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However, I do not think that proposed new subsection (4) is the panacea that my hon. Friend the Member for Shipley (Philip Davies) hopes it is. It states that the Secretary of State should produce draft regulations to be subject to the affirmative procedure, whereas it should state that the Secretary of State should produce draft regulations prior to the draft
regulations that the House will approve, so that we have an opportunity to discuss the draft regulations before they are put before the House in draft form. A key problem with secondary legislationstatutory instruments and regulationsis that they are unamendable once they have been produced in draft form for consideration in Committee. One either has to accept them in their entirety, or reject them in their entirety.
I have no doubt that the draft regulations that would emanate from this new clause would contain much that Members would agree with, but I suspect there would also be parts that we strongly disagree with, particularly on the composition of the tribunals. However, it would not be possible to remove them in isolation or seek to amend them, because of the way in which secondary legislation operates in this House. That is why there should have been another proposed subsection saying that drafts of the draft regulations should be produced first, for considerationin line with the Governments positive move to start producing draft legislation that is considered in Committee before it is introduced to the House as a Government Bill.
Mr. Chope: I understand my hon. Friends argument, but unless the Government were bound to accept the results of the consultation on their draft regulations there would not be much point in having them, because there could be draft regulations but the subsequent regulations could still be in a form that my hon. Friend would dislike.
Mr. Burns: Logically, my hon. Friend is correct. However, one would hopeand with this Government one does have to live in hopethat when the drafts of the draft regulations were produced, consulted on and considered by Members in all parts of the House, the force of any argument against the original draft regulations would persuade the Government to think again.
My hon. Friends may call me naive, but in one way time may be on our side. As we all remember, in the past three months the new Prime Minister has said that he wants to be a listening Prime Minister. If that spoken desire is carried to its logical conclusion, he should be prepared to think again if hon. Members come up with cogent and valid reasons on why something in a draft regulation is wrong; in such circumstances, the Government should be amenable to changing it. I hope that having the regulations in draft so that we can consider them before they are put to the House would be a step forward. It would be a way to make changes. The other, more negative answer to my hon. Friend the Member for Christchurch is that that is the only thing that we can do; the mechanism is by regulation, which by definition means secondary legislation. As I said, the only way to deal with secondary legislation is to accept it in its entirety or reject it in its entirety, and we probably would not want to do that.
I have explained why I have misgivings about the nuts and bolts of my hon. Friends new clause. There is considerable scope to tighten and improve on the valid and sensible ideas and principles behind his proposals.
In conclusion, I should add that in respect of clause 2 as currently drafted, my hon. Friend is helping and strengthening the Bill with his new clause. As well as explaining what clause 2 proposes to do, the explanatory notes say that
Any rules made under this power would have to comply with the requirements both of the European Communities and of the European Convention on Human Rights.
As long as the European convention on human rights is enshrined in our law, we have to ensure that legislation complies with it, and providing those valid safeguards for individuals who might get caught up with the law will help in that process. They would have the right of appeal to press their case, and the tribunal would have the power to make exemptions, if, on investigation and having heard the case, it felt that that was warranted.
Mr. Chope: Is my hon. Friend not in danger ofI say this hesitantlyconfusing the process and the substance? The European convention on human rights is about the process of ensuring that there is fair play, but my new clause is designed to deal with the substance of an individuals particular circumstances and case.
Mr. Burns: I take my hon. Friends point fully on board and agree with it. I am just saying that I hope that he will achieve two things with his new clause: first, that it will fulfil the very purpose that he says it is for; and secondlymy pointthat it will help make the legislation more compliant and compatible with the European convention on human rights.
For those reasons, I am in a quandary about what I would do if the new clause were pressed to a Division. As I said, I support the principle behind it, but have misgivings about the detail. I shall have to listen carefully to the Minister before making up my mind about whether I can support my hon. Friend, as I usually do.
Philip Davies: I have followed the debate with great interest; it has been fruitful, despite the concerns of the hon. Member for Hendon (Mr. Dismore). It has been useful in teasing out some of the issues in respect of the Bill.
We have to take the new clause in the context of clause 2, which gives the Government wide-ranging powers. The hon. Gentleman was uncharacteristically uncharitable and misguided in thinking that those who are trying to improve the Bill are doing so out of xenophobia. I have a great deal of respect for him, and I am sure that he welcomes parliamentary scrutiny of legislationthat is, after all, what we are here for. As it stands, clause 2, as I said, does give wide-ranging powers to Ministers.
As the hon. Gentleman made clear earlier, the Bill is designed to extend the pool of people from which the civil service can draw, and new clause 1 is a very useful way of delivering on the objectives that he had in mind when drafting the Bill.
Obviously, every debate is important, but which is more important to the hon. Gentlemana thorough debate of this new clause or the passage of
the Bill? In other words, does he think this new clause so important that he is willing to lose the Bill today in pursuit of debating it?
Philip Davies: What I am concerned about is parliamentary scrutiny. I do not want a deficient Bill to go through this HouseI want the Bills that go through to be robust and to stand the test of time. If a particular Bill cannot meet that requirement, I do not want it to be passed; I want only those that are fit for purpose to be passed.
Mr. Chope: Does my hon. Friend accept that the issue is not whether the Bill is going to be lost today? Only now is it reaching the end of its proceedings in this House. It needs to go to the other place, and we will prorogue at the end of this month, so it is totally unrealistic to think that it will get on to the statute book this Session, anyway.
Philip Davies: My hon. Friend is absolutely right and as the hon. Member for Hendon made clear, if the Bill does not go through during this Session, he will bring it back at some future stage. Perhaps the House is doing him a service today by making sure that when he does bring it back, if he takes into account all the points that have been made, there will be no need for it to be so delayed. I suspect that, contrary to the point made by the hon. Member for Montgomeryshire (Lembit Öpik)that this debate is causing the Bill problemsit is helping it in the long run.
Philip Davies: I am grateful to the hon. Gentleman, who is obviously sat there in anticipation of my remarks. Should he allow me to progress, I will be able to tell him how important new clause 1 is to me. As someone who has signed up to it, along with my hon. Friends, I can tell him that I consider it very important to the Bill. I very much hope that, should he get the chance, my hon. Friend the Member for Christchurch (Mr. Chope) will press it to a Division, because it goes to the heart of what we are trying to achieve through the Bill.
The new clause has to be seen in the context of clause 2. There is a slightly muddled position, in that clause 1 allows for a free-for-all in opening the civil service up to people from foreign countries, yet clause 2 is quite restrictive, undoing all the work of clause 1. Given that the Bills purpose is to extend the pool of people from which the civil service can draw, new clause 1, which enables a tribunal process to take place should somebody be determined ineligible to apply for a job or hold a post, is absolutely crucial. The new clause would extend the range of people who could enter the civil servicesomething that those who support the Bill would surely welcome.
My hon. Friend the Member for Christchurch has been typically frank with the House in saying that he himself does not consider the new clause perfect in every respect. I do not think it perfect in every regard either, and my hon. Friends the Members for West Chelmsford (Mr. Burns), for Tunbridge Wells (Greg
Clark) and for Old Bexley and Sidcup (Derek Conway) made some very powerful points about its possible shortcomings. However, what the House must decide today is whether the Bill is better for adding the new clause, even though it may not be perfect. My point is that although the new clause may not be perfect, it helps the Bill. The new clause is important, because in our system of justice it is vital that when decisions are being made about peoples lives, a transparent appeal process exists so that they can see that decisions are above board and that people have not been unfairly discriminated against.
I was curious when my hon. Friend the Member for Christchurch said that the new clause had received such objection from the Government when brought to the House before, because it strikes me that the new clause is limited in scope. It still gives the Secretary of State great powers and involves the making of recommendations only, which are not binding on the Government. I do not see why they should be so upset about a modest and benign proposal.
We have had a robust discussion about whether the tribunal should only be able to make recommendations to the Minister and whether its decisions should be binding. I was persuaded by the powerful case made by some of my hon. Friends that decisions should be binding on Ministers. Notwithstanding that, the issue that we must decide is whether to accept the new clause in its current form or decide not to have a new clause at all. Having an appeal mechanism that can make a recommendation to a Minister is better than having no new clause, as that would have no influence whatever.
Mr. Jim McGovern (Dundee, West) (Lab): The hon. Gentleman has said that the purpose of our being in this place is to scrutinise legislation, and that he wants legislation that will stand the test of time and scrutiny, but he admits that the clause is imperfect. Does he not regard that as a contradiction in terms?
Philip Davies: The hon. Gentleman makes a good point. In an ideal world, perhaps the new clause would be improved, but the decision that we must make today is whether we adopt this new clause or have no new clause. Such is the nature of the decisions that we must make. I am simply trying to make the point that the new clause, although imperfect, is better than no new clause.
Lembit Öpik: The hon. Gentleman has said that he wanted to ensure that the Bill was completely right before it was passed, but now he is saying that he would be willing to vote in favour of an imperfect clause. I ask him to help me understand that.
I have made it clear to the hon. Gentleman that I would prefer the Bill to be perfect, but the opportunity to have that is not before us today. We must work within the confines of what we are dealing with: whether or not to accept new clause 1. My contention is that, although imperfect, it is better to have it than to have no new clause. That is the only decision that we are in a position to make, which is why I hope that my hon. Friend the Member for Christchurch will decide to press the matter to a
Division. I would prefer it if we did not have to do that and if everybody in the House were to accept the addition of new clause 1.
On the question whether this provision should be for a recommendation, in an ideal world the tribunal would have more powers, but providing for a recommendation is better than having nothing at all. I am concerned about the scope of clause 2, which allows any person or body to whom the power has been delegated by a Minister of the Crown to make these decisions. We know that we live in an environment where the Government have introduced more and more quangos into the system and where decisions are increasingly being made by unelected and unaccountable bureaucrats. The scope of the Bill, as drafted, will allow such people to make the decisions about whether or not requirements are made to prevent people of certain nationalities from taking jobs.
That wide-ranging power will involve a lot of people making those decisions. Given that the scope of the Bill allows so many people in unaccountable and unelected positions to make such decisions, it is all the more important to have a tribunal appeal service that allows some consistency to be applied in those decisions and ensures that the system is seen to be fair. As drafted, the Bill may well mean that people in one unelected body that has been given powers by the Minister make a decision on one basis and another such body makes a completely different decision on a different basis. An appeal procedure that involves a tribunal will allow decisions to be seen to be consistent across different areas of Government and ensure that everyone can see that a decision has been fair.
New clause 1(3) relates to the composition, conduct and operation of the tribunal and it has generated considerable discussion and controversy. I understand the concerns of people who do not want the Secretary of State to make the regulations. I have long argued that Bills should not allow Secretaries of State a blank cheque to make decisions that are not tightly regulated by the House. On that basis, I would normally have some concern about the provision. However, given that we do not really know how many cases will go to a tribunal, or who will be best placed to serve on it, it is right that at this stage we allow a certain degree of flexibility in the new clause. We should not tie the Governments hands too far. Although in principle I accept that the Secretary of State should not have too many powers to decide who is on the body, what it will do and how it will do it, we need some flexibility, given that this body is being set up for the first time. Therefore, I am content that the new clause would allow the Secretary of State to make those regulations.
laid before and approved by a resolution of each House of Parliament.
Even though he was right to say that he was concerned about the power that the Secretary of State would have under the new clause, that is a useful buffer to prevent him or her from making decisions that are not fair or transparent.
Broadly speaking, most people seem to support the Bill. However, it needs to be improved to ensure that it is fair and thatin the good old British traditionit is seen to be fair. My hon. Friend the Member for Tunbridge Wells mentioned the point about whether it was necessary, given the existence of the Human Rights Act 1998. I know that the hon. Member for Hendon is an enthusiastic supporter of that Act, butas my hon. Friend the Member for Christchurch saidsome of us wish to see it repealed. We cannot therefore rely on it to be the safeguard in every eventuality for every piece of legislation. We have to have things in place to protect people when the Act is repealed, as I would like it to be. It is important not to rely on legislation that we do not support, and that we put in place other mechanisms to ensure fair play.
The other objection that my hon. Friend the Member for Tunbridge Wells made was about costs. I understand that entirely, as I would not wish to incur unnecessary public expenditure. However, it is important to have an appeals process and it would not cost a considerable amount in the scheme of Government expenditure. A modest cost for a tribunal that ensures fair play is important.
Mr. Edward Leigh (Gainsborough) (Con): My hon. Friend is being unfair on himself. I suspect that the cost of his proposal would be extremely modest compared with the very large sums lost in inefficiency and waste in even one Department.
Philip Davies: I am grateful to my hon. Friend for his intervention. In his role as Chairman of the Public Accounts Committee, there is no one better in the House at ensuring that money is properly spent. He is absolutely right that any costs incurred by the new clause would be modest in the scheme of Government expenditure. If the Government are so concerned about waste in the public sector, I am sure that there are far better targets with far bigger rewards than this modest tribunal.
We need an appeals tribunal to ensure that the rules are fair. Although the cost objection is understandable, it is a red herring, because the costs would be incredibly modest. I invite the House to support the new clause, despite the reservations expressed, because it would improve the Bill and make it more likely to gain support in both Houses of Parliament.
Greg Clark: I congratulate the hon. Member for Hendon (Mr. Dismore) on getting the Bill to this stage. I regretted his suggestion that my party and I are not entirely in favour of it. Unlike the hon. Gentleman, I have no interest in spending the whole of a Friday in a sport to block good legislation. The record will show that the questions I asked of my hon. Friend the Member for Christchurch (Mr. Chope) were pertinent and took up no more than a few minutes. When something that is flawed has been selected for debate, we have a responsibility to scrutinise it. The hon. Gentleman will find nothing in the record to suggest that I have done that in an excessive way.
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