Examination of Witnesses (Questions 20-39)
MR JIM
MURPHY MP, KATE
JENNINGS AND
SARAH HULCOOP
7 FEBRUARY 2006
Q20 Sir Robert Smith: But it could?
Mr Murphy: Well, it could probably
try that just now under the 2001 Act, or not probably, it could.
My assessment is that, under the 2001 Act, it could do much of
that now by going through the super-affirmative procedure. As
I say, the commitment at the moment, under the right of veto,
is a ministerial undertaking, so much of that could already happen.
Q21 Sir Robert Smith: But, under current
legislation, it is restricted to removing a burden?
Mr Murphy: It is restricted from
removing burdens in terms of admin burdens. It was a really narrow
definition of "burdens".
Q22 Sir Robert Smith: So I think a lot
of this legislation could not have come in under the current Regulatory
Reform Act.
Ms Jennings: I think what the
Minister is saying here is that what you had to do was identify
the legal burden you were removing and then, under the current
Act, you could add as many burdens as you wanted to as long as
you demonstrated that they were proportionate and they met the
conditions and safeguards. In theory, there will be nothing to
prevent you from looking at one of those subject areas you have
mentioned and saying, "Here is a legal restriction or requirement
and we are proposing to remove this individual restriction or
requirement and then, having done that, we will move around all
of these other restrictions and requirements and do these other
policy changes", and, as long as they meet the limitations
and the safeguards in the 2001 Act, you could do that because
there was not any sort of subject matter veto, as it were. The
veto was, as the Minister says it was, a sort of undertaking where
the committees would have the right to throw proposals out and
would not force things through.
Q23 Mr Chope: Minister, what concerns
me is that, in answering the question as to what this would not
be used for during the review process, this is what you said:
"In response to consultation, the Government has therefore
reiterated its commitment not to use order powers to deliver highly
political measures, such as amendments to terrorism law or the
Parliament Act by order". Well, that is one very extreme
end of the spectrum. With the idea that we should alter the Parliament
Act, which is fundamental to our liberties, parliamentary democracy,
not by order, there is not much consolation to know that we cannot
alter the Terrorism Act by order, but that means everything else
short of the Parliament Act and terrorism law you regard as fair
game.
Mr Murphy: No, I do not think
so. The reassurance in the statement I made is that it should
not be highly controversial. We have also of course said that
the size of an order should not in itself preclude it from going
through this process. For example, I think it was the Regulatory
Reform (Fire Safety) Order 2005 which was substantial in size
and simplified legislation spread over 50 Acts which was done
under the previous and less ambitious, in some way, 2001 Act.
We have given our commitment that it would not be highly controversial
and we have given a commitment that the relevant select committees
will have the right of veto, as they currently have. We are looking
at ways in which we can offer further reassurance on the way in
which committees can operate their veto. As I say, it would be
highly controversial because there is a public consultation at
which, quite clearly, everyone would say, "Those examples
you have mentioned are highly controversial", and the minister
would make an assessment based on the feedback on the consultation
and the minister would say, "It is clearly highly controversial".
If, however, the minister said, which would be the wrong thing
to do, "I disagree with the reaction, I disagree with the
consultation, and I know best", then the minister would plough
ahead, foolishly in my mind, but plough ahead nevertheless and
make recommendations to the select committee and the select committee
quite rightly would say, "You haven't listened to the consultation,
you haven't listened to your own instincts, and you haven't listened
to commonsense and we have no sense at all that this would be
appropriate for the order-making power under this Bill",
so those examples are at one extreme. Those are clearly never
going to go through this type of order under whichever government,
I think, is in power.
Q24 Chairman: So what you are saying
in effect is that the committee would always veto it?
Mr Murphy: Absolutely, yes, and
that is the ultimate sanction for Parliament.
Q25 Chairman: And if this is not on the
face of the Bill, are you saying you would be prepared to put
it on the face of the Bill, this power of veto?
Mr Murphy: I think, Chairman,
as I have mentioned twice, I would not this afternoon offer specifics,
but I think the general direction of travel is trying to find
additional ways to offer that protection.
Q26 Mr Wilson: Minister, can I move on
to procedural issues now and specifically introducing draft order
and reference to the appropriate committee. When a draft order
is introduced, there is a period of just 21 days for the House
to decide whether to accept the Minister's recommendation on the
parliamentary procedure to which it is subject. The Bill envisages
that, in the first instance, this will be done by "a committee
of [the] House charged with reporting on the draft order".
Do you intend that all draft orders under this Bill will be considered
by a committee specifically established for that purpose, in other
words, a successor to the Regulatory Reform Committee?
Mr Murphy: This is actually, and
I apologise for the confusion if it was myself that created it,
but this is the phrase of course that I was grappling with and
thank you incidentally for the reference to this phrase, but of
course this phrase relates specifically to the procedures rather
than the veto. In terms of which would be the appropriate committee,
and this is on page 8, clause 13, the understanding at the moment
is indeed, as you have suggested, that it would be the Regulatory
Reform Select Committee and the Delegated Powers Committee in
the Lords which would be the responsible ones at the moment. Yes,
"a committee of that House charged with reporting",
yes, that is anticipated to mean those two select committees.
Q27 Chairman: Or their successors?
Mr Murphy: Yes, or their successors,
absolutely. Incidentally, and I do not know if we will have an
opportunity to talk about this, but I think it is recommendations
12 to 17 of the Regulatory Reform Select Committee which are about
widening the terms of reference of that Select Committee. Again
I mentioned in evidence to the Select Committee that we are minded
to agree to that and it is something that the Select Committee
of course would then take up directly with the Leader of the House
of Commons to establish just how much wider the terms of reference
of the Regulatory Reform Select Committee should be, so that is
an important point.
Q28 Mr Wilson: Will any successor committees
have the same levels of expertise because they will not have had
the opportunity to build those up as the Regulatory Reform Committee
has?
Mr Murphy: I think that what would
happen, as I understand the way in which this is drafted, is that
the House will decide which is the most appropriate committee,
so any successor committee will be designated by the House as
being the appropriate select committee. I cannot imagine a circumstance
whereby the House chooses to nominate, though it is ultimately
up to the House of course, but whereby the Commons suggests an
alternative committee which does not have the necessary resources
and support to carry out this role. Ultimately, the Government's
perspective on the Regulatory Reform Select Committee is that
it is a strong ally on the Better Regulation Agenda and we want
to make sure that it is effective and that its interventions are
timely, so that is the sense in terms of the reassurance we are
giving to that Select Committee and ultimately the House, as the
Bill says, will decide which committee is the appropriate one
to do that work.
Q29 Mr Chope: Minister, you say that
the Government intends that there should be "a significant
rise in the number of orders being brought forward" compared
to the current numbers of regulatory reform orders. Does that
mean that you think that one committee is still going to be able
to cope with that enormously increased burden of responsibility
and work?
Mr Murphy: There is some sense
that that committee with its wider terms of reference will be
able to do the job and, as I understand it, they are enthusiastically
looking forward to doing the job. However, if, through time, our
ambitions for more regular suggestions on new orders and simplifications
are introduced, then, if the Committees says, "We don't have
enough resource", or, "We don't have enough time",
then we will work with them, and any recommendation from them
within their terms of reference or support that we have will be
made to the Leader of the House of Commons and we would make any
adjustments that are necessary. It would not just be that one
committee would do it and, as I say, they are enthusiastically
looking forward to doing it.
Q30 Mr Chope: And, if that one committee
cannot then cope, you would envisage more than one committee having
this responsibility?
Mr Murphy: That is obviously a
matter for the House, it is not an issue for the Government. The
Government cannot say which committees should do it. The House
of Commons will decide which select committee scrutinises government
rather than the Government deciding which select committee will
scrutinise government. I do not think you are suggesting that
we should decide which select committee should scrutinise government.
Q31 Mr Chope: But they have to report
on these detailed proposals within 21 days and some of them could
extend to hundreds, if not thousands, of pages.
Mr Murphy: No, they do not have
to report on it. Within 21 days they have got to decide whether
the procedure is the appropriate one, whether it is negative,
affirmative or super-affirmative. They have got to make an assessment
as to whether the Government's recommendations are the right procedure.
They have not got to conclude their assessment of it within those
21 days, but they just have to give an assessment as to whether
this is the right feel and whether negative or affirmative procedure
is the most effective way of doing it. They have not got to come
to the end of the deliberations within 21 days.
Q32 Mr Chope: And the Regulatory Reform
Committee itself does not think 21 days is adequate?
Mr Murphy: Yes.
Q33 Mr Chope: Are you minded to extend
that period in line with their recommendation?
Mr Murphy: I know it sounds really
boring to repeat what I said earlier, but that is one of the areas
where we are going to listen to them, have a dialogue with them
and, if there is a case, which there appears to be, to extend
that 21 days, then we are minded to do that. Again, we will not
have a specific evidence session this afternoon, but it is certainly
something that we will put in the public domain in advance of
the Standing Committee.
Q34 Mr Chope: The mood music you are
putting forward is one of absolute reasonableness. Will that be
reflected in allowing the Standing Committee that considers this
Bill to do so in a responsible way without any restriction of
timetabling and will that also be extended to the report stage
and third reading because this is a highly controversial, constitutional
change in many people's eyes and could even have probably been
argued to be put on the floor of the House for the whole of its
consideration? Can you, therefore, give an undertaking that the
Committee, acting responsibly, will be able to proceed and look
at this in detail with amendments as necessary in its own time
without a government guillotine imposed?
Mr Murphy: I know you will expect
this answer, but I am a Minister of the Cabinet Office rather
than the Chief Whip and these issues are decided, as you know,
through the sort of usual channels of course. The Government sees,
we see, great merit in an exchange of ideas, an exchange of thoughts
within the Standing Committee to see a way in which additional
reassurance can be given to those genuinely felt, specific concerns
that the Regulatory Reform Select Committee has advanced. As I
know you would expect, I am not in a position to dictate as to
how the Government orders its business; that is a matter for the
usual channels and the Chief Whip of course, but in terms of the
tone of it, however, you are absolutely correct.
Q35 Mr Chope: So what you are saying
is that, if there is going to be a timetable, you will be arguing
very strongly that this should be a very relaxed timetable? You
are not a man without influence, Minister, and it may be that
you are going to get that vacancy in the Cabinet which is much
advertised. You surely take responsibility for this Bill and,
if you say to the Chief Whip that the best way of getting this
Bill in its best form on the statute book is by having a long
and proper consideration of it in committee, that will hold sway,
will it not?
Mr Murphy: Well, I was a government
whip for three years and, if a minister said to me, "This
is what I want to see happen", that is not always the best
way to make something happen whereby the minister takes charge
of the procedures of the House and the Government's timing of
its agenda. However, I think you have anticipated from my tone
today that we do want a genuine discussion, but the most effective
way of doing that is not knocking on the Chief Whip's door and
saying, "As a Cabinet Office Minister, I think you should
X or Y". These are matters that are discussed through the
usual channels. The opposition whips will make a bid, the government
whips will make a response as to how guillotines, knives, sittings,
timings, programme motions or anything of that nature are decided
and it is really not for me to decide those matters, as you know.
Chairman: Did you want to ask something
about the 21 days?
Q36 Mr Chope: Well, I touched on that
and the Minister said he is not prepared to say whether or not
he will accept the recommendation of 30 days from the Regulatory
Reform Committee. They are talking about a minimum of 30 days,
not just a norm of 30 days, reflecting that there may be issues
of much greater complexity to consider. Also of course there is
an issue about the parliamentary year and how this all fits in
with the parliamentary year.
Mr Murphy: I know you are teasing
me to come up with a specific answer and, as I said to the Chairman,
we are reflecting on a really helpful report from the Regulatory
Reform Select Committee and we will make our specific responses
available in the public domain in advance of the Standing Committee
deliberations. Without seeming to be a bad sport, I do not really
have much more to add about how we are going to deal with that
in our evidence session today.
Q37 Sir Robert Smith: Looking at one
part of the procedure about how the committee can choose or demand
a more demanding procedure, which can, however, be overturned
by a resolution of the House, how do you see this procedure operating
in practice?
Mr Murphy: As I mentioned earlier,
it is not for the Government to dictate to the House how it polices
itself and how it determines its own procedures. Ultimately, regardless
of what the Government seeks to achieve, the House will come to
a settled will. I do not know whether Kate is able to say whether,
in any of the previous 27, I think it is, regulatory reform orders
implemented under the 2001 Act, that scenario arose on any of
those 27.
Ms Jennings: I think on those
27 orders it was the committees that made the decisions.
Q38 Chairman: I think the thinking here
is that it would be quite possible for the Government to say that
they have noted that the committee has vetoed this and then lay
a motion bypassing the committee's veto, which, in the light of
what you have said, I think would be seen as the Government acting
in bad faith. I think what we are seeking is an assurance from
you that you do not see this becoming a practice under this Bill
and that, if a committee vetoes it, a veto is a veto.
Mr Murphy: Chairman, what I will
do is I will go and find out the history of all these 27 and some
of the other regulatory reform orders that were also proposed
but which were not successful and ascertain as to whether that
was even muted at any point. What I would offer by way of further
reassurance today is that we have previously given a ministerial
undertaking to allow the relevant select committee to have a veto.
If we are tempted, as we may be, to seek to offer further assurances
on that, it would kind of be incongruous then to do what, quite
rightly, Robert has raised.
Q39 Sir Robert Smith: It is interesting
because, on the Bill, you are writing in a procedure whereby the
committee does not have a veto because the House can overturn
the committee.
Mr Murphy: Well, the fact is,
as you know, that the will of the House supersedes the will of
the committee. We can have that debate if we wish, but that is
the way in which we have settled our arrangements and again it
is not for the Government to say that that is the right procedure
or the wrong procedure; it is the procedure we have. I have my
own view which is that I think we have got it in about the right
place, but it is a part of this that the Government will not,
and should not, seek to redraw the established protocols and arrangements
that, in the main, work.
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