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5.30 pm

Mr. McFadden: I ask the House to agree with the Lords in their amendment No. 9 but to reject the Liberal Democrats’ amendment (a). As was said, amendment No. 9 creates a new precondition. We thought carefully about how to deal with the issue that was raised. As Members know, a list of enactments and a list of areas were suggested, and for various reasons neither suggestion is a particularly helpful way to proceed. One of those reasons is that defining what is constitutionally significant in a system such as ours is not an exact science. Indeed, trying to agree a list of enactments that could be uniformly accepted as constitutional illustrated part of that difficulty.

Amendment No. 9 creates instead a new precondition that prevents a Minister from making provision in an order that he considers constitutionally significant. The only exception is that orders may
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restate constitutionally significant provisions, but only where doing so would make the law more accessible or more easily understood.

Despite the substantial safeguards already in the Bill—the preconditions in clause 4, the public consultation requirement and the veto in respect of Committees—concerns persisted that the order-making powers could be used to bring about significant constitutional change. The Government were clear from the start that those concerns were misplaced, but we proposed amendment No. 9 to put the issue beyond possible doubt. We consider the new precondition to be the most effective mechanism in meeting any concerns about the Bill’s constitutional impact, while retaining the supremacy of Parliament as the law-making body in the UK. It provides robust protection by preventing orders from delivering constitutionally significant amendments to legislation, but it will not inhibit the delivery of better regulation.

The main effect of amendment (a), however, would be to alter the balance between the judgment of Ministers and Parliament on the one hand, and the power of the courts on the other. If it were accepted, in undertaking a judicial review of an order a court would not only examine whether a Minister acted reasonably in reaching his judgment; it would be able to decide whether the provision of the order was in fact of constitutional significance. In other words, a court could substitute the Minister’s and Parliament’s opinion with its own.

Mr. Andrew Turner: Will the Minister give way?

Mr. McFadden: I want to make some progress.

These are not matters of certainty; in our system, which is without a written, codified constitution, they are inevitably to some degree matters of judgment.

David Howarth: I thank the Minister for giving way. He says that it would be a question of a court passing judgment on the Minister’s and Parliament’s view of the constitution, but that is not quite right; a court would pass judgment on the Minister’s view of the constitution, and if it found that the Minister had got it wrong, the matter would come back to Parliament. Does the Minister not accept that the amendment would therefore protect Parliament against Ministers? He should not mix Ministers and Parliament together in his comments.

Mr. McFadden: Of course, the Minister’s judgment is debated by Parliament as part of the process in the Bill. His judgment is not the end of the process. The Government are firmly of the opinion that the right balance is the one that the UK has adopted in the past: it is for Ministers and Parliament to judge whether an order makes provision of constitutional significance. If amendment (a) were included in the Bill, on the other hand, judges could override both Ministers and Parliament about whether an order is of constitutional importance. As someone in the other place put it, that would

We do not want to go down that road.

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Mr. Redwood: When I first came into the House, there was a doctrine that not only did any item of constitutional significance go through a full legislative process, but all stages took place on the Floor of the House. I do not think that what constituted such an item was ever codified or written down. It was rather like an elephant: it was difficult to define, but we would recognise one when we saw it. People in those days handled constitutional significance in that way. As a compromise, would it not be possible for the Minister to accept that perhaps the Speaker, on the advice of the House authorities, should decide whether an item is of constitutional significance? Then it would be treated appropriately.

Mr. McFadden: The right hon. Gentleman touches on something important: these things are not codified and they are matters of judgment. We believe that the Bill and the safeguards in it provide the best way of proceeding by making it a matter of whether the Minister considers, in the first instance, that the issues are of constitutional significance. There is no agreement about what would be in any written constitution should we wish to try to change the system that we have had for some time. For example, what the Constitution Committee in another place would want to be part of any constitution is unlikely to be the same as what this House, or even perhaps the judges, would want. A decision on whether provisions are of constitutional significance is therefore inherently a matter of judgment. Our belief is that that judgment should be exercised by Ministers, subject to parliamentary views.

In the context of the Bill, the Minister is required to set out his reasons in the explanatory document that must be laid alongside any order. It is then for Parliament to scrutinise rigorously both the content of the order and the Minister’s decisions, along with the reasons that he has given for them. On the basis of its own judgment after considering that evidence, Parliament must decide whether it agrees or disagrees with the Minister’s opinion. If the relevant parliamentary Committees in either House of Parliament do not agree with the Minister that the order meets the preconditions in clause 4, including the constitutional precondition, they have a statutory power of veto. The Government have also given an undertaking that they will not force through orders in the face of opposition from Parliament. That process is in keeping with the tradition of the primacy of Parliament. We believe that the Bill should not be used to alter that balance of power.

In summary, as hon. Members know only too well, this amendment goes to the heart of a much wider debate of fundamental importance. We believe that, for the purposes of the Bill, the precondition as set out in amendment No. 9, but not amendment (a), is the way to proceed.

David Howarth: The Bill has been like a time bomb ticking away in both Chambers of Parliament. Slowly, mainly in the other place, various wires that connect the timer to the explosive device have been snipped away. We are facing the last small wire, which, if cut, would finally make the entire Bill safe. It is a much better Bill than it was. It can no longer apply to itself or to the Human Rights Act 1998.

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However, as has been made clear during the debate, we are not entirely sure whether the Bill can affect the Scotland Act 1998, trial by jury, the structure of local government, electoral law, the dismissal of judges and a whole host of other aspects of the law that might be reasonably considered to be constitutional. The central question is whether the judgment of whether a proposed change represents a matter of constitutional significance should be a matter principally for Ministers, or the courts and then Parliament.

We have discussed whether there would be a difference between a subjective and an objective test. It has been said that there could be judicial review of even a subjective test, although it seems rather odd that if a Minister objected to judicial interference, such interference would not be ruled out on the basis of the subjective test in the Bill. The difference would be the kind of test that the courts would apply. There would be a difference between saying what a Minister considered—or perhaps, in certain circumstances, what a Minister reasonably considered—and deciding what actually is the law and a matter of constitutional significance. The question is not whether judges have a place in the system, but the test that they use when exercising their powers.

A further question has been raised about whether this would make any difference in practice. My view differs slightly from that of my hon. Friend the Member for Somerton and Frome (Mr. Heath) because I think that it will. If Ministers were to face judicial review on the basis of what is really, in law, a matter of constitutional significance, they would be more risk adverse. They would not want to waste everyone’s time by bringing forward a regulatory order that would not get through the courts. As a matter of constitutional propriety, that is right, because there should be a bias in favour of full parliamentary procedure when dealing with matters affecting the political process. This is not a question of Parliament versus the courts—the opposite is the case. If a court found that a regulation concerned a matter of constitutional significance, the matter would have to be brought back to the House and dealt with by way of a full Bill. The main point of contention throughout our debates on this Bill has been what can be pushed through by statutory instrument and what should be dealt with through primary legislation.

As part of the constitutional conversation that goes on among the Government, the courts and Parliament, it is appropriate that the courts should have the right to determine the extent of scrutiny that we should give such matters. The question for a court is not what the Government’s policy should be, or what constitutional changes should be made, but the procedure that should be used to decide the matter. Amendment (a) would ensure that if a court decided that a matter was one of constitutional significance, it would have to be dealt with by way of a full Bill—the full parliamentary procedure.

The idea that Ministers should have a privileged right to decide what is a matter of constitutional significance is a constitutional monstrosity. It might well be that Ministers are well placed to make judgments on policy—the Minister referred to matters of policy—such as whether an end could be better attained without legislation, as is set out in the Bill.
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However, the question of constitutional significance should not be for them to judge. Ministers are interested parties. Much of our constitution is about precisely the power of Ministers and their relationship with Parliament and the law.

Some 750 years ago, the jurist, Henry Bracton, said that the king is under no man, but under God and the law, for the law makes the king. The point is that Ministers’ powers result from the law, especially constitutional law, so they should not be given special privileges when determining what those powers are, otherwise the rule of law itself breaks down.

Mr. Redwood: I agree up to a point with the hon. Gentleman. Although it is obviously imperative that all Ministers are under the law, Ministers have one important power that others do not have. By virtue of democratic accountability and being elected, they can command a majority in the House. All the time the Minister commands the good will of his colleagues, surely he has some right to change the law when he wishes. One must be careful how one prescribes.

5.45 pm

David Howarth: It is an important question whether Ministers should have the power to change the law, as opposed to Parliament having the power to change the law. That is what we are insisting on. When matters are of constitutional significance, Parliament, through the full procedure of passing a Bill, should decide it, not Ministers. In the end it comes down not to a contest between the courts and Parliament, but to the age-old contest between the Crown and Parliament.

Rob Marris: I hesitate to cross swords with such an eminent legal lecturer, professor or whatever as the hon. Member for Cambridge (David Howarth) wasbut probably no longer is—I do not think he is moonlighting—but I shall charge in none the less, and no doubt he will intervene on me if I get it wrong.

I start by pointing out that when moving the amendment, the hon. Member for Somerton and Frome (Mr. Heath) elided constitutional matter and constitutional significance. As so often in our constitution, it is difficult to define these things, which is a weakness. Without readily being able to come up with an example, I suggest that not all constitutional matters are constitutionally significant. One has to be careful about eliding those two, as I think the hon. Gentleman did.

The hon. Member for Cambridge, while putting forward what may appear to him, though not to me, a sound academic argument and quoting jurists from centuries ago, rather overlooked the locks elsewhere in the Bill which have been the subject of much debate—the multi-stage process that we debated at length on Second Reading. I stand, not surprisingly, with my hon. Friend and neighbour the Minister in wishing to assert ministerial accountability over judicial accountability, to use the kind of phrase that has been used. I shall expand on that a little.

This brings us to the beloved case, which is well known to the Minister and me because it is a west
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midlands case, of Associated Provincial Picture Houses v. Wednesbury Corporation, which was decided in 1932, I think—

David Howarth: 1948.

Rob Marris: Indeed. It is a venerable case, and it is the starting point for administrative accountability and judicial review in our legal system.

With reference to the amendment and where the hon. Member for Cambridge and his colleagues seek to insert it in the Bill, I think he misreads the Bill, even with the amendment. The Bill does not say, and would not say with amendment (a), what the Minister considers relevant. That is the straw man to which the hon. Member for Cambridge addressed his remarks. The Bill does not say in clause 4(1) line 2 what the Minister considers relevant. Were it to say that, there might be a little more weight to the arguments that have been advanced in favour of the amendment.

What the argument boils down to is that if the Government’s wording is accepted, matters could still go to court. If amendment (a) were accepted tonight, matters could go to court, but with greater powers for the court. That seems a somewhat ironic proposition for the Liberal Democrats to put forward. I do not know whether the Conservatives are supporting them, but we shall find out shortly, no doubt. When we opened the debate on the Bill tonight, some Opposition Members described it as a Bill which, when it started its passage, particularly on Second Reading, for which I was present, was an attempt to abolish Parliament. They seemed to be standing up for Parliament, as all hon. Members would wish to, but amendment (a) suggests that they do not wish to stand up for Parliament but for the judiciary.

Mr. Heath: Does not the hon. Gentleman understand that when the only protection that Parliament has from the Executive is the judiciary, we will take the judiciary every time?

Rob Marris: That would be the case were I to accept the term, “only protection”, but in this context Ido not.

David Howarth: To approach the same point from a different angle, does the hon. Gentleman accept that the purpose of amendment (a) is to protect Parliament against erroneous ministerial determinations about what is of constitutional significance, and that the effect of such a judicial decision would be to bring the matter back here to us in this House?

Rob Marris: Again, I am afraid that I do not accept the hon. Gentleman’s proposition that his amendment would, even via the device of the courts, offer greater protection to Parliament than that which is in the Bill.

Pete Wishart: I rise to express my deep concern and disappointment about amendment No. 9. I want to ask the Minister directly why the Scottish Parliament was led to believe that all matters in the Scotland Act 1998 would be constitutionally significant and exempt from orders under the Bill. As it stands, we find that the1998 Act is treated no differently from any other Act or
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statute, in that it is given no special treatment or accorded any other protection from such orders. I saw the Minister shaking his head when I mentioned the Scottish Parliament. However, during the progress of the Sewel consent motion in the Scottish Parliament earlier this year, the Scottish Minister in charge of securing its passage went as far as to say that the Executive are of the view that no part of the 1998 Act could be said not to be of constitutional significance, and that amending it by an order would be a practical impossibility. Yet it is not a practical impossibility but impending reality. Clearly, his understanding was that the 1998 Act would be exempt. Before saying something as bold and as stark to the Scottish Parliament, he must have been given some sort of assurance from this House. Will the Minister clarify that?

A coach and horses is being driven through the whole Sewel convention. That will further undermine any future assurances given to this House about legislating on behalf of the Scottish Parliament. After seeing the debate in the Scottish Parliament and looking at the minutes of the Committee that dealt with the matter, I fully expected an amendment that would exempt the 1998 Act, along with the Human Rights Act 1998, as being beyond the scope of the Bill. Yet the Lords amendment, while it exempts many measures that are considered to be of constitutional significance, could still alter matters that are “minor or consequential”.

One person’s “minor or consequential” is another person’s “important and highly significant”. I share the Liberal Democrats’ concern that the Minister will make the choice as to whether matters are constitutionally significant or minor and inconsequential. I concede that some matters in the 1998 Act that need amendment are of no constitutional importance, but why can they not be considered by the Scottish Parliament? Why should it be left to this House to consider such measures?

I am personally disappointed that Lord Goodhart did not pursue the amendment that would have taken the 1998 Act out of all this. He correctly said that the Act is the possession of the Scottish Parliament, and a conduit between it and this House. It was said in another place that the 1998 Act is a responsibility of this House constitutionally. However, in the real world of Scottish politics we are all moving on. In the Scottish Parliament, this debate is changing dramatically, as is the whole culture. It is increasingly likely that next year my hon. Friend the Memberfor Banff and Buchan (Mr. Salmond) will be theFirst Minister of a Scottish National party-led Administration, and we will look carefully at the whole Sewel arrangement and all the powers that are reserved to this House. After this episode, we will be entirely justified in doing so. The Scottish Parliament is a grown-up institution that can properly look after itself and does not need the benevolence of this House to look after its affairs. The Government have shown nothing but contempt to the Scottish Parliament, the Scottish Executive and the whole Sewel process.

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