§ Order for Second Reading read.
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
I have to inform the House that Madam Speaker has selected the amendment in the name of the Leader of the Opposition.
§ 4.3 pm
§ The Chancellor of the Duchy of Lancaster (Mr. Roger Freeman)
I beg to move, That the Bill be now read a Second time.
This is a short Bill, for the simple reason that its sole purpose is to correct an anomaly in existing legislation, whereby Her Majesty's Stationery Office is permitted to contract out the printing of all legislative and official material, with the single exception of statutory instruments. The Bill amends the Statutory Instruments Act 1946 to bring statute in that area into line with all other classes of material. It also confirms retrospectively the status of existing statutory instruments printed other than by HMSO, but it has no other purpose.
I begin by outlining some of the general considerations that apply to HMSO in its role as printer to the Government. Printing plant of all types is expensive to acquire, maintain and operate, and all printers must be sure of maximum usage of the plant they own. When demand is variable or unpredictable, it is commonplace in the printing industry to own only so much capacity as is likely to be heavily used, and to sub-contract to others at times of peak demand or for jobs in which additional technical expertise is needed.
HMSO is in precisely that position. Its work load depends on the weight of the legislative programme, the parliamentary cycle, new initiatives by Departments and similar factors that—as hon. Members will appreciate—are notoriously difficult to predict.
If HMSO were to acquire sufficient capacity of its own to meet the peaks in demand for its services, there would necessarily be long periods of less than peak demand during which that capacity was under-used or completely idle. No reasonable person could countenance the impact that that would have on costs. For HMSO, such capacity would mean a very substantial increase in the cover prices of its publications, with obvious consequences for the affordability to the general public of official information.
HMSO must therefore sub-contract printing work if it is to operate efficiently and if access to official documents is to be maximised. It has done so for very many years and, in the vast majority of cases, it is perfectly lawful for it to do so. In particular, the Documentary Evidence Act 1882, which is still in force, permits legislation and other legal documents to be printed by third parties under the superintendence and authority of HMSO, as well as directly by it.
The House may be interested to know that that Act—as with many Acts since 1882—was itself printed by the private sector. There is, of course, no reason why private sector printers should not be at least as capable as HMSO 985 of performing what are, in many cases, technically very simple print jobs. Overall, the results of contracting out have been entirely satisfactory.
HMSO, its customers and the users of its information have therefore benefited for a long time from a regime that allows costs and cover prices to be kept as low as possible.
The sale prices of statutory instruments have not changed for more than three years. There is only a single, anomalous exception to this regime, which relates to the printing of statutory instruments. That is the subject of this Bill.
The Statutory Instruments Act 1946, as it currently stands, imposes directly on HMSO or its ex officio head, the Queen's printer, the duties of printing, issuing and selling statutory instruments. It does not contain the "superintendence and authority" provisions of the 1882 Act. Instead, the 1946 Act followed the pattern of its predecessor, the Rules Publication Act 1893—but those conditions are no longer suitable for modern conditions, even if they were at the time.
Notwithstanding the provisions of the 1946 Act, HMSO has in fact contracted out the printing of statutory instruments for some time. It is hard to determine the exact date on which it began doing so, but records show that the practice dates from at least 1965, and probably earlier.
§ Mr. Jim Marshall (Leicester, South)
I have listened to the Minister with mounting interest. First, no one would disagree with his reasonable statements about variations in work loads for printers. However, if the 1946 Act specifically forbade the contracting out of statutory instruments, how did the practice begin? How has the practice developed if it is illegal?
My second point is perhaps of greater interest in the current climate. HMSO has been the subject of many reviews in Government circles in the past five or six years, particularly with the prospect of privatisation. Why has this illegality come to light only now, and not during one of those reviews?
§ Mr. Freeman
We discovered what has now become the custom and practice—for many years, under Labour and Conservative Governments—of HMSO contracting out a portion of the work of printing statutory instruments because of detailed preparations for privatisation. Privatisation, however, is not contingent on this Bill, as I shall explain in a minute, because we would correct the anomaly. The purpose of the Bill—
§ Mr. Freeman
I am still trying to deal with the hon. Gentleman's point, but I shall certainly give way in a moment.
The purpose of the Bill is to correct what is undoubtedly a technical deficiency. I do not have the answer to the hon. Gentleman's question, because the practice goes back at least to 1965. My guess is that, because it was lawful to print not only Acts of Parliament but all other public sector documents through 986 sub-contracting, the management of HMSO assumed, not unreasonably, that they had the legislative authority not only to print SIs themselves but to sub-contract them.
§ Mr. Marshall
I am grateful to the Minister for giving way; I realise that it is only a short Bill, and that he wants to make progress. He said that the practice goes back at least to 1965, if I remember his written answer correctly. That date is very convenient for him, because it implicates both our parties. Why are we not dealing with the period from 1946 to 1965? Why stop at 1965? If people had been obeying the law of the land from 1946 to 1965, why did the practice suddenly alter? It is not an anomaly, but an illegality.
§ Mr. Freeman
The reason for citing 1965 is that 30 years is as far back as HMSO officials could go. My assumption is that, were they able to go back further—looking at the management decisions of HMSO or ministerial decisions in the record of government or in parliamentary answers—they could probably trace the practice back to 1946.
Contracting out may well technically be a breach of the 1946 Act, but HMSO thought that it had good reason for acting in this way. First, it was merely following long-established practice for other official material. Secondly, and more important, demand for SI printing is, if anything, even more volatile than for other documents. Large volumes of important instruments may be required at very short notice. If HMSO had attempted to produce all of them itself to the tight time scales required, its costs, and therefore the cover price of SIs, would have had to increase.
The result of HMSO's actions is, however, that there are in existence very many copies of SIs which have not been produced in strict conformity with the 1946 Act. I must stress that there is no question of the SI itself not being valid, or of past convictions for breaches of an SI being unsound. Secondary legislation becomes law from the moment it is made, or within a short period thereafter, and can be proved if necessary by production to the court of the original signed copy or a certified copy. However, individual printed copies might possibly be contested by those charged under them, and it is possible that courts would be burdened with arguments as to their validity.
§ Mr. Simon Hughes (Southwark and Bermondsey)
I shall make just two brief points. First, does the Minister accept that it is ironic that the one bit of the system that appears to have been acting illegally, at least in a technical sense, for the past 30 years is the bit that has most to do with examining the small print, or secondary legislation?
Secondly, and more important, this is the second Bill to be introduced this Session because the Government have been doing something that they should not have been doing, and have had to say that the law needs to be amended. The other was the National Health Service (Residual Liabilities) Act 1996, and, of course, the Minister was at one time a Health Minister.
If the Minister's Department is meant to be co-ordinating Government action, will it undertake, before the end of this Parliament, at least to co-ordinate matters so that we no longer have legislative or procedural practice that appears to be illegal and in need of amendment with no one knowing why things have been proceeding as they have for the past 30 years?
§ Mr. Freeman
As soon as the Government discovered that there was a problem, and following collective 987 discussion among Ministers, the decision was made—in my judgment, not only inevitably but correctly—to come straight to the House, report it and present a Bill. The shadow Chancellor, who leads for the Opposition in these matters, and I differ on many things, but one matter on which we agree is the pursuit of good governance. Where there is any hint of a defect in legislation, the Minister in question is obliged to come to the House and correct it. I cannot be held responsible for reviewing the 700 years of legislation passed by Parliament, but I can give the hon. Gentleman the assurance that, if I am aware of any anomalies arising in any other form of legislation, which have been drawn to my attention and that of the Department, I shall come straight back to the House, or will encourage my colleagues to do so.
§ Mr. John Garrett (Norwich, South)
If the defect attaches both to a private contractor and to a public body—HMSO—why is this not a hybrid Bill?
§ Mr. Freeman
Because the 1946 Act refers specifically to HMSO. The private printer has not contravened the law technically, whereas HMSO has. I am the Minister accountable to Parliament for the acts of HMSO, so the Bill is a public Bill, not a hybrid one.
As things stand, defendants charged with contravening an SI could be acquitted solely on the technical argument that an SI not printed by HMSO had not been properly produced; case law suggests that this is unlikely, but it is not impossible. It is more likely that procedure in the courts might become obstructed, and that individual SIs would need to be specifically proved.
In any event, it is clear that urgent action is needed to confirm the validity and evidential status of existing individual copies of SIs. That would be effected by the passage of the Bill at the earliest opportunity, and that is why the Government seek to complete the remaining stages of the Bill in the House tonight.
§ Mr. D. N. Campbell-Savours (Workington)
Will the Minister clarify this point? At some stage, he must have known that the practices taking place were illegal. At the moment he learned that, did he stop all illegality? Did he stop the contracts, or did he allow further illegalities to take place?
§ Mr. Freeman
If the hon. Gentleman is referring to HMSO, no, I did not, at the time I first become aware of the problem. Yes, I did and have done so—I shall report on this to the House in a moment—once the agreement of my colleagues and Government was obtained. The Bill was then presented.
§ Mr. Campbell-Savours
So that we have this on the record, did the Minister therefore permit an illegality to persist?
§ Mr. Freeman
I have to present a Bill to Parliament to clarify and rectify the situation. I will come to the instructions I have given HMSO a little later. I have already answered the hon. Gentleman's question. The moment I became aware personally of the matter, I did not instruct HMSO to cease production. I took further advice, and then discussed the problem with my colleagues. That is a fair and full answer to the hon. Gentleman's perfectly proper question.
988 It is therefore essential that the Bill confirms the status of existing SIs, allows contracting out to continue in the best interests of all concerned, and closes an outdated loophole. As drafted, it does precisely that. It would allow HMSO to contract with others for the printing and distribution of SIs on exactly the same terms as those currently applying to all other material, including Acts of Parliament.
This is a simple step, and requires only this short Bill. All that is required is to amend the wording of the 1946 Act in each place, so that, instead of specifying that SIs must be printed, issued and sold directly by HMSO, it merely requires that they may be printed, issued and sold by others working under contract to it. That is the substance of the Bill, and forms the first part of clause 1(1).
The second part of that subsection deals only with a related document—the list showing when each statutory instrument was issued. Again, there is no reason why this should be printed and distributed directly by HMSO, and again, HMSO has in the past contracted out this work. This subsection both verifies that practice and provides that it may continue. As a consequence, the statutory instruments issue list would not bear the imprint of the Queen's printer, but would state "printed for HMSO" rather than "printed by HMSO". The House will see that this is a minor point.
Clause 1(2) is slightly more complex. The Bill would amend retrospectively section 3(2) of the 1946 Act. This section states that proceedings for an offence consisting of a contravention of a statutory instrument may be defended on the grounds that the SI concerned had not been issued by HMSO at the time the alleged offence took place.
Subsection (2) prevents the amendment from applying to proceedings that commenced before 21 June. Thus the Bill does not deprive an accused person of any argument that he might have had. In particular, it does not prevent a defendant from calling into question the validity of the statutory instruments issue list, and thus argue that there was no conclusive evidence of the date of issue of a statutory instrument. I am not aware of any proceedings that commenced before 21 June to which a defence under section 3(2) would be relevant.
The Bill makes no other changes to the scope of the defence under section 3(2), or to the rights of defendants. It would simply change the criteria by which a statutory instrument might be deemed to have been properly printed, focused and issued, and the formalities for producing the statutory instrument issue list.
The Bill is not necessary for the privatisation of HMSO. That will proceed to completion irrespective of the Bill's passage. Shortlisted bidders are all aware of the position, and each is proceeding on the basis that statutory instrument printing would be carried out in the public sector. The House should be aware that the total value of sales of statutory instruments represent less than 1 per cent. of HMSO's turnover, so the work is of no more than marginal importance to bidders.
I have also instructed HMSO to cease putting statutory instrument printing out to third parties as soon as practicable. If I might add to my earlier remarks to the hon. Member for Southwark and Bermondsey (Mr. Hughes), that means as soon as the House rises. It is simply not practicable in the time available for HMSO to 989 make other arrangements. When the House has risen, the volume of work will reduce substantially, permitting HMSO to print all statutory instruments internally.
§ Mr. Simon Hughes
I am grateful to the Minister for that announcement. He was dealing with technical defences in the courts. Can he tell us—or take advice and let us know later—whether there is a technical defence if a statutory instrument has a starting date when it is deemed to come into effect, but Parliament has not yet debated and approved it? Sadly, that is an increasing practice, which has been the subject of complaint from hon. Members on both sides of the House in recent years.
§ Mr. Freeman
If the House allows me, and it is appropriate in replying to the debate, I shall seek advice and reply to the hon. Gentleman.
The Bill will allow the residual HMSO which will remain within Government after the sale—with the Queen's printer and an appropriate staff—to contract out the production of statutory instruments. It could do that under contract either with the privatised Stationery Office or with another printer, and in effect would be acting in the same way as HMSO does now.
§ Mr. Anthony Steen (South Hams)
The Opposition are making a song and dance about the failure to include the contracting out of statutory instruments to private printers. They appear to be suggesting that there a sinister plot or something mischievous is going on. Will my right hon. Friend confirm that it has been a practice of Labour and Conservative Administrations, and that there is nothing much in the Bill other than that a mistake has been made and the Government are putting it right. Has he any idea why it was excluded in the first place?
§ Mr. Freeman
I am not quite sure that I take the drift of my hon. Friend's last comment. I give way to him again.
§ Mr. Freeman
I cannot speak for the 1946 Parliament, but I would venture to suggest that it was not regarded as an important matter. It may not have been discussed in Committee or on Report. No doubt the then Labour Government had more important matters to hand. Perhaps Parliament did not focus on the same degree of detail as it does now.
It is hard, therefore, to see any difference in the service that would be provided. The Bill merely puts its legitimacy beyond doubt.
The Bill is not required for the sale of HMSO. If it is not enacted before the sale, the residual HMSO would arrange to print all statutory instruments directly itself. Detailed arrangements for how that would be done are being drawn up. The residual HMSO would employ its own printers and rent the night-time use of equipment at HMSO's Sovereign press at Elephant and Castle.
That would, though, be a most unattractive option. It would require Government to maintain a capacity that was rarely fully used, and which would therefore involve needless extra costs. Without a subsidy from the taxpayer, 990 those extra costs would need to be passed on in the form of higher cover prices for statutory instruments. Estimates suggest that, if that course were to be followed—the Government are perfectly prepared to follow it—the average cover price of statutory instruments would rise by about one third. Failure to pass the Bill would mean that privatisation would certainly not be obstructed, but the cost of statutory instruments to the public would rise, to the detriment of wider public access.
The Bill's brevity belies its importance and urgency. Its passage is necessary, first, to confirm the status of existing statutory instruments to prevent the courts from being obstructed by specious debate as to the validity of statutory instruments and remove any chance of defendants in criminal cases being acquitted solely on the technical grounds that a statutory instrument had not been properly produced.
Secondly, the Bill will allow HMSO to continue to secure best value for money in the production of statutory instruments, and to keep cover prices as low as possible. Failure to pass the Bill would risk burdening the courts and necessitate rises in the cover price of statutory instruments. I trust that hon. Members will realise that the measure is non-contentious and urgent, and it is in those terms that I commend it to the House.
§ Mr. Derek Foster (Bishop Auckland)
I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:this House declines to give a Second Reading to the Statutory Instruments (Production and Sale) Bill which, while purporting to remedy a long-standing uncertainty, has been principally prompted by the Government's decision to privatise HMSO.
The Chancellor of the Duchy of Lancaster and I really ought to stop meeting like this. We keep having debates on the civil service and Her Majesty's Stationery Office. They may not have the Lobby correspondents gripping their seats, but they certainly keep me off the streets. There is no telling what mischief a former Chief Whip turned bovver boy can get up to.
On 18 December 1995, the Chancellor said:I confirm that my advice is that no primary or secondary legislation is needed".—[Official Report, 18 December 1995; Vol. 268, c. 1285.]Yet now, towards the recess, obviously to invite the House to act hurriedly, the Chancellor is introducing primary legislation.
The Chancellor of the Duchy will argue, and indeed has argued, that the Bill has nothing to do with the privatisation of HMSO. Indeed, the House will have scrutinised his parliamentary answer on 19 June 1996, in which he said:Some of the printing of statutory instruments has been contracted out by HMSO for over 30 years as the most cost-effective way of producing them.He admitted:A careful examination has recently been made of the legislation which refers to HMSO and the Queen's Printer. This has revealed that while the Queen's Printer can contract out the printing of statutes, this may not be the case for statutory instruments."—[Official Report, 19 June 1996; Vol. 279, c. 471.]So it appears that HMSO has been acting outside the law for more than 30 years in contracting out the printing of statutory instruments. The annual cost of such work is about £200,000, while HMSO's turnover is about £375 million.
991 The embarrassment for the Government is that the legal force of all statutory instruments so printed by contracting out might be subject to legal challenge on the basis that the statutory instrument was illegally printed. The Government are obviously very concerned that, once that is known, a whole range of organisations could engage in litigation against them, so the Chancellor introduced a Bill on 20 June to put right that defect. The legislation is retrospective, in order to validate those statutory instruments printed by contracting out over the previous 30-odd years.
The written answer mentions 1965 as the date of the earliest reference in the records to the fact that HMSO was sub-contracting the printing of statutory instruments. Clearly the implication is that that happened under Labour Governments—indeed, that it may have begun under a Labour Government. The House will no doubt therefore expect the full co-operation of the official Opposition in rectifying that unfortunate anomaly, which apparently puts in question the validity of thousands of statutory instruments.
What could be more reasonable than for the Chancellor of the Duchy to bring before the House a problem and its remedy at the earliest opportunity? At the same time, he invites the House to enable the Queen's printer, the residual HMSO, to contract out the printing of statutory instruments after privatisation. After all, we are told that that is the most cost-effective method of printing them, as HMSO discovered in 1965 or earlier. So the Minister for open government is behaving openly with the House. He is behaving most scrupulously, properly and courteously, as we have come to expect.
Let us now return to 18 December 1995, and the right hon. Gentleman's statement that no primary or secondary legislation would be required for the privatisation of HMSO. I recall being surprised by that response, because I had asked the Library to check whether primary or secondary legislation would be required. I have here a letter from the Library—surprisingly, it is dated the very same day, 18 December 1995—and I shall make it available to the House. It says:An order will be made under part I of the Deregulation and Contracting Out Act 1994, which will deal with the ability of HMSO to fulfil its function as Queen's Printer under the Statutory Instruments Act 1946, and will make clear that, as long as the duty to procure and print is done under HMSO's superintendence and authority, the statutory requirement will be met … HMSO will have no in-house printing capability.
How can the Chancellor of the Duchy explain that, on the same day that he told the House that no legislation would be required, it was admitted within his Department that secondary legislation would be necessary? Where else can the Library's information have come from?
I now return to the right hon. Gentleman's written answer of 19 June, and his statement:A careful examination has recently been made of the legislation which refers to HMSO and the Queen's Printer."—[Official Report, 19 June 1996; Vol. 279, c. 471.]The Office of Public Service's background briefing to the Bill, issued after 19 June, says:The potential problem was first discovered as part of research into HMSO's statutory functions while options for its future were being evaluated before last year's announcement that it was to be privatised.
When was that announcement made? The right hon. Gentleman made his initial announcement on 27 September 1995, and published a written answer on 992 17 October. So—here I come to the point raised by my hon. Friend the Member for Workington (Mr. Campbell-Savours)—the problem was known about as early as late September 1995, and certainly by 17 October.
Indeed, rumours are circulating that the need for retrospection has been known in Whitehall for about two years. If that is true, it casts serious doubt on the veracity of the right hon. Gentleman's statements, and especially on the argument that the need to validate statutory instruments printed under contract is the major purpose of the Bill before us.
Another question arises. If the right hon. Gentleman knew in September 1995 that there was a problem, why did it take him until 19 June 1996 to tell the House? He is the Minister responsible for open government. Was he not failing in his duty to the House, especially when he was pressed on whether primary or secondary legislation would be needed?
The Chancellor of the Duchy will reply that it would have been incompetent and irresponsible to tell the House and the country that there was a problem until he could announce the solution. Such an action would have been tantamount to an invitation to a range of organisations legally to challenge the force of individual statutory instruments on the grounds that they had been printed illegally.
The Department had been advised that it would be inappropriate to deal with the problem by means of a deregulation order, but the House deserves a fuller explanation of this inappropriateness. Was it inappropriate as a vehicle for contracting out the future printing of statutory instruments, or would a deregulation order be an inappropriate vehicle for retrospective action? If it was the latter, I think that the House would agree.
I have done some research on this matter, and I am advised by the Clerk of the appropriate Committee that the Deregulation and Contracting Out Act 1994 has not been used retrospectively hitherto, although it is not impossible that it may be so used at some time in the future. My advice is that it is more likely to have been thought inappropriate because an order under the 1994 Act must remove a burden from business.
§ Mr. Foster
No, I was making the more simple point that the Government knew before December 1995 that there was a problem. Originally, they considered that the solution might be to bring in orders under the Deregulation and Contracting Out Act 1994. I was wondering aloud why it was thought inappropriate to deal with the problem in that way.
§ Mr. Simon Hughes
I am following the argument of the right hon. Gentleman, and I understand it. But the main question remains to be asked and answered—either something needs regulation that allows it to be contracted out or it does not. Yes, people giving advice can change their minds, but the right hon. Gentleman is entitled to hear from the Government—and we are entitled to have it on the record—whether the contracting-out legislation 993 will apply to this measure. I encourage him to pursue that argument, as a lot of people outside are waiting for a clear answer.
§ Mr. Foster
I am grateful to the hon. Gentleman for his intervention. The question that I was entertaining was whether the Deregulation and Contracting Out Act 1994 was about to be used to deal with the problem of contracting out printing, or as a means of retrospectively validating those statutory instruments that have been illegally printed for the past 30 years or so. It struck me that the legislation was probably designed to deal with the former problem.
If the Government were focusing in December 1995 on the former problem and how it was to be dealt with in the future—and if the 1994 Act was the legislative vehicle for dealing with it—retrospection was not part of the solution they were seeking. That is my argument. Was it inappropriate or inconvenient to the Chancellor? That would clearly contradict his statement on 18 December 1995, as it would have been far more difficult to mask the deregulation orders linked with the privatisation of HMSO.
In that event, the Minister with responsibility for open government might even be required to return to the House to admit having misled it on 18 December. Moreover, as he had made his statement on 18 December, when, as I have already demonstrated, the need for legislation was already known within his Department, he might even have had to admit knowingly misleading the House. Of course, he might be able to plead, "No one told me," or, "I was not shown the papers," according to the distinguished precedent of the Prime Minister in front of the Scott inquiry.
To return to his written answer of 19 June, the Chancellor of the Duchy also said:Meanwhile, HMSO will enter into no more external printing contracts for statutory instruments."—[Official Report, 19 June 1996: Vol. 279, c. 471.]Yet I understand that the present contracts continue until 1998. Again, that touches on the point raised by my hon. Friend the Member for Workington—why the Chancellor did not take action to deal with the illegality as soon as it was known, perhaps as early as the end of September 1995.
Although the present contract continues until 1998, my legal advice is that existing contracts for printing statutory instruments cannot exist in law, because they have been entered into ultra vires. So legitimate questions arise: will HMSO continue with the present contractual arrangements, even though the contracts have no legal force; or, if the contracts continue, will they transfer to the residual HMSO or be expected to transfer to the privatised HMSO?
If the contracts are to be discontinued, how will the printing of statutory instruments be arranged? Until the Bill becomes law, HMSO cannot enter into new contracts to have them printed, because the Chancellor has instructed it not to do so. HMSO will be obliged, therefore, to undertake the printing of statutory instruments in-house.
I understand that the Parliamentary Press will be unable to cope with the extra work until the recess, so until then who can legally print statutory instruments? Perhaps the 994 Chancellor will deal with that when he replies. Moreover, I understand that the work force at the Parliamentary Press are on contracts that require them to close down during the recess, so it will be unable to take on the printing of statutory instruments then.
Surely, as my hon. Friend the Member for Workington said, the Government were obliged to stop HMSO contravening the law as soon as the illegality was known—as early as September 1995—but certainly as soon as it was publicly admitted. The Government and Parliament cannot condone the continuation of illegality on the basis that it is soon to be rectified. That presumes that the Bill will receive Royal Assent, which is highly likely but not certain.
It is also not certain when it will receive Royal Assent, as it has yet to go to another place. If the Bill did not receive it until after HMSO was privatised, there would certainly be complications, for the privatised Stationery Office could not legally print statutory instruments, and the Queen's printer or the residual HMSO would have no in-house printing facility.
An extract from the edited information memorandum dated 3 April 1996 reads:bids should be based on the assumption that the work currently done in house would be assigned to the stationery office"—that is, the privatised HMSO. However, in his letter to the Financial Times dated 21 June 1996, which has already been referred to, the Chancellor of the Duchy said:bidders are proceeding on the basis that the printing of all statutory instruments would be carried out by the public sector.Which is it?
§ Mr. Freeman
With the permission of the Chair, I will answer all the other points later, but, for the sake of clarity, it may help the debate if I answer this specific point now.
We have made arrangements for the shortlist of bidders to proceed on the basis that residual HMSO hires, in its own name, up to 16 staff, working for residual HMSO on plant at the Sovereign Press at Elephant and Castle, not the Parliamentary Press, to print statutory instruments in full accordance with the 1946 law. As I have told the House, that would increase the cost to the public sector, but it is a procedure that I have set in hand in order to ensure that the privatisation of HMSO is separated from the merits of the Bill.
§ Mr. Foster
I understand that fully. I understand that the Chancellor is making contingency arrangements against the non-passage of the Bill. I was trying to seek clarification. The background information document produced by the Office of Public Service gives the impression that bidders should proceed on the basis that the work would be done in the privatised HMSO. Yet, in his letter to the Financial Times of 21 June, he said that it will be dealt with in the public sector.
§ Mr. Freeman
I am sorry that I did not answer that point. The information document was issued before the statement to the House. The action I have taken, which is the most up-to-date position, is subsequent to the issue of the information document. We have not placed an amended version in the Library, because I have reported directly to the House. I have reported the most up-to-date position, which reverses that in the information document.
§ Mr. Foster
That raises the question when the Chancellor changed the information available to the 995 House. I do not remember it being made available in the written answer of 19 June. Yet he wrote to the Financial Times on 21 June, giving the world what I consider to be new information that has not been given to the House and which contradicts information previously given to the House. That requires some explanation. I do not want to labour this, but there is a point that should be dealt with.
The Chancellor said that bidders should proceed on the basis that the work would be done in the public sector. When were the bidders told that, and in what form were they told? Can Parliament be shown the form in which the information was revealed? Why was Parliament not informed that the printing of all statutory instruments would be carried out by the public sector? What does the Chancellor mean when he says that the printing of statutory instruments will be carried out by the public sector? In fact, he just described in his intervention what he means by that. Presumably it will be carried out under the new arrangements at the Sovereign Press.
An even more fundamental problem arises from scrutiny of the extract from the edited information memorandum of 3 April 1996. The House deserves to know that the information memorandum was forwarded to all prospective private sector bidders. It says that the residual body will also discharge the functions of the Queen's printer in relation to the production and issue of statutory instruments. When was that important information given to the House?
It does not strike me as satisfactory that the document was placed in the Library, when it was being circulated to private sector bidders, especially as legislation on this matter was already under active consideration. It seems strange that the Government are prepared to reveal to private sector bidders for HMSO what is not drawn to the attention of the House.
I want now to demonstrate the inextricable linkage of the Bill to HMSO's privatisation. We all agree that the law as it now stands requires the printing of statutory instruments by the Queen's printer—HMSO. But after privatisation, the Queen's printer, or the residual HMSO, will have no in-house printing facility. Therefore, after privatisation, the Queen's printer will be unable to fulfil the requirements of the law as it now stands.
Therefore, is not the major purpose of the legislation to allow the Queen's printer to sub-contract the printing of statutory instruments after HMSO's privatisation, not the retrospection, as is being pretended? If HMSO was not privatised, HMSO, remaining in the public sector, could fulfil the requirements of the law as it now stands.
The Chancellor will argue that HMSO, remaining in the public sector, could not have fulfilled the requirements of the law as it now stands, because, at the moment, £200,000 worth of work is done in the private sector under contract. That is not a huge amount compared with HMSO's total turnover of £375 million. Surely the flexibility could have been achieved to bring an additional £200,000-worth of work back into the public sector, thus allowing HMSO to fulfil the requirements of the law as it now stands.
Of course, the retrospection would still have to be dealt with, and no one is arguing to the contrary, but the claim in the House of Commons on 18 December that the privatisation of HMSO did not require any primary or secondary legislation would have been seen to have been false.
996 It might have been desirable to change the law to allow HMSO in the public sector to sub-contract the printing of statutory instruments, but it would not have been necessary. The Bill, or some other primary or secondary legislative vehicle, would have been necessary to permit a residual HMSO after privatisation to continue printing statutory instruments.
Had the Chancellor introduced a simple Bill to allow the sub-contracting of the printing of statutory instruments by the residual HMSO, it would have been clearly seen as a measure required by HMSO's privatisation. But he has conceived the ingenious device of including retrospective validation of statutory instruments printed during the past 30 years. Is it not remarkable that, although the legal force of statutory instruments has been challenged a number of times in 30 years, no one has so far sought to challenge them on the basis that they have been illegally printed?
Is it not the truth that that has been known about for some time in Government, but it was not thought serious enough to be dealt with except when a convenient legislative vehicle cropped up? Suddenly, when some legislation was required because of HMSO's privatisation, an opportunity to deal with that anomaly has arisen.
If the Chancellor had legislated separately, I am sure that the House, and perhaps even the other place, would have dealt with the retrospective element without fuss. The other element, required only because of HMSO's privatisation, could have been dealt with on its merits.
I have dealt with the matter at some length, because the burden of proof is on the Opposition to demonstrate that the legislation was prompted by the privatisation of HMSO. I hope that I have demonstrated that the link is far stronger than that of being "prompted by"—rather, that there is an inextricable link between the Bill and the privatisation of HMSO.
The Bill will have retrospective effect to validate all the statutory instruments hitherto printed by contractors. The House is always reluctant to pass legislation which has retrospective effect, and rightly so. Generally speaking, retrospective legislation is said to be undesirable as repugnant to the rule of law, but there are degrees of retrospectivity.
Legislation that makes legal past actions, decisions or circumstances, especially by public officials or bodies that were thought to be legal by all concerned but which have turned out to be been unlawful, or probably so, may not be regarded as particularly undesirable per se. I have no hesitation in endorsing the Government's perfectly understandable wish to remove all uncertainty by retrospectively validating all statutory instruments printed by contract over the past 30 years. It would be churlish of a Government-in-waiting to withhold their approval for that part of the Bill.
I turn briefly to the progress of privatisation, having established the link, because the House may not have another opportunity to debate the issue. The main thrust of the Chancellor's argument for privatisation was that, to safeguard jobs and expand job opportunities, HMSO should be allowed to operate in both the public and private sectors. For example, he said:it is important that HMSO—the Stationery Office, as it will become in the private sector—has the ability to compete in the private sector for private sector work.997 The Chancellor also said:HMSO needs the freedom of the private sector to compete on equal terms for public and private sector work. Such trading opportunities will mitigate those job pressures, and, if a privatised Stationery Office is successful in marketing, will mean that more jobs will be available than would otherwise exist."—[Official Report, 18 March 1996; Vol. 274, c. 84–86.]
If hon. Members would care to re-examine the written memorandum made by the Chancellor to the Finance and Services Committee, they will see that itproposed the sale by the summer of 1996 noting that HMSO was constrained by its status from competing for business outside the public sector at a time when its central Government market was shrinking. In these circumstances there is a real risk that the business will decline unless HMSO can widen the markets. Privatisation will therefore offer the best chance of a healthy and dynamic future for HMSO and its staff".
The Chancellor argued that HMSO's public sector market was declining, yet the advice that I have received makes it clear that none of the private sector bidders has serious plans to enter the private sector in the short or the medium term. Indeed, each bidder has identified that the key to HMSO's continued success is to ensure that it progressively takes a larger share of the public sector market. They argue that that is the sector where HMSO is best known and has the greatest expertise.
That is hardly surprising, because, if hon. Members would care to examine the extract from the edited information memorandum of 3 April 1996, which appears on page 25 of the excellent research document produced by the House of Commons Library on 28 June, they will see that HMSO's share of £271 million of the total United Kingdom public sector market of £3,155 million is only 8 per cent. The memorandum goes on to admit:HMSO's market share still leaves a significant opportunity for a potential purchaser to capitalise on HMSO's existing capabilities and target the markets available even within the public sector.
That is from the Minister's official document, published by the Office of Public Service. Why did the Chancellor not admit that when he was pressed in the debates of 18 December and 18 March? When his own document admits that there is considerable scope for increasing market share within the public sector, and when his private sector bidders admit that they see the continued success of HMSO in taking an increasing share of the public sector market, why could the Chancellor not see that?
Why was the Chancellor not given that advice by his extensive consultants—or was he given it, and did he choose to ignore it? If the private sector bidders have reached this conclusion in the short time available to them, does that not remove the Chancellor's strongest argument for the privatisation of HMSO, and is it not clear that his madcap scheme to privatise it has been an expensive waste of time, damaging to HMSO but devastating to many staff who now find themselves redundant, while those who remain in their jobs face further swingeing job cuts?
§ Madam Deputy Speaker (Dame Janet Fookes)
Order. Before the right hon. Gentleman continues, let me say that, although I know that he has established a link between the Bill and the general privatisation issue to his own satisfaction, it is a very thin, weak link. It would be better if he related his remarks more closely to the Bill.
§ Mr. Foster
Far be it from me, Madam Deputy Speaker, to argue with your statement that it is a rather 998 weak link, but I thought that I had established a stronger link than appears on the Order Paper, and I should have thought that the link on the Order Paper would allow me to make a few remarks about the privatisation of HMSO. But of course I accept your ruling.
§ Mr. Garrett
On a point of order, Madam Deputy Speaker. Does your ruling mean that—notwithstanding the amendment's reference to Second Reading of the Bill resulting from the privatisation of HMSO—we must assume that no reference can be made to the current state of the privatisation and its impact on my constituents?
§ Madam Deputy Speaker
There must be a link with the Bill. If the hon. Gentleman looks closely at the amendment, he will find that it is cautiously worded. That, I think, reflects the understanding that, although passing reference can be made to the privatisation, it cannot become the main topic of the debate.
§ Mr. Foster
Thank you, Madam Deputy Speaker.
I will end my remarks in the next few minutes, but I do not think that I should do so without reminding the House that, according to his original announcement, the Chancellor's initial intention was to deal with uncertainty—uncertainty that was caused by the Government in the first place.
The Chancellor's preferred bidders are now making it clear that the period of uncertainty that has been so damaging to HMSO, and especially to its staff, has been completely unnecessary. HMSO had had great scope to expand its business while remaining in the public sector, but under privatisation the uncertainty, far from being dealt with, will continue. Each bidder makes it clear that further job losses will ensue after privatisation, and there is a growing belief that the work force will decline from its present 2,500 to about 1,500. Consideration is already being given to the closure of plants around the country.
The Chancellor will remember that, on 18 December 1995, when he was arguing that legislation was not required, he gave my hon. Friend the Member for Linlithgow (Mr. Dalyell) an assurance about HMSO units in Scotland, Wales and Northern Ireland. He said:I can give the hon. Gentleman an assurance that the future of those units, and any others, will be made clear before any contract is negotiated and signed."—[Official Report, 18 December 1995; Vol. 268, c. 1281.]How does that square with the trade union side's evidence that, following discussion with the bidders, some bidders are more interested in the capital value of such sites than in running HMSO? When will the Chancellor make clear the future of the units mentioned by my hon. Friend the Member for Linlithgow? His deadline for completion of the sale of HMSO is fast approaching.
What possible excuse can the Chancellor now have for persisting with the privatisation of HMSO? The bidders have no plans for it to sell in wider markets, and no plans to raise capital in the private sector. The proposal has already caused huge uncertainty for HMSO and its staff over the past two years; the staff has been continually downsized, at great public expense; some £26 million has been spent on redundancies over the past 18 months, and further sums are still to be spent. The staff do not want the privatisation, and HMSO's customers certainly do not want it. There are still reservations in parts of the House.
§ Madam Deputy Speaker
Order. In his enthusiasm, the right hon. Gentleman may have forgotten my 999 strictures. He must relate his remarks more closely to the Bill, and not deal with the general issue of privatisation, which is separate from the Bill.
§ Mr. Foster
I thought when you were addressing my hon. Friend the Member for Norwich, South (Mr. Garrett), Madam Deputy Speaker, that I had brought in a reference to the Chancellor's earlier statement about there being no need for legislation. Having dealt with that extensively, I thought that that brought me back within order—but I have reached the final paragraph of my speech.
As I have said, I am certain that HMSO's customers do not want the privatisation, and there are still several reservations in both the House of Commons and another place. What possible excuse can the Chancellor have, except stubbornness and dogma? I plead with him, even at this late stage, to halt the proposals, and have done with his madcap scheme.
§ 5.6 pm
§ Mr. Anthony Steen (South Hams)
It is very rewarding to be in the Chamber, Madam Deputy Speaker, when you remind hon. Members other than me that they should not depart from the limited subject of the Bill—
§ Mr. Steen
That is why I prefaced my remarks in such a way, Madam Deputy Speaker. You will be pleased to know that, as a result of your strictures, my speech has been cut dramatically.
I want to make a limited comment on both the Bill and the statutory instruments. We should welcome the Bill. When the Government find something that is not right and bring it to the House to try to put it right, we should support the Government and the Minister. I shall certainly do that this afternoon. An error was made, but it was not made by the present Government: successive Governments made an error in not spotting the problem. It was discovered only as a result of some digging in the archives. We should congratulate my right hon. Friend the Chancellor of the Duchy of Lancaster on giving us such a clear explanation of his actions.
As I said in my interventions, the suggestion that something is buried in the closet, that there is some secret or that the Opposition have been given an excuse to raise any number of hares is not what this modest measure is about, but it does raise one or two issues. First, statutory instruments have clearly become a fashionable device. In 1946 there were not many of them, but in the last two years 8,097 new statutory instruments have emerged. Only 30 have been repealed, however. Whereas in 1946, or 1964, the printers were not greatly occupied with statutory instruments, in the past few years they have printed an awful lot of them. In the absence of this helpful measure, they would all have to be printed in the House, which would in fact be impossible. This simple Bill is merely intended to correct an anomaly.
We spent 16 hours and 11 minutes on the Floor of the House, and 92 hours and 56 minutes in Standing Committee, debating the Bill that became the Deregulation and Contracting Out Act 1994, which was mentioned a number of times by the right hon. Member for Bishop Auckland (Mr. Foster). I am not saying that, 1000 as a result of the Act, the Government have not pursued deregulation. They set up a Deregulation Select Committee as the flagship of the whole policy, but, regrettably, only 30 deregulation orders have resulted in the 51 hours it has sat. Such orders are not statutory instruments, but is an amendment needed to the Bill to allow the deregulation orders to be lawful? Otherwise, deregulating gaming machines, greyhound racing, parking equipment and the long-pull order may be ultra vires.
There may be a nexus between statutory instruments and deregulation orders, even though they appear to be separate. It would help to know whether the 30 deregulation orders that have come out of the Deregulation and Contracting Out Act should be added to the 8,097 statutory instruments, or whether nothing further is needed to make those 30 orders lawful. It would be appalling if, in 50 years' time, we found that the Deregulation Select Committee were passing orders and having them printed in a way that we could put right today, so could my right hon. Friend the Chancellor deal with that point in his winding-up speech?
The Bill has given us an opportunity to raise such points and the problem of the statutory instrument, which is becoming more and more a way of life in the House, creating more and more rules and regulations. My right hon. Friend the Chancellor has come to correct an anomaly, but the statutory instrument has become a modus vivendi. To pass statutory instruments has become a culture. I should be upstairs considering one now. Like human lemmings, we just rush on. As you often say, Madam Deputy Speaker, "We must move on," but no one dares ask why. There is a danger that we will pass more and more statutory instruments and find a new device for getting them printed in new and more exciting places, without tackling the issue.
Because of the constraints to which you referred, Madam Deputy Speaker, however, it would be inappropriate to talk about the problems of statutory instruments, the fact that they are secondary legislation and the enormous number that are going through the House. The issue involves simply correcting an anomaly. We should not make another mistake with the orders coming out of the Deregulation and Contracting Out Act.
§ Mr. Jim Marshall (Leicester, South)
I should make it clear at the outset that I am a member of the parliamentary group of the Graphical, Paper and Media Union, that I was formally sponsored by it, but that I now receive no sponsorship personally. Union members who work in Her Majesty's Stationery Office will be as disappointed as me at your ruling, Madam Deputy Speaker, when you made it clear to my right hon. Friend the Member for Bishop Auckland (Mr. Foster) that you were not prepared to permit a much wider debate on the issue surrounding the privatisation of HMSO.
My view remains that we still need a further opportunity to discuss the privatisation and, if you are not going to permit it on this occasion, Madam Deputy Speaker, I hope that the Government, through the occupant of the Chair, will arrange a further debate. Clearly, problems surround the privatisation. Fears remain. All HMSO employees have the right to have those fears voiced in the House of Commons and to receive some response from the Government.
1001 I repeat the point that I made to the Chancellor in an intervention. I am still astounded that this illegality could have persisted for 30 years without anyone having spotted it. The Chancellor referred specifically to the 1946 legislation. It is clear from that legislation that the printing of statutory instruments by private contractors is not permitted.
It may not have come to light for 30 years, but could the Chancellor give us a little more detail on how—not when—it came to light in the context of the discussions on privatisation? He was specific on the dates, but when I asked him my question, he did not pay specific attention to the point, so I would like to know the mechanics of how the error came to light. I am not accusing the Chancellor of behaving dishonourably. I just want a clear and specific answer, if there is one.
In view of your ruling, Madam Deputy Speaker, I must tread carefully, but I can remain in order for a couple of minutes without your having to draw attention to my lack of order. I refer to two comments by the Chancellor. He said that the Bill would have no effect on the date of the HMSO sale to the private sector. If it is not going to delay the date, will he please give us the specific date the transfer is likely to take place? We were told that the sale might be in June or July. We now hear rumours that it could take place as late as September or October, so will the Chancellor clearly say when it is likely to take place?
The Chancellor said that the printing of statutory instruments was marginal to HMSO's business. I heard the figures that he quoted, but clearly it would have some impact on HMSO jobs, although the effect would be marginal. In that context, the right hon. Gentleman said that the point of the Government's policy was to safeguard jobs—a point to which my right hon. Friend the Member for Bishop Auckland referred before he was ruled out of order. The Chancellor said that the point of substance wasto safeguard jobs and expand job opportunities. HMSO should be allowed to operate in both public and private sector markets."— [Official Report, 13 December 1995; Vol. 268, c. 999–1000.]That is the Government's basic position. They believe that the privatisation of HMSO will safeguard jobs and provide greater opportunity. Does the Chancellor believe that any of the four present bidders will be able to fulfil the Government's aspirations?
To repeat the point that I made earlier, I am extremely disappointed that we have not been able to have a wider debate on the privatisation of HMSO. I just hope that there will be a further opportunity before the privatisation becomes a fait accompli.
§ Mr. Simon Hughes (Southwark and Bermondsey)
I apologise to the House for the fact that I am dealing with this issue, rather than my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). Were he not at home for family reasons, he would be here in his capacity both as the person shadowing the Department from which the Bill comes and as the person who, coincidentally, replies on behalf of the House of Commons Commission on these matters, which involve the view of the House and of Madam Speaker, on behalf of the House.
1002 The Bill reminds me of a late and much lamented constituent of mine, Paul Eddington, who provided great amusement and happiness in his representation in "Yes Minister" of discussions behind closed doors, and sometimes not, between the Prime Minister and members of his Cabinet. That portrayal was in theory simulated, but many of us thought that it was not far from the truth. The Bill is real "Yes Minister" legislation. I am prepared to accept the Duchy's explanation that the measure arose from the discovery that the body responsible for producing parliamentary papers has been acting illegally for 30 years—an extraordinary conclusion.
The other person who would have made a meal of this debate, if he had been on form and taken an interest, was the late and also much lamented Ian Gow, the previous but one Member of Parliament for Eastbourne. He would have enjoyed commenting on the measure, because it may be a mouse of a Bill but it raises an important constitutional principle.
Clause 1(1) states:The Statutory Instruments Act 1946 shall have effect and be taken always to have had effect".This is a rewrite history Bill. Whatever actually happened, if the Bill becomes law, we will have decided that it did not happen that way. How often since the present Administration came to power in 1979 have they introduced a measure to legislate retrospectively? I can think only of the War Crimes Bill of 1991. We should not take that step lightly, no matter how serious or insignificant the legislation—and such a course should put us on our guard.
The Chancellor did not tell the hon. Member for Leicester, South (Mr. Marshall) how the people responsible for producing parliamentary papers acted illegally for 30 years. Surely somebody had written down that certain work had to be produced in-house, whereas other work could be contracted. The Bill is about the fact that, for 30 years, HMSO contracted out statutory instrument printing when it was not allowed to do so. What explanation has the Chancellor been given? It is hardly accurate to say that the circumstances have been lost in the mist of time, in the sense that the restriction was not breached from the beginning. I have not heard the Chancellor argue that the printing of statutory instruments was contracted out from 1946 to 1965—he said that it suddenly happened.
I accept that it may have been cheaper to contract out that work, and may continue to be. However, it would be even more bizarre to revert to the legal position for the time during which the Bill passes through both Houses, then change to the new legal position that was the legal position all the time. I do not imagine that Mr. and Mrs. and Miss Public go to an HMSO sales office principally to buy statutory instruments. Nevertheless, there is a market for those documents among libraries and local government offices and, as secondary legislation, they are an important part of the constitution.
As the hon. Member for South Hams (Mr. Steen) said, there are numerous statutory instruments. One such measure will come before the House later—the Landfill Tax (Qualifying Material) Order 1996, SI 1528. There are many such measures, and they are important.
I have a direct interest and an indirect interest to declare. The Parliamentary Press is located in Mandela way in Southwark, in my constituency. I was present at 1003 the opening of that press, which serves both Houses, together with former Speaker Weatherill. Bills, Acts, Lords Minutes of Proceedings, Order Papers, Vote bundles, the debates in both Houses, the proceedings of Select Committees and Standing Committees, statutory instruments, the London Gazette and associated parliamentary papersfor the wheels of parliamentary democracy to turnare produced day and night. I am informed that those publications amount to 250,000 pages a year.
I pay tribute to the work done at the Parliamentary Press, including by some of my constituents, and to its professionalism. I share the view expressed my by hon. Friends in previous debates on HMSO—I shall not rehearse those points, for reasons that you have made clear, Madam Deputy Speaker—for we have never been persuaded not to continue the existing arrangements, by which the work is done well. It is a highly efficient and competent operation, and every employee who has contacted me wants the press to remain as it is and under its present management, not sold off.
I have an interest also in the Sovereign Press at the Elephant and Castle, which is also in Southwark, but SE17 as opposed to SE 1. That is the small bit of Southwark that the boundary commission designated to be absorbed by my constituency in the next general election, which the House has approved. I hope also to represent that part of Southwark, the electors willing, in the next Parliament. I am grateful for the work that both presses have done, in-house or otherwise, on statutory instruments in the past.
When I intervened on the right hon. Member for Bishop Auckland (Mr. Foster), I queried why a deregulation order was needed last December but not now. If there is now no need for such an order, why not? Who decided that, and when? Although I have not made an analytical survey, one matter that excites the House is that it is regularly asked to approve statutory instruments when their date of implementation has passed. My understanding is that, because of the pressure of business, hon. Members are bounced-a measure can be put into effect without being debated. If I am wrong, I stand to be corrected. Otherwise, it seems that we are perpetually debating retrospectively, which is extremely bad law making.
Although I am a lawyer, I never wanted to be a parliamentary draftsman. However, I do not understand why parliamentary draftsmen proceed in the way that they do. Why have a separate Statutory Instruments (Production and Sale) Act 1996 rather than amend the 1946 legislation and have a measure entitled the Statutory Instruments (Amendment) Act 1996? As someone who once practised in the courts, I know that the bane of lawyers, let alone of lay people, is to track back linked pieces of legislation. Hon. Members have a duty not only to speak in plain English but to legislate in a simple and linked manner.
The Bill is only a small amendment to a more substantial Act, and it does not add to that Act at all. The notes on clauses say that the Bill is to amend sections 2(1), 3(1), 3(2), 4(2) and 8(1)(c) of the 1946 Act. For heaven's sake, why do we not call it the Statutory Instruments (Amendment) Bill, so that everyone knows the score?
This is a mouse of a Bill. I accept the Chancellor's arguments that, having discovered the illegality, we should correct it. I only wish that the Government 1004 corrected their other illegalities when courts in this country or in Europe rule that they are acting illegally, and that they did not seek retrospectively to change the law to pretend that what was illegal is now legal. Generally, it is bad law to act retrospectively—but it is a very odd state of affairs when the people charged with producing the law were, for 30 years, behaving illegally.
If that type of situation has not already been scripted by the successors of the late Paul Eddington, it would make a valid script for a future episode. I am sure that the Chancellor could get a walk-on part if, as I hope, he and his colleagues are by then in opposition. They may need walk-on parts to supplement their salary, however much we increase it next week.
§ Mr. Freeman
With permission, I should like to deal briefly with some of the points raised in this brief debate.
The right hon. Member for Bishop Auckland (Mr. Foster) raised points of substance. First, he correctly referred to my remarks of 18 December 1995, when I informed the House that, on the advice that I had, no legislation was needed—primary or secondary—to effect the privatisation of HMSO.
On 18 March, I informed the House that I had to qualify that statement. For the convenience of the House, I shall remind the right hon. Gentleman of what I said in that Supply day debate. I mentioned the need, in order to wind up the trading fund, to introduce anorder under section 6 of the Government Trading Act 1990 simultaneously with the sale."—[Official Report, 18 March 1996; Vol. 274, c. 89.]No other legislation, primary or secondary, is needed to effect the privatisation of HMSO, because, as I have said, the Bill has nothing to do with the privatisation of HMSO. The privatisation of HMSO can proceed regardless of whether the Bill is passed. The Bill's purpose is to achieve the wider objectives of good government and to ensure the avoidance of any doubt in the minds of those who might seek to challenge the validity of statutory instruments.
Secondly, the right hon. Member for Bishop Auckland asked whether the Deregulation and Contracting Out Act 1994 and an order under that Act were ever relevant, and whether they could be relevant. That is news to me. The 1994 Act—despite whatever any research papers may have said—could not have been used to deal with the situation because it could not contain retrospective powers. Of course, well-intentioned comment on the situation, was and still is in perfectly good order, but at no stage was it the Government's intention to proceed, for the reasons that I have given.
Thirdly, the right hon. Member for Bishop Auckland asked why there was a delay. He has extensive knowledge of government, and he aspires to an even greater experience of government. He knows very well that in these circumstances I could not come to the House with a problem without a solution. If I came to the House with a problem and said that I would go away and think about a solution, he would wisely, sensibly and quite correctly criticise me. I have long since realised that the identification of a problem is an easier stage than identifying the correct solution.
1005 Fourthly, the right hon. Member referred to the disparity between what was said in the information document, which was issued at a much earlier stage—in April—and what was said in the House. I do not have the information memorandum in front of me, but I recall—if I am wrong, I shall write to the hon. Gentleman—that it referred in very general terms to the fact that arrangements for the production and issue of statutory instruments were under review and that arrangements might change. That was true at the time.
We informed the bidders of that fact. The bidders were first advised of the change at the same time as I answered a parliamentary question, on 19 June, specifying the problem and identifying the solution. That was at exactly the same time as the House was informed. I shall certainly re-examine the point to ensure that the information I am now providing on the basis of my recollection and brief notes is correct.
Fifthly, the right hon. Member asked whether the residual HMSO can comply with the 1946 Act, unamended. The Government legal advice that I have is that, by ensuring that the Queen's printer has an additional 16 staff and by leasing assets owned by others—a possible privatised stationery office—the Queen's printer could be acting in accordance with the 1946 Act by using the printing presses of Sovereign Press at night. That is why I argued that a residual HMSO could meet the requirements of the 1946 Act, unamended.
Finally on the questions of the right hon. Member for Bishop Auckland, perhaps I can be positive and constructive and announce—although you asked me not to talk about privatisation, Madam Deputy Speaker, and I shall not—that, in response to his perfectly fair point about the timing of privatisation, I should like to meet the trade unions before a preferred bidder is selected. I should like to listen to their concerns, as raised by the right hon. Gentleman—which I shall not seek to answer now—about location and the continuation of certain printing plants, and their views about the vires, standing stability and future plans of the shortlist. I give the right hon. Gentleman, and through him the trade unions, that assurance. I look forward to that meeting.
My hon. Friend the Member for South Hams (Mr. Steen) asked whether an amendment was needed to make all deregulation orders valid. Of course the answer to that question is that deregulation orders are statutory instruments. Therefore, I am happy to confirm to him that they would be covered, even those issued—there are no more than a couple of dozen, but the rate is improving—since the 1994 Act came into force. But, of course, that was before the Bill was published.
The hon. Member for Leicester, South (Mr. Marshall) asked why the practice remained undiscovered for 30 years. The hon. Member for Southwark and Bermondsey (Mr. Hughes) also asked that question, among others—which I shall try to answer in a moment. I do not have a convincing answer. I suspect that the increase in the volume of secondary legislation after the war sensibly caused HMSO to concentrate on contracting out to save money for the taxpayer.
Management must have believed, as most reasonable people would have done, that—as the law permitted contracting-out work for Acts of Parliament and other 1006 public sector work—it was perfectly in order and sensible for them to assume that statutory instruments could also be contracted out. Clearly no one went back to check the fine print of the law; that has finally occurred—at a very late stage—only because of the continual rechecking required by Government counsel before the privatisation of HMSO.
§ Mr. Freeman
The right hon. Member for Bishop Auckland made it clear that the Opposition also believe in good government. The Bill itself is not the issue, and I am grateful to the right hon. Gentleman for his assurance on that score.
The hon. Member for Southwark and Bermondsey asked three questions. The first related to the procedure for statutory instruments subject to the negative resolution—they come into operation, whether or not there is a debate. If there is a successful prayer against a statutory instrument, it is revoked, but without prejudice to the validity of anything done in the interim. That is provided for in section 5 of the Statutory Instruments Act 1946. We have been operating according to these principles for 50 years. It is always open to any political party to suggest a change, but they are the rules. If an instrument has to be approved in draft—under the affirmative resolution—it cannot be made without the necessary affirmative resolution.
§ Mr. Simon Hughes
I am not trying to trap the right hon. Gentleman, but does he agree that, to the outside world, it must seem nonsense that legislation comes into force, we then debate whether we want it and, if we throw it out it, it disappears although it was law for the period between its coming into force and our debating it? That must be bad practice and should be improved, if only to give the public the certainty that something becomes law once the House agrees it and not before.
§ Mr. Freeman
Labour and Conservative Governments since the war have resisted amendments moved in Committee to strike out the negative and insert the affirmative when it comes to order-making powers under primary legislation. There is always a battle between the legislature and the Executive, and that battle will continue for a long time. It is appropriate always to focus on the merits of the argument in a particular case.
Secondly, I cannot say how many Acts passed since 1979 have involved retrospection, other than the War Crimes Act 1991. However, I shall write to the hon. Member for Southwark and Bermondsey on that matter.
Thirdly, the hon. Gentleman asked why the Bill was called the Statutory Instruments (Production and Sale) Bill rather than the Statutory Instruments (Amendment) Bill. I suspect that it has something to do with the long title and that the hon. Gentleman knows that as well as I do.
I commend the Bill to the House.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 192, Noes 235.1010
|Division No. 169]||[5.41 pm|
|Adams, Mrs Irene||Garrett, John|
|Ainger, Nick||George, Bruce|
|Ainsworth, Robert (CoVtry NE)||Godman, Dr Norman A|
|Allen, Graham||Golding, Mrs Llin|
|Alton, David||Gordon, Mildred|
|Anderson, Ms Janet (Ros'dale)||Graham, Thomas|
|Armstrong, Hilary||Griffiths, Win (Bridgend)|
|Ashton, Joe||Grocott, Bruce|
|Austin-Walker, John||Gunnell, John|
|Banks, Tony (Newham NW)||Hain, Peter|
|Barnes, Harry||Hall, Mike|
|Barron, Kevin||Hanson, David|
|Battle, John||Hardy, Peter|
|Bayley, Hugh||Heppell, John|
|Beckett, Rt Hon Margaret||Hill, Keith (Streatham)|
|Beggs, Roy||Hodge, Margaret|
|Bell, Stuart||Hoey, Kate|
|Bermingham, Gerald||Hogg, Norman (Cumbemauld)|
|Berry, Roger||Hood, Jimmy|
|Blair, Rt Hon Tony||Hoon, Geoffrey|
|Bradley, Keith||Hughes, Kevin (Doncaster N)|
|Bray, Dr Jeremy||Hughes, Robert (Aberdeen N)|
|Brown, Gordon (Dunfermline E)||Hughes, Roy (Newport E)|
|Brown, N (N'c'tle upon Tyne E)||Hutton, John|
|Byers, Stephen||Illsley, Eric|
|Caborn, Richard||Ingram, Adam|
|Callaghan, Jim||Jamieson, David|
|Campbell, Mrs Anne (C'bridge)||Jenkins, Brian (SE Staff)|
|Campbell, Menzies (Fife NE)||Jones, Jon Owen (Cardiff C)|
|Campbell, Ronnie (Blyth V)||Jones, Martyn (Clwyd, SW)|
|Campbell-Savours, D N||Keen, Alan|
|Cann, Jamie||Kennedy, Jane (L'pool Br'dg'n)|
|Chisholm, Malcolm||Khabra, Piara S|
|Clapham, Michael||Kilfoyle, Peter|
|Clark, Dr David (South Shields)||Lestor, Joan (Eccles)|
|Clarke, Eric (Midlothian)||Lloyd, Tony (Stretford)|
|Clelland, David||Llwyd, Elfyn|
|Clwyd, Mrs Ann||Loyden, Eddie|
|Coffey, Ann||McAllion, John|
|Cohen, Harry||Macdonald, Calum|
|Connarty, Michael||McFall, John|
|Cook, Frank (Stockton N)||McKelvey, William|
|Cook, Robin (Livingston)||Mackinlay, Andrew|
|Corbett, Robin||McLeish, Henry|
|Corbyn, Jeremy||McWilliam, John|
|Corston, Jean||Madden, Max|
|Cousins, Jim||Mahon, Alice|
|Cox, Tom||Mandelson, Peter|
|Cummings, John||Marek, Dr John|
|Cunningham, Jim (Covy SE)||Marshall, David (Shettleston)|
|Cunningham, Roseanna||Marshall, Jim (Leicester, S)|
|Dafis, Cynog||Martlew, Eric|
|Davidson, Ian||Meale, Alan|
|Davies, Ron (Caerphilly)||Michael, Alun|
|Davis, Terry (B'ham, H'dge H'I)||Michie, Bill (Sheffield Heeley)|
|Denham, John||Milbum, Alan|
|Dewar, Donald||Miller, Andrew|
|Dixon, Don||Molyneaux, Rt Hon Sir James|
|Dobson, Frank||Moonie, Dr Lewis|
|Donohoe, Brian H||Morgan, Rhodri|
|Dowd, Jim||Morris, Rt Hon Alfred (Wy'nshawe)|
|Eagle, Ms Angela||Morris, Estelle (B'ham Yardley)|
|Eastham, Ken||Mowlam, Marjorie|
|Etherington, Bill||Mudie, George|
|Evans, John (St Helens N)||Mullin, Chris|
|Faulds, Andrew||Murphy, Paul|
|Field, Frank (Birkenhead)||O'Brien, William (Notmanton)|
|Flynn, Paul||Olner, Bill|
|Forsythe, Clifford (S Antrim)||O'Neill, Martin|
|Foster, Rt Hon Derek||Orme, Rt Hon Stanley|
|Foulkes, George||Pickthall, Colin|
|Fyfe, Maria||Pike, Peter L|
|Galloway, George||Powell, Sir Ray (Ogmore)|
|Prentice, Gordon (Pendle)||Steel, Rt Hon Sir David|
|Primarolo, Dawn||Stevenson, George|
|Purchase, Ken||Stott, Roger|
|Quin, Ms Joyce||Sutcliffe, Gerry|
|Radice, Giles||Taylor, Mrs Ann (Dewsbury)|
|Raynsford, Nick||Taylor, Rt Hon John D (Strgfd)|
|Reid, Dr John||Thompson, Jack (Wansbeck)|
|Robertson, George (Hamilton)||Touhig, Don|
|Rogers, Allan||Trickett, Jon|
|Rooney, Terry||Turner, Dennis|
|Ross, Ernie (Dundee W)||Wardell, Gareth (Gower)|
|Rowlands, Ted||Watson, Mike|
|Salmond, Alex||Welsh, Andrew|
|Sheerman, Barry||Wicks, Malcolm|
|Sheldon, Rt Hon Robert||Wigley, Dafydd|
|Short, Clare||Williams, Rt Hon Alan (Sw'n W)|
|Simpson, Alan||Wilson, Brian|
|Skinner, Dennis||Wise, Audrey|
|Smith, Andrew (Oxford E)||Worthington, Tony|
|Smith, Chris (Isl'ton S & F'sbury)||Wray, Jimmy|
|Smith, Llew (Blaenau Gwent)||Wright, Dr Tony|
|Smyth, The Reverend Martin|
|Spearing, Nigel||Tellers for the Ayes:|
|Spellar, John||Mrs. Bridget Prentice and Mr. Greg Pope.|
|Squire, Rachel (Dunfermline W)|
|Ainsworth, Peter (East Surrey)||Curry, David (Skipton & Ripon)|
|Alison, Rt Hon Michael (Selby)||Davis, David (Boothferry)|
|Allason, Rupert (Torbay)||Day, Stephen|
|Amess, David||Deva, Nirj Joseph|
|Arnold, Jacques (Gravesham)||Devlin, Tim|
|Atkins, Rt Hon Robert||Dorrell, Rt Hon Stephen|
|Atkinson, Peter (Hexham)||Douglas-Hamilton, Lord James|
|Baker, Rt Hon Kenneth (Mole V)||Dover, Den|
|Baker, Nicholas (North Dorset)||Duncan, Alan|
|Baldry, Tony||Duncan Smith, Iain|
|Banks, Matthew (Southport)||Durant, Sir Anthony|
|Banks, Robert (Harrogate)||Dykes, Hugh|
|Bates, Michael||Elletson, Harold|
|Batiste, Spencer||Emery, Rt Hon Sir Peter|
|Bellingham, Henry||Evans, David (Welwyn Hatfield)|
|Bendall, Vivian||Evans, Jonathan (Brecon)|
|Bonsor, Sir Nicholas||Evans, Roger (Monmouth)|
|Booth, Hartley||Evennett, David|
|Boswell, Tim||Faber, David|
|Bottomley, Peter (Eltham)||Fabricant, Michael|
|Bowden, Sir Andrew||Fenner, Dame Peggy|
|Bowis, John||Field, Barry (Isle of Wight)|
|Brandreth, Gyles||Fishburn, Dudley|
|Brazier, Julian||Forman, Nigel|
|Bright, Sir Graham||Forsyth, Rt Hon Michael (Stirling)|
|Brooke, Rt Hon Peter||Forth, Eric|
|Browning, Mrs Angela||Fox, Dr Liam (Woodspring)|
|Bruce, Ian (South Dorset)||Freeman, Rt Hon Roger|
|Budgen, Nicholas||French, Douglas|
|Butcher, John||Fry, Sir Peter|
|Butler, Peter||Gale, Roger|
|Butterfill, John||Gallie, Phil|
|Carlisle, Sir Kenneth (Lincoln)||Gardiner, Sir George|
|Carttiss, Michael||Garnier, Edward|
|Cash, William||Gill, Christopher|
|Channon, Rt Hon Paul||Gillan, Cheryl|
|Chapman, Sir Sydney||Goodlad, Rt Hon Alastair|
|Clappison, James||Goodson-Wickes, Dr Charles|
|Clark, Dr Michael (Rochford)||Gorst, Sir John|
|Coe, Sebastian||Greenway, Harry (Ealing N)|
|Colvin, Michael||Greenway, John (Ryedale)|
|Congdon, David||Griffiths, Peter (Portsmouth, N)|
|Conway, Derek||Gummer, Rt Hon John Selwyn|
|Coombs, Simon (Swindon)||Hamilton, Rt Hon Sir Archibald|
|Cope, Rt Hon Sir John||Hamilton, Neil (Tatton)|
|Cormack, Sir Patrick||Hanley, Rt Hon Jeremy|
|Couchman, James||Hannam, Sir John|
|Cran, James||Hargreaves, Andrew|
|Currie, Mrs Edwina (S D'by'ire)||Haselhurst, Sir Alan|
|Hawkins, Nick||McLoughlin, Patrick|
|Hawksley, Warren||McNair-Wilson, Sir Patrick|
|Hayes, Jerry||Madel, Sir David|
|Heald, Oliver||Malone, Gerald|
|Heathcoat-Amory, Rt Hon David||Mans, Keith|
|Heseltine, Rt Hon Michael||Marland, Paul|
|Higgins, Rt Hon Sir Terence||Marlow, Tony|
|Hill, Sr James (Southampton Test)||Marshall, John (Hendon S)|
|Horam, John||Marshall, Sir Michael (Arundel)|
|Hordern, Rt Hon Sir Peter||Mates, Michael|
|Howard, Rt Hon Michael||Mawhinney, Rt Hon Dr Brian|
|Howell, Rt Hon David (G'dford)||Mayhew, Rt Hon Sir Patrick|
|Hughes, Robert G (Harrow W)||Mills, Iain|
|Hunt, Rt Hon David (Wirral W)||Mitchell, Andrew (Gedling)|
|Hunt, Sir John (Ravensbourne)||Mitchell, Sir David (NW Hants)|
|Hunter, Andrew||Monro, Rt Hon Sir Hector|
|Hurd, Rt Hon Douglas||Needham, Rt Hon Richard|
|Jack, Michael||Nelson, Anthony|
|Jackson, Robert (Wantage)||Neubert, Sir Michael|
|Jenkin, Bernard||Nicholls, Patrick|
|Jessel, Toby||Nicholson, David (Taunton)|
|Johnson Smith, Sir Geoffrey||Norris, Steve|
|Jones, Robert B (W Hertfdshr)||Oppenheim, Phillip|
|King, Rt Hon Tom||Ottaway, Richard|
|Kirkhope, Timothy||Paice, James|
|Knight, Mrs Angela (Erewash)||Patnick, Sir Irvine|
|Knight, Rt Hon Greg (Derby N)||Pattie, Rt Hon Sir Geoffrey|
|Knight, Dame Jill (Bir'm E'st'n)||Pawsey, James|
|Knox, Sir David||Pickles, Eric|
|Kynoch, George (Kincardine)||Porter, David (Waveney)|
|Lait, Mrs Jacqui||Portillo, Rt Hon Michael|
|Lamont, Rt Hon Norman||Powell, William (Corby)|
|Lang, Rt Hon Ian||Rathbone, Tim|
|Lawrence, Sir Ivan||Redwood, Rt Hon John|
|Leigh, Edward||Renton, Rt Hon Tim|
|Lennox-Boyd, Sir Mark||Richards, Rod|
|Lester, Sir James (Broxtowe)||Riddick, Graham|
|Lidington, David||Robathan, Andrew|
|Lilley, Rt Hon Peter||Roberts, Rt Hon Sir Wyn|
|Lloyd, Rt Hon Sir Peter (Fareham)||Robinson, Mark (Somerton)|
|Lord, Michael||Roe, Mrs Marion (Broxbourne)|
|Luff, Peter||Rowe, Andrew (Mid Kent)|
|Lyell, Rt Hon Sir Nicholas||Rumbold, Rt Hon Dame Angela|
|MacGregor, Rt Hon John||Sackville, Tom|
|MacKay, Andrew||Sainsbury, Rt Hon Sir Timothy|
|Maclean, Rt Hon David||Shaw, David (Dover)|
|Shephard, Rt Hon Gillian||Trotter, Neville|
|Shepherd, Richard (Aldridge)||Twinn, Dr Ian|
|Sims, Sir Roger||Vaughan, Sir Gerard|
|Skeet, Sir Trevor||Viggers, Peter|
|Smith, Sir Dudley (Warwick)||Waldegrave, Rt Hon William|
|Spencer, Sir Derek||Walden, George|
|Spicer, Sir Michael (S Worcs)||Walker, Bill (N Tayside)|
|Spink, Dr Robert||Waller, Gary|
|Sproat, Iain||Ward, John|
|Stanley, Rt Hon Sir John||Waterson, Nigel|
|Steen, Anthony||Watts, John|
|Stewart, Allan||Wells, Bowen|
|Streeter, Gary||Whitney, Ray|
|Sweeney, Walter||Whittingdale, John|
|Sykes, John||Widdecombe, Ann|
|Taylor, Ian (Esher)||Wiggin, Sir Jerry|
|Taylor, John M (Solihull)||Winterton, Mrs Ann (Congleton)|
|Taylor, Sir Teddy (Southend, E)||Winterton, Nicholas (Macc'f'ld)|
|Temple-Morris, Peter||Wood, Timothy|
|Thompson, Sir Donald (C'er V)||Yeo, Tim|
|Thompson, Patrick (Norwich N)||Young, Rt Hon Sir George|
|Thornton, Sir Malcolm||Tellers for the Noes:|
|Townsend, Cyril D (Bexl'yh'th)||Mr. Simon Burns and Mr. Roger Knapman.|
§ Question accordingly negatived.
§ Main Question put forthwith, pursuant to Standing Order No. 60 (Amendment on Second or Third Reading), and agreed to.
§ Bill accordingly read a Second time.
Motion made, and Question put forthwith, pursuant to Standing Order No. 61 (Committal of Bills),
That the Bill be committed to a Committee of the whole House.—[Mr. Wood.
§ Question agreed to.
§ Bill immediately considered in Committee.
§ Clauses 1 and 2 ordered to stand part of the Bill.
§ Bill reported, without amendment.
§ Bill read the Third time, and passed.