AGREEMENT ON EUROPEAN ECONOMIC AREA (Hansard, 21 October 1993)

§ Sir Teddy Taylor
I beg to move amendment No. 3, in page 1, line 9, at end add 'save that Protocol 3 of the Agreement shall not come into effect until 1st January 2000.'. This is a probing amendment. Protocol 3 refers to the changes in the agricultural arrangements of the basic contracts between the EC and EFTA. My sole question .is whether that will add to the agriculture expenditure of the Community in any respect.
It is rather a serious matter which I raise because I have just received a letter from the Ministry of Agriculture, Fisheries and Food pointing out how, unfortunately, expenditure on agriculture within the common agricultural policy is wholly out of control. It seems that we are exceeding the guidelines, the mountains are at an all-time high and we have had the frightening news from the Chief Secretary to the Treasury that the price of food for the average family is now being forced up by £24 a week. My sole question is whether protocol 3, if operating, will add in any way to the expenditure of the EC on food or food disposal.

§ Mr. McLoughlin
It is not clear to what extent EC exporters will wish to take advantage of the provisions in protocol 3. But the general point is that both expenditure from the CAP budget to EC exporters and payments into its levies from EFTA goods are likely to be reduced. It is wrong, therefore, to draw the conclusion that protocol 3 would lead to an increase in the CAP budget. Protocol 3 aims to improve the trade between the EC and EFTA by reducing tariffs on certain processed agricultural products. I hope that that is an objective that my hon. Friend will support.
It is impossible to estimate the precise financial effects of protocol 3. We do not know the extent to which the EC or EFTA exporters will take advantage of the provisions or whether they will choose to continue to use protocol 2 of the 1973 EC/EFTA free trade agreement. Moreover, any reduction in import levies on EFTA goods paid into the budget may be offset by a reduction in export funds paid out of it from EC exporters.

§ Sir Teddy Taylor
I beg to ask leave to withdraw the amendment.

§ Mr. McLoughlin
I beg to move amendment No. 4, in page 1, line 9, at end add 'together with the Protocol adjusting that Agreement signed at Brussels on 17th March 1993'.

§ The Chairman of Ways and Means (Mr. Michael Morris)
With this it will be convenient to take amendments Nos. 7, 8 and 10.

§ Mr. McLoughlin
The amendments take account of the protocol that excludes Switzerland from the EEA agreement.

§ Mr. Cryer
I beg to move amendment No. 5, in page 1, line 24, at end insert 'and approved by Resolution of each House of Parliament.'.

§ The Chairman
With this it will be convenient to take amendment No. 6, in clause 5, page 3, line 37, leave out from 'instrument' to end of line 40 and insert 'but this power shall not be exercisable unless a draft of the regulations has been laid before and approved by each House of Parliament.'.

§ Mr. Cryer
Amendments Nos. 5 and 6 relate to the delegated powers contained in the primary legislation. Because of the important nature of the legislation, the two amendments would have the effect of converting the discretion to use either an affirmative procedure instrument or a negative procedure instrument at the discretion of the Minister to requiring an affirmative procedure instrument.
8.30 pm
The Government make massive use of delegated powers. In 1992, they produced 3,500 statutory instruments—most of which were subject to the negative procedure. In theory, that procedure—for which the Bill makes provision—is fine if, as is required, the instrument is deposited in the House and lies on the Table for 40 days. During those 40 days, a prayer can be tabled—and even after the expiry of those 40 days a revocation motion can be tabled. The Government lay many instruments during a recess, which is not exactly the way to open government and full accountability. During any recess, praying days can be lost. If the Law Lords or the other place sits—and even if this House does not—they also count as praying days. Therefore, the days on which a prayer can be tabled can tick away.
That is bad enough, but there is still the possibility of a revocation motion. The question then arises of the time allocated to debate a prayer. In reality, few opportunities are available to the House to debate a prayer on a negative procedure instrument. In 1992, about 125 prayers were laid but only a couple of dozen were given time to be debated on the Floor of the House or upstairs in the merits Committee. The time available to debate prayers is limited.
Also, there are moves by some hon. Members—and I hope that they are defeated—to curtail the number of hours that the House sits. I believe that they are mistaken. One cannot have a legislature that finishes at 5, 6 or 7 o'clock. If we did so, that would further curtail the time available for negative procedure instruments—and we cannot be sure that the Jopling proposals will not be adopted. I do not like those proposals because one of our responsibilities is to take a closer and better look at delegated legislation.
The amendments provide that, with this legislation, the only instruments will be affirmative procedure instruments—which means that time would have to be provided. That would not be done at the discretion of the Minister but would be a requirement of the primary legislation, which is important.
I acknowledge that negative procedure instruments are acceptable in some cases. In a modern, sophisticated society, Ministers must produce legislation—and I am not saying that delegated powers should be removed. They are important and necessary. One must, however, make a 465 judgment as to whether the powers granted to a Minister are of a degree of importance that means that Parliament must scrutinise the delegated powers. The Minister should not try to slip them through.
As the Secretary of State knows, Ministers do try to slip things through. Next week, we shall debate mine safety regulations that were tabled on 6 August, not long after Parliament had risen for the summer recess, and came into effect shortly afterwards. They had become law before Parliament had any opportunity to consider them. While it is true that we shall have such an opportunity next week, we shall debate regulations that are already in operation—and that is often the case.
The Bill is linked to a large, detailed and comprehensive treaty—a copy of which can be seen on the Opposition Dispatch Box. The Bill, which is fairly brief, gives important powers to the Minister and the amendments will ensure that that legislation—which has been the subject of some criticism—will automatically be subject to scrutiny when it is put into operation by the delegated powers. That would not be a bad thing, as I have argued in respect of other legislation. We should opt more for the affirmative rather than negative procedure.
I speak from a prejudiced position as Chairman of the Joint Committee on Statutory Instruments and of the Select Committee on Statutory Instruments. Such measures pass before my eyes in their hundreds every month at this time of the year. Both Committees know full well the volume of delegated powers that the Government are producing, because they have a huge backlog of statutory instruments from the summer months.
It causes me genuine concern that Parliament is not giving them adequate scrutiny. People suffer as a consequence of badly drafted or incompetently worded legislation. Some alarm is felt because a fair measure of criticism is directed at instruments from the Lord Chancellor's Department, which one might expect to get them right the first time.
The statutory instruments Committees often report to the House that a Minister is exceeding his powers, and that those that he claims are not within the scope of the primary legislation and are ultra vires. By and large, the House ignores such reports—although it does have an opportunity to debate the issue if the affirmative procedure is used. If the measure is subject to a prayer and is not debated, it will be passed. The people who are affected then have to go to court.
Courts are expensive places, and if people do not have the means to use them they are left to suffer from legislation that was not subject to scrutiny by the House. If Ministers produce badly worded legislation, that is a failure on the part of the House. This legislature should try to produce legislation that is as clear and precise as possible, without it being necessary to refer it to the courts.
It would be better if clauses I and 5 were subject to the affirmative resolution procedure, so that their provisions would come before the House and any faults would be exposed. There would be no question of the Minister seeking to avoid the issue, or of there being no opportunity for debate even if the Minister was keen to discuss the measure but the Leader of the House said that there was not the time available to do so.
The amendments would provide for automatic scrutiny, and I hope that the Minister will say that they are an excellent idea. I suspect that he will not, because all Ministers want the easy option. We should not take the 466 easy option. I want more and more affirmative procedures, so that the House begins to wake up to its responsibility to exercise scrutiny of the vast volume of delegated legislation.
This Government have produced more delegated legislation than any other in the history of Parliament. It is not surprising that Parliament needs to catch up, to ensure the degree of scrutiny to which the people of this nation are entitled.

§ Mr. McLoughlin
When I saw the amendment tabled in the name of the hon. Member for Bradford, South (Mr. Cryer) I took it very seriously. He said that I would automatically reject his amendment. He will remember that on a number of occasions during the Committee dealing with the Transport and Works Bill I accepted his suggestions because he made some valid contributions. I therefore looked particularly carefully at this amendment. I had heard his speech before and I knew the arguments that he would use. Although the hon. Gentleman has attacked the use of certain powers available to Ministers, he was pleased when we used one such power on a company of which he is a non-paid director.

§ Mr. Cryer
I am not a director—I have five £10 shares. The Minister is talking about 1967, when the only way of obtaining a light railway was through a ministerial order which was not the subject of any further parliamentary procedure. I have tried to improve things since being elected.

§ Mr. McLoughlin
If I am guilty of anything today, making the hon. Member for Bradford, South laugh is a pleasure to us all.
The hon. Gentleman will expect me to explain why I cannot accept his amendment. As I have said, I hope that he will accept that I have looked at it seriously. It may help if I explain the proposed effect of clause 5.
Clause 5 provides that the powers to make regulations under clauses 2(2) and 3(2) are exercised by statutory instrument. The instruments may be subject to either the negative or the affirmative resolution procedure in the same manner as an instrument under section 2(2) of the European Communities Act 1972. The clause follows the formula in paragraph 2(2) of schedule 2 to the 1972 Act. The 1972 Act allows either affirmative or negative procedure to be adopted so that the regulations under section 2(2) of that Act may be combined with regulations made under the powers in other Acts. These Acts may provide for either negative or affirmative procedure, but not for both. The flexibility provided for in the 1972 Act allows section 2(2) regulations to be made using whichever procedure applies under the other Act.
The same consideration applies to regulations under clause 2(2) or clause 3(2) of the Bill. If clause 5 provided only for either the negative or the affirmative procedure, there would be occasions when regulations made under other enactments but on the same matter would have to be subject to different procedures and, as a consequence, different instruments. That would be an unnecessary confusion. In fact, it would increase the number of statutory instruments with which the Government would be required to deal. It would be a waste of time and resources and it would be unhelpful to readers to have to understand the relationship between them. It is far better to ensure that the two sets of regulations are made in the same instrument and are subject to the same procedure.

§ Mr. Cryer
In view of the explanation given by the Minister and the fact that it is now on the record, I beg to ask leave to withdraw the amendment.

§ The Chairman
I should point out to the Committee that there is a printing error in that amendment. It should have referred to clause 2. Perhaps the hon. Member for Bradford, South (Mr. Cryer) did not notice that. That is why I have put the question on clause 1 out of sequence.