| European Parliamentary and Local Elections (Pilots) Bill
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Mr. Duncan: Does my hon. Friend agree that one of our concerns, inasmuch as plain English is patently not being used, relates to the cumulative effect of our suspicion that the Bill has arrived at the worst moment and is being rushed through as a result of the guillotine motion that we have regrettably agreed, when the provisions could have been incorporated into earlier European legislation this year? Perhaps plain English would have sorted that out and not created such an air of suspicion in the eyes of the public. Mr. Hawkins: I agree entirely with my hon. Friend. He makes a valid point. As he knows, on Second Reading, my hon. Friend the Member for Stone (Mr. Cash) and I criticised the indecent haste with which the Bill was being rushed through. I have used that phrase before and I will use it again: the Government are trying to press ahead with the Bill with indecent haste. My hon. Friend the Member for Galloway and Upper Nithsdale and I do not know how much pressure there was. However, I was certainly informed that there was great concern among those on the Government Benches—among Ministers and Whips—that there was going to be a huge legislative backlog this Session because of the pressure being put on those who were doing the drafting, particularly in Home Office and constitutional affairs matters. My hon. Friend will be well aware that there has been a huge raft of Home Office legislation in the past few years, both under the former Home Secretary—the now Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Blackburn Column Number: 46 (Mr. Straw)—and the current Secretary of State for the Home Department, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). More Home Office Bills have been announced in the past few Queen's Speeches and considered in the past few Sessions than ever before. The number is at an all-time record.The Government keep getting it wrong: the current Home Secretary has reversed almost everything that his predecessor introduced because it was clearly failing. This has placed a huge pressure on drafting. The Opposition can never tell how much pressure is being brought to bear, but all I can say is that we heard that the Government were very concerned about having to rush their legislation because there was too much pressure on drafting. The Minister may or may not comment on this when he responds to the debate, but I hope that he will understand that we are genuinely trying to use this Committee as Committees should be used—to improve the legislation. That is why I said that the amendment is probing. I have not suggested my own wording to replace the paragraph, because I simply want the Government to reconsider it and return with something better on Report. I hope that I can at least get that point across to the Minister. Mr. Harris: I do not want to labour the point, but surely the hon. Gentleman must accept, as a former solicitor, that there are many occasions in any legislation on which there must be a balance between plain English and legal accuracy, and that this may well be one such occasion? I am sure that my hon. Friend the Minister will shortly enlighten the whole Committee, and that we will know exactly what the paragraph means. Mr. Hawkins: We wait to see. I will listen to the Minister with great interest, as he has an army of civil servants, which the Opposition do not have, to give him a brief. I agree that it is always a question of judgment. However, the hon. Gentleman is a member of the Government, albeit without civil servants to advise him, and I have sat on the Front Bench for several years and practise as a lawyer. If we are both mystified, that suggests that there may be a reason to reconsider the paragraph now that we have drawn attention to it in Committee, in the way that we are supposed to do in Committee, so that we end up with clearer and better legislation. The hon. Gentleman and I are trying to do our job so that we can persuade the Minister to talk to his officials and make the paragraph clearer. [Interruption.] The Minister says that he has got the point. Amendment No. 22 relates to clause 2 and to an issue that arises regularly. We often have debates about whether a clause should say ''must'' or ''may''. Clause 2(1) currently states:
I believe that the word should be ''may'' and not ''must'': making an order should not be compulsory. The Minister may say that the whole point of the legislation is that pilot orders are introduced only if Column Number: 47 there is a main order. Before I tabled the amendment, I could see that there could almost be a credible case for it being compulsory rather than permissive. Clause 2(1) is much clearer than clause 1(1)(b), but it is worth probing the issue to get the Minister's explanation of it on the record.My reason for tabling the amendments is to get the Minister to agree to reconsider the matter. We should always debate whether ''may'' or ''must'' is appropriate. Mr. Heath: The hon. Member for Surrey Heath explained why he is concerned about the opacity of subsection (1)(b), and we have entered into the eternal debate about ''must'' and ''may''. In my experience, that debate always entails the Government insisting on ''must'' if the Opposition propose ''may'', and insisting on ''may'' if the Opposition insist on ''must''. It is one of the most sterile arguments in which we ever engage. I accept that subsection (1)(b) may be more opaque than it would be in a perfect world. However, there is a necessary cross-reference between clauses 1 and 2 if one accepts the current architecture of the Bill. Will the Minister say why it is constructed in such a way as to have two separate orders in clauses 1 and 2? Why should there be a main order and a pilot order, one qualifying the other but dealing with essentially the same matters? Why should there not be a single order? If there were a single order, the cross-reference would not be necessary. However, if there are two orders, one needs the cross-reference, phrased in whatever way is most felicitous, and one needs the ''must'', otherwise there will be a provision for an election without the details of how it is to be conducted.
10.15 amSir Teddy Taylor: I have a brief question. I have read subsection (1)(b) quite carefully, and my impression—the Minister can tell me if I am wrong—is that it means that if a pilot order requires certain things, but another law says that we cannot do that, subsection (1)(b) has superiority. If that is what the provisions basically do, what exactly is a ''relevant enactment''? Subsection (1)(b) seems to say that if a pilot order says that we do things in a certain way and a particular voting system applies somewhere, and yet some other law or regulation would appear to conflict, subsection (1)(b) has superiority, so what is an enactment? Previously I raised a point of order on which the Chairman was very helpful. What happens if the provisions conflict with the European convention on human rights? Frankly, the one thing that worries me is secrecy and voting. What do we do if we find that an order conflicts with the convention? Which has superiority? What about European law? One thing that I have been obsessed with over the years—hearing about all the European treaties coming through—is how they have superiority. It is said time and time again that European law is superior to that of the House of Commons. If we find that an order conflicts with the convention or with European legislation, does it apply and which has superiority? Am I right in my interpretation of subsection (1)(b)? I hope that the Column Number: 48 Minister will say whether an order would be superior only to laws or whether it would be superior to the convention and to European law as well.Mr. Wilshire: I want mainly to speak to amendment No. 22, but your guidance would be helpful, Mr. Cook, because developing the arguments about it would probably move us into a stand part debate. I do not know whether you would rather have all the contributions in one go or deal with the matter and then come back to stand part. The Chairman: Let us clear the air. Mr. Wilshire: Fine, that is very helpful, Mr. Cook. I always enter into such debates in Standing Committees by entering various caveats, but it becomes clear over time why that is necessary. I start by saying that I am not a lawyer and therefore cannot bring a legal mind to the problem. All that I can do is try to bring a bit of common sense. My hon. Friend the Member for Surrey Heath is right to suggest that the provisions are gobbledygook, and I hope that the Minister will say why it is necessary to have gobbledygook. It is always handy if ordinary people like me can pick up legislation and make sense of it. Some justification for this rubbish must be forthcoming before we can accept that it is necessary. It is not quite that which concerns me now, however. Subsection (1)(b) uses the words
I then turn to clause 2, which is about the pilot order and says:
The thing that baffles me as a layman is that clause 1 says that the Secretary of State ''may'' make an order
that he is just making, and then says that that must be done
I am baffled because it will be possible to make an order under clause 2 only if an order has been made under clause 1, so the clause 2 order will be subsequent to the clause 1 order. Yet it will not be possible to make an order under clause 1 without reference to something that it will not yet have been possible to do—no order will have been made in the first place. It is mystifying. I am interested in exactly the point made by the hon. Member for Somerton and Frome, although it may be a matter for the clause stand part debate. Why must there be two separate orders? I imagine that if two orders are made, they must be made one after the other. Two things cannot be done at the same time. Even lawyers cannot do two things at once, so one order will be made after the other. In that case, it seems absurd to provide in the order that is made first, ''You can't do the first thing until you have done the second thing; you can't do the second thing until you have done the first thing.'' If a layman can see the confusion there, I am amazed that the highly paid lawyers and civil servants and the absurdly higher paid Ministers who take taxpayers' money to make sense of these provisions come before us with a Column Number: 49 conundrum that cannot be followed. I hope that the Minister will be able to explain the inexplicable.I wonder why it is necessary for clause 2(1) to provide that the Secretary of State
and not, as amendment No. 22 would provide, that he ''may'' do so. Clause 1(1)(a) states that the Secretary of State may make an order
It seems to me that all the power necessary to say whatever needs to be said is contained in that provision: he may do it in the manner described in the order. Why, if that is so, is the word ''must'' needed? The first instance is not needed, if the Secretary of State ''must'' do things all over again. Surely to goodness, we should not say the same thing twice. Clause 1 provides for all the powers in clause 2. If it proves helpful for the Secretary of State to make things a bit clearer by saying something else, let him do so, but I should have thought that the relevant provision should state that he ''may'' do so if he wants to, rather than that he ''must''. If he must make matters clear in clause 2, that makes nonsense of clause 1, which provides that he must spell them out. The more I look at the Bill, the more I go round in circles; perhaps I have managed to persuade you, Mr. Cook, and the Committee about the silliness of the provisions. If anyone is tempted to take the view that I am talking nonsense, I am doing so only because I am describing what the Bill says. What is before us is nonsense, and I hope that the Minister can dig himself out of the hole that he has got himself into.
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| ©Parliamentary copyright 2003 | Prepared 30 October 2003 |
