Clause 81.—(SUPPLEMENTARY AND TRANSITIONAL PROVISION.) (Hansard, 2 April 1963)

§ Mr. M. Stewart

I beg to move, in page 90, tine 17, to leave out Clause 81.

This is the first time in the history of the Bill that we have actually got ahead of the Guillotine. That is a good thing, because there is still much important business to do, and the 20 minutes that we now have in hand will be extremely useful a little later.

The effect of the Amendment would be to remove Clause 81 from the Bill, but the prospect of actually doing that is one from which the boldest heart might quail. Indeed, our position with regard to the Clause is typical of the blackmail that has been exercised on the Opposition throughout the proceedings on the Bill. This Clause is in many respects a quite deplorable one, but if we were to remove it several things would happen. Nearly all the safeguards concerning the position of the employees of existing local authorities would fall to the ground, because much of the Minister's power to do anything to help them would be exercised under orders under this Clause.

Earlier, we were discussing the future of the executive councils under the National Health Service. We missed the 275 presence of the right hon. Member for Chislehurst (Dame Patricia Hornsby-Smith) when we were discussing this matter. If she had been here a little while ago she would have heard the Joint Parliamentary Secretary to the Ministry of Health explaining that, as we had supposed, if we do not either alter the Bill, or make an order of some kind, the result will be that we will have as many executive councils as there are local health authorities under the Bill.

One of the ways of dealing with that situation is by orders made under Clause 81, and as time goes on we shall find that there is an enormous amount to be done by the Minister under the provisions in this Clause. If the Clause did not exist, very great hardship and inconvenience might be imposed on all kinds of people. That is why we feel that we must keep the Clause in the Bill. But I say that it is a deplorable Clause in many ways for these reasons.

Let us notice, first, the scope of things about which the Minister can make orders. It is not merely the Minister. It is The Minister or any appropriate Minister … At least five Ministries have been represented during the Committee stage proceedings, and periodically during this debate Ministry representatives have flitted to and from the Government Front Bench. I do not think even that exhausts the number of Ministers who might be appropriate under the terms of this Bill. Any of them may at any time, whether before or after 1st April, 1965, … make such incidental, consequential, transitional or supplementary provision as may appear to him … to be necessary or proper for the general or any particular purposes of this Act …". So far, that does not sound unusual. But in subsection (1, b) it goes on that the Minister may make such transitional or supplementary provision as may be necessary or proper in consequence of such of the provisions of any other Act passed in the same session as this Act as apply to Greater London …". That means that not only can we make what one would normally regard as supplementary provisions, but if, as a consequence of the passing of the Bill, or any other Measure this Session affecting Greater London, it appears necessary 276 to any one of half-a-dozen Ministers to do anything, he can, by order, do it.

This is an encouragement to bad drafting of Bills. If, because of this Bill or any Measure passed this Session affecting Greater London, questions are raised about what will happen following the passing of the legislation, it may be open to Ministers to say, "We can wait and see what happens, and we can tighten it up by order made under Section 81 of the London Government Act". That is an extraordinarily wide power. We find that the orders so made are all subject to the negative Resolution procedure in the House, which means, in effect, that at most we can debate any one of them for only an hour and a half.

4.45 p.m.

It is difficult to believe that this is a satisfactory arrangement. From time to time I read articles in the Press—sometimes they are written by hon. Members and sometimes by learned academics—about the danger of the Executive becoming too powerful and the importance of the House creating a large number of new committees in order to watch the Executives.

I am always a little suspicious of such proposals, because I can never be sure whether the people who write the articles will serve on the committees, were they established. I am surprised to find that some people who express concern about the growing power of the Executive, compared with that of this House, have not noticed the extraordinary powers given to the Executive in this Clause.

During the proceedings in the Standing Committee we suggested that this Clause ought to be amended so as to make the orders subject to the affirmative Resolution procedure. The House will know the importance of that. It means that a Minister can never "sneak" through with his order. At the very least, a Minister must stand at the Dispatch Box at the appropriate time and go through the motions of moving a Motion. Under the negative Resolution procedure the initiative lies entirely with any possible critic of an order.

I suppose that it could be said—I think it was said, in answer to our suggestions during the Committee stage—that the range of orders will be so great that to make them all subject to the affirmative 277 Resolution procedure would impose an intolerable burden on Ministers and, more important, on the time of the House. We did, therefore, raise the question whether some discrimination could be drawn between orders of such importance that they ought to be subject to the affirmative Resolution procedure and orders that we could permit to go through under the negative Resolution procedure. We received one of the cautiously worded undertakings which have littered the pages of the OFFICIAL REPORT of our debates, that the Government would consider this matter. I looked whether there was any Amendment put down to Clause 81 to that effect. I do not find one. I thought it right, therefore, to move an Amendment to delete this Clause from the Bill so as to give the Government an opportunity to tell hon. Members what study they have made of the kind of orders which it will be necessary to make under the provisions in the Bill, and whether it will be possible to classify them into minor orders for which the negative Resolution procedure is appropriate and major orders for which it would be proper to amend the Bill so as to provide for the affirmative Resolution procedure to be used. It may be that Government consideration of the matter is not complete. They may be going to tell us that more will be heard of this in another place. But I hope that we shall get something a bit better than the Clause as it stands.

Although, as I said at the outset, we cannot help accepting this Clause, we do not like it as it is. We hope that the Government will say that they have found a way to reduce the quite inordinate powers given to Ministers and to provide greater scope for hon. Members to watch the operation of the provisions of the Bill.

§ The Minister of Housing and Local Government and Minister for Welsh Affairs (Sir Keith Joseph)

The hon. Member for Fulham (Mr. M. Stewart) has said that hon. Members opposite accept this Clause as an inevitable part of the Bill, but he criticised its range and scope. Indeed this, or some such Clause, is an inescapable part of any local government reorganisation. That is why much the same sort of arrangement was made in what was, as it were, the "master Act "—the Local Government Act, 1958.

278 Under that Act the procedure was set in motion for reviewing the local government of the whole of England and Wales. Out of that procedure, and after a series of consultations, emerged a series of democratic protections and recommendations from the Government to this House. Wherever such recommendations would involve a major change in the status of a local authority that change would have to be embodied in an order subject to affirmative Resolution. May I add that in the Local Government Act, 1958, it was recognised that as local government reorganisation proceeded there was bound to be an immense number of consequential implications which could be covered only by order. The words of which the hon. Gentleman complained— consequential, transitional or supplementary are taken verbatim from the 1958 Act.

If the hon. Gentleman goes on to say that the 1958 Act provided that certain major changes of local authorities status were to come before the House not by the negative procedure which would govern orders made under the provisions of Clause 81 of this Bill, but by the affirmative procedure, I must remind him that whereas any change that emerged by reason of the 1958 Act were not even known at the time, changes in the structure of local government associated with this Bill are embodied in the Bill and have been subject not just to the affirmative procedure, but to the whole of the normal procedure of the House. That is the basis on which these consequential orders are subject to the negative procedure. They are important, although many of them will be consequential upon the major decisions which have been embodied in the Bill about the changes in status of local authorities in Greater London.

The hon. Member asked in Committee that the Government should consider whether the orders could be divided so that those which might be considered the most important would be subject to the affirmative procedure. I have, of course, studied the undertaking with which I followed that request. I have looked at the whole question again since that study, but, reluctantly, I must tell the House the reason for there being no Government Amendment on this matter. It is because 279 it is not possible to define in any amenable way the class of orders so particularly important as to justify taking up the time of this House.

I think that the hon. Member will recognise from his previous speeches that orders may cover a small number of people and yet be very important to each of them, or a large number of people and not be of great significance to any of them. I shall look at the suggestions put forward by the hon. Member, but I do not think the proposal practicable to cover all the likely cases which might emerge and to ensure that we have made a valid distinction between something which is so major that it should come under the affirmative Resolution procedure and the rest.

Having made all those cautionary remarks, I finish by reminding the House that the Government have undertaken—as is normal in these cases—that there will be the fullest consultation by them with the employing authorities, the future and existing ones, and the staff organisations before any of these orders are made. That is normal procedure, and it will be carried out in this case. I must reluctantly say to the hon. Member that I can offer him no comfort, at least on my own behalf. As he said, the orders will be so numerous and involve so much detail to make sure that we are protecting all the interests concerned—as we are bound to do to the best of our ability—that it is not possible to make the distinction he has in mind. I recognise that the hon. Member will not be pleased with that answer, but that is the logic I must employ.