Clause 7
Procedure for orders under s. 6
Mr. Carmichael: I beg to move amendment No. 151, in clause 7, page 7, line 3, at end add—
'(7) Orders made under section 6 shall be considered to be primary legislation for the purposes of the Human Rights Act 1998.'.
The amendment is probing and we can probably deal with it in fairly short compass. I tabled it because the clause is interesting to say the least, and I am keen to have more of the Minister's and the Government's thinking on it on record.
The procedure covers orders that contain provision for compulsory registration. It lays out a process that involves the preparation and publication of a report that sets out a proposal for it to include the Secretary of State's reasons for making the proposal, for the report to be laid before both Houses and for each House to have approved the proposal in the report, with or without modifications, as well as the draft order. I have read the clause short, but that will be its effect.
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I stress that the amendment is effectively a probing amendment. Its terms are such that, for the purposes of the Human Rights Act 1998, the orders would be considered primary legislation. The distinction is that primary legislation requires to be certified by the Secretary of State—the Home Secretary, I think, in this case—and that the legislation is compliant with convention rights—[Interruption.]
The Chairman: Order. There are far too many conversations taking place.
Mr. Carmichael: Thank you, Mr. Gale. Primary legislation, however, cannot be struck down. It can be disapproved by Parliament, which is what happened with the Law Lords in respect of the detentions at Belmarsh and the anti-terrorism legislation that we dealt with towards the end of the previous Parliament.
Secondary legislation is open to challenge and the nub of the point that I want to bring to the Committee's attention is whether the clause will remain secondary legislation for the purposes of a Human Rights Act challenge? Is it something that, for example, could be struck down by a court making an order if it felt that the necessary conditions had not been met? It would be infinitely preferable that, for a scheme to include an element of compulsion as opposed to a voluntary scheme, which we currently have—nominally, least—we proceed by way of primary legislation. Clearly, the Government take a different view, and I want to the Minister to explain the thinking and reasons behind that different view.
Mr. Garnier: I agree with the hon. Gentleman. The points that he made are another way in which to attack my worries about the 60 unseen and unheard of powers that the Secretary of State is giving himself under the Bill. There are good arguments to be voiced about the value of the amendment and the hon. Gentleman has made them.
However, I am worried that the process by which Parliament can deal with such matters will be constrained by the regime under the Bill. Not only can the courts strike down secondary legislation, so it might be thought that secondary legislation is a power that would be better for us, but, more to the point, in an emergency, Ministers can amend secondary legislation without parliamentary approval. Powers in the Human Rights Act are given to the Minister to amend legislation that, in this case, will be matters of some worry. I shall leave it at that, because I know that the general point that the hon. Gentleman made was better made by him than by me.
It is important that we never leave off discussing and putting forward our concerns about the way in which legislation increasingly empowers Ministers to do things over which we have no control. The Government find it convenient to legislate in that way, and that is a problem not just with this Bill, but with all sorts of other legislation. It is increasingly the way in which modern legislation is constructed, and it is just an enabling system for Secretaries of State to hang secondary legislation, giving themselves the power to do this, that and the other. In this Bill, it
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reaches the level of 60 individual powers, and I am not sure that that is a good way to run a country.
Andy Burnham: I am grateful to the hon. Member for Orkney and Shetland for tabling the amendment, because it is an important point. It implicitly acknowledges that although the super-affirmative procedure outlined in clause 7 is in fact secondary legislation, it is closer to primary legislation in terms of parliamentary scrutiny than other forms of secondary legislation.
The hon. and learned Member for Harborough raised some concerns. The process is laid out in such detail, and, for precisely those reasons that we discussed during the debate on the previous clause, Parliament has a commanding role in passing whatever is to be passed. We recognise the seriousness of a request to the British public for people to register under the scheme. For that reason, it is right and proper that their parliamentary representatives have full opportunity to scrutinise the Government's proposals and that Parliament has the ability as laid out in the clause to amend them.
Mr. Garnier: I am sure that all that the Minister says is entirely true, but does he agree that under the clause 7 procedure, Parliament has no ability to amend the secondary legislation before the House? There is no guarantee that whole rafts of powers and statutory instruments will not be placed in one debate that, if the practice in this and the previous Parliament is anything to go by, will be limited to no more than 90 minutes, and, possibly, only to 45.
Andy Burnham: I refer the hon. and learned Gentleman to clause (7)(2)(c). It talks of a procedure in which a
''report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications''.
I put it to him that that could not be clearer.
Mr. Garnier rose—
Andy Burnham: Let me finish. It could not be clearer that the House has the opportunity to modify the proposals laid before Parliament by the Secretary of State. In that way, the provision is subject to the fullest possible scrutiny, which is why I said to the hon. Member for Orkney and Shetland that it mirrors primary legislation and that it almost is primary legislation. In effect it is primary legislation, although it will still be taken under a secondary procedure.
Mr. Garnier: Since the Under-Secretary is moving in my direction, I want to see whether I can push him a little further. I want him to be clear with us about the modification. If he means amendment, why does he not say amendment? Does the modification refer to the proposal, meaning one of the powers that the Secretary of State is reserving to himself, or to the report? We must be clear. The report may be modified, but it may contain within it in an unmodified or unamendable form, a proposal that is the statutory regulation. Although I believe every word the Under-Secretary says—of course I do—we must be clear about the English, and about what he means and what
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he intends. What he says now will be relied on by other people in due course.
Andy Burnham: The hon. and learned Gentleman began by saying that he was glad that we were moving in his direction. The clause is in the Bill, and perhaps if he had read it carefully, he would have seen that whether it is modifications or amendments, it does not matter, the effect is absolutely—[Interruption.] Modifications is absolutely the same thing as amendments. If the hon. and learned Gentleman would like to tell me the difference between them, I would be interested to hear it, but the effect is the same. As the clause sets out, Parliament has the power to consider the report that the Secretary of State has laid before it. Each House will have the opportunity to approve the proposal, with or without modifications, and the order on which both Houses vote then gives effect to it, modified or not. The provisions could not be clearer.
Mr. Carmichael: I am grateful to the Under-Secretary for giving way, because I am curious as to how a report can be modified—or, if he would prefer, amended—under current Standing Orders. Does he envisage that that would be done on a debatable resolution or would the report itself be modified, which is what the Bill seems to suggest? If that is the case, are we talking about something closer to the procedure that we undertaking here, in a Standing Committee or perhaps in a special Committee?
Andy Burnham: The hon. Gentleman is correct. The proposal as outlined in the clause is for the report to be modified by the House. My understanding is that hon. Members would have the opportunity to move amendments to the text and that the House would have the opportunity to vote on those amendments. The report, as amended, would form the basis of the proposal that the House as a whole would accept or reject.
As a new Minister and a relatively new Member, I think that we are in fairly new territory in parliamentary terms. I am trying to think of parallels. I think the system that was conceived under the tuition fees Bills, in terms of raising the cap on the maximum fee that can be charged, is analogous to the mechanism proposed. I hope that the hon. Gentleman and other Opposition Members will recognise that the strength of the procedure is its ability to take on board the concerns that have been expressed about the seriousness of going to a fully compulsory scheme.
Mr. Carmichael: I am grateful to the Under-Secretary for giving way, because we have come to the nub of the matter. I cannot think of any provision in Standing Orders that would allow amendment of a report in that way. If the report comes as part of secondary legislation, the matter is quite clear. No power to amend secondary legislation is given to this House, although it is given to the other place, so what parliamentary procedure would be followed?
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