REGULATIONS, ORDERS AND RULES (Hansard, 8 July 1998)

§ Mr. Peter Brooke (Cities of London and Westminster)
I beg to move amendment No. 59, in page 39, line 20, leave out 'or' and insert— '() section 51, in the case of the first order made by the Secretary of State under that section, or'. This evening is only the second time that I have played hookey from the proceedings of the Bill. On Second Reading on May 11, I hung on the lips of the President of the Board of Trade during her 52-minute speech. I stayed on the ramparts while what seemed like half the Labour party attacked Mr. Murdoch, and at about a quarter to 9, I made my own plea to serve on the Committee that considered the Bill. It is perhaps forgivable at that late hour that I misquoted an interlocutor of the Duke of Wellington.
The Committee of Selection graciously put me on the Committee, on which I served with constant admiration for my right hon. Friend the Member for Wokingham (Mr. Redwood) and my hon. Friends, and occasional amazement at the ramshackle quality of the arguments deployed by the Government. Until late this evening, I have been serving on the Select Committee on Northern Ireland Affairs, the members of which very properly feel that one cannot make a mature decision until after dusk.
My first absence from the proceedings of the Bill was on the morning of June 23, when I was absent from the Committee on lawful occasions, which, in all piety, I indicated to the Minister. A little after 11 o'clock that morning, the Minister for Competition and Consumer Affairs embarked on the long furrow of moving and speaking to his new schedule, which affected community pharmacies. He concluded the furrow with a passage of the new schedule three and a half hours of debate later at 6 o'clock.
Very early that morning, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) moved the amendment that served as a jewel-like harbinger to the matter before us. He moved it with the same coruscating clarity that characterised his actions throughout the Committee, which makes it such an honour that his name is attached to mine on amendment No. 59.
I shall not rehearse all the arguments that my hon. Friend the Member for South Cambridgeshire deployed on June 23, which occupy three columns in the Official Report of Committee proceedings. The issue related to the fact that, in what was then clause 70, now clause 71, there is a power to make regulations and orders. My hon. Friend sought to make the Secretary of State's orders under clause 51 subject to affirmative resolution.
The Minister resisted the amendment on two grounds—first, the slowness and greater difficulty imposed on the process of introducing any necessary adjustments to the rules, and secondly, that the rules concerned only procedural matters, which fell below the level of primary legislation or matters subject to affirmative resolution.
My hon. Friend the Member for South Cambridgeshire responded by reminding the Minister of the weight that the Government had attached throughout the Committee to the clarificatory rules that the director will make. He said that the rules might be procedural in content, but were substantive in effect. My hon. Friend added that, although he understood the Minister's case—that multiple use of the affirmative resolution procedure might be 1206 difficult in practice when the rules were amended—it was still desirable to have the fullest possible scrutiny on the first occasion that the director's rules were made.
The Minister's total silence in response to that reasonable suggestion by my hon. Friend the Member for South Cambridgeshire has provoked him and me to bring the concept back on report. In making this tiny personal scratch on the Government's adamantine front—this is the only time I have bothered the House on report—I remark that, on the Government's other objection, EU experience has shown that the procedural elements of competition law can be of immense importance. In a number of key cartel cases, appeals have turned on procedural points.
In schedule 9, there are matters on which rules may be made which are not merely procedural. If I may give examples where the rules provide for the circumstances in which the director may act, the imposition of conditions or the cancellation of them in relation to parallel exemptions under paragraph 9—and, likewise, in relation to third-party rights on disclosure of information under paragraph 12—will serve.
What will be of particular interest in such matters—the House will be delighted to hear that I am concluding—is the extent to which the rules will depart from EU principles in similar circumstances. Finally, rules under clause 51 are not limited to the matters in schedule 9, and I draw the Minister's attention to clause 51(2). I hope that the Government will look with favour on this small amendment at this late hour.

§ Mr. Nigel Griffiths
I should like to be able to accommodate the right hon. Member for Cities of London and Westminster (Mr. Brooke), whose contributions to the Committee have been entertaining from first to last.
I recognise that the right hon. Gentleman is proposing only that the first exercise of the power to make orders under clause 51 should be subject to the affirmative resolution. Nevertheless, I do not think that the rules under clause 51 are of such significance that they should be subject to affirmative resolution. Lest he does not wish to rely on my judgment, I pray in aid two other important bodies.
We are reflecting the guidance of the then Joint Committee on Delegated Legislation, which, in its second report in 1972-1973, suggested that the affirmative resolution procedure might normally be appropriate for powers substantially affecting provisions of Acts of Parliament. The powers under clause 51 do not fall into any of those categories. Similarly, the House of Lords Select Committee on Delegated Powers and Deregulation did not question the fact that this power was subject to negative resolution when it reported on the Bill.
I want to reassure the right hon. Gentleman that clause 51 (3) requires the director general to consult when he is preparing rules, so those likely to be affected will have the opportunity to make their views known. I hope that that will allow the right hon. Gentleman, on reflection, to withdraw the amendment.

§ Mr. Brooke
I am disappointed by the Minister's response, as is my hon. Friend the Member for South Cambridgeshire (Mr. Lansley). However, the Minister knows the way to my heart. The original Committee set up in the House of Lords to look at delegated legislation was chaired by my late noble father. When it was decided 1207 that there should be a Joint Committee of both Houses, my father was approached by the Leader of this House, who said how desirable it would be to have at least one member of the House of Lords Committee serving on the Joint Committee, and how helpful it would be if he would chair the Joint Committee. My father did that as well.
Under those circumstances, it would be churlish of me to resist the plea that the Minister is making—although I hope that the Government will not rue the day. I beg to ask leave to withdraw the amendment.