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Associated British Ports (No 2) Bill (By Order)

Volume 176: debated on Wednesday 18 July 1990

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Lords amendments further considered.

7.15 pm

Order. I shall take points of order in a moment. Perhaps it would be helpful to remind the House that this debate started on 25 June this year. The hon. Member for Brigg and Cleethorpes (Mr. Brown) was called, started to move the Lords amendments and, most unusually, if he will allow me to say so, was interrupted before he uttered more than half a sentence. That was for a good reason—the Chair had to deal with points of order. So I shall, of course, take points of order. When we have disposed of the points of order the hon. Member for Brigg and Cleethorpes will have the Floor, if he wishes to catch my eye.

On a point of order, Mr. Deputy Speaker. I seek your guidance. You will observe that on the Order Paper there is a notice of motion in the name of the Prime Minister. Before we begin what some of us have regarded for over two years as an important debate, it would be helpful if you could clarify the procedure. You will notice that the motion says that

"at this day's sitting, the Associated British Ports (No. 2) Bill may be proceeded with, though opposed, until any hour."
That motion has been tabled in the name of the Prime Minister, despite the fact that this is a private Bill. We are worried about this and we seek your assistance.

It would appear that the motion is not what one would call a timetable motion. As First Deputy Chairman of Ways and Means, could you explain how the Prime Minister has become involved in this private business? We are probably about to have what could be called an endurance test, never mind a timetable motion, in the sense that the debate could continue after 10 o'clock. As this is private business, some of us are puzzled about how the Prime Minister, the Private Bill Office, and the First Deputy Chairman of Ways and Means have become involved in making the debate some sort of endurance test in which whoever survives the longest will win. I suggest that that is hardly the way to do business in the House. My hon. Friends and, I presume, some Conservative Members would like to know what the procedure is and how it was arrived at before we kick off the debate.

I can certainly clarify that point for the hon. Gentleman. As he rightly assessed, the motion is tabled in the name of the Prime Minister. It has nothing to do with the Chairman of Ways and Means. That means that at 10 o'clock, or an appropriate moment after 10 o'clock, the Whip will move the motion if he so desires. The House will come to a decision on that forthwith. If it decides in favour of the motion, the debate will be allowed to continue until any hour. I hope that I have clarified the procedure for the whole House. It is perfectly normal procedure, to which we are well accustomed in the House.

On a point of order, Mr. Deputy Speaker. You will recall that in several debates we discussed whether this is a hybrid Bill. The Chair has always ruled that it is not, and that it has proceeded in the correct manner. Will you suspend the House to enable your good self to have a look at "Erskine May" for guidance? It states that you have the power to rule that it is a hybrid Bill. As there is ample evidence of Government involvement in the Bill, I ask you to consult the Clerk and "Erskine May" and to rule that it is a hybrid Bill. If you, Mr. Deputy Speaker, suspended the House for 10 minutes, I could furnish that evidence.

I am sure that the hon. Gentleman, and indeed the whole House, will recall that that matter has been raised on a number of occasions during the Bill's passage, and there have been several rulings stating that the Bill is not hybrid, and is perfectly in order. I have nothing to add to the numerous rulings that have been given in the past.

On a point of order, Mr. Deputy Speaker. I brought two matters to the Speaker's attention earlier today and said that, if a ruling had not been given before 7 pm, I would raise them again at the commencement of this business. My first point of order involves clause 3 and their Lordships' amendments relating to it. I submitted papers showing that the Bill's drafting, as subject to the Lords amendments, was wrong and that it would be a simple matter involving the loss of no more than six months for the Bill to return to the House of Lords for that defect to be put right.

My second point of order arose under clause 18, and was briefly drawn to your attention, Mr. Deputy Speaker, during our earlier discussions—the EC directive 85/337. In view of the almost certain challenge, which cannot possibly be in the interests of the Bill's promoter, I ask you, Mr. Deputy Speaker, whether there are proper channels within private Bill procedures whereby a roll-over could be agreed so that the Bill would comply with the directive. That procedure was confirmed by the report of the Joint Committee on Private Bill Procedure on 20 July 1988. That review was reaffirmed by the then Leader of the House on 20 April last year.

Will you, Mr. Deputy Speaker, rule on those two points of order?

Yes. Further to that point of order, Mr. Deputy Speaker. If I may help you, Mr. Deputy Speaker. This matter has been to the Speaker's Counsel. What happened, in a nutshell, was that the Bill was not amended in this House and went to the House of Lords. A series of amendments was passed in the Committee on Unopposed Bills in the House of Lords which we shall debate later today. The amendment to which the hon. Member for Nottingham, South (Mr. Brandon-Bravo) referred was to change "85" to "85E". That sounds insignificant to the layman and hon. Members, but it involves the compulsory purchase of people's property. The reference "85E" relates to one of the mining codes used in the Mines (Working Facilities and Support) Act 1923. The Railways Clauses Consolidation Act 1845, which was used for the Associated British Ports (No. 2) Bill, contains no such thing as "85E". It contains sections from 77 to 85, but no others.

In the other place, one of the advisers decided to make the Bill workable by using the 1923 Act, which includes sections 77 to 85, and 78A, 79A, 79B and 85A to E. He has added them on, but used the wrong Act. The result is that representations have been made to Speaker's Counsel. You, Mr. Deputy Speaker, may know him, but I have not met him before.

I have correspondence in which Speaker's Counsel says that there is an argument about the Bill. He uses words—

Order. I am sorry to interrupt the hon. Gentleman. I am listening with interest to what he says, but I am sure that he realises that it would be inappropriate to attempt to quote an alleged view of an official of the House.

Order. I am sure that the hon. Gentleman realises that it would be unfair to do that.

Order. I am trying to be helpful to the hon. Gentleman. Everything that he and the hon. Member for Nottingham, South (Mr. Brandon-Bravo) have said so far will be perfectly in order in the debates on Lords amendments, but they are not matters for the Chair or points of order for me.

Let me get this straight. We are talking about hon. Members in the House being gagged and stopped from using information which if it is not declared to the public at large will result in people losing their property rights. The matter arises from legal representations that have been made by British Coal, and others with an interest in the matter, obtaining rights to excavate minerals. Where the Bill refers to "section 78" of the 1845 Act, as amended by the 1923 Act, the wrong Act has been used, and representations have been made about that.

I shall quote exactly what Speaker's Counsel has said because it is germane to what we shall discuss—

Order. This matter will be perfectly legitimate when we debate the Lords amendments. The hon. Gentleman has risen on a point of order, and I am not clear what the point of order for the Chair is.

It is clear: are we going to pass an Act here that has been amended at a late stage, about which Speaker's Counsel declares, in answer to Paul Thompson:

"If it were possible at this stage to make more precise the drafting of that part of clause 3(2)(b) I should not hesitate to recommend that it be done."
It can be done—we have merely to send the Bill back to the House of Lords—

Order. If the hon. Gentleman catches the eye of the occupant of the Chair during the debate, he can make that point, but it is not a point of order for me.

On a point of order, Mr. Deputy Speaker. I have two points of order, one of which continues one aspect of the point of order made by my hon. Friend the Member for Bolsover (Mr. Skinner). If we did not make a decision about the issue raised by my hon. Friend, in the knowledge that the Bill is defective, we should be doing Parliament and the law a profound disservice. Occasionally, Parliament makes mistakes in legislation, but they are invariably found after a Bill has become law. For Parliament deliberately to approve a statute in the knowledge that it is defective would be a precedent that I hope no hon. Member would support. I hope that that point can be considered in the next few minutes before we embark on the debate on the amendments, when the pass may have been sold.

I shall make my second point of order briefly and, I hope, allow people time to consider the matter raised by my hon. Friend the Member for Bolsover. It refers to clause 3(1) and clause 3(2)(b), which both contain the words "the railway". There may be an error, if not in the first "the", in the second "the", which appears in clause 3(2)(b). It seems that we are deeming something to be "the railway" when we should deem it to be "a railway". That point is not as substantial as the major point of my hon. Friend, but it suggests another small reason why their Lordships should reconsider the issue. If their Lordships were given that opportunity, it might allow a proper environmental assessment to be carried out that would be consistent with the policies of both Government and Opposition, and of Europe, to which the Government and the Opposition owe some obligation.

Order. Of course, I shall take points of order, but I repeat that we are already well launched into the debate. It would be better if we debated matters relating to the amendments after we have heard from the hon. Member for Brigg and Cleethorpes, rather than discussing them as points of order. They are perfectly legitimate issues to raise in the debate on the Lords amendments, when we get to it.

On a point of order, Mr. Deputy Speaker. I understand your position and I certainly would not want to challenge it, but a defective amendment has been made in another place which does not legally fit the statute that we are attempting to pass. That would never have happened if amendments to the Bill had been proposed in this place, as hon. Members tabling amendments would have been advised by the Clerks, who do a first class job, on whether to proceed. It seems extraordinary that we are expected to accept a defective amendment, which, if it is carried, will mean defective legislation emerging from this House, which is supposed to legislate for the country—without any redress except a vote against other amendments which may be perfectly in order. That is an incredible thing for hon. Members to be asked to do. Under the circumstances, I ask that the sitting be suspended until you can be advised whether it is correct for us to go ahead and deliberately pass defective legislation.

7.30 pm

If the other points of order are on the same matter, it might be tidier if I took them all together.

Further to the point of order, Mr. Deputy Speaker. Will you arrange to bring either the Solicitor-General or the Attorney-General to the House to give an appraisal of the points made by my hon. Friends tonight?

Further to that point of order, Mr. Deputy Speaker. Are the amendments in order or are they defective?

There is nothing that I can add on these points of order to what I have already said. All these matters can be raised in the debate, as hon. Members know. I was doubtful whether the debate on the amendments would be so wide-ranging. It is evident to me that these points of order are legitimate points to make in the debate. The House will recall that when we last discussed the matter there was a clear ruling from the Chair that, if the House so desired, it would be possible to vote separately on each Lords amendment. I hope that that is of some assistance to the House.

On a point of order, Mr. Deputy Speaker. Ever since the Bill came to the House there has been an awful smell. I listened to what my hon. Friend the Member for Midlothian (Mr. Eadie) said and now the stink is even worse. There has been interference and support from the Government, from the Prime Minister down. I remember several occasions when Ministers were whipped in here to vote for a private Bill. It is a shocking state of affairs, and you should listen seriously, Mr. Deputy Speaker, to what hon. Members on both sides of the House are saying about whether it is right, proper and within the rules to debate the Bill before these matters are sorted out.

It is obvious that there is a problem with the Lords amendments and that is our argument. The smell in the House stinks something awful, and we want it cleared up. We are not happy with what is happening. I am not challenging your ruling, but at the same time I do not accept it.

There is nothing that I can add to what I have already said. The sooner that we get on to the debate, the more likely it is that the hon. Member for Ashfield (Mr. Haynes), if he catches the eye of the Chair, will be able to develop his argument.

On a point of order, Mr. Deputy Speaker. You will appreciate that the first Lords amendment alters clause 3 and substitutes 85E for 85. It refers to the Railways Clauses Consolidation Act 1845.

On a previous occasion, when we debated the Ade1phi Estate Bill, a question arose about old Acts being made available. Subsequent to that discussion in the House, when it was reasonably pointed out that old Acts registered and stored in the Library are delicate and should be handled with great care, not fumbled about on the Benches here, the promoters of the Bill provided an extract from the relevant legislation.

I have been to the Vote Office and no extracts of the 1845 Act have been made available. There is a copy of the Act in the Library, and it is old and delicate. We should take care of such documents and call upon the promoters to provide adequate information.

Moreover, Standing Order No. 34 on private business states:
"In the case of a railway, tramsway or tramroad bill and of a bill relating to any waterway, road, bridge, tunnel, ferry, harbour, dock or pier, a copy of the deposited plan, section and book of reference (if any)"
should be provided. Perhaps "book or reference" has a defined meaning relating to some specific engineering detail, but we believe that under Standing Order No. 34 a book of reference must perforce relate to the Railways Clauses Consolidation Act 1845, because that is a point of reference for the amendments. Therefore, we should not proceed unless and until the promoters are prepared to provide extracts which I think they should do as a matter of course for every private Bill when we have to refer to ancient Acts. If they do not, we shall be running to the Library; the staff will let the Acts out with great reluctance and it is probable that damage will occur to priceless documents. It would be a good precedent to follow, and I suspect that it would broaden Standing Order No. 34 for private business, which would mean that promoters will be required to provide the information and that "book of reference" will include previous Acts.

The hon. Gentleman makes a reasonable point. He made a similar point of order on 25 June, which has given me the opportunity to look into it. He has largely answered his own point. He said that the onus should be on the promoters. That may be an argument on which hon. Members have strong views. It is not a matter for the Chair. It is the job of the House to ensure that the Bill and the amendments to it are available in the Vote Office. That is in accordance with our usual practice, and the Bill and the amendments are so available.

On a point of order, Mr. Speaker. May I draw your attention to the fact that my constituency is probably more affected by this Bill than any other? Yet for two long years I have tried to make a speech on the Bill and have never once been called. I understand the enthusiasm of some of my hon. Friends who have worked in the industry, but I ask you not to accept a closure motion after two hours when all that we have had have been points of order, and when some of us have been trying to make speeches, have voted on every occasion but have never been lucky enough to catch your eye.

I am most grateful to the hon. Gentleman, as that is an exceedingly helpful point of order. Given his long experience, long service and the esteem in which he is held by hon. Members on both sides of the House, I hope that his hon. Friends will now desist from their points of order so that I can call the hon. Gentleman to contribute to the debate.

Further to the point of order made by my hon. Friend the Member for Bolsover (Mr. Skinner), Mr. Deputy Speaker. You will be aware that there has been considerable concern about motives and about Government involvement in the Bill. The House is now being told that the Bill is acknowledged to be technically defective by Mr. Knorpel, Counsel to the Speaker. He acknowledged that, at this stage, it can be put right only in the House of Lords.

Would you consider suspending the sitting so that Counsel to Mr. Speaker can be consulted on whether the defective amendments should be rejected to give the House of Lords the opportunity to make them technically correct?

Given the deep-felt anxiety of the Opposition and people who are affected by this proposition, there is a danger that the Officers of the House and Counsel to Mr. Speaker will eventually be seen as parties to a Government fiddle. That is damaging and dangerous to the reputation of Officers of the House and to the House as a whole. I should be grateful if you would seriously consider suspending the sitting so that Counsel to Mr. Speaker can be consulted.

I hope that the House will not drag Counsel to Mr. Speaker—an official of the House—into the debate. We are dealing with Lords amendments only. If hon. Members feel that they can make remarks in order on the Lords amendments, so be it. I hope that we shall quickly proceed to discuss those amendments.

Further to the point of order, Mr. Deputy Speaker. It is not a matter of dragging the reputation of Counsel to Mr. Speaker before the House. He has been asked to advise and he has advised, in writing, that the Bill is defective and that the House cannot put right those defects. The House of Commons produces enough defective legislation unknowingly, and it would be preposterous to produce it knowingly, given the view of Counsel to Mr. Speaker.

If the hon. Member feels that way, the sooner we get on to the Lords amendments so that these matters can be discussed, the better.

On a point of order, Mr. Deputy Speaker. Is it in order for the hon. Member for Ashfield (Mr. Haynes) to cast aspersions on the voting record of hon. Members on the Bill? The Bill would have been killed off on Second Reading if more than 49 Labour Members had stayed to vote.

I shall take the points of order that hon. Members wish to raise, but I hope that I have not already dealt with them. I remind hon. Members of the heartfelt plea of the hon. Member for Bassetlaw (Mr. Ashton) to have an opportunity to speak in the debate.

On a point of order, Mr. Deputy Speaker. Will you consider suspending the sitting until we get an assurance from the Government? In the latter part of the sittings of the Committee on the Bill, its Chairman, the hon. Member for Rochford (Dr. Clark), said:

"Before the Committee came to make a formal decision on, first, the amendment proposed by the British Coal Corporation and, secondly, the Preamble itself, we agreed that if the bill were allowed to proceed, this would be subject to conditions … which … were agreed to unanimously."
One such condition was that the Bill's promoters should leave figures in the Library, to be checked from time to time. The Committee agreed:
"that the issues raised before it were sufficiently important that they justified making this Special Report to the House, to draw the attention of … the Government to what we believe would be the potentially disastrous effects of large-scale coal imports. In our view it is the Government's duty to take whatever steps are necessary, in the overall national interest, to protect the indigenous coal-mining industry."
The Committee made a special report.

My difficulty is that the hon. Member is not putting a point of order to the Chair. He is putting a point which could be legitimate and in order when we come to the Lords amendments. I have not yet heard a point of order for the Chair.

7.45 pm

My point of order for you, Mr. Deputy Speaker, is that you should consider suspending the sitting until the Government have given the assurance demanded by the Committee. At no time has that assurance been given. The Lords amendments should not be debated until the Government have given the assurance that the Committee demanded in its special report.

The hon. Member makes my point for me. If we debate the Lords amendments, we may get answers to these points, which are legitimate matters to raise in the debate on the Lords amendments.

On a point of order, Mr. Deputy Speaker. I wish to return to the point made by my hon. Friend the Member for Bolsover (Mr. Skinner). It is not an issue that can be dealt with by coming to the substance of the Bill and voting. My hon. Friend drew attention to the special responsibility of Mr. Speaker for private legislation. As the House knows, private legislation goes through a different procedure. It must be examined by Mr. Speaker, who gives his certificate, and for that purpose he is advised by his Counsel. My hon. Friend said that the House should have available to it the opinion of Counsel to Mr. Speaker—my hon. Friend has read it, so it is obviously not a confidential document.

As I understand it, when the Bill was introduced, Mr. Speaker gave his decision, which had to be accepted. The Bill then went to the House of Lords which has made amendments. Counsel to Mr. Speaker is dissatisfied, on legal grounds, with the formulation of the amendments. Mr. Deputy Speaker, you act for Mr. Speaker in his absence by chairing the House, but only Mr. Speaker can deal with the matter raised by my hon. Friend the Member for Bolsover. Counsel to Mr. Speaker said that the Bill had come back from the Lords technically defective. We may have different views about the merits of the Bill, but that is a matter for debate. In those circumstances, only Mr. Speaker can rule on the extent to which he takes in to account the views of Counsel, who has warned the House that the Bill is defective, since when Mr. Speaker has not given his judgment on the matter. The issue is the juridical role of the Speaker.

The problem cannot be disposed of simply by voting for or against leaving out section 85 and inserting section 85E. There is a wholly reasonable proposal on how to proceed, and I have known this to happen during my years here. When a matter of substance arises, Mr. Speaker should be invited to give it his attention, in which case consideration of the Bill is postponed. I personally do not think that the debate on this Bill could be postponed for 10 minutes or so while the matter was considered. Mr. Speaker would have to give his considered attention, with the advice of the Clerks, to the advice that he had received from his Counsel. If Mr. Speaker believed that his Counsel had identified a defect in a Bill that had come from another place, he would have to make a new ruling.

These are not political points. They are matters for you, Mr. Deputy Speaker. I am inviting you, with great respect, to say that the points made have sufficient substance to merit the matter being referred to Mr. Speaker and that further consideration of the Bill should be deferred until that has been done.

I am glad that the right hon. Member has raised the issue in that manner, because I can readily clarify it. Mr. Speaker has, of course, considered the Lords amendments with considerable care. I assure the House that he is satisfied that there is nothing out of order in them; the Lords amendments which are on the amendment paper for discussion this evening are in order.

I am grateful for that assurance, Mr. Deputy Speaker, because it is the first time that we have heard it. Surely if Mr. Speaker disagrees with his Counsel, which he is perfectly entitled to do, the House is entitled to know the reasons for that disagreement. Surely, in the event of such recommendations by his Counsel, Mr. Speaker would be required to issue a new certificate to the effect that the Bill remains a private one within the provisions of the Standing Orders.

That depends on the interpretation of the words and, of course, Mr. Speaker is given advice on these matters. He is quite clear that our proceedings are in order and that the Lords amendments should be considered. That is plain and there is nothing further that I can add. We have had a good run on points of order. I have allowed every hon. Member who rose at the start of them to raise his point of order and I have dealt with them. To echo the point of the hon. Member for Bassetlaw, it would be much more sensible to get on with the debate in which we may get some enlightenment on these points.

On a point of order, Mr. Deputy Speaker. I should like to know whether the Bill as it stands and the amendments should be sent back to the Committee. You will recall that originally the Bill came to the House together with the North Killingholme Cargo Terminal Bill. Both Bills were to be considered together but they were eventually separated. Both went into Committee but only the Associated British Ports (No. 2) Bill was continued. I understand that the North Killingholme Cargo Terminal Bill was dropped because of the poor quality of drafting. It appears that the technical drafting in this Bill is also poor. Will you rule whether the Bill should be referred back to the Committee so that it can consider whether the Bill should be dropped?

It is not possible to move back. We are dealing with Lords amendments and the sooner we get on with them the better.

On a point of order, Mr. Deputy Speaker. You have ruled that the matters that have been raised in points of order can be discussed during the debate on the amendments. You told my hon. Friend the Member for Bolsover (Mr. Skinner) that clauses 77 to 85 of the Railways Clauses Consolidation Act 1845, which are matters for dispute, left it open to us to discuss whether the original 1845 Act was being referred to or whether it was that Act as subsequently amended. The additions are much wider in the first case than in the second.

I raised a point of order on 25 June which is reported at column 83 of the Official Report. I asked whether we would take the amendments one by one, not just in terms of votes but in terms of their being moved and dealt with. I was told that it would be appropriate to raise that matter later. It would be appropriate for us now to discuss the amendments separately, because your earlier ruling to my hon. Friend the Member for Bolsover showed that a wide debate may be possible on the first amendment, or at least on the first two, applying to these ports.

I have nothing to add to what I have already said to the hon. Member for Bolsover (Mr. Skinner) and other hon. Members. If the hon. Gentleman checks Hansard for 25 June he will see that the House decided when we started the debate that all the Lords amendments would be taken together. That is the normal procedure for Lords amendments to private Bills. However, the Chair said that separate Divisions on the amendments would be permitted. There is nothing further that I can add. The ruling was made clear on 25 June and the hon. Member for Wentworth (Mr. Hardy), with his long experience in the House, will remember how helpful he was in that regard.

Further to that point of order, Mr. Deputy Speaker. Since then we have had a range of points of order which revealed new problems, and we have had a ruling which reveals that discussions in connection with amendments Nos. 1 and 2 can be wide. Because of those changed circumstances, is not it appropriate to readjust the position because we have had barely half a sentence from the hon. Member for Brigg and Cleethorpes (Mr. Brown) who moved the amendment?

We are rapidly approaching the time when we can have another half a sentence from the hon. Member for Brigg and Cleethorpes. We have had a good run on these points of order. It is my job to protect not only this debate but the other business before the House.