of the clause in which the provision is inserted, it is made to be subsequent to the decision of the Minister as to whether he “considers” a matter to be of constitutional significance.

Our amendment would remove that subjective test, and replace it with an objective test. What is the practical significance of that? First, it would give reassurance to many people in this country that their constitution will not be tinkered with by means of a fast-track procedure, beyond the scope of this Chamber. Secondly, it means that the action of a Minister in deciding to use the mechanism would be justiciable. It could be argued that it is already, as it is open to judicial review, but the difficulty with saying that the Minister’s decision will be open to judicial review is that what is open to judicial review is the means by which the Minister reaches his decision; what is open to such review is whether that decision is a reasoned opinion of a reasonable man or woman. That is not what we are saying. We are saying: is it the right decision? That is an objective test, and one that the court can quite properly adjudicate on. It is quite possible for a Minister to come to a mistaken decision by proper means—by proper reasoning. That would still allow for faulty procedure.

In practical terms, our proposal would not have a huge effect, which is why I very much hope that the Minister will be able to accept it. It is a perfectly sensible amendment. It provides for an objective test. He says—in good faith, I hope—that there are no circumstances in which a Minister would deviate from that objective test in any case. Therefore, in practical terms, it would make no difference to the operation of the Bill. However, it would provide the reassurance that future Ministers—I am not thinking of Ministers of this Government, or of this Administration in any way—who might be tempted to use the mechanism in an improper way, cannot do so. That is our precise intent in tabling this amendment, and I commend it to the House. It would improve the Bill, and I very much hope that the Minister will now do two things: state in terms that the Bill will never be used to amend the Scotland Act 1998, and accept our amendment.

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