Legislative and Regulatory Reform Bill |
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Mr. Murphy: In rising to respond to this brief debate, I do not intend to address each of the amendments in turn. Despite your desire that we stay here all evening, Sir Nicholas, it would incur the wrath of members on both side of the Committee if I did so. I can tell my hon. Friend the Member for Plymouth, Devonport that we will reflect on some of the amendments in the group and the proposal in the excellent report of the Select Committee on Regulatory Reform. Interestingly, four of the amendments on which we wish to reflect were tabled by my hon. Friend, four stand in the names of the hon. Members for North-East Hertfordshire and for Forest of Dean and others, and one amendment appears under all their names. I do not wish to detain the Committee in a discussion of how such things come about. 5.45 pmMr. Harper: I should say for the benefit of the career of the hon. Member for Plymouth, Devonport that we had no discussions in advance. I simply went through and signed lots of amendments, of which hers happened to be one. I did not want to get into trouble with the usual channels. Mr. Murphy: I am sure that my hon. Friend the Member for Plymouth, Devonport is pleased that that clarification has been made. My hon. Friend the Member for Gloucester can relax once more. I welcome the rationale for the amendments, which support the principle of proportionate parliamentary procedures for orders and which are designed in different ways to ensure that orders are subject to effective and appropriate levels of parliamentary scrutiny. I shall seek to deal with the specific issues raised by the amendments. A number of the amendments would increase the period available for Parliament to determine the appropriate level of procedure for an order from 21 to 30 days. The recent report by the Regulatory Reform Committee commented that 30 days would be a more appropriate period for completing that initial stage of scrutiny. I reiterate that the procedures in the Bill are intended to provide an effective and, above all, workable mechanism for scrutinising orders. However, in the light of the views expressed in the RRC report and through the amendments, the Government will consider carefully the idea of extending the determination period. I hope that my hon. Friend the Member for Plymouth, Devonport, whose comments focused primarily on the 30-day period, will feel able not to press her amendments, on the basis that we will reflect on the specific suggestions that she made. However, the Government want to avoid extending the initial
Several amendments would extend the overall scrutiny period for orders. Amendments Nos. 15 and 19 would extend the affirmative resolution procedure scrutiny period from 40 to 60 days. Amendments Nos. 16, 79 and 85 are designed to extend the overall period of scrutiny available for orders by providing that Parliament may require additional scrutiny for certain orders. Extending to 60 days the scrutiny period for orders undergoing the affirmative resolution procedure is unnecessary. Let us say that Parliament requires a particular order to be subject to a more onerous procedure. It may in all cases require that an order proceed by affirmative or super-affirmative resolution procedure. That is on a case-by-case basis. The super-affirmative procedure available under the 2001 Act has proved to be appropriate for larger or more complex reforms. Committees have used that procedure to assess effectively larger and more controversial reforms. Providing in the Bill for an extension of the overall scrutiny period would compromise the principle of proportionality, which hon. Members on both sides of the House support and which underpins these procedures. The scrutiny procedure should be proportionate to the nature of the reform proposed. Mr. Chope: Does the Minister think that a good rule of thumb is to ensure that the scrutiny period is proportionate to the gestation period? Mr. Murphy: Many of the orders originate from consultations and recommendations from business, the public sector, charities and voluntary organisations. It would not be appropriate to link the scrutiny period to the gestation period as the hon. Gentleman suggests. If orders are simple and straightforward, it might be appropriate to deliver them by a more proportionate procedure than is currently possible, and the Bill is designed to provide for that. A straightforward reform like the Regulatory Reform (Local Commissioner for Wales) Order 2004 or the Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005, for example, should be deliverable by negative or affirmative resolution procedure. The latter order removed an anomaly that had required NHS bodies to prepare two sets of accounts. If Parliament believes that an issue is so clear-cut that there are no points to debate, and the order can be properly considered within 40 days, the negative resolution procedure could be used. If an order can be fully considered within 40 days but a short debate on the Floor of the House and a Division are none the less warranted, the affirmative process could be used. Column Number: 225 The review of the 2001 Act found that disproportionate procedures were a disincentive to delivery of smaller or simpler orders. The range of procedures provided for in the Bill is intended to encourage delivery of such orders. Not all draft orders have the impact or complexity of the Regulatory Reform (Fire Safety) Order 2005, and therefore not all orders require 60 days’ scrutiny. I reiterate that the procedures in the Bill are designed to provide Committees with the flexibility to require a more onerous procedure for a certain order, and so to extend the time available to scrutinise it. Varying the Committee’s flexibility to scrutinise orders undergoing super-affirmative resolution procedure for more than 60 days could also be reviewed when any necessary changes to Standing Orders are discussed. Committees have previously extended their scrutiny of larger and more complex proposals beyond 60 days, partly through Standing Orders, as with the proposed civil registrations and fire safety RROs. Moreover, the effect of the Committee veto on appropriateness is such that if Committees go beyond the 60-day limit—as they did for the fire safety and civil registration proposals—in practice, Departments will always wait until the Committees have reported before laying the second-stage order. We see no reason for a formal extension of the super-affirmative procedure. Mr. Chope: Does the Minister recognise that there may be a very large cumulative burden upon the Select Committee? The Executive decide when such orders are first laid, and if a whole lot of orders are laid at the same time, the Committee will still have to deal with them in the confined time limit. Does the Minister not think that the overall burden on the Committee should be taken into account? Mr. Murphy: We have an excellent working arrangement with the Committee; of course we will discuss the issue with it. One of the recommendations in the excellent Select Committee report was an extension of the Committee’s terms of reference. That would not be appropriate for this Committee, but extending the Select Committee’s remit would be an appropriate matter for conversation between the Select Committee and the Leader of the House. We should develop a situation wherein, when the Government starts statutory public consultation on a proposed order, the relevant Select Committees in the Commons and the other place should receive an indication from the relevant Department. That would be an important way to give Select Committees a sense in advance of the nature of a possible order, the areas that it might cover and the powers it seeks. It may be possible as part of widening the remit of the Regulatory Reform Committee. One of the Committee’s concerns is that it would like to widen its ability to call for evidence and to investigate the better regulation agenda in general. Giving the Select Committee information from Departments as a norm when those Departments start consultation on a proposed order would be an early indication to those Committees of what orders might come, when and how they might come and their
I have mentioned our intention to reflect on nine specific amendments. That is not to suggest that there is no merit in amendments that require a lengthier period. If the relevant Select Committee thinks that an order is wider or more controversial than it is comfortable with, or if it has any other reason for seeking a more onerous procedure, it has the absolute right in every instance to do so. Mindful of that, the Government wish to reflect on the proposals made in amendments Nos. 2, 3, 4, 5, 6, 24, 25, 26 and 77. Of those nine amendments, four were tabled by my hon. Friend the Member for Plymouth, Devonport, four were tabled by the hon. Member for North-East Hertfordshire and one was a joint effort. Given the assertion and commitment that we will include in the Bill a provision that Select Committees will be able to use an alternative procedure, I encourage the Committee not to withdraw those amendments. Based on the undertakings and understandings that I have given today, we will of course reflect on those nine amendments. Mr. Harper: The Minister’s response was heartening. On a procedural point, Sir Nicholas, as the Minister has agreed to accept the first amendment in the group, amendment No. 2, I presume that I have nothing more to do than to congratulate him on such a consensus. The Chairman: The Minister must clarify exactly what he has in mind. If he agrees with amendment No. 2, I shall put the question, and I would expect the Committee to vote for it. I am not entirely sure that the Minister said that, so I ask him to clarify the Government’s position. Mr. Murphy: I invited my hon. Friends and others to withdraw the specific wording of their amendments. I seek to reflect on the proposals made in the amendments and bring back suggestions that would enable them to be enacted in a technically sound and legal manner. That is my intention. We accept the spirit of those nine amendments.. Mr. Chope: The Minister says that he accepts the spirit of amendment No. 2, but it is a simple amendment. It would insert “30” in place of “21”. Does he have it in mind to propose an alternative Government amendment? Why does he not accept that amendment now? Mr. Murphy: There are nine amendments that we wish to reflect upon. The hon. Gentleman knows, and my hon. Friend the Member for Plymouth, Devonport alluded to the fact, that the interactions between the various procedures have to be taken into account—for instance, the negative, affirmative or super-affirmative procedures and the different classifications that my hon. Friend mentioned in respect of preliminary periods and so on. We wish to take a further look at
The Chairman: Before I call the hon. Member for Forest of Dean, I advise him that he can do one of two things. He can withdraw amendment No. 2, and rely on the firm assurance given by the Minister; or he can press the amendment to a Division. I invite the hon. Gentleman to clarify the position of Her Majesty’s Opposition. 6 pmMr. Harper: I thank you, Sir Nicholas, and the Minister. That was a helpful clarification, even though it prolonged matters. Given the Minister’s clear assurances, and the fact that he has specified nine amendments that he wishes to take back to parliamentary draftsmen so that they can express them more elegantly and check the complex interactions, I beg to ask leave to withdraw amendment No. 2. Alison Seabeck rose— The Chairman: May I help the hon. Lady? Before I ask the Committee to accept the withdrawal of the amendment, she should be reassured that the Minister has clearly indicated that he will consider four of her amendments, which will be taken with the four from Her Majesty’s Opposition and the one that is a joint effort. That makes the nine amendments that the Minister has indicated that he is prepared to consider and to bring back on Report, meeting the spirit of the originals. Amendment, by leave, withdrawn. Mr. Oliver Heald (North-East Hertfordshire) (Con): On a point of order, Sir Nicholas. The Chairman: I shall take a point of order from the distinguished lawyer— sorry, solicitor. Mr. Heald: Barrister, actually. New clause 3 is about the procedural veto. Given the Minister’s assurance, I am not keen to move it, because I should like to see what his proposals are. In those circumstances, do I have to do anything, or can it just not be moved? The Chairman: I can say to the hon. Gentleman that it need not be moved. Clause 13 ordered to stand part of the Bill. The Chairman: That took rather less time than I anticipated. I call Mr. Heald, barrister. Column Number: 228 Clause 14 Negative resolution procedure Question proposed, That the clause stand part of the Bill. Mr. Heald: As I explained this morning, we do not believe that law-making powers should be given to Ministers under the negative resolution procedure. Therefore, we wish to divide the Committee on the clause. Mr. Murphy: Responding to that comment, many of the arguments have been dealt with in an earlier debate. Clause 14 sets out the requirements for negative resolution procedure. That will apply to an order that the Minister recommends and with which neither House disagrees. Without going over the debate that we have already had, I have given examples to show why the Government believe that the negative resolution procedure is appropriate. It is in keeping with the sense that procedures of the regulatory agenda are focused and proportionate. Examples would include removing the need for onerous completion of forms and other such non-controversial simplifications. We have already dwelt on the matter. Of course, the Government absolutely acknowledge and support the principle that the relevant Select Committees of this and the other place will have in every instance, on a case-by-case basis, the ability to reject the negative resolution procedure. However, we should retain the negative resolution procedure for proposals that cannot, on any assessment, be judged to be controversial, such as the merging of certain forms or the requirement that certain public bodies retain two sets of accounts, as I mentioned earlier. Such things clearly make no sense, and there was unanimity on that. Equally, it would make no sense to remove the ability to have the negative resolution procedure to deal with them, and I urge hon. Members to allow clause 14 to stand part of the Bill. Mr. Heald: I am not satisfied with that. I fully accept the Minister’s point that there is a case for using the negative procedure to amalgamate forms, for example. However, it is not right that a law-making power to sub-delegate should be given under the negative procedure. As far as I can see from our discussion this morning, the Bill provides for such a power. That could happen by way of a negative order, although, as the Minister says, choices would be available to the Minister, and the Select Committee would have its role. However, it is not right to give an order-making power to sub-delegate under a negative procedure. I would therefore like to remove clause 14 from the Bill so that there is no explanation of the negative resolution procedure, which would make it very difficult to implement. Question put, That the Clause stand part of the Bill:— The Committee divided: Ayes 8, Noes 6. [Division No.
AYES Austin, Mr. IanCooper, Rosie Dhanda, Mr. Parmjit Hodgson, Mrs. Sharon Keeley, Barbara Love, Mr. Andrew Murphy, Mr. Jim Seabeck, Alison
NOES Carswell, Mr. DouglasChope, Mr. Christopher Harper, Mr. Mark Heald, Mr. Oliver Howarth, David Watkinson, Angela Question accordingly agreed to. Clause 14 ordered to stand part of the Bill. Clause 15 ordered to stand part of the Bill. Clause 16 Super-affirmative resolution procedure Mr. Harper: I beg to move amendment No. 1, in clause 16, page 8, line 40, at end insert—
Clause 16 refers to the process for the super-affirmative resolution procedure. Under the Bill, all the Minister has to do is to
that he receives and to
If he does, he can simply make an order pursuant to the original draft and lay before Parliament a statement giving details of the representations that he has received. That is not adequate, particularly given the Bill’s scope. Amendment No. 1 says that if “both Houses of Parliament” or
suggest an amendment to the order, the Minister must do one of two things: he must make the recommended amendment or withdraw the order; he cannot simply proceed and ignore the resolutions of either House of Parliament. That provision is much more robust than the one in the Bill. Given the procedural safeguards that we tried to insert at earlier stages, which have not been accepted, the provision would be a huge improvement, giving to Parliament—either the Houses themselves or Committees—the power to insist on amendments. If they were not accepted, the Minister would have to withdraw the order and start all over again. That is the case in a nutshell, and I should be interested to hear whether the Minister either is minded to accept our proposal in total, or thinks that there is some scope for beefing up the clause as drafted. Column Number: 230 Mr. Chope: This is a very important amendment, because we understand that so far, the Government have never gone beyond the super-affirmative resolution and insisted on having their way by taking an order to the Floor of the House and pushing it through against the will of the Committee. They may have chosen not to insist prior to this, because they have not thought anything significant enough to insist on, thereby encouraging hon. Members into a false sense of security and into thinking that the Government shall act reasonably and responsibly. My hon. Friend the Member for Forest of Dean is right to point out that if the amendment were not agreed to, the Government could ultimately insist on getting their way by using their majority on the Floor of the House. Mr. Heald: I do not know whether my hon. Friend would agree, but the Regulatory Reform Act 2001 was in force and considered to be the main option for the Government for only a short period. Four years later, here we are with a new Bill, so we have seen the operation of that mechanism for only a short time. In those circumstances, is it not important to include in the Bill the protection that one feels necessary? Mr. Chope: I agree with my hon. Friend, particularly given that the powers in the Bill are so much more extensive than those in the 2001 Act—as we have discussed extensively during Committee. I cannot see why the Minister will not accept the amendments. Perhaps he will accept amendment No. 1. If he will not accept amendment No. 1, it will again indicate that we must be extremely suspicious about what the Minister referred to earlier in Committee as the Government’s “wider ambitions”. David Howarth: I want to speak briefly in support of the amendment. Throughout Committee, or at least occasionally, the Minister has said that there will be a power to amend orders that come through under the Bill. As I read the clause, that is not the case. The clause allows the Minister, if he wishes, to put forward an amended order, but there is no procedure for this House, either itself or in Committee, to amend the order. Amendment No. 1 would be a rather moderate addition to the Bill, giving the Government the option of accepting an amendment or withdrawing the order. It would not amount to a full Bill procedure, but it would restore one of the most important aspects of the primary legislation procedure, which is what we are involved in now. Mr. Murphy: In responding to the points and the amendments, I am sure that the hon. Member for Christchurch will be disappointed at having accepted in principle nine of the amendments from the previous debate. Mr. Chope: Will the Minister give way? Mr. Murphy: No, I am going to make some progress. Mr. Chope: Why does the Minister say that? Column Number: 231 Mr. Murphy: Because I am going to make some progress. That is why I said that I am going to make some progress. The Chairman: Order. 6.15 pmMr. Murphy: I said that I am going to make some progress, Sir Nicholas, because I am going to make some progress. In respect of the amendment, we are aware of the need to ensure that Committees are provided with adequate opportunity to reflect upon the merits of proposed orders, and to recommend amendments accordingly. I can assure the hon. Gentleman that the Government would not wish to compromise that arrangement at all. The Bill provides that orders undergoing scrutiny by super-affirmative procedure can be amended, because the relevant Minister can take on board views from Parliament and revise the draft order. Either House can require that the super-affirmative procedure be followed in any particular case, as can a Committee of either House. However, we do not wish to jeopardise the flexibility that has proved an effective part of the current order-making process. In practice, of course, the Government have rarely had reason to reject Committee recommendations for regulatory reform orders, but we need to avoid situations in which a potentially valuable reform could be lost on the basis of a single proposed amendment. It is important that Departments continue to have the opportunity to consider whether a proposed amendment is technically workable and whether it represents the most effective means of dealing with an identified problem. The Government’s ability to assess the validity and quality of proposed amendments is a valuable part of the parliamentary process. Mr. Harper: If the Minister looks at the amendment to the clause he will see that it would be quite difficult to invoke, because there has to be a recommendation from both Houses of Parliament or from the relevant Committees of both Houses of Parliament, so we are not even talking about just one of the two. The Minister says that it is valuable for the Government to be able to assess the nature of regulations, but it is equally important that the House of Commons and the other place are able to do so, and if they have recommended an amendment it does not seem unreasonable that the Government should either have to accept the amendment or withdraw the order. For the Government to pursue their original intention when both Houses of Parliament have said otherwise seems unnecessarily dictatorial. Mr. Murphy: I have already given assurances that the Government will not seek to force through an order where a Committee has proposed an amendment. As was the case under the 2001 Act, we wish to retain the flexibility to ensure the quality of orders. Mr. Heald: Will the Minister give way? Column Number: 232 Mr. Murphy: I am going to make some progress. The amendment would bind the Government to accept any amendment to a proposed order and would not give the flexibility that has already worked so well under the 2001 Act. The Delegated Powers and Regulatory Reform Committee demonstrated the merits of the current system during the scrutiny of the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003. The Committee expressed concerns about proposals to downgrade the process of court approval for certain lease agreements between tenants and landlords, and specifically questioned whether the proposal would maintain necessary tenant protection. The Department undertook further research and was able to allay those concerns, with the result that the order was successfully made. The flexibility of the current arrangement is a valuable and important part of the order-making process, and for the reasons I have given I am not minded to support the amendment. On the point made by the hon. Member for Forest of Dean about the wording whereby the Minister must have regard to representations, that is the same as in the section 8(4) of the 2001 Act. I hope the fact that we are replicating the 2001 Act helps him to see the context. |
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