SUBORDINATE LEGISLATION: PROCEDURE (Hansard, 4 March 1998)

§ Mr. Beith
I beg to move amendment No. 39, in page 44, line 23, after '29', insert '33,'.

The First Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 38, in page 45, line 10, leave out '33'.
No. 465, in page 44, line 29, at end add— 1166 '(3A) Either House of Parliament or the Parliament shall have the power to amend a statutory instrument containing subordinate legislation under section 99, but no instrument shall be made as so amended without the consent of both Houses and of the Parliament.'.

§ Mr. Beith
The purpose of amendments Nos. 39 and 38 is to move orders made under clause 33 from negative procedure to affirmative procedure. To stop a Bill going forward for Royal Assent, which is what clause 101 is about, is a serious matter and because it involves the Secretary of State forming a view or belief, he ought to be obliged to come before the House to explain his grounds and seek positive approval for that belief.
Amendment No. 465 would give effect to the wish I expressed earlier that both Houses of Parliament and the Scottish Parliament should have the opportunity to propose amendments to legislation on complicated fisheries matters. There is ample precedent for that: for example, the census legislation allows such amendments to be moved, and I have moved such an amendment to that legislation. In reviewing the matter, we ought to consider allowing some more flexible procedure, given the complexity of the matters and the amount of technical dispute which they invite.

§ Mr. Heald
I hope that I may make a speech yet, despite the circumstances. Clause 33 has been described as the governor-general clause, because it allows the Secretary of State to strike down laws that have been passed by the Scottish Parliament. In my view, it is doubtful whether primary legislation should be struck down by secondary legislation—it is an odd concept and it is not fundamentally democratic. However, one thing is sure: if he is going to do that, the Secretary of State should come to this House to explain why, and not try to put it through via the back door. It is interesting to note that, under the negative resolution procedure in this House, only three out of 738 instruments have been discussed in the past year.

§ Mr. McLeish
I am certainly impressed by the hon. Gentleman's last comment. Amendments Nos. 38 and 39 would require orders under clause 33 to be subject to affirmative resolution procedure in both Houses of the Westminster Parliament. As the Bill is worded, such orders would be subject to negative resolution procedure in both Houses.
Orders under clause 33 are likely to be short-lived. In the limited circumstances provided for in that clause, they would prevent a Bill from being submitted for Royal Assent and give the Scottish Parliament an opportunity to reconsider the Bill. If the Parliament does that and amends the offending provision, the order can be revoked and the Bill can proceed for Royal Assent.
The Government have taken the view that there is no need to insist that such orders should require the approval of Parliament every time. Parliament will always have the opportunity to annul an order after it has been made.
The orders under clause 33 would need to be made quickly, within the four-week period. That would also be necessary to avoid uncertainty. It would be difficult for an affirmative instrument to be drafted, laid, debated by both Houses of Parliament and made, all within the four 1167 weeks allowed—even assuming that Parliament is sitting. That is why the negative procedure was chosen. I ask the Committee to reject the amendments.

§ Mr. Beith
The Minister has not really answered my query—

The First Deputy Chairman
Order. I am sorry to interrupt the right hon. Gentleman.