Clause
87
Procedure
for orders under this
Chapter
Mr.
John Leech (Manchester, Withington) (LD): I beg to move
amendment No. 237, in
clause 87, page 74, leave out
lines 4 to 6 and add—
‘(2)
The Secretary of State may not make an order under this Chapter unless
the Secretary of State has laid a draft of the order before each House
of Parliament and the remaining provisions of this section have been
complied with.
(3) The Secretary of State must have regard
to—
(a) any
representations,
(b) any
resolution of either House of Parliament;
and
(c) any recommendations of
a committee of either House of Parliament on the draft
order,
made on or with regard
to the draft order during the 60-day
period.
(4) If, after the
expiry of the 60-day period, the Secretary of State wishes to make an
order in the terms of the draft, he must lay before Parliament a
statement—
(a) stating
whether any representations were made under subsection (3)(a);
and
(b) if any representations
were so made, giving details of
them.
(5) The Secretary of
State may after the laying of such a statement make an order in the
terms of the draft if it is first approved by a resolution of each
House of Parliament.
(6)
However, a committee of either House may, at any time after the laying
of a statement under subsection (4) and before the draft order is
approved by that House under subsection (5), recommend under this
subsection that no further proceedings be taken in relation to the
draft order.
(7) Where a
recommendation is made by a committee of either House under subsection
(6) in relation to a draft order, no proceedings may be taken in
relation to the draft order in that House under subsection (5) unless
the recommendation is, in the same Session, rejected by resolution of
that House.
(8) If, after the
expiry of the 60-day period, the Secretary of State wishes to make an
order consisting of a version of the draft order with material changes,
he must lay before
Parliament—
(a) a
revised draft order; and
(b) a
statement giving details
of—
(i) any
representations made under subsection (3)(a);
and
(ii) the revisions
proposed.
(9) The Secretary of
State may after laying a revised draft order and statement under
subsection (8) make an order in the terms of the revised draft if it is
first approved by a resolution of each House of
Parliament.
(10) However, a
committee of either House may, at any time after the revised draft
order is laid under subsection (8) and before it is approved by that
House under subsection (9), recommend under this subsection that no
further proceedings be taken in relation to the revised draft
order.
(11) Where a
recommendation is made by a committee of either House under subsection
(10) in relation to a revised draft order, no proceedings may be taken
in relation to the revised draft order in that House under subsection
(9) unless the recommendation is, in the same Session, rejected by
resolution of that House.
(12)
Where a person making representations under subsection (3)(a) has
requested the Secretary of State not to disclose them, the Secretary of
State must not disclose them under subsections (4)(b) or (8)(b)(i) if
or to the extent that to do so would (disregarding any connection with
proceedings in Parliament) constitute a breach of confidence actionable
by any person.
(13) If
information in representations made by a person in response to
consultation under subsection (3)(a) relates to another person, the
Secretary of State need not disclose the information under subsection
(4)(b) or (8)(b)(i) if or to the extent
that—
(a) it appears to
the Secretary of State that the disclosure of that information could
adversely affect the interests of that other person;
and
(b) the Secretary of State
has been unable to obtain the consent of that other person to the
disclosure.
(14) Subsections (12) and (13) do not affect any
disclosure that is requested by, and made to, a committee of either
House of Parliament charged with reporting on the draft
order.
(15) For the purposes of
subsections (5) and (9) an order is made in the terms of a draft order
if it contains no material changes to the provisions of the draft
order.
(16) In this section the
“60-day period” means the period of 60 days beginning
with the day on which the draft order was laid before Parliament under
subsection
(2).’.
The
amendment is fairly self-explanatory and there has already been lengthy
debate about ITAs. The reasons behind the amendment relate back to our
discussions about the controversial nature of the ITAs. In line with
previous amendments tabled by my hon. Friend the Member for Lewes and
me, this one would afford greater parliamentary scrutiny of any orders
made under this chapter relating to those
ITAs.
Graham
Stringer (Manchester, Blackley) (Lab): I tabled a similar
amendment, which would have the effect of replacing an affirmative
order with a regulatory reform order or the super-affirmative process.
That is a more appropriate way of dealing with a medium-sized local
government reorganisation.
Why is that way better? The
Government are proposing—after local consultations which may or
may not be controversial—to make an affirmative order and local
government will be reorganised, so electors will lose their power to
elect people who will directly implement certain highways and transport
functions. That is a major change in local government.
Is an affirmative
order, even after thorough and good local consultation, the right way
to do that? Even if there is an hour and half’s debate, it will
be whipped. It is just an opportunity, if the ruling party has a
majority, for people who disagree to make their case and lose a whipped
vote. That does not seem a proper way of dealing with local government
reorganisation.
The
alternative, which I do not think would be appropriate either, would be
to have a Bill, go through the full legislative process and change the
primary legislation. There could be two or three such measures a year,
perhaps more in some years, which would take a huge amount of
parliamentary time.
However, the regulatory reform
order answers the question by pointing out the Government’s
proposals and the obvious alternative of primary legislation, because
regulatory reform orders are a different parliamentary pathway for
altering primary legislation. I think that is what we are doing. The
Government have taken powers. One way of looking at the Bill is that it
is one whopping Henry VIII clause that gives the Secretary of State a
lot of power to make orders. That does not seem a sensible way to deal
with local government reorganisation.
Many hon. Members will not be
familiar with the super-affirmative process or regulatory reform order.
The process is similar to making an order, but a Committee sits and it
is possible for individuals to petition and make representations to
alter the order. The Committee is able to call the Secretary of State
or the Minister responsible and to ask for changes, so it is a very
thorough process in both Houses. When it has been used—I think
the process was introduced in 1992—it has almost inevitably led
to better legislation. It is a recognised parliamentary process for
changing
primary legislation, rather than just giving the power to
the Secretary of State. That seems to me a more
appropriate way of proceeding than just a straightforward affirmative
resolution. 1.30
pm
My hon. Friends,
and especially the Minister, need a long perspective when they are
taking Henry VIII powers. It is easy when one party is in control to
think “This is good; this will get things done more
easily”, but the Labour party will not be in control for ever.
People may think that I am referring to last week’s elections,
but if Opposition Members look at similar debates in Committees on
regional assemblies and various other debates in which I have been
involved, they will see that I have made that point repeatedly. It is
better to have proper procedures that do not merely pay lip service but
are part of the democratic process and use the full parliamentary
process properly rather than trying to take short cuts. Everybody
benefits, whether one is in opposition or
government.
It is
certainly worth the Minister considering the amendment. It proposes a
thorough parliamentary process which addresses, as I have said
previously, the fact that the Bill is unbalanced, not in its desire to
improve transport but in the way that it treats the local democratic
process. The amendment is one way of re-establishing some of the
balance. We talked about other ways, such as referendums, vetoes for
councils and direct elections earlier this morning. The proposed
parliamentary process would re-balance that part of the Bill. I hope
that my right hon. Friend will look seriously at a well-established
parliamentary procedure for dealing with changes in primary
legislation, rather than taking the power to herself or to the
Secretary of
State.
Ms
Winterton:
I know how concerned my hon. Friend is about
the issue, as we have had a number of discussions about it. I accept
that the Bill provides for some quite significant reforms to be made
via secondary legislation, but that is why we have provided for the
affirmative procedure to apply in those cases, so that all such orders
would need to be approved by both Houses of Parliament. That is
completely consistent with the House of Lords Delegated Powers and
Regulatory Reform Committee, which looked carefully at the issue, but
it noted the procedures and safeguards that were included in the Bill
and concluded that
“we do
not consider these delegations
inappropriate”.
The
powers in the Bill are not unprecedented. To give another example, the
Local Government and Public Involvement in Health Act 2007 provides a
power to establish unitary authorities in place of existing local
authority structures. That power, too, is exercised by secondary
legislation subject to affirmative resolution.
I think we have been through the
proper procedures in relation to the points made by the hon. Member for
Manchester, Withington, and we feel that the provisions are
appropriate, given the advice we received from the
Committee.
Mr.
Leech:
I am not persuaded by the Minister on this
occasion, and we shall want to return to the matter on Report, so on
that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
87 ordered to stand part of the
Bill.
Clause
8
8
ordered to stand part of the
Bill.
Clause
89
Guidance
Question proposed, That the clause stand part of the BIll.
Stephen
Hammond:
I had tabled an amendment to the clause, but
because of the bank holiday and my misunderstanding of the rules, it
went in too late, so I want to test in the stand-part debate the issues
I would have tested with the Minister in that amendment. They are
similar to those raised in our earlier stand-part debate, and to what
the hon. Member for Manchester, Blackley has just been saying. I am
looking for some clarification about the provisions of the clause,
because they enable the Secretary of State to issue guidance about
anything that could be done by a local authority under this chapter;
local authorities must then have regard to such guidance.
We have
already discussed the issue several times; the power is extremely wide.
The chapter covers the change of names and areas; the power to
establish; the need for review, which the Secretary of State already
has powers to direct; the review of arrangements; which again the
Secretary of State has powers to direct; the delegation of powers,
which the Secretary of State can direct; the conferral of powers, where
the Secretary of State can intercede; and the changing of
boundaries and dissolution of areas, where again the Secretary of State
can intervene. It seems to me that clause 89 allows the Secretary of
State to issue guidance about
anything.
The
chapter already includes huge powers for the Secretary of State and it
is, once again, a wide-ranging catch-all. In extremis, if the Secretary
of State fails to gain the affirmative order that we were talking about
in relation to the amendment to clause 87, she simply needs to issue
guidance that must be taken regard of. The Secretary of State could
issue guidance to an ITA, completely ignoring the local authority and
the residents’ feelings, views or wishes, but, more important,
she could completely ignore the affirmative order. As the Secretary of
State already has huge, wide-ranging powers, can the Minister tell me
why, on top of those powers, this provision is needed and can she give
some specific examples of the issues it is intended to
address?
Mr.
Knight:
I rise to support my hon. Friend, and to say to
him en passant that if the Committee had the power to sit beyond today,
his amendment would no longer be starred and we could have had a debate
on it, so that adds to my earlier concern about the matter. I would
like to hear from the Minister why she feels it necessary to include
the provision, because it just seems to be a means of providing central
interference in what ought to be local matters. The only possible
justification for the clause would be that a Minister wanted a national
plan or policy to be pretty much followed in every part of the country.
However, when one looks at subsection (3), that supposition is blown
out of the water, because it gives the Minister the power to issue
completely different guidance to different parts of the country. It
states:
“Any
such guidance may make different provision for different cases and
different provision for different areas.”
In that case why is she giving Ministers
the power to make completely different recommendations to different
areas? Is the clause nothing more than a provision to enable continued
Whitehall meddling in what ought to be local
issues?
Ms
Winterton:
The right hon. Gentlemen and the hon. Member
for Wimbledon need to reflect back on some of their earlier comments
about their desire that local authorities consult with passenger user
bodies. I have made it very clear that we want to be able to issue
guidance to local authorities about the powers that will be exercised
under these clauses. We cannot put everything on the face of the Bill:
it is a well-established principle that guidance can be issued to
assist local
authorities—
Stephen
Hammond:
Will the Minister give
way?
Ms
Winterton:
The hon. Gentleman asked for examples; I will
give way to him in a
moment.
Guidance can
assist local authorities in deciding how they might carry out
governance reviews, in judging whether existing arrangements are
effective or whether there is a need for a greater strategic overview
of transport in their area, and in issues relating to consultation. The
right hon. Member for East Yorkshire said that, in a sense, there needs
to be a greater degree of control over such things. The hon. Member for
Wimbledon wants to put that on the face of the Bill, but what we need
is the flexibility we can gain through the guidance we are drawing up,
which takes into account the views of local authorities, because they
say they find that a helpful way of operating. I will return to the
right hon. Gentleman’s point when I have taken his hon.
Friend’s
intervention.
Stephen
Hammond:
The Minister must concede that we have been
consistent, in the passage of the Bill through Committee, in wanting to
ensure that there is local consultation and that it is dealt with in
the Bill so that all the necessary parties are statutory consultees. It
is only the Minister who says she needs guidance. That is not what we
have been
saying.
Ms
Winterton:
Let me give an example. The right hon. Member
for East Yorkshire said that if there was consultation, it would be
appropriate to ensure that people who did not necessarily have access
to the internet could look at proposals to set up an ITA or to make a
quality contracts scheme. That is not the sort of thing that can be put
in the Bill, but it can be put in guidance. The right hon. Gentleman
welcomed my assurance that we would take that sort of thing into
account.
We issued
draft guidance in December 2007. Local authorities have said they find
it very helpful in deciding how they might prepare for the enactment of
the Bill, and we will be redrafting, revising and expanding that
guidance in light of comments received from local authorities and to
take account of changes to the Bill as it passes through
Parliament.
The right hon. Gentleman asked
why there might be different guidance for different parts of the
country. Different parts of the country may face different issues. The
guidance might be different if we were talking about establishing a new
ITA in a rural area as opposed to an urban area. It might be different
if we were talking about expanding a different ITA. We have to be able
to reflect the fact that local circumstances might dictate a different
approach in different areas.
I hope that is a helpful
explanation of clause 89, and that the right hon. Gentleman will accept
that it is the right
approach.
Question
put and agreed
to
.
Clause
89 ordered to stand part of the Bill.
Clauses 90 and 91 ordered to
stand part of the
Bill.
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