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House of Commons Hansard
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European Statutory Instruments Committee
16 July 2018
Volume 645

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With the permission of the House, motions 3 to 6 will be taken together. The debate may therefore range over all four motions. Moreover, I inform the House that I have selected amendment (a), in the name of the right hon. Member for Basingstoke (Mrs Miller), to motion 3. I call the Leader of the House to move motion 3, remembering that of course all these motions are being debated together and therefore she can offer us her thoughts on any or all of them, or any combination.

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Thank you Mr Speaker—take 2. I beg to move,

That the following Standing Order shall have effect for the remainder of this Parliament:—

(1) There shall be a select committee, called the European Statutory Instruments Committee, to examine and report on—

(i) any of the following documents laid before the House of Commons in accordance with paragraph 3(3)(b) or 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018—

(a) a draft of an instrument; and

(b) a memorandum setting out both a statement made by a Minister of the Crown to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (the negative procedure) and the reasons for that opinion, and

(ii) any matter arising from its consideration of such documents.

(2) In its consideration of a document referred to in paragraph 1(i) the committee shall include, in addition to such other matters as it deems appropriate, whether the draft instrument—

(i) contains any provision of the type specified in paragraph 1(2) or 10(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 in relation to which the Act requires that a draft of the instrument must be laid before, and approved by a resolution of, each House of Parliament (the affirmative procedure);

(ii) otherwise appears to make an inappropriate use of the negative procedure; and shall report to the House its recommendation of the procedure which should apply.

(3) The committee shall have regard to the reasons offered by the Minister in support of the Minister’s opinion that the instrument should be subject to the negative procedure.

(4) Before reporting on any document, the committee shall provide to the government department concerned an opportunity to provide orally or in writing to it or any subcommittee appointed by it such further explanations as the committee may require except to the extent that the committee considers that it is not reasonably practicable to do so within the period provided by the Act.

(5) It shall be an instruction to the committee that it shall report any recommendation that the affirmative procedure should apply within the period specified by the Act.

(6) The committee shall consist of sixteen Members.

(7) The committee and any sub-committees appointed by it shall have the assistance of the Counsel to the Speaker.

(8) The committee shall have power to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

(9) The committee shall have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time.

(10) The committee shall have power to appoint sub-committees and to refer to such subcommittees any of the matters referred to the committee.

(11) Each such sub-committee shall have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report to the committee from time to time.

(12) The committee shall have power to report from time to time the evidence taken before such sub-committees, and the formal minutes of sub-committees.

(13) The quorum of each such sub-committee shall be two.

(14) The committee shall have power to seek from any committee of the House, including any committee appointed to meet with a committee of the Lords as a joint committee, its opinion on any document within its remit, and to require a reply to such a request within such time as it may specify.

(15) Unless the House otherwise orders each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament, or until this Standing Order lapses, whichever occurs sooner.

(16) This Standing Order, to the extent that it relates to a regulation-making power provided to the Government under sections 8, 9 or 23(1) of the European Union (Withdrawal) Act 2018, shall lapse upon the expiry of the power to make new regulations under those sections and shall lapse entirely upon expiry of the last such remaining power.

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With this we shall consider the following:

Motion 4—Liaison Committee

That the Order of the House of 6 November 2017 (Liaison Committee: Membership) be amended, in the second paragraph, by inserting, in the appropriate place, “European Statutory Instruments”.

Motion 5—Additional Salaries

That the Order of the House of 19 March 2013 (Positions for which additional salaries are payable for the purposes of section 4A(2) of the Parliamentary Standards Act 2009) be amended, in paragraph (1)(a), by inserting, in the appropriate place, “the European Statutory Instruments Committee”.

Motion 6— European Union Withdrawal (Documents)

That where, under Paragraph 3(3)(b) or 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018, any document is to be laid before this House, the delivery of a copy of the document to the Votes and Proceedings Office on any day during the existence of a Parliament shall be deemed to be for all purposes the laying of it before the House; and the proviso to Standing Order No. 159 shall not apply to any document laid in accordance with this Order.

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I first put on record my sincere thanks to my hon. Friend the Member for Broxbourne (Mr Walker) and the Procedure Committee for their careful consideration of the best way to ensure effective scrutiny of Brexit delegated legislation. There has never been a more crucial time for secondary legislation, and this Government are committed to providing the maximum consideration of it to enable our smooth exit from the EU.

The Procedure Committee’s report sets out detailed proposals to ensure the effective scrutiny of delegated legislation under the European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June 2018. Following the Committee’s interim report of 1 November 2017, the Chair of the Procedure Committee tabled amendments to the withdrawal Bill in Committee of the whole House that the House accepted without Division. I subsequently tabled draft motions on the Order Paper to give as much notice of the potential Standing Order changes as possible.

Following the launch of its inquiry in September 2017, the Committee took evidence from a range of parties, including me in May. I pay tribute to the members of the Committee and thank them for taking the time to input into this important new procedure.

In its report last week, the Procedure Committee set out its final recommendations, including updated proposed Standing Orders for a new Committee—the European Statutory Instruments Committee. As the Procedure Committee set out, the new Committee’s remit will be to examine each Government proposal for a negative procedure statutory instrument and to recommend whether it should be upgraded to the affirmative procedure, whereby the proposed legislation has to be approved by a vote of both Houses.

The report published last Monday includes a carefully considered set of recommendations for how the new Committee should function, together with a number of factors that the new Committee may want to consider when deciding whether the instrument ought to be subject to the affirmative procedure. It will be for the Committee to take forward that work, but I commit that the Government will work constructively and closely with the new Committee’s members and staff to ensure that it functions as effectively as possible. I have noted the suggestion that the European Statutory Instruments Committee should not be expected to make a substantive report with recommendations until the September sitting at the earliest.

The Government confirmed in a written statement on 4 July that the Government

“will not lay negative statutory instruments requiring sifting until the necessary procedures for establishing the new Committee in the Commons and the expansion of the remit of the House of Lords’ Secondary Legislation Scrutiny Committee are concluded. However, the Government is starting to publish final drafts of the negative statutory instruments that require sifting (‘proposed negatives’) on Gov.uk as they are ready. This is to increase transparency and to allow Parliament and the public to have early sight of the forthcoming legislation.”

I would also like to take this opportunity to assure the House that, where a Minister does not agree with the recommendations of the Committee, the Minister will be prepared to appear in front of the Committee to clarify the rationale for that.

I turn to amendment (a), which was tabled by my right hon. Friend the Member for Basingstoke (Mrs Miller) and other members of the Commons Reference Group on Representation and Inclusion. Let me start by saying that I have great sympathy for what is proposed. It is absolutely right that we do all we can to encourage equal representation in the decisions that the House takes. It is important, however, that we recognise that the amendment would result in the European Statutory Instruments Committee being the only Committee subject to rules on the gender of its members.

The effect of the amendment would be that, whenever a vacancy became available on the Committee, only a Member of the same gender as the Member who had left the Committee would be eligible to join it. Some might consider that there is a risk of such a move creating difficulties with maintaining full membership, particularly for the smaller parties, if appropriate candidates are not forthcoming. I am sure that each party has seen the amendment and will want to do what it can to ensure a good gender balance when selecting its membership of the Committee, but the amendment, although it has my personal support, is for the House to decide upon.

The new Committee will play an important role in the coming months and, provided that the proposed changes to Standing Orders are agreed, I look forward to charting its progress. I commend the motions to the House.

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It is a great pleasure to speak in support of not only motion 3, but amendment (a), to which my right hon. Friend the Leader of the House referred. I speak on behalf of a number of Members from all parties, including the smaller parties to which she referred. It is important to look at not only the work of the new Committee, but its make-up. Before I do that, however, let me commend the work of the Procedure Committee and my right hon. Friend, because this must be one of the most important Committees that Parliament has set up in recent times.

It is right that we think about the make-up of the Committee as well as its function. The amendment would ensure that the Committee had balanced representation. It is widely felt that it is important that we have balance when it comes to talking about all things to do with Brexit, and the amendment could be a way of putting that rhetoric into practice. Indeed, evidence given to the Women and Equalities Committee about the role of women in Parliament underlined all parties’ support for ensuring that women play an active role in all aspects of parliamentary life. My right hon. Friend the Member for Derbyshire Dales (Sir Patrick McLoughlin) told the Committee, rightly, that Parliament would be a better place if 50% of MPs were women. I think that nothing could be better than ensuring that 50% of the members of this Committee are women, because it will be considering issues of profound importance to the future of our country.

We spend a lot of time in this place telling businesses the importance of having more women on boards and reporting on their gender pay gap, for example. We ask them to do a lot of things that they might think we are not prepared to do here. Following the advice of “The Good Parliament” guide—it was written a number of years ago but is still a bible for reforming this place—I ask Members from all parties to support this small step, which would ensure female representation on the Committee from day one. I gently remind Members that that was not the case for the membership of a number of Select Committees at the beginning of this Parliament, so to assume that that will happen does not necessarily reflect what happened in the past.

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I am happy to accept most of what the Leader of the House said and I am inclined to support the amendment. I hope that the House will forgive many of us on the Opposition Benches if we first want to see all these assurances of fair play put into practice, because many such assurances have not been, in the case of the European Union (Withdrawal) Bill and associated legislation. We will take the Government at their word just now, but we will be watching carefully not only what goes to the Committee, but what does not. We will be holding the Government firmly to account.

With regard to the amendment, I understand the Government’s reluctance to set a precedent. We must recognise that because this Parliament is nowhere near gender-balanced, we will have a problem if we try to make all its Committees gender-balanced, because women MPs would have to do the work of two men MPs. Well, a lot of people might suggest—[Interruption.] You’re getting ahead of me, as Ronnie Corbett used to say. That would create difficulties if it was applied to every Committee at once, but why not introduce such a measure, one Committee at a time, to see how it works?

I am intrigued by the Leader of the House’s concern that there might be times when nobody of the correct gender puts themselves forward for membership of the Committee. That implies that Members volunteer for Committees, rather than simply being told by their party Whips which ones they will be members of—I will need to have words with my own party Whip about that in the future. The proposal does not work for smaller parties, however, because if a smaller party has only one place on a Committee, that Member will, generally speaking, be either 100% male or 100% female. However, the bigger parties will have more members of the Committee, and a much bigger number of MPs to draw from. I would be concerned if no men or no women from either of the two largest parties in the House were willing to put in what looks like a fairly modest time commitment to ensure that secondary legislation for Brexit is scrutinised properly.

There is no issue with the fact that Brexit will involve a lot of secondary legislation, but there is a major issue with some of the things that the Government intend to use that secondary legislation for. I would have thought that anyone who is interested in ensuring that this House tells the Government what to do, rather than the other way around, would also ensure that no party would struggle to find Members to take up places on the Committee.

I ask the Leader of the House to reconsider her opposition to the amendment. We should be looking to introduce the principle of gender balance in fairly minor ways, over time, especially when there are those who say that it is not possible to do it all in one go. With that slight caveat, we will support the motion, but we will be watching carefully what happens to the Government’s assurances in the coming months.

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Little did I realise that the motion on the European Statutory Instruments Committee would attract so much attention at this time of the evening. It was surely the main reason why we all trundled down to attend Parliament today.

I welcome what my right hon. Friend the Leader of the House said and, as a member of the Procedure Committee, I can say that it was a great pleasure for me to take evidence from her, the shadow Leader of the House and many representatives from different parties. The proposal that the Procedure Committee came up with was extremely laudable, and I believe that it was welcomed as a cross-party amendment to the repeal Bill in Committee.

However, I am afraid that I must object to amendment (a), because it is politically correct codswallop. I am concerned about setting a precedent for quotas. As a Conservative, I have always opposed quotas. As a gay man, I ask why there is no mention of representation of LGBT Members. Why do Scottish National party Members not object to the lack of a requirement for regional representation? Why, dare I ask, is there no mention of the age profiles of Members? I do not see how somebody’s gender improves their ability to scrutinise secondary legislation. Although it is right that everybody should be encouraged, the amendment states

“at least seven shall be women”.

Why cannot there be a Committee that consists entirely of women? What would be wrong with that, if that was the will of the House and those Members wished to put themselves forward?

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Will the hon. Gentleman give way?

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Only because the hon. Gentleman was on the Procedure Committee?

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Are there any past examples of a Committee of the House of which all the members were men?

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There may well be—[Interruption.] The hon. Gentleman may be better furnished with the facts at this late hour than me. As a member of the Education Committee, I am in the minority in many ways, because its membership is seven women and four men. Indeed, the Committee that my right hon. Friend the Member for Basingstoke (Mrs Miller) chairs consists of eight women and three men.

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My hon. Friend is making an eloquent argument, but he may want to observe that women are not a minority; we are a majority in this country. We are simply trying to have a level playing field.

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A level playing field can be achieved without quotas. With that, I conclude my remarks and object to the amendment.

Amendment proposed: (a), in paragraph (6), at end add

‘of whom at least seven shall be women and at least seven shall be men.’.—(Mrs Miller.)

Question put, That the amendment be made.

Division 215

16 July 2018

The House divided:

Ayes: 57
Noes: 53

Question accordingly agreed to.

View Details

Main Question, as amended, put and agreed to.

Ordered,

That the following Standing Order shall have effect for the remainder of this Parliament:—

(1) There shall be a select committee, called the European Statutory Instruments Committee, to examine and report on—

(i) any of the following documents laid before the House of Commons in accordance with paragraph 3(3)(b) or 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018—

(a) a draft of an instrument; and

(b) a memorandum setting out both a statement made by a Minister of the Crown to the effect that in the Minister’s opinion the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (the negative procedure) and the reasons for that opinion, and

(ii) any matter arising from its consideration of such documents.

(2) In its consideration of a document referred to in paragraph 1(i) the committee shall include, in addition to such other matters as it deems appropriate, whether the draft instrument—

(i) contains any provision of the type specified in paragraph 1(2) or 10(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 in relation to which the Act requires that a draft of the instrument must be laid before, and approved by a resolution of, each House of Parliament (the affirmative procedure);

(ii) otherwise appears to make an inappropriate use of the negative procedure; and shall report to the House its recommendation of the procedure which should apply.

(3) The committee shall have regard to the reasons offered by the Minister in support of the Minister’s opinion that the instrument should be subject to the negative procedure.

(4) Before reporting on any document, the committee shall provide to the government department concerned an opportunity to provide orally or in writing to it or any subcommittee appointed by it such further explanations as the committee may require except to the extent that the committee considers that it is not reasonably practicable to do so within the period provided by the Act.

(5) It shall be an instruction to the committee that it shall report any recommendation that the affirmative procedure should apply within the period specified by the Act.

(6) The committee shall consist of sixteen Members of whom at least seven shall be women and at least seven shall be men.

(7) The committee and any sub-committees appointed by it shall have the assistance of the Counsel to the Speaker.

(8) The committee shall have power to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference.

(9) The committee shall have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time.

(10) The committee shall have power to appoint sub-committees and to refer to such subcommittees any of the matters referred to the committee.

(11) Each such sub-committee shall have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report to the committee from time to time.

(12) The committee shall have power to report from time to time the evidence taken before such sub-committees, and the formal minutes of sub-committees.

(13) The quorum of each such sub-committee shall be two.

(14) The committee shall have power to seek from any committee of the House, including any committee appointed to meet with a committee of the Lords as a joint committee, its opinion on any document within its remit, and to require a reply to such a request within such time as it may specify.

(15) Unless the House otherwise orders each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament, or until this Standing Order lapses, whichever occurs sooner.

(16) This Standing Order, to the extent that it relates to a regulation-making power provided to the Government under sections 8, 9 or 23(1) of the European Union (Withdrawal) Act 2018, shall lapse upon the expiry of the power to make new regulations under those sections and shall lapse entirely upon expiry of the last such remaining power.

Liaison Committee

Ordered,

That the Order of the House of 6 November 2017 (Liaison Committee: Membership) be amended, in the second paragraph, by inserting, in the appropriate place, “European Statutory Instruments”.—(Andrea Leadsom.)

Additional Salaries

Ordered,

That the Order of the House of 19 March 2013 (Positions for which additional salaries are payable for the purposes of section 4A(2) of the Parliamentary Standards Act 2009) be amended, in paragraph (1)(a), by inserting, in the appropriate place, “the European Statutory Instruments Committee”.—(Andrea Leadsom.)

European Union Withdrawal (Documents)

Ordered,

That where, under Paragraph 3(3)(b) or 17(3)(b) of Schedule 7 to the European Union (Withdrawal) Act 2018, any document is to be laid before this House, the delivery of a copy of the document to the Votes and Proceedings Office on any day during the existence of a Parliament shall be deemed to be for all purposes the laying of it before the House; and the proviso to Standing Order No. 159 shall not apply to any document laid in accordance with this Order. —(Andrea Leadsom.)