HC Deb 02 March 1998 vol 307 cc812-8

  1. '(1).— The subordinate legislation procedures must include provision for ensuring that, before a draft of a statutory instrument containing Assembly general subordinate legislation is laid before the Assembly, the draft is—
    1. (a) submitted to the parliamentary Joint Committee on Statutory Instruments ("the Committee"), and
    2. (b) approved by the Committee without adverse comment.
  2. (2) When any draft is submitted to the Committee under this section, the Committee shall report within a reasonable period as to whether it approves the draft without adverse comment.
  3. (3) Adverse comment on a draft shall only be made by the Committee on any of the grounds (so far as applicable) on which the Committee is empowered to draw a statutory instrument to the special attention of either House of Parliament.'.—[Mr. Jenkin.]

Brought up, and read the First time.

10.15 pm
Mr. Jenkin

I beg to move, That the clause be read a Second time.

All statutory instruments laid before Parliament are considered by the Joint Committee on Statutory Instruments, composed of Members of both Houses and usually chaired by an Opposition Member. Its remit is to focus upon technical rather than policy matters and to ensure that draft subordinate legislation conforms with the primary legislation from which it derives. It might ask, for instance, whether the Minister who made the order was acting within his powers or whether the drafting was defective. It is not a political Committee and it does not consider political issues; it performs a valuable task in scrutinising the thousands of pieces of legislation that Ministers produce and that never cross the consciousness of the vast majority of right hon. and hon. Members.

The new clause would require the Joint Committee on Statutory Instruments to consider any draft subordinate legislation before it was considered by the assembly simply for the purpose of ensuring that the legislation was technically appropriate and would achieve what Ministers had intended. If the Joint Committee on Statutory Instruments reported adversely, the draft could not become law. It would then be a simple matter of the statutory instrument in question being amended or revised so that it could be passed by the Committee and the assembly. It could then become law.

The new clause is not designed to limit the political powers of the assembly; it is simply a safeguard to ensure that the statutory instruments that it considers conform with the primary Acts of Parliament from which they derive so that the scope for getting into a muddle about legislation is considerably reduced.

Mr. Livsey

I am sure that the hon. Member for North Essex (Mr. Jenkin) is proposing the new clause from the best possible motives, but we see certain disadvantages stemming from it. In spite of what the hon. Gentleman said, it would certainly create more bureaucracy that would slow up decision making and reduce the effectiveness of the assembly. We believe that it takes away some of what little power the assembly will have.

We should like to know the definition of "a reasonable period". The Conservative interpretation of the word "reasonable" has not always inspired confidence—and I am putting that gently. The new clause opens up a number of ways by which statutory instruments could be delayed and in the process it would tend to reduce the powers of the assembly.

Mr. David Tredinnick (Bosworth)

I am grateful for the opportunity to address the issue. I welcome the new clause tabled by my hon. Friends on the Front Bench, as I recognise that there are still many grey areas in the likely relationship between the Welsh assembly and Westminster on the scrutiny of statutory instruments. The Joint Committee on Statutory Instruments, which I chair, has raised the issue with the Leader of the House. I am grateful for the reply that I received today, which says that the issue is still under consideration and that a full response will be forthcoming as soon as possible. We hope that the memorandum that the Leader of the House has promised to issue with the Welsh Office will set out the Government's position in detail. They have not done so to date.

The Joint Committee on Statutory Instruments has three main concerns: first, arrangements for co-operation between it and its counterpart in the Welsh assembly, particularly over joint instruments, which, under the Bill as drafted, will be made jointly by Ministers of the Crown and the assembly; secondly, the potential for conflict between the two Committees over similar instruments laid before the assembly and Parliament; and thirdly, the scrutiny of instruments derived from European obligations.

The new clause would give the JCSI more powers over Welsh legislation than it currently has over United Kingdom instruments. Many hon. Members have argued for a long time that it should have more powers. In a sense, the new clause is a step in the right direction. However, the Government are not currently required to act if the Committee criticises an instrument. Making our adverse comment on an instrument sufficient to stop it in its tracks would be a major change. That is not the only solution, but it would be one way to focus attention on the scrutiny of delegated legislation, which is too often neglected.

That illustrates how the role of the JCSI must be considered when planning arrangements for the scrutiny of secondary legislation in the context of the Welsh assembly and the Scottish Parliament. It cannot be left to chance after the assembly has begun to work. If it is, the situation will be chaotic. That will be in the interests neither of Wales nor of the United Kingdom Parliament. I am pleased to see the Secretary of State nodding about that. Potential areas of confusion and difficulty must be identified and solutions found. The JCSI will continue to press on that, but it will also co-operate in any way that it can with the assembly, once established.

I look forward to hearing the Minister's reply. It is a great pity that the Government have not been able to address the issue earlier in the passage of the Bill. It touches on many vital issues. The Committee checks the legality of a good deal of legislation. It is a pity that the House has not been able to look in detail at the Government's proposals. In fact, it has not had any proposals to look at.

I exhort the Secretary of State to talk to the Leader of the House and to give us the Government's position face up, so that we can consider it. That must happen before the Bill goes to another place.

Mr. Grieve

I join my hon. Friend the Member for Bosworth (Mr. Tredinnick) in his comments on the new clause and the way in which statutory instruments are subjected to scrutiny. I also have the pleasure of serving on the Joint Committee.

The issue is not a tug of war for power between the House of Commons and the assembly. It is a question of the absolute necessity of maintaining a degree of conformity of practice and drafting in the way in which statutory instruments are dealt with, whether in Wales or England.

Scotland has a separate legal system and it will have a separate Parliament. I accept that the situation there is bound to be different, even though there will clearly also have to be considerable co-ordination. None the less, we are to continue to have a common legal system in this country—which is England and Wales. As long as that is so, it is essential that subordinate legislation, whether created in Cardiff or wherever else the assembly may sit, or in this place, should be drafted in a way that does not give rise to problems.

We also ought to bear in mind that we in this House are privileged to have a body of expertise in the Speaker's Counsel and assistants to the Speaker's Counsel on the way in which subordinate legislation is drafted.

I endorse every word that my hon. Friend the Member for Bosworth said about the fact that the role of the Joint Committee on Statutory Instruments is insufficient to meet the amount of legislation that is coming through by statutory instrument. It is also insufficient to scrutinise and check as one would wish some of the gobbledegook to which we are subjected. The new clause provides an opportunity to put our house in order on the way in which both the Welsh assembly and the House proceed with statutory instruments.

I hope that the Minister and the Secretary of State will bear those points in mind. This is really a non-partisan issue. It is a question of ensuring that, when the assembly is introducing statutory instruments in 10 years' time in order to achieve exactly the same effect as those being introduced here, we do not end up with the ludicrous situation of such statutory instruments being different in content and legal interpretation. That could happen; there is no adequate mechanism to prevent it.

Regardless of whether the Government are prepared to accept new clause 39, I ask that we are given some adequate replies on the way in which the matter will be dealt with. It will be interesting to know where, for instance, expertise will be found immediately to provide advice to the assembly when it is set up.

Mr. Ron Davies

In Wales.

Mr. Grieve

It may be in Wales, but it will still have to be found. It is likely that a degree of co-ordination with expertise available in the House will be required.

Mr. Letwin

At the risk of sending the Secretary of State to sleep—he is clearly near to the point of quiescence—I should like to go slightly beyond what my hon. Friends have said.

Mr. Win Griffiths

Not beyond the new clause.

Mr. Letwin

Certainly not.

What is proposed in new clause 39 is not in any way surprising. What is surprising is that there is no clause equivalent to its effect in the Bill. Clauses 59 and 60 set up a system which, in the absence of new clause 39, yet further intensifies—the Secretary of State and his colleagues may by now have noticed that this has been a theme of mine in this Committee—the potential for litigation. That goes to the heart of the Bill; new clause 39 is profound in its implications.

Surprisingly, there is no check other than that proposed by new clause 39 or some substitute for it on the Welsh assembly's interpretation of its own powers to engage in subordinate legislation—other than, of course, the courts and ultimately the Judicial Committee of the Privy Council. Clauses 59 and 60 are so structured as precisely to permit a majority of the assembly to constitute a majority of the statutory instruments Committees, which could decide to legitimate, or appear to legitimate, as a piece of subordinate legislation an action that was entirely ultra vires. If new clause 39 is not accepted, the Bill will contain no limit on that.

Ministers have assured us—indeed, it is part of the essence of their argument—that they are establishing a structure that permits the Welsh assembly to engage only in subordinate legislation. That is a fine phrase, but if it is rendered meaningless by repeated decisions of the relevant Committee of the Welsh assembly that items that are clearly primary in intent and would not, in this House, qualify as subordinate are nevertheless subordinate, that can be challenged within the structure of the Bill without new clause 39 only through the courts and ultimately in the Judicial Committee of the Privy Council. New clause 39 would rescue the Secretary of State and his colleagues from a manifest lacuna in the Bill and I should have thought that, far from giggling themselves into a pleasant pre-nuptial sleep with the Bill—[Interruption.]—I stress, with the Bill, they should be grateful to my right hon. and hon. Friends for tabling an amendment that rescues them from that lacuna and fills it so admirably.

10.30 pm
Mr. Win Griffiths

I cannot go for a pre-nuptial sleep, but I have been looking forward to sleeping and I have to admit that the debate was pushing me towards that state, but occasionally awaking me with horror at what I was hearing.

Paragraphs 4.22 and 4.27 of the White Paper made it clear that the assembly would have its own procedures for formulating and approving subordinate legislation. Those are set out in part III of the Bill. Following the precedent of section 75 of the Wales Act 1978, clause 43—I am surprised no one referred to this—provides for parliamentary procedures generally to cease to apply to subordinate legislation made by the assembly. The assembly will be an elected body able to make its own subordinate legislation and it will be directly accountable to the people of Wales for its actions.

In the Government's view it would be inappropriate for all the assembly's subordinate legislation to have to be referred to the Joint Committee on Statutory Instruments. Clause 59 establishes a subordinate legislation Scrutiny Committee whose role will be analogous to that of the Joint Committee, but there is one major and important difference and I hope that the hon. Member for Beaconsfield (Mr. Grieve) will accept that it is an improvement. Whereas the Joint Committee's evaluation of a statutory instrument often takes place after the instrument has been made and laid before Parliament, the assembly's Scrutiny Committee will perform its functions before the formal making of the instrument. Indeed, the effect of clause 65(5)(a), subject to clause 66, is that the assembly may not make any general subordinate legislation without having before it a report on the draft from its Scrutiny Committee.

Mr. Grieve

I do not disagree with any of that—it is an improvement on the House's procedure for the scrutiny of subordinate legislation—but the key question is whether the Minister agrees that a great deal of the subordinate legislation will, of necessity, be identical in intent to that which will be passed by the House. How, for the sake of legal clarity and the maintenance of conformity, are we to retain parity of wording? If that is not regarded as important, will the Minister explain why it is not?

Mr. Griffiths

The hon. Gentleman may be getting rather exercised because of the desperation he has felt in meetings of the Joint Committee on Statutory Instruments. He needs to bear in mind that the National Assembly for Wales will be serviced by civil servants currently in the Welsh Office and from other parts of the United Kingdom who want to be a part of this exciting new project. When scrutinising statutory instruments, a wealth of experience will be available to help Members of the Assembly judge what the best wording will be. I do not think that we need to get over-worried about that, although I can see why the hon. Gentleman finds it easy to become exercised about such matters when serving on the Joint Committee deep in the bowels of this place.

Mr. Tredinnick

My hon. Friend the Member for Beaconsfield (Mr. Grieve) has raised a valid point. I want to draw to the Committee's attention a problem that it has not addressed—European legislation. Although a number of learned counsel advise the Joint Committee on Statutory Instruments, it is difficult to ensure that the instruments conform to the requirements of the European Parliament and European legislation. Having scrutinised these instruments for some time, I am worried about how we can ensure a proper interface between legislative bodies so that there is no difference in the legality of instruments in England and in Wales.

Mr. Griffiths

I think that I have got the drift of the hon. Gentleman's argument. I appreciate that, as Chairman of the Joint Committee, he has particular concerns and is deeply enmeshed in all the difficulties that that Committee faces, but he should remember that Members of the Welsh assembly will be served by civil servants. If Members feel that there is a tricky problem with European legislation or something else, they may ask how the issue is dealt with in the House of Commons. I am confident that people will apply their common sense to all these issues, about which we can become far too worried.

Clause 60 provides for the assembly's Scrutiny Committee to be chaired by a member of a minority party and prevents the assembly Secretaries from being members of it. We believe that that gives us good internal audit—the assembly's secondary legislation will be properly scrutinised.

The memorandums to the Joint Committee on Statutory Instruments about the assembly's subordinate legislation procedures will be forthcoming shortly and I hope that they will allay all the fears that have been expressed. Given that, I hope that the hon. Member for North Essex (Mr. Jenkin) will withdraw the motion.

Mr. Jenkin

I am grateful to the Minister for the trouble he has taken in responding to the motion. I was interested to hear that my hon. Friend the Member for Bosworth (Mr. Tredinnick), as Chairman of the Joint Committee on Statutory Instruments, has discussed these matters with the Leader of the House and others.

I do not want to sound a sour note, but it is rather typical of our proceedings that information has trickled out, sometimes even after the event. It would have been nice to have such a memorandum before this debate. I accept that the debate started 20 minutes early, but I do not expect that we shall see the memorandum tonight. Will the Minister assure us that the Leader of the House will issue the memorandum before Report so that we can debate the issues that arise if we so choose?

Mr. Win Griffiths

I understand that the memorandum is close to completion. We shall certainly make it available to hon. Members as soon as possible. I cannot make an absolute commitment on timing, but I assure the hon. Gentleman that it will be available very soon.

Mr. Jenkin

I wonder whether the Minister could make representations to the Leader of the House about the memorandum. In the spirit of the age and of the new politics, which the Minister clearly espouses for the assembly, I take him to mean that we will see the memorandum as soon as possible and probably before Report. I therefore beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.