§ 4.20 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. James Prior)
I beg to move,That during the remainder of the present Session—681 It may be for the convenience of the House that I should speak at the end of the debate, and if that is so, I just move the motion formally.
- (1)There shall be one or more standing committees, to be called Standing Committees on Statutory Instruments, for the consideration of statutory instruments or draft statutory instruments referred to them.
- (2)Any Member, not being a member of such a Standing Committee, may take part in the deliberations of the Committee, but shall not vote or make any motion or move any amendment or be counted in the quorum.
- (i) a Member has given notice of a motion for an humble address to Her Majesty praying that a statutory instrument be annulled, or of a motion that a draft of an order in Council be not submitted to Her Majesty in Council, or that a statutory instrument be not made, or
- (ii) a Minister of the Crown has given notice of a motion that a statutory instrument or draft statutory instrument be approved,
- a motion may be made by a Minister of the Crown at the commencement of public business, that the said instrument or draft instrument be referred to such a Committee, and the question thereupon shall be put forthwith; and if, on the question being put, not less than twenty Members rise in their places and signify their objection thereto, Mr. Speaker shall declare that the noes have it.
(4)Each Committee shall consider each instrument or draft instrument referred to it on a motion, 'That the Committee has considered the instrument (or draft instrument)'; and the chairman shall put any question necessary to dispose of the proceedings on such a motion, if not previously concluded, one and a half hours after the commencement of those proceedings; and the Committee shall there upon report the instrument or draft instrument to the House without any further question being put. (5)If any motion is made in the House of the kind specified in paragraph 3(i) or 3(ii) of this Order, in relation to any instrument or draft instrument reported to the House in accordance with paragraph (4) of this Order, Mr. Speaker shall put forthwith the question thereon; and proceedings in pursuance of this paragraph, though opposed, may be decided after the expiration of the time for opposed business.
§ 4.21 p.m.
§ Mr. Michael English (Nottingham, West)
I congratulate the right hon. Gentleman. When we last discussed this matter, on 18th December, I had some reason to suggest that there had not been adequate consultation, and the right hon. Gentleman promised to act on those matters. He has done so, I congratulate him on doing that and on fulfilling the assurance he gave to the House then.
I do not propose to move my amendment, but I should like to mention that this is a matter not of party but of distinction between Government, irrespective of party, and Opposition, irrespective of party. I should have preferred to have seen the Standing Committee arrive at a decision before it came back to a vote on the Floor of the House. I think that my views are shared by other hon. Members. As this is for the remainder of the present Session, I hope that we have an opportunity of reconsidering the matter after we have seen how it works under the motion.
As the Government could, if they wished, reverse a Committee decision on the Floor of the House, I see no reason why a Committee should not arrive at a decision instead of simply discussing something in mid air on an innocuous motion. It would be better to have a proper debate.
I do not wish to oppose the motion. I welcome the procedure suggested. I am grateful to the right hon. Gentleman for the way in which he has dealt with this matter.
§ 4.23 p.m.
§ Mr. Albert Booth (Barrow-in-Furness)
The Leader of the House will be the first to appreciate that, while the motion states very clearly what will happen to those statutory instruments which will be referred to the Committee if the motion were passed, the motion cannot by its nature give us an indication of what will happen to those instruments which are not sent to the Committee.
To consider objectively the feasibility or otherwise of passing the motion depends upon the House having some assurance of 682 what will happen to those motions which did not go to the Committee. Therefore, is it the intention of the Leader of the House that where there is an objection to an instrument being sent to Committee by 20 hon. Members, or the whole of the Opposition or any substantial number of hon. Members above 20, to arrange a Prayer on the instrument in the event of it being an instrument subject to annulment, and will time be found for that?
In the absence of such an assurance, hon. Members would be faced at times with a very difficult choice, if not an impossible choice. If they felt very strongly about the merits of a particular statutory instrument which was subject to annulment, they would have to make a choice. They could allow it to go to a Committee, if a Minister proposed that it should go there, in the knowledge that there they could discuss it but could not take a decision, while appreciating—if I understand the motion correctly—that it would come back to the Floor of the House for a vote, but if hon. Members blocked it by rising in their places in numbers of 20 or more, they might not have an opportunity to debate it in the House and to vote upon it.
It is not the wish of the House that this should be so. All the evidence of recent years has been that where hon. Members feel strongly on the merits of the issue contained in a statutory instrument subject to annulment it is their wish that it should be debated on the Floor of the House. This procedure motion, in the absence of some firm declaration as to what is to be the practice with instruments not referred to Committee, leaves us with a danger—I put it no higher than that—that it will help us in dealing with non-controversial instruments but will leave us with a problem on controversial instruments.
I am justified in saying that in part by the failure of the Government to respond to a suggestion made in the Brooke Committee's Report, which offered three alternative ways of creating more time on the Floor of the House to deal with Prayers. These were that there be modification to the 11.30 p.m. rule, which would allow a debate on an instrument subject to negative procedure after 11.30 p.m.; that there be certain Friday sittings at which Prayers could be taken, subject to a 1½-hour time limit on the 683 debate; and that the time between 10 p.m. and 11.30 p.m. on Supply Days should be reserved for Prayers.
All of those alternatives seem to be feasible. No one with a knowledge of the procedure of the House would contend that it would be impossible to introduce any one of them. Certainly, one of those must be within the scope of the methods of the House.
I agree with my hon. Friend the Member for Nottingham, West (Mr. English) that paragraph (4) of the motion imposes what could be a very unreasonable limitation. If hon. Members in Committee express views and debate contentions in relation to an instrument but at the end of that, in so far as they are members of the Committee and entitled to vote, merely vote upon the motion that the Committee has considered the instrument, it will not be open to the voting members of that Committee to report succinctly any view on the merits of the instrument.
Surely it is not challenged that the only reason why this Committee is being set up is that there should be an opportunity to debate the merits of instruments. We have had machineries for looking at questions of technicalities and vires. What is proposed here is a Committee or Committees to deal precisely with questions of merit. Yet the terms of the only motion which can be moved in such a Committee can give no indication one way or another on the question of merits.
I ask the Leader of the House to confirm, therefore, that what is intended is that a report of the Committee should be available and that before the vote takes place on the Floor of the House it would be open to any hon. Member to read the views expressed by those who attended the Committee and took part in the debate. That still leaves open the possibility that there may have been those wishing to attend the Committee to take part in debate and express a view who, as a result of the time limit, could not do so. Therefore, their views will never be on record and will not be known to people voting in the House on the merits of the instrument.
That particular problem is not one which offers itself to a ready or easy solution, but the House should be aware 684 that this is one of the limitations of the procedure which has been put before it.
Lastly, I make what is a continuing protest for me. This motion, in common with a number of others moved by previous Leaders of the House on the subject of delegated legislation, will enable Governments to continue to prevent debate upon a statutory instrument subject to annulment in the House if they choose to do so. They can prevent it going to Committee, and, having done so —because there is control of the time of the House in the hands of the Leader of the House—they can prevent time being available for it. This is an intolerable situation to exist in a democratic Parliament, particularly at a time when more and more important decisions are being taken in a way which ensures that they can be subject to control of the House only if the House has adequate control over delegated legislation.
It was bad enough when decisions were taken by Ministers in this country. I put it to the House in all seriousness that it is even worse when some of the decisions affecting our law are decisions being taken in Brussels which can appear here for consideration and control only in the form of delegated legislation.
In view of all these considerations, we can regard this proposal before us as no more than a partial amelioration of a very serious problem and one which requires some view from the Leader of the House as to the Government's thinking on the further steps that will be taken to deal with the major problem of statutory instruments subject to annulment which will not be sent upstairs and which Members of this House wish to see dealt with upon the Floor of the House in order that they can take a decision on important matters of principle or merit.
§ 4.32 p.m.
§ Mr. Edward Short(Newcastle-upon Tyne, Central)
I wish to associate myself with my hon. Friend the Member for Nottingham, West (Mr. English) in thanking the Leader of the House for going some way to meeting the points made in the debate that we had on this matter. He has had the motion on the Order Paper for a considerable time, facilitating scrutiny and discussion of it. Indeed, my hon. Friend tabled an amendment to it. As we said in the debate 685 and as my hon. Friend the Member for Barrow-in-Furness (Mr. Booth) has just said, it goes some way to meeting our difficulty, but of course it is not the whole answer.
I should like an explicit assurance from the right hon. Gentleman that this procedure will not be a substitute for normal debates in the House on Prayers and affirmative orders after 10 o'clock. The amount of time allowed must not be diminished in any way because of this. Indeed, we hope that it will be increased. One of the difficulties under the present Government during the last two years has been that we have been increasingly deprived of the right to debate Prayers.
Delegated legislation is one of the worrying aspects of democracy. It is law made by civil servants. I know from experience that very often Ministers who sign the orders do not have time to scrutinise them. Frequently they are worded in completely incomprehensible gobbledygook which only lawyers understand and the Minister himself often does not know what laws are being made in his name. It is extremely important that Parliament should have the opportunity to scrutinise and debate these matters.
I very much hope that the Leader of the House will consider the problem, which I have raised from the Dispatch Box previously, of the diminution in the time allocated to us for debating Prayers.
Very often nowadays when we come to debate such matters, we debate not a Prayer to the Queen that she should annul the order, but something quite different; it is a peg on which to hang a motion.
I know that it does not happen very often, but the House must have the right to annul an order. When the statutory period has elapsed, we do not have that right. Merely to allow us to debate the matter after the time has lapsed is not good enough. I therefore hope the Government will consider this matter and try to make more time available.
I am not very attracted by the idea of reverting to our previous practice of debating Prayers, even if they are non-controversial, after 10.30 p.m. We suffered a great deal from that in the past 686 and we have left that practice behind us. I should not like to return to that situation. I should like an assurance from the right hon. Gentleman that he does not see this proposal as a substitute for debating Prayers in the House.
I associate myself with what my hon. Friends have said. We should very much prefer it to have been made possible to have a vote in the Committee. However, as the order says in its first line, this applies only to the remainder of this Session. It is a sessional order. Four or five months remain in which to see how it works out, and we can look at it again before the next sessional order is introduced. It may well be that when the next sessional order comes we shall put down an amendment. The right hon. Gentleman may himself change his mind about this and decide that it is better to let us vote in the Committee.
I know, and we have had the assurance of the right hon. Gentleman, that nothing will go to the Committee unless it has been agreed. Indeed, as the order states, it is subject to the right of 20 Members to object. But sometimes objection to an order arises during debate. Indeed, after hearing the Government's reply, we might decide we want to take a vote on the matter. I therefore hope the Government will watch how the situation develops and discuss it with us over the next few months. It may well be, as I have said, that by the time of the next sessional order we will wish to have changes.
Subject to those reservations, we are grateful to the right hon. Gentleman for meeting most of our demands.
§ Mr. Prior
I am grateful to the right hon. Member for Newcastle-upon-Tyne, Central (Mr. Edward Short) and the hon. Member for Nottingham, West (Mr. English) for the remarks they have made. I hope to take up the points made by all right hon. and hon. Gentlemen during the course of the few words I have to say.
The House will know that there remains outstanding from the recommendations of the Brooke Committee its proposal for the setting up of a Standing Committee to consider the merits, as distinct from the purely technical propriety, of statutory instruments. It is that with which we are concerned this afternoon.
687 Both the right hon. Gentleman and the hon. Member for Barrow-in-Furness (Mr. Booth) have asked me for an assurance that the Committee would be used as an addition to, and not as a substitute for, the procedures we already have for the consideration of delegated legislation. That assurance I readily give.
I know the right hon. Gentleman feels strongly that the Government and the business managers of the House are not allowing sufficient time for debates on Prayers and on other statutory instruments. I do not think the record has been too bad over the past few months. The last time I checked we were doing considerably better than we were a couple of years ago. But for all that, statutory instruments are becoming a very much more important part of Government legislation. We hope that the setting up of this merits committee will ease the problem somewhat, but I agree that it is only a partial amelioration, as the hon. Gentleman pointed out.
I wish to make some reference to the description of the right hon. Gentleman of some of these statutory instruments as "gobbledygook". I am looking very carefully to see whether, as a Select Committee of this House has recommended in the past, we should take some action to see that our legislation is printed in more readily understandable English. I hope to be making an announcement before long on that subject.
The hon. Member for Barrow-in-Furness mentioned the three ways put forward by the Brooke Committee in which we might achieve more discussion. I shall come to one of them at the end of my remarks. I am not in total agreement there with the right hon. Gentleman the Deputy Leader of the Opposition, but I will come to the subject at the end.
Queries were also raised about the procedure in the Standing Committee, about what would happen when instruments were reported back to the Floor from such a Standing Committee and whether the House would be able to express a view on such instruments.
The motion now before the House proposes that for the remainder of the present Session any affirmative instruments or any negative instrument against which a Prayer has been tabled could be re- 688 ferred to such a Standing Committee by motion. Such a reference, would, however, be made only if agreement to this course had been reached through the usual channels and provided that twenty or more Members did not object to the motion.
This generally follows the procedure when the Bill is referred to a Second Reading Committee and would prevent the Standing Committee procedure from being used in individual cases against the wishes of a substantial body of members. Statutory instruments committed in this way would be debated on a "take-note" motion for a maximum of one and a half hours corresponding with the time normally allotted to the consideration of a statutory instrument on the Floor of the House and would then be reported to the House. Thereafter the House could decide a Question on it forthwith.
It is proposed that any Member of the House not being a member of the committee should be able to take part in any of its deliberations but would not be able to vote in the committee or move motions or count as part of the quorum. The hon. Member for Nottingham, West and the hon. Member for Barrow-in-Furness mentioned, as did the right hon. Member for Newcastle-upon-Tyne, Central, the point about voting in the committee.
§ Mr. Edward Short
May we be quite clear on this? If the motion before the merits committee is a prayer that the order be annulled do I take it that the merits committee will have a motion to take note of that Prayer, and then when it comes back to the House the House will vote on the Prayer?
§ Mr. Prior
That is the procedure. It would come back at the start of public business. The motion isThat the Committee has considered the instrument".That is the motion that is put in the merits committee, whether it is an affirmative or a negative instrument. It is a take-note motion and when it comes back to the Floor of the House the Question is put in the ordinary way in which a Prayer or an affirmative resolution is put.
§ Mr. English
What happens if the committee defeats this mysterious motion? The motion may be untruthful, but what happens if the committee resolves that it has not considered it?
§ Mr. Prior
If it were an instrument subject to affirmative resolution the Minister would have to put it in front of the House again. If it were a Prayer, the Prayer would fall unless it was raised on the Floor of the House. In practical terms I imagine that if that sort of thing happened an opportunity would very quickly be provided on the Floor of the House either for the Government to put the matter right or for the Opposition to take advantage of the obvious embarrassment into which the Government would have come.
§ Mr. Ronald Bell (Buckinghamshire, South)
Will my right hon. Friend the Leader of the House explain what will happen if the motion is passed? It is a little obscure to me how it should matter whether it is passed or defeated because in one case, I presume, the House gets a report that the matter has been considered and in the other that it has not. How are we further forward?
§ Mr. Prior
It then has to come before the House having been put down on the Order Paper in the ordinary way. It is not subject to debate and the House takes its decision immediately after the start of public business at 3.30 p.m. when the vote is taken. Or, if it is not a matter which it is considered requires a vote, the vote is not taken. The House will recognise, however, that nearly all the matters which are likely to be contentious will not go to the merits committee. As the right hon. Gentleman said, there may be a matter which becomes contentious only when it has been debated. In that case for the moment the merits committee would have only a take-note motion before it. That applies for this Session alone. I would suggest, in the time honoured words of Leaders of the House, that we see how we get on this Session before deciding whether we should give the committee greater voting powers in another Session. I can say only that the Brooke Committee came down against greater voting powers. Consultations I 690 have held have indicated that it would be more generally convenient to the House if the Questions on these instruments were decided on the Floor of the House and not upstairs.
§ Mr. Prior
No, not all of them, but a number of important consultations have suggested to me that this arrangement at the moment meets more with the approval of the House.
The hon. Member for Nottingham, West proposed amendments to the original motion put down by the Government providing that the House could establish more than one committee of the kind proposed. These amendments have been incorporated, with the agreement of the hon. Member, in the present motion before the House.
Another proposal raised by the hon. Member this afternoon was that additional time should be provided after 11.30 p.m. for up to one and a half hours for consideration on a take-note basis of Prayers against negative orders. I confirm the Government's acceptance of this proposal. It is intended, however, for the present to table appropriate motions as necessary rather than to propose an amendment to Standing Orders. I also confirm that the taking of Prayers at this time would be proposed only after agreement through the usual channels.
I believe that with the safeguards these proposals represent a useful further improvement in our procedures for the consideration of delegated legislation. I am quite certain, as the hon. Member pointed out, that we have to pursue these matters a good deal further, particularly now within the context of EEC draft legislation. I would like very much to see what progress the merits committee now makes and how it settles down. This is only a sessional order and we have many important matters concerning the EEC to discuss. Hon. Members will know that we have put a proposal to the ad hoc Select Committee which would involve a Standing Committee for draft EEC legislation. It would be for the benefit of the House if we pass this motion now. We could always have further discussions later to see whether it was meeting the full convenience of all hon. Members.
§ 4.48 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
I am obviously glad to see this motion on the Order Paper because it is at least progress towards what we have asked for in the past. We shall have a trial for the remainder of this Session, but in any case we have no alternative to such a trial. It would be a great mistake to imagine that this building is full at the moment of Members who have come here in order to oppose this motion, or, indeed, to believe that the building is even full. We shall be trying the arrangement out but I should not like my right hon. Friend the Leader of the House to think that it will make much of a contribution.
The central problem is that the safeguard of praying against statutory instruments is now quite worthless. When one reflects on the battles that have taken place in the past in order to ensure that some power conferred upon a Minister shall be exercised subject to Prayers against the exercise of that power, and how the attainment of that has been thought to be some achievement for the control of Parliament over the executive, one becomes a little cynical about the results of parliamentary battles. Let us get it clear in our mind that the right to pray is absolutely useless.
First, a Prayer when it is put down has very little chance of being debated in the House. If those who put it down want to challenge an order and to vote against it, it has even less chance of being given time. The first thing one is asked when one puts down a Prayer is, "Do you want to divide on it? If you do not want to divide it is much easier to find time for you. If you want to divide, that will be difficult."
The right to put down a Prayer and to have a short debate in the middle of the night, on the understanding that it will not be carried to a vote, is not a very valuable scrutiny of administrative legislation. As we all know, no statutory instrument is ever annulled. When we last had a debate on this subject, which was not very many months ago, I mentioned that the only instance of which I knew when a statutory instrument was annulled was about 15 years ago. On that occasion it was annulled by mistake because one side forgot to put in 692 Tellers. That is the only occasion about which I know when a Prayer was successful and a statutory instrument was annulled.
The fact is that statutory instruments pour out in hundreds. Like the hon. Member for Nottingham, West (Mr. English), I am a member of the Statutory Instruments Committee. I have been a member for 18 years. I should not like to say how many statutory instruments that I, as a member of the committee, have scrutinised, but it must be many thousands and probably tens of thousands. They pour out in profusion. All that the committee is entitled to do is to scrutinise the technical aspects or the form or wording in which the instrument is cast. The committee is not, by its terms of reference, allowed to consider the merits or to report on the merits. Therefore, there is a vast volume of legislation at which virtually no one looks.
We cannot say that we are doing our job as a parliament, which is a legislature, and scrutinising the executive—and all executives need to be scrutinised, and some more than others—when tens of thousands of instruments have gone through unchallenged and with their merits unscrutinised.
Although I am glad to see this motion on the Order Paper, we should be clear about its effect. As my right hon. Friend rightly said the committee will deal mainly with non-controversial orders. Its procedure will not be very useful in the case of a controversial order. The report to the House will be that an instrument has been considered. Of course, that is excellent. However, there are 630 Members of this House. Is it imagined that all hon. Members who are not members of the committee will go to the Vote Office and clamour for the verbatim report of the proceedings of the Standing Committee? Hon. Members are deluged with printed matter which they never succeed in reading. The reports will be read by very few people if any.
The reports to the House will come up at 3.30 p.m. and will be decided without debate. That means that they will go through on the nod, without debate, because nobody will know anything about them. It is not as if there will be a report. At least the Select Committee 693 on Statutory Instruments reports or draws an instrument to the special attention of the House on the ground that it does something objectionable, that it is retrospective in its effect, that its meaning is obscure or that it makes unexpected use of the powers in the statute. They are not long reports. They are only a few sentences which tell the House what the committee, which was set up to consider these matters and in which party considerations never enter, thinks is the defect in the statutory instrument.
Hon. Members can read those reports. It takes them only 30 seconds to read them. They then know whether they are interested. If the Standing Committee on merits were to make a report of only one paragraph, and that went on the daily papers, the report could be considered. But when the report is just that the instrument has been considered, nobody will be very much the wiser.
In the end we come down to the practicalities of politics. It is a great abuse that in practice Governments cannot be defeated on the Floor of the House. The foolish convention has been allowed to become accepted that the Government must not be beaten in the House of Commons. That has always been welcomed in the school books as the final triumph of the House of Commons in its control over the executive. In fact, it is the final triumph of the executive in its mastery of the House of Commons. We have the apparatus of Whips instead of the Government submitting their business to the House and the House making a decision. The whole thing is cut and dried. Everybody knows that if there is one defeat of the Government on the Floor of the House the traditional questions will be asked about when polling day will take place.
That is a lot of nonsense. The only place where this House can exercise its scrutiny and control is in committee, where for some reason Governments may be defeated with impunity. They are not defeated as often as they should be, but they are occasionally defeated. No one suggests that there should be a General Election because the Government have been defeated in committee.
If we cannot reassert the control of this House over legislation, I do not know for what purpose we have come here. The 694 way that Governments submit legislation to this House is as if its acceptance is a mere formality. Statements are made at 3.30 p.m. which begin, "The Government will propose …". After that it is taken for granted that it will be passed. We are told how it will operate and the consent of the House is treated as a mere formality. If we are to reassert our control over delegated legislation—which is most of the legislation—it must be done in committee. We must have operative votes in committee. Of course, if a matter is of great importance and of a controversial nature the Government of the day must be entitled, through the procedure, to raise it again on the Floor of the House and to ask the House to reverse the Committee's decision. Merely to have debates in committee and then to take decisions on the Floor of the House will never meet the situation.
I thank my right hon. Friend, as I always thank him, because he is always doing good things. However, I remind him that he has not done a sufficiently good thing this time. We shall wear it as a first step—anyway, we have no choice —but we shall be back next term.
§ Question put and agreed to.
That during the remainder of the present Session—