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Sections 10 And 11: Supplementary

Volume 404: debated on Monday 28 April 2003

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Lords amendment: No. 5.

8.30 pm

I beg to move, That this House agrees with the Lords in the said amendment.

With this we may discuss Lords amendments Nos. 6, 7, 9, 10 and 13.

This group of amendments is inspired by the Delegated Powers and Regulatory Reform Committee, which recommended in its 11th report that the delegated powers in part 2 should be subject to the affirmative resolution procedure. In his response to the Committee, the Lord Chancellor accepted its recommendation. He said that he would table amendments, and amendments Nos. 5 to 7 and 10 and 13 are intended to achieve this purpose.

The amendments apply to the delegated powers under clauses 12, 17 and 20. They require the Lord Chancellor to use either an affirmative procedure, whereby a draft is laid and may not come into force until parliamentary debates have been held, or, in urgent cases, an alternative but well-established affirmative procedure whereby the debates may be held within 40 parliamentary sitting days after the instrument has been made.

The procedure recognises the concerns that have been expressed that detailed secondary legislation should receive the scrutiny of both Houses, and the Government's concern that we should not find ourselves in a position where, because of timetabling difficulties, we will not be able to put the final details in place to enable all parties concerned to prepare properly for the elections in June 2004. As we set out in Committee, there are time constraints, given the imminence of the 2004 elections and the immense amount of work that will have to be done. The Government of Gibraltar must be consulted on some of the practical details to ensure that the application of UK electoral law to Gibraltar for the European Parliament elections can work properly. We are also required to consult the Electoral Commission as the independent body that can give an authoritative view on what is proposed. There is a tight timetable and a great deal of work must be done.

Our firm intention is to use the affirmative procedure wherever possible. We have stated that we intend to combine, where possible, the making of as much as possible of the legislation with the general European Parliament regulations, which we would in any case be preparing in advance of next year's elections. The amendments set out the possible situation where for "reasons of urgency" there may be some cases where we have to opt for the delayed affirmative procedure. We must ensure that, in the run-up to the 2004 elections, we are not unable to provide appropriate information to those who need to conduct the elections.

I am sure that the Minister will agree with the general proposition that these important matters must not be discussed in the abstract. To lend some verisimilitude to the argument that she is advancing in support of subsection (5B), can she depict for the House a practical example of the circumstances in which that subsection would be suitably applied?

The difficulty that we have with election law is its complexity. Sometimes concerns can arise at a relatively late stage that need to be addressed. Such concerns might not have been anticipated. That is the nature of the detailed legislation that we are addressing. If we were able to anticipate problems that might arise at a late stage, we would be able to resolve them early on and take them through the normal affirmative procedure. It is important that we have a fall-back position should problems arise at a late stage in the process, perhaps through consultation with the Electoral Commission or through consultations with the Government of Gibraltar.

We are considering a procedure that has been used before. For example, section 85 of the Northern Ireland Act 1998 provided for the use of the delayed affirmative procedure where reasons of urgency were involved. The procedure has been invoked in other Acts.

We are in an unusual situation. The 2004 elections are looming. That is effectively the deadline. It is the time when the Bill needs to be in place so that the elections can be conducted properly. It is therefore appropriate that the delayed affirmative procedure is in place. However, as we have always said, we are keen to ensure that the process can be used, wherever possible, alongside the European Parliament regulations. It would therefore go through the affirmative procedure anyway.

It is always interesting to hear the Minister responding to the representations that have been made to her from whatever quarter. She has a slight tendency not to want to give the impression that she is giving anything away. There is a bottom line to the way in which she puts her concessions to bed, as it were. The reality is that the Government were forced into this position. They do not want to tangle with the distinguished Committee in the House of Lords that deals with regulatory reform. A list of the Members in question would perhaps indicate the extent to which the Government are determined not to fall out with them. The members of the Committee are distinguished in their own right.

There is always the suggestion, however, that when the matter comes back to the House there will be deference to the House of Lords, but grudging acquiescence in any political concession that might be made to the Opposition or to the opposition of the Liberal Democrats. That has been a consistent theme. It is rather regrettable because, as has already been said, the purpose of parliamentary procedure is to ensure that there is a proper debate. Provided that the points are well made, it does not matter where they come from. The concession should be made with good grace and it should not have to be wrung out of the Minister in question. In this instance, I have to say that that usually has to be done.

I am not at all convinced by the arguments that the Minister has advanced about urgency in relation to the timetable and about the Lord Chancellor retaining the power to be able to make the order without approval in draft. I would like the Minister to tell me whether that was agreed by the Delegated Powers and Regulatory Reform Committee in the House of Lords. Has the hon. Lady conceded in principle that all the orders should be subject to the affirmative resolution procedure? In earlier proceedings in this place I tabled a stack of amendments that had the effect of insisting that these matters should be dealt with through the affirmative procedure.

Notes have just arrived from a certain quarter that may help to elucidate the Minister's answer to my question. The analogy that she made with Northern Ireland legislation does not bode well for the degree of urgency that is dealt with in the Bill. The Bill provides a procedural timetable, whereas in respect of Northern Ireland the problem is more prolonged and vexatious and is usually associated with some emergency or other. I should be rather surprised if a proper analogy could be made with the precedent in Northern Ireland legislation or in relation to Orders in Council affecting Northern Ireland. No doubt the hon. Lady will explain that when she replies.

A further point arises under clause 12, to which amendment No. 5 refers. Subsection (8) contains a rather peculiar provision, which states:
"If, apart from this subsection, an order to which this section applies would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed as if it were not such an instrument."
The drafting is questionable, not least because I think I am right in saying that in the House of Commons there is no equivalent to the treatment of an order as a hybrid instrument in the House of Lords. In the House of Commons, there are procedures in respect of the Clerks of Private Bills and there are special procedures in respect of the examiners of Bills as to whether a Bill is hybrid or not. There is a different procedure in the House of Lords. I believe that the drafting of the Bill is defective. as there is no parallel between the two Houses in respect of hybridity.

That is a drafting question. The essential question, which lies at the heart of my concerns, is the provision whereby an order to which the section applies would be treated for the purposes of the Standing Orders as a hybrid instrument. In such circumstances, it is treated as though it were not such an instrument. It is astonishing that the Government can use a Bill to ride roughshod over the Standing Orders of Parliament. They are saying that it does not matter a hang whether an instrument is a hybrid instrument or not.

Procedures that were built up over two centuries or more have been used to safeguard the rights of the subject with respect to a hybrid Bill or hybrid instrument—that is, in a nutshell, where there is a class affected by an order or a Bill, and the members of that class are treated differently in relation to their specific private interests. Where that arises and there is a difference within that group or class, the Bill is declared to be hybrid. For practical purposes—here is the rub—the Bill must be referred to petitions and the Select Committee procedure with leading counsel and all the rest of it.

I can understand that the Government might be nervous about such a matter. Indeed, I was the legal adviser on the Aircraft and Shipbuilding Industries Bill in 1977, when we proved hybridity in the Bill. The flagship Bill disintegrated in a puff of smoke and the Government fell. [Interruption.] The Government Deputy Chief Whip says that that was two years later. It was a chain reaction.

Hybridity is an essential part of the procedures and safeguards for the subject that have built up over many years. I see the copy of "Erskine May" on the Table. Pages and pages of it are devoted to this special subject. However, along comes the Minister and introduces a clause that states that were such a situation to arise in respect of Gibraltar, and the inconvenience of the Standing Orders of either House of Parliament produced a hybrid instrument or provision, it will no longer be regarded as such.

That raises a serious question, because I doubt whether it is proper constitutional practice for Acts of Parliament to override what you, Mr. Deputy Speaker, Mr. Speaker or Parliament have decided to be an applicable Standing Order. That is a dangerous path for the Government to take and the Minister stands accountable to answer for it.

8.45 pm

I am extremely worried—as I imagine you are, Mr. Deputy Speaker—that Acts of Parliament could override Standing Orders. One could think of almost any Standing Order offhand that could be overridden simply by an Act. That could relate to the Consolidated Fund or whether the privileges of the House had been breached. The Government could override Standing Orders by using their large majority to provide that they would no longer apply or not apply in a specific context. I hope that you would regard that as a matter of gravity and take soundings on it, Mr. Deputy Speaker. I hope that you will be good enough to note what I say and perhaps let me have your view on the extent to which the unprecedented provision is in the framework of the constitutional treatment of Standing Orders.

I am effectively making a point of order, but the irony is that I do not have to make a point of order because I am talking about the Bill. That is pretty odd and I would be grateful if a person in your Office. Mr. Deputy Speaker. or one of the Clerks would tell me the extent to which the provision is precedented. However, we need not divide the House on the matter. It is important but it can be allowed to mature through correspondence in due course. It will be interesting to hear the Minister's reply, and perhaps her advisers will give her a note so that we may have further elucidation.

One could reach two assumptions: either the Delegated Powers and Regulatory Reform Committee has taken careful cognisance of remarks made in Committee and on Report and has been persuaded by the arguments of the hon. Member for Stone (Mr. Cash) and me, or the points that we made were so self-evidently correct that it could do nothing but agree. Whichever is true, we arc glad that it made its recommendations and that the Lord Chancellor has acceded to them.

I was simply going to concur with the hon. Gentleman's sentiments and the Lords amendments, but he made a small peroration on hybridity. I was desperately worried that he would be out of order by doing that because the amendments do not relate to it. However, I realised, as you would, Mr. Deputy Speaker, that clause 12(8) qualifies the rest of the clause and therefore qualifies the amendments that we are debating. The hon. Gentleman was clearly in order to express his concerns about the Humpty-Dumpty provision in subsection (8) that will allow the Government to decide what any word shall mean. If they choose to decide that a word means the opposite of what it clearly does mean, they will legislate for it to mean the opposite. That is the purport of subsection (8).

The hon. Gentleman will recall, having echoed "Through the Looking-Glass", that the final phrase following the question about the meaning of words is

"which is to be master—that's all."

Indeed; who are the masters now?

I do not wish to pursue that line of debate any further except to say that it raises questions about the procedures of this place. I do not think that the Government have successfully dealt with the salient points raised by the hon. Member for Stone. However, they are not the subject of the amendments, with which we agree and which we asked for in Committee, although they were apparently tabled as a result of the intervention of the Delegated Powers and Regulatory Reform Committee and not as a result of any arguments from our good selves that may haw, struck home. None the less, we must modestly accept the procedure by which we have achieved our result and welcome the amendments.

I should like to deal first with the points made by the hon. Member for Stone (Mr. Cash) about hybridity, which we discussed previously in the House. He pressed to a Division amendments relating to the issue, but they were not accepted. The issue is not the subject of the amendments before us and was not raised by the Delegated Powers and Regulatory Reform Committee.

The hon. Gentleman asked about precedents. Section 26 of the Local Government Act 1992 is a precedent and contains a similar measure. Clearly, he did not manage to do to that measure what he managed to do to the Aircraft and Shipbuilding Industries Act 1977, although I guess that it was not for want of trying to sabotage his Government's measures in one way or another at that time.

Hon. Members asked further questions about the delayed procedure. One aspect of the procedure is that it would allow orders to be made during a recess when there is an important need for electoral administrators or others to get on with the work in question. Parliament would then debate the matter afterwards.

The provisions are sensible measures that allow us to do what many hon. Members and the Delegated Powers and Regulatory Reform Committee have asked for and give greater parliamentary scrutiny to the issues involved. They also ensure that we can meet the timetable. We need to do so to ensure that those who live in Gibraltar can vote in the European parliamentary elections in June next year.

I welcome what I think was support for the amendments from the hon. Member for Stone, as well as the support of the hon. Member for Somerton and Frome (Mr. Heath). I assume that the hon. Member for Stone is still planning to vote against them, as he has previously argued that orders should be more clearly limited to treaty provisions and to debates in the House, but then proceeded to vote against provisions that achieve exactly that. He has also argued that we should conduct more consultation with the Government of Gibraltar and do more to address and respond to their concerns, but he voted this afternoon against provisions that do exactly that. I presume that the fact that he expressed support for the amendments means that he will proceed to vote against them.

I shall give the hon. Gentleman one last chance to clarify his position.

The issue is very simple. The Government have moved somewhat in our direction under the intense pressure that we exerted both in Committee and on Report, and also thanks to our noble Friends in the House of Lords. We have made progress, and Liberal Democrat Members have also contributed to the pressures exerted on the Government in that respect, as have the Chief Minister and others in Gibraltar who have played such a magnificent part in the proceedings. However, this has been only a partial success and it is not over yet by a long way.

One has to question the logic of the hon. Gentleman's position if he can describe an amendment as progress, then choose to vote against it to try to defeat it. Presumably he would rather we ditch all the so-called progress and return to the Bill as it was when it left this place, despite his anxieties about it at that time. I know that he is always keen to vote against progress whenever he can, but I urge him not to vote against the progress made in this final group of amendments. I ask him to join hon. Members from other parties to ensure that the whole House supports not only the amendments, but the whole Bill. It is a good Bill that extends democracy, and it is right that we should wish it well so as not only to include the accession states in the 2004 elections, but to extend the franchise to the people of Gibraltar.

Lords amendment agreed to.

Lords amendments Nos. 6 to 14, 15 and Government amendment (a) thereto agreed to.

Lords amendments Nos. 16 to 20 agreed to [one with Special Entry].