Legislative and Regulatory Reform Bill |
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Alison Seabeck (Plymouth, Devonport) (Lab): I want to pick up on a point in the text which has been drawn to my attention. Throughout, the Minister is referred to as a male. The Bill refers to “he” and “him” throughout. Is that normal in legislation? Mr. Harper: Sir Nicholas? The Chairman: That was not a point of order. I am sure that the Opposition spokesman will reply. Mr. Harper: I understand that when the text states “he” and “him” one is supposed to read “she” and “her” too. The reason for raising the point about local Acts is that by their very nature they can be extremely important locally and affect the interests of all or many residents in an area. Perhaps the Minister will comment on exactly what implications that would have for the consultation. Column Number: 204 Mr. Heath: The hon. Gentleman has done a lot of study on the subject of those Acts. I am less impressed by the definition than he is, as it comes from a text book rather than statute. Does he agree with me that it confirms the Committee’s earlier suspicion that issues of hybridity are very much to be considered when we are dealing with what are described as local Acts? It would be helpful if the Minister were to explain how he will deal with the hybridity issues in future legislation. Mr. Harper: The hon. Gentleman makes a very good point. The next part of the quotation from “Halsbury’s Laws of England” confirms that local Acts comprise all statutes of a local character originating in private Bills. It brings up the subject that we debated at length, but without the clarity of the explanation. It has examples of those authorising the carrying out of work by commercial concerns and therefore raises hybridity issues. Following the Minister’s letter, it would be helpful if he would elaborate on the matter. The Chairman: Order. Whatever the hon. Member for Somerton and Frome (Mr. Heath) said, it is my view that hybridity is not involved. I hope that the Opposition spokesman will not trespass too far down that path. Mr. Harper: Thank you for your guidance, Sir Nicholas, but there is no danger of that, as my knowledge of hybridity is much less comprehensive than that of the hon. Member for Somerton and Frome. The Minister should give us an idea of what scope there is for the Bill to be used to amend local Acts. In a previous debate, he gave the example of harbour Acts, which obviously have a great import for particular localities. What sort of consultation would he think was appropriate under subsection (1)(e)? Will he give an example? Mr. Murphy: I shall of course obey your strictures, Sir Nicholas, and not add to the comments made on hybrid Acts. Hon. Members will be aware that clause 11 sets out the statutory consultation requirements with which the Minister must comply before making an order. It sets out the first steps in the procedure for making an order, and it is based on section 5 of the 2001 Act, amended to take account of the widened power. Subsection (1) requires the Minister to consult organisations that
If proposals relate to the functions of statutory bodies, he must consult them or those persons
The Minister must consult the National Assembly for Wales if a proposal applies to
Column Number: 205 I confirm to the hon. Member for Forest of Dean that “Assembly” is defined in clause 30 as the National Assembly for Wales. The Minister must consult the relevant Law Commission if an order implements a commission recommendation. He must also consult
Subsection (3) provides that if the proposals change as a result of consultation, the Minister must undertake
That provision is equivalent to section 5(3) of the 2001 Act. The Minister does not have to repeat the whole consultation exercise; the additional consultation should be only what is necessary in respect of those elements of the proposal that have changed, and could involve only those consultees affected by the change. The consultation process is fundamental. It is the linchpin of the Bill. It will remain a key element, and it must be complied with. The clause ensures that it is not an option but a statutory requirement. That is essential. Consultation will test the quality of proposals and the evidence of their impact, and it will gauge the public’s view of them. Some points were raised about ministerial conduct in effective consultation. The Government work to a code of conduct to ensure the quality of consultation; it is generally regarded as effective. Given their experience of the 27 orders that been made under the 2001 Act, hon. Members may draw their own conclusions, but I am not aware, from evidence to the Regulatory Reform Committee or from elsewhere, that those principles have not been effective in enabling effective consultation. I know that the Committee will not wish me to deal with all six subsections in detail. We need to consult widely throughout the policy development process, and at least once, allowing a minimum of 12 weeks for written consultation. We must be clear about the proposals, who may be affected, what questions have been asked and the timescale for responses; ensure that consultation is clear, concise and widely accessible; give feedback on responses and on how the consultation process has influenced policy; and we must monitor Departments’ effectiveness in consultation, including through the use of designated co-ordinators, to ensure that consultation follows better regulation best practice, including the carrying out of regulatory impact assessments when appropriate. I continue to make the point that we should publish the outcomes of consultations and the responses both in hard copy and on the internet. Indeed, earlier today we confirmed that the consultation responses to the Bill are now available on the Cabinet Office website. Having dealt with the point about Wales, I shall respond to the additional points that were made. I am not certain that Opposition Members are suggesting it, but it is not a part of the code of practice—nor is it a serious suggestion—that the Government should proactively consult each and every individual who would be affected by a specific proposal. I am not aware that including that in the code of practice has ever been suggested. It is more effective and practical
The 2001 Act provisions on consultation have worked well. The Minister must consult on proposals. Neither the Bill nor the 2001 Act go into detail, but there is guidance on effective consultation practice. The clause sets out the statutory position on consultation and is backed up by the code of conduct and the six principles of effective consultation. That system has operated effectively since 2001 and I am not aware that the Select Committee or anyone else has suggested otherwise. Question put and agreed to. Clause 11 ordered to stand part of the Bill. David Howarth: On a point of order, Sir Nicholas. I have just seen the letter that the Minister wrote to the hon. Member for North-East Hertfordshire (Mr. Heald) about the definition of a local Act. I see with some distress that the final limb of the definition includes statutes relating to a particular charity and educational foundations and institutions. It surprises me that that is part of the definition of a local Act, and I fear that I should have declared an interest at the start of our discussions, because presumably that would include the Universities of Oxford and Cambridge Acts. May I have your guidance, Sir Nicholas? The Chairman: The hon. Member for Cambridge has been truly honourable, as I would expect. Although he should perhaps have declared an interest, he has now done so and it is on the record. I myself am not sure of the entire interpretation of the Minister’s letter but I believe that members of the Committee, including the hon. Gentleman, are behaving truly honourably and appropriately. Mr. Heath: Further to that point of order, Sir Nicholas, I was grateful for that advice to my hon. Friend. If it is the case that every statute and order that has ever been made is capable of amendment by the Bill, if the Bill is enacted, then inevitably we must all have an interest because every one of those statutes will affect one member of the Committee or another, so I think that my hon. Friend has nothing to fear from not having declared an interest at the start of our proceedings. The Chairman: I was seeking to be fairly general in my response. I believe that the hon. Member for Somerton and Frome is right, but in this place it is best to be safe rather than sorry, as we have discovered recently, so let us end it there. Clause 12 Draft order and explanatory document laid before Parliament Question proposed, That the clause stand part of the Bill. Column Number: 207 Mr. Chope: I thought that the Minister gave his response to clause 11 on the basis that the argument is just about process. Our concerns, however, are about the substance, and there is nothing in clause 12 that can allay the concerns of those of us who feel that the Minister is giving himself power, in effect, to override substantial objections that are raised during consultation. There is no limit to the Minister’s ability to proceed, notwithstanding what most people would describe as an adverse consultation experience. Will the Minister elaborate on how he envisages that the consultation process will work, and where he thinks, looking at subsection (1), that it would be inappropriate for the Minister to proceed with the making of an order in the light of the consultation experience? 4.45 pmThe way in which the clause is drafted at the moment, suggests that the consultation is just a process rather than an opportunity to see if there are substantive objections and, if there are objections, to respond accordingly. [Interruption.] The Chairman: Order. May I say, without making any accusations, that I hope that all mobile phones are on silent? I will make no further reference, but I have just heard a tinkle in my ear. Mr. Chope: I sometimes hear noises in my head. [Laughter.] I think, Sir Nicholas, that it is something to do with anno domini. Subsection (2)(d) says that the explanatory document must,
And so on. How is the judgment to be made of whether it is appropriate to do so having regard to the likely effects of the order? If the likely effect of the order is to impose substantial costs, the Minister might regard it as rather inappropriate to give an estimate of those costs because it might be embarrassing. Perhaps the Minister could explain how he envisages that the word “appropriate” will operate in subsection (2)(d). Does the Minister accept that the further wording in subsection (2)(d) demonstrates that far from the procedure being designed to reduce the burdens, as they were under the 2001 Act, there is quite a strong possibility, now admitted on the face of the Bill, that there will be increases in costs resulting from the operation of legislation under those procedures—not only costs, but what are described as “disbenefits”? Will the Minister explain exactly how those costs and disbenefits will be expressed? Will they be in the form of a cost-benefit analysis? In relation to subsection (2)(f), will he indicate why there is no requirement, should representations made during the consultation process be rejected, for the Minister to set out specifically why those representations were rejected? That is in significant contrast to the provisions in subsection (3) in which the Minister is under an obligation to explain why. In my submission it is all the more important that, under subsection (2), the Minister should explain why. The powers contained in the Bill are so great; the whole
Mr. Andrew Love (Edmonton) (Lab/Co-op): I thank the hon. Gentleman for giving way and I apologise for the noise earlier, Sir Nicholas. Let me reassure the hon. Gentleman that some of the concerns that he raised about the orders can be taken on board by the Select Committee, which can carry out further consultation, make judgments about the opposition to an order and report back to the Minister. Although I accept that concerns exist, they will be taken on board as part of the workings of the Act and the Select Committee. Mr. Chope: I am grateful to the hon. Gentleman for that intervention and I am sure that he is right that the concerns expressed in the consultation would generate the activity to which he referred if he were a member of the Select Committee. The question that concerns me and Committee members more generally is who appoints Select Committees? In effect, it is the patronage secretaries on both sides of the House. Angela Watkinson (Upminster) (Con): Does my hon. Friend share my concern about the change that the proposed relationship will bring about in the status of Select Committees? Select Committees currently have independence in their investigations, but will that independence be lost and their relationship to the Executive be changed if they are to scrutinise legislation and report to the Minister? Mr. Chope: That is an important point, which was touched on earlier. The Executive always want to exercise their power with the minimum of interference, so when they realise the extent of the powers that the Bill has given them and that a Select Committee might be a slight brake on the exercise of those powers, there might be an overwhelming temptation to ensure that the appropriate stooges are serving on that Committee. The Minister looks at me in disgust, but in the past the Executive have moved heaven and earth, or provided alternative incentives, if I can put it like that, to relieve a Select Committee Chairman of his or her position and to discourage people from continuing to serve on a Committee. That has happened not only under the present Government, but even—I am not sure whether I shall refer to anything involving you, Sir Nicholas—under former Governments. [Hon. Members: “No!”] Although this may have been for the most innocent of motives, some of the most effective Select Committee Chairmen under the previous Conservative Government were offered Government jobs to encourage them to leave their Select Committee posts and create a vacancy that could be filled by, dare I say it, a Government stooge. You could never be accused of being a Government stooge, Sir Nicholas, and most other members of the Committee would never have come into that category. Notwithstanding the comments by the hon. Member for Edmonton, the temptation to act in the way I have outlined will be great. That is why, to return
Mr. Heath: I was amused by the references that the hon. Member for Christchurch made to the Ministers’ misbehaviour. We always hope that Ministers will not misbehave, and our expectations are constantly dashed. Nevertheless, we continue to hope. I want to ask about the specific application of subsections (5), (6) and (7), which deal with the release of material that derives from the consultation. I might be entirely mistaken, and I will happily accept correction if I am, but I do not recall having seen analogous provisions in other statutes that lay out terms for consultation. I therefore have one simple question. Given that the clause provides for Ministers not to publish representations in response to consultation on certain grounds; is that on the basis that it falls within a category of the Freedom of Information Act 2000 that comprises advice to Ministers? If so, if anyone who writes to a Minister is deemed to be providing advice, that rather extends the definition. Or do other categories in the Act apply? How do the provisions relate to the Act? Finally, subsection (7) correctly suggests that a Committee of the House can require the disclosure of responses even if they fall within the definitions in subsections (5) and (6). It sounds like a sensible provision, but it changes the relationship between right hon. and hon. Members who serve on a specific Select Committee and general Members of the House, who will not be allowed to read certain information. The negative resolution procedure leaves it open to any Member of the House to table a prayer for the annulment of such an order, but, apparently, not in possession of the same information that one would have were one fortunate enough to be on the relevant Select Committee. That seems a little anomalous and surprising. I would be grateful for the Minister’s explanation. Mr. Harper: Sir Nicholas, your earlier comment about hearing things brought to mind the joke that if one talks to God it is called a prayer, and if one hears voices from God it is time to worry. When the Minister replied to the Chairman of the Regulatory Reform Committee, the hon. Member for Ellesmere Port and Neston (Andrew Miller), he said that the specific objectives of the Bill were to reduce the amount of bureaucracy around the implementation of European Community law, and to make it quicker and easier to reform outdated, unnecessary or over-complicated legislation. That implies that it will reduce costs and increase benefits or reduce disbenefits. My hon. Friend the Member for Christchurch has already hit upon this in relation to sub-paragraphs (i) and (ii) of subsection 2(d), in which it is specifically accepted that an order made under the Bill might well increase costs or disbenefits by recognising that the Minister would have to publish an assessment if he felt that to be appropriate. We keep being told that the whole point of the Bill is to deregulate. We have had
My second point is about subsection (3). I have read it a number of times, and it strikes me that it either is not brilliantly drafted or does not make sense. It says:
which is reforming legislation—
either simplify or modernise
Surely there is a “not” missing somewhere. The way it is drafted, the measure says that if the order is doing those things, which we would generally consider to be good things, the Minister must explain why. It therefore implies that if the order does the opposite of those things—things that we would consider to be bad—such as making legislation more complicated, un-modernising it, or whatever the opposite of modernising it is, making it more onerous or adding inconsistencies or anomalies, he does not have to explain why. That does not make sense, but it might be a simple drafting error, or there might simply be a word missing. Will the Minister tell us what he means by that? Finally, I shall pick up on a point made by the hon. Member for Somerton and Frome about disclosure. Subsection (7) talks about disclosure not being affected by Committees. Could the Minister clarify whether those Committees would report on draft orders to the House or to the Minister? If people contributing to the consultation make it clear that they do not wish things to be disclosed and the Committee says that things should be disclosed, does that have any impact on the adequacy of the consultation? The hon. Gentleman said that he had not typically seen such drafting before, so I wonder whether any new issues have been raised about how consultation is conducted. 5 pmMr. Murphy: This has been an interesting debate. Hon. Members opposite have posed some interesting questions and I seek to respond in like terms. I start by agreeing with you, Sir Nicholas, that no one is suggesting that the hon. Member for Cambridge has done anything other than carry out his duties as a constituency MP and Member of this place in an entirely appropriate manner, in respect of the Register of Members’ Interests or declaring an interest. He is right that the letter yesterday to the hon. Member for North-East Hertfordshire refers to particular charitable and educational foundations and institutions. That is helpful and I do not think that any member of the Committee would suggest anything to the contrary on how the hon. Member for Cambridge has conducted himself. Column Number: 211 I draw the Committee’s attention to the comments that I made in our second sitting, when in response to the hon. Member for Forest of Dean I said:
I am sure that all hon. Members would acknowledge that the hon. Member for Cambridge has acted entirely appropriately and you are right to make that point, Sir Nicholas. Clause 12 sets out the requirements on a Minister to lay an explanatory document and draft order before an order can be made. That constitutes another key procedural safeguard. The Minister may consider it appropriate to proceed once he has carried out the consultation required by clause 11—my hon. Friend the Member for Plymouth, Devonport has already asked about the gender-specific wording of such provisions, but that is a wider debate and I do not wish to draw the Committee into it. I do not know whether we operated like that when we had our only woman Prime Minister or whether we referred to the Prime Minister then as “he”. Alison Seabeck: This discussion is entirely relevant given that tomorrow is international women’s day. Mr. Murphy: I do not know how the House or elsewhere plans to celebrate international women’s day, but—this is not the Government’s position—perhaps my hon. Friend would like to launch her one-woman crusade for changing the gender-specific descriptions in legislation. However, that is a much wider issue, which is not before the Committee for discussion this afternoon. The Minister must lay a draft order along with an explanatory document, which will set out all the relevant information about his proposals as required by the clause. Subsection (2) specifies that the explanatory document must contain considerable detail. That includes an explanation of whether the provision reforms legislation, implements Law Commission recommendations or both, an introduction to the provision and reasons for it, an explanation of why he considers the relevant preconditions in clause 3 to have been met and an assessment of the savings or costs, or the other—elegantly titled—disbenefits or benefits that are expected to arise. Mr. Chope: The Minister is reading his brief effectively, but I asked whether he could give an example of a situation in which a Minister would not think it appropriate to proceed with the making of an order under the clause. Mr. Murphy: I shall happily give way to the hon. Gentleman on that point later. There is a responsibility to identify the benefits, disbenefits, details of and reasons for any power to legislate that the order confers on the procedural requirement attaching to that power; and details about the consultation that has been carried out, the responses received and any
Let me turn to some of the comments that have been made and the matters that have been raised. On the question of the way in which the decision of or assessment by the Minister made after the consultation can be challenged, as I have said, the Minister cannot proceed with a proposal if he is not satisfied that the preconditions given in clause 3 have not been met. If he reaches an unreasonable view as to whether clause 3 conditions are met—an adverse consultation response will be part of the evidence—then he can be challenged in the courts, open to judicial review. On the additional questions about the costs and the extent to which it is appropriate to give details, in the case of an order with substantial costs it will be appropriate to give details. However, in the case of an order with genuine but less significant benefits, fewer details will be appropriate. They will be available as part of the public consultation. Benefits and disbenefits include environmental and social gains and losses, and such impacts cannot be considered purely in financial terms. The hon. Member for Upminster (Angela Watkinson) again performed as a speaking Whip. We are delighted to hear from her, but I am glad to note that hers is not a habit that my hon. Friend the Member for Gloucester (Mr. Dhanda) seeks to emulate, except at the end of each sitting. She asked a genuine question and deserves a straightforward response. Her question was on whether the measure might change the way in which Select Committees carry out their duties. All that I would say in response is that the relevant Select Committees, in this place and in the other place, already have responsibilities under the 2001 Act that enable them to carry out investigations into orders and legislation. In that respect, there would be no change in the way in which Select Committees operate. In the House of Commons, a Select Committee has allowed 27 orders to proceed under the 2001 Act. I can reassure the hon. Lady that there is to be no change in the way in which Select Committees operate. In respect of the just process of the consultation, which was identified by the hon. Member for Christchurch, all consultation responses are given to the relevant Committees of this and another place. Therefore, the Select Committees of this and another place can additionally make their own assessments of the responses to the consultations and the feedback. The results are analysed in the explanatory document, and it is not possible in that context for the Minister to ignore substantive proposals—if he were to do so, the Select Committee members in this and another place would rightly raise their concerns. On the changes that the Minister might wish to make under this part of the legislation, the Minister could lay a draft order even if there were adverse comment to some of the proposals from some individuals. However, the Committees would be aware of the consultation responses, as I have said, so in some
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