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Lord Sainsbury of Turville: I am most grateful to the noble Lord for this proposal. However, as I said, the Government are still considering, and are concerned about, matters of principle as well as matters of detail. I outlined in earlier discussion some of those areas of concern.
As the noble Lord said, this amendment would be an enabling power. However, as he will appreciate, agreement to the amendment at this stage would commit the Government to taking action. As he knows, the Government take such matters and their commitments very seriously. It would be very difficult to argue that agreement to an amendment such as Amendment No. 31 was not an effective commitment to introduce such a committee. Moreover, even were we not of that view, as the noble Lord may be aware there are persons in Parliament who would most definitely be of that view. Indeed, there are noble Lords and Members in another place who regularly ask the Government for information on what parts of Acts have not yet been brought into force and view the answer that there are areas where the Government have been "tardy" with great disapproval.
I stress, however, as I have indicated before, that we feel it essential to get to the bottom of the important issues of principle which I have already mentioned and address points of detail. That will take a little time. Given the vital issues it covers, we would be very reluctant to see the Bill and its implementation delayed still further. However, we are clear that the Government, were we to decide to adopt this approach, would be able to set up a defence exports scrutiny committee, in all its essentials, without a requirement for new legislation.
Finally, I again say to the noble Lord that the Government intend to continue their examination of his proposals and their consideration of how best to achieve greater accountability and transparency in the export licensing process. I also hope to meet him soon to discuss his proposals further. For all those reasons, which are very similar to the previous ones, I hope that he will agree to withdraw his amendment.
The amendments would require orders made under this legislation to be approved by Parliament by the positive resolution procedure and not by the negative procedure. I need not take up much time by explaining the difference in detail as this argument has been rehearsed before your Lordships on many occasions. I think it is relevant, however, for me to remind noble Lords that secondary legislation receives far less scrutiny than primary legislation. The latter at least has to go through three stages in each House, although in the other place it is possible for entire clauses or parts of Bills not to receive any consideration whatever, and when they do it is a matter for the Speaker or the Standing Committee chairman to decide which amendments will or will not be called. That is why your Lordships' House is justly called the finest revising Chamber in the world. Every Bill can be scrutinised line by line, every amendment can be debated and every noble Lord who wishes to speak is heard.
Negative resolutions receive scant attention in both Houses. They rarely get on to the Floor of the other place, and it does require some effort to get them on to the Floor here as well. Positive resolutions do
I confess that I sometimes find myself talking to the Minister and our respective Whips in an empty Chamber during the dinner hour. But at least if there is something to be said, it will come to the attention of those noble Lords who are interested in the subject as they can read it in Hansard.
The Act that this Bill is replacing was passed in 193963 years ago. It was not an enabling Act with whole tracts of it left to ministerial decree. However, this is a Bill which imposes heavy burdens on exporters and severe penalties for those who breach either its provisions or, more relevantly for the purpose of these amendments, the provisions decreed by the Secretary of State. It is only right that they should receive the higher degree of scrutiny that Parliament is able to give to secondary legislation.
I cannot understand in the least why the Government do not want that to happen and do not want positive vetting of ministerial orders. The negative resolution procedure was originally intended, and in my submission should still be used only, for orders that are inherently non-controversial. The Minister told your Lordships when opposing these amendments previously thatI feel that I must quote him
It is a negation of the democratic process that the onus of bringing a matter to the attention of either House should rest on either the Opposition or an individual Member rather than on the Minister proposing the order. This Bill is in principle relatively uncontroversial apart from some provisions which will have been settled by the time we reach this clause, as they have been.
The Government have nothing to fear from putting their secondary legislation before Parliament on the basis of positive resolutions. I urge the Minister to put aside what seems to be an instinctive dislike of that procedure and to accept these amendments willingly and happily. I beg to move.
Lord Sainsbury of Turville: My Lords, I am sure that my tone was in no way condescending. I believe that it showed rather a touching faith that wise Members of this House would not want to spend their valuable time discussing detailed technical questions.
The effect of these two amendments would be to subject control orders made under Clauses 1, 2, 3 and 4 of the Bill to parliamentary scrutiny by the affirmative, rather than the negative, resolution procedure. I should like to explain why the Government continue to believe that the negative resolution procedure is the more appropriate method for scrutinising orders made under these sections of the Bill.
As I explained in Committee, the Bill provides for different scrutiny provisions for different kinds of orders which reflect the distinction between orders that can change the reasons for which export controls can be imposed and orders that set out the details of those controls. The Bill properly provides for the affirmative resolution procedure to apply to orders that modify the schedule or which operate for a limited time for reasons outwith the schedule.
We believe, however, that scrutiny of orders which simply set out the details of controls is best achieved by means of the negative resolution procedure. As well as being of a frequently technical nature, I emphasise that such orders will be both restricted in their scope by the schedule, which cannot be changed without Parliament's express approval, and restricted in their application by the terms of the guidance issued and laid before Parliament under Clause 7. The Government believe that these restrictions, coupled with the negative resolution procedure, provide the necessary democratic accountability with regard to the making and use of such orders.
The Government recognise, however, that Parliament quite properly has an interest in the controls that are to be introduced by order under Clauses 1 to 4. That is why we published dummy draft orders in October that set out the details of the new controls, to allow Parliament to see how the Government are proposing to use the powers in the Bill. Additionally, as I made clear in Committee, the Government have announced that they will be holding a full public consultation on draft secondary legislation before the new controls are introduced. That will provide a further opportunity for all those with an interest to consider and comment on the new controls that are to be introduced.