LICENCES (Hansard, 6 December 1995)

§ Mr. Adam Ingram (East Kilbride)
I beg to move amendment No. 10, in page 14, line 29, leave out subsection (5), and insert—
'(5) An order under subsection (4) shall be made by statutory instrument and shall not be made unless a draft of the order has been laid before and approved by resolution of each House of Parliament'.

§ The Second Deputy Chairman of Ways and Means (Dame Janet Fookes)
With this, it will be convenient to consider amendment No. 9, in clause 23, page 16, line 23, leave out subsection (6) and insert—
'(6) The regulations shall be made by statutory instrument, and no such regulations shall be made unless a draft of them has been laid before and approved by resolution of each House of Parliament.'.

§ Mr. Ingram
The amendments seek to change the powers vested in the Secretary of State to introduce regulations under clauses 20 and 23 by negative order and make them subject to the affirmative procedure.
We must be clear about the extensive powers that are given to the Secretary of State under the Bill. Clause 20 gives the Secretary of State substantial powers in the granting of licences to operate under the chemical weapons convention.
Clause 23 lays down the punishments, which include prison sentences, for those who fail to comply with the terms of the legislation.
The powers proposed in clauses 20 and 23, to which the amendments refer, were mentioned by a number of hon. Members on Second Reading. In response, the Minister said:
if hon. Members are worried about it— clause 23—
we shall listen to their concerns."—[Official Report, 23 November 1995; Vol. 267, c. 846.] I think that all hon. Members who took part in the debate, and probably those who are prepared to take part tonight, would accept the underlying principles of the clauses, but on Second Reading they were described as "draconian". I do not think that I used that word, although I was accused of doing so. I do not think that I would use that word, but if I did I would not want to continue to use it. The word was used by at least one other hon. Member in the debate, and I can understand why, because quite extensive powers are vested in the Secretary of State to take action in relation to those who default on the legislation.
It is important that the powers should be open to proper scrutiny by the House, and that is the purpose of the amendments that we are considering. The best way to achieve that is by affirmative order. We do not say that simply for the sake of argument or to delay the House but 414 rather because the scientific community, which will be most affected by the clauses, is somewhat apprehensive about what will be produced in the regulations. It is calling for more transparency and more direct parliamentary scrutiny of all aspects of the Bill, and we shall deal with some of the concerns later.
It is in the day-to-day running of the UK national authority—the function that the DTI will perform on behalf of this country—that the effectiveness of the Bill will be measured. It is essential, therefore, that the regulations are effective if we are to keep to the spirit of the convention. Increased parliamentary scrutiny will lead to more thought and debate on the minute details of the regulations, and therefore ensure that they are more likely to be workable.
On Second Reading, the Minister gave certain assurances on appeal procedures, which will apply to licence applications under clause 20. His assurances are undoubtedly welcome, but why will he not accept the next logical step and allow them to be subject to the affirmative procedure?
Clause 23, to which amendment No. 9 refers, can be described only as being somewhat obtuse. Subsection (1) reads:
The Secretary of State may make regulations requiring persons of any description specified in the regulations to inform him that they are of such a description. If anything is an all-singing, all-dancing clause, this must be it. As was stated on Second Reading, it is a wonderful piece of parliamentary draftsmanship, but its precise meaning and implementation cause concern within the scientific community.
Amendment No. 9 seeks merely to ensure that when the Secretary of State finally decides who will be covered by the clause his decision should be subject to the open scrutiny of the House. Again, I would argue that the best means of doing so is by affirmative order.
Let me stress again that the scientific community generated the aims of the amendments. It is not a case of arguing for arguing's sake, or of advancing a negative view that should be positive. Those who will be directly affected by the legislation feel that the clauses will have a significant impact on their work in science and with chemical products. They believe that, in the cause of transparency and accountability, all aspects of the Bill should be dealt with openly by the House. The best and most effective way of doing that is not to slide regulation in through the back door, in the dark of the night, by means of the negative procedure: it should be done by affirmative resolution.
The Minister has shown a willingness to listen to some of the reasoned arguments that have been advanced in our debates on the Bill. I hope that he has now given more thought to the points that were made on Second Reading, as well as what I have said. I ask him to respond positively, and to accept the principles and spirit of the amendments.

§ Mr. Robert Key (Salisbury)
Clause 23(1) is important as it stands. It is not in the least confusing. It is because of such provisions that we have such high standards: it is because of the wording of subsection (1) that we can expect the entire scientific and industrial community 415 affected by the legislation to accept the responsibility to say, "This applies to me. It applies to my scientific institution, and to my company."
It is because such standards can he guaranteed as a result of the Bill that Britain will be at the forefront of countries promoting the convention. I hope that my hon. Friend the Minister will feel able to suggest that I might be right about that, and will robustly defend the way in which the legislation has been framed. We are talking about only one sentence. Like the hon. Member for East Kilbride (Mr. Ingram), I am opposed to parliamentary gobbledegook—I like crystal-clear English—and I believe that we have it here.

§ Mr. Tam Dalyell (Linlithgow)
The hon. Gentleman has made an important point. I hope that he will not think it offensive of me to ask him whether he speaks for his constituents in Porton.

§ Mr. Key
I hope that I do. I have not conducted a referendum in my constituency, but my constituents have not said that they are concerned about this provision; nor have they asked me to promote the idea of a positive resolution of the statutory instrument or regulation that will follow.

§ Mr. Ingram
The hon. Gentleman may not have received such representations, but does he accept that representations to that effect have been made in the scientific community? We are now speaking not just for our constituencies but in the wider scientific interest. Does he accept that such concerns have been raised in the wider community, and does he accept the reasons for that? The concern is less about clause 23(1) than about the way in which the regulations will apply, and the need for the House to exercise proper accountability and scrutiny by using an affirmative rather than a negative procedure.

§ Mr. Key
Of course I accept that. According to the briefing on the Bill that hon. Members have received, a body of opinion is in favour of it, and I am sure that my hon. Friend the Minister will argue his corner. Later, when we deal with another part of the Bill, I shall seek to demonstrate that some of the "scientific advice" that we have been given is flawed.

§ Mr. Dalyell
Perhaps we should wait to hear what the Minister says, but I agree with my hon. Friend the Member for East Kilbride (Mr. Ingram) that there is concern about transparency. The Royal Society of Chemistry is not alone in asking for a proper, well-defined and transparent advisory structure within the Department of Trade and Industry. We shall listen carefully to what the Minister has to say in answer to the question that has been asked.
In regard to transparency, it is not just this Bill with which we must be concerned in the long term. I believe that 1996 is the time for the review of the 1972 convention on biological weapons. Transparency may be even more important in that connection.

§ Mr. Harry Cohen (Leyton)
I support my hon. Friend the Member for East Kilbride (Mr. Ingram). In fact, amendment No. 9 was tabled in my name. I am pleased to have had the support of the Leader of the Opposition and the rest of the Front-Bench team, but it happened merely because I got in first.
Both amendments are simple. They call for an affirmative procedure when the regulations are made. Clause 23 confers wide-ranging powers. Those powers 416 will clearly be necessary if the convention is to be enforced properly, but there will be civil liberty implications and I do not think it unreasonable to demand an affirmative rather than a negative procedure. That will allow much more accountability.
I have consulted a Library paper, which suggests that the system is basically the same as that applying to early-day motions. No time has been fixed, and in regard to the majority of cases no time is likely to be available for a debate. The affirmative procedure involves more stringent parliamentary controls: legislation must receive parliamentary approval before it comes into force. That does not necessarily mean that there must be a debate, but it gives us an opportunity to examine objections based on civil liberties if many Members of Parliament submit them.
I believe that Parliament will pass the provisions come what may, provided that their impact on civil liberties will not be devastating, because we want the principles of the convention to be enforced, but we need accountability to Parliament.

§ The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Phillip Oppenheim)
I understand hon. Members' concern that the appeals process should be fair, independent and transparent, and I thank the hon. Member for East Kilbride (Mr. Ingram) for his comments. I agree with my hon. Friend the Member for Salisbury (Mr. Key): it is intended that the Secretary of State will use the order-making power in the clause to adopt the model appeals provisions that are seen to be prescribed by order under the Deregulation and Contracting Out Act 1994. That Act requires model appeal procedures to be prescribed by order, so that they can be incorporated in legislation with or without modifications. We intend to adopt the model appeal procedures with modifications, should that prove necessary.
As I think hon. Members accept, it is important to standardise appeal procedures wherever possible to achieve some consistency—particularly in cases such as this, in which we expect appeals to be relatively infrequent. An appeals committee will need to be established. Its members will be drawn from research, academic, medical and other disciplines. We want to ensure that the committee has the breadth of knowledge to judge the types and quantities of chemicals to be licensed against the intended use, be it academic or industrial. It is open to the Opposition to pray against a negative resolution. In an extreme case where a Government tried to implement a procedure that was especially odious to the House—I suspect that if a Government sought to do that it would not be only the Opposition to whom it would be odious—the Opposition could pray against a negative resolution, so an important safety valve is in place.

§ Mr. Dalyell
On the question of the committee, do the Government have a chairman in mind yet? Can they announce that to the House?

§ Mr. Oppenheim
No, we do not have a chairman in mind yet. The hon. Gentleman raised not only issues relevant to the clause, but the question of an advisory committee in the context of transparency, which we shall, I think, consider later. It is important to separate the issues. 417 Clause 23 must be read not in isolation but with clause 22. Clause 23(2) restricts the scope of the regulations to persons covered by clause 22. That is the important point. The effect of clause 22(1)(a) is that the scope is restricted to persons likely to have information needed for the purposes of the convention. That power is therefore clearly restricted. It is not an open-ended power and I would be uncomfortable if it were open-ended and unrestricted.
The convention is explicit about the information needed. As we know, there are four categories of chemicals—schedules 1 to 3 and discrete organic chemicals—and declarations are required for activities beyond the specific thresholds outlined in the annexes. Those must be reflected in the regulations.
It is fair to say that the regulations must also reflect some detailed technical points, some of which have not yet been resolved. For example, if a chemical has been diluted, the question arises whether the concentration of the chemical is such that the dilution has put it beyond the requirement to be declared. That and other similar technical issues are currently under discussion internationally. They could change with the experience of the regime when it is under way. To ask the House to confirm all such changes by positive resolution would be onerous and unnecessary.
I return to the fundamental point that if a Government tried to impose something by negative resolution that was onerous and odious to the House, it would be open not just to the Opposition but to Government Members to pray against it in extreme circumstances, which I do not think would arise.
We need this power because the convention requires that all sites covered by declaration requirements must be included in the United Kingdom declaration. Inspections will take place to check declarations and the UK is, of course, open to challenge inspections if other states believe that we have not declared any site or that we have misdeclared any site.
It is fair to say that other states' experience is that industry's response can be poor where there is no statutory requirement to give information. The experience in Australia was that 36 per cent. of companies failed to respond to a carefully structured convention-related survey.

§ Mr. Dalyell
I want to ask about the challenge inspections. Do we have the guarantee, in so far as the Government can give it, that any challenge inspection, even if it seemed frivolous, would be accepted? For example, we are challenging—or Ralf Ekeus is challenging—the Iraqis, not that they are members yet, on the question of VX, which is worse than the Sarin that was used in the Tokyo underground. Rightly or wrongly, we might be angry if we were challenged by some Arab nation on a tit-for-tat basis. Do we have an undertaking from the Government that, however irritated they might be, they would feel it incumbent on themselves to accept such a challenge? The Minister might say that it is a hypothetical question, but it is important.

§ Mr. Oppenheim
I would not say that that question is necessarily hypothetical. One would hope that it might be, but in the world as it is, it might not be. The only answer that I can give the hon. Gentleman is that, if there were a 418 challenge inspection within the terms of the convention, we would be obliged to accept that. If a challenge were outside the terms, obviously we would not be so obliged. I think that is the best answer that I can give him.
I understand the feeling behind the two amendments, but they are unnecessary and would restrict the convention's application. The powers that we are taking are not draconian, but the House's ultimate defence is that, if the Government did try to propose any regulations that were especially odious to the House, it could pray against the negative resolution.

§ Mr. Ingram
It is a matter of regret that the Minister is not prepared to move on this matter as clearly there is a point of difference between us, although we are trying to reach the same objective: to ensure that the convention is properly implemented in this country and, more important, internationally. To try to achieve that, however, there must be openness, although the Government have moved substantially on what they were originally proposing as a result of representations received from a wide body of opinion.
6.45 pm
That same body of opinion—the Royal Society of Chemistry and other experts in this sector—is making the point about the need for an affirmative approach in relation to these two clauses. As I said, I am arguing not about the underlying principles of the clauses, but about the need for proper parliamentary scrutiny of some of the details and of the way in which the legislation will apply. Although powers are vested in the Opposition to pray against negative orders, that puts the onus on the Opposition to oppose. The onus should, however, be on the Government to be open, but they appear to be unwilling to be open about the application of the regulations.
As it appears that I shall be unable to persuade the Minister, I beg to ask leave to withdraw the amendment.