NHS (Charitable Trusts Etc) Bill

Debate between Michael Tomlinson and Jacob Rees-Mogg

Friday 22nd January 2016 Commons Chamber

[Michael Tomlinson]

My hon. Friend makes a sound point: one must always balance the benefit and the cost. I do not have figures on the cost of the consultation, but I think he will agree that the principle of a public consultation is a sound one, and that is what I am speaking to.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Will my hon. Friend explain what he means by “appropriate”? Does it mean the Secretary of State should ask a few mates in the pub what they think of the proposals, or a more formalised system through petition of this House?

[Michael Tomlinson]

I shall turn to what I mean by “appropriate” in due course, but I think hon. Members on both sides of the House will know on plain reading of the word “appropriate” what is or is not appropriate.

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[Michael Tomlinson]

I am very grateful for that guidance, Mr Speaker.

[Mr Rees-Mogg]

I remind my hon. Friend that he said he would explain what the word “appropriate” meant in this context, which is an important point for the House to be clear upon.

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[Michael Tomlinson]

I am grateful for that intervention, but my view is that in this case it is unnecessary to use the affirmative procedure to approve the matter and the negative procedure would suffice. I understand the point that my hon. Friend makes, but I respectfully suggest that these amendments are appropriate. I was looking up one of the notes in the Library, perhaps one prepared by one of your predecessors, Mr Speaker, and I found that it stated that the affirmative procedure is less common, being used in perhaps only 10% of cases.

I will not take up time by referring to the other amendments, merely noting that several and other hon. Members will speak to them in due course. I look forward to a constructive debate on this group.

[Mr Rees-Mogg]

I had not intended to follow on so quickly, Mr Speaker, as I thought there would be a great rush to the barricades of people wanting to speak. I am moved to speak in opposition to what my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) is proposing before dealing with my own amendments. I am very concerned about what he is suggesting, given its radicalism and its move away from proper parliamentary scrutiny and from the sovereignty this House enjoys. He asks us to throw all that away for this vague “appropriate” consultation. One of his amendments would remove the following provision in the Bill:

“A statutory instrument containing regulations under subsection (2) which amend or repeal primary legislation…may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House”.

You will know, Mr Speaker, that one of the most dangerous powers this House can give to Ministers—one we have always been cautious about giving them—is the power to amend primary legislation without going through the normal procedures for repealing primary legislation. Therefore, slipping in an amendment to a Bill that would take away that safeguard from this House and the other place, and allow things to be nodded through, is an extraordinarily radical proposal. It takes away the authority of this House and is therefore fundamentally dangerous, and so I oppose it.

[Mr Rees-Mogg]

If primary legislation is being changed the default position should be that it can be changed only by primary legislation. That should not be subject to a de minimis level because primary legislation is by its nature important. If something is not important, why is it in primary legislation? If it is in primary legislation it can be assumed that it is a matter of such nature, state and standing that it has required this House, the other place and Her Majesty to approve it. If we are dealing in trivialities, that is a broader constitutional question that should be considered and we should stop doing that. If something is in primary legislation, it ought, as a starting point, only be changed by primary legislation.

To allow Ministers what have been known as Henry VIII clauses to wipe out primary legislation is something that constitutionalists have been concerned about for many years. That is why I am very uncomfortable with this provision being slipped in as an amendment and brushed over when what it does is of fundamental importance and is quite rarely used. My hon. Friend the Member for Mid Dorset and North Poole made the point that the affirmative route for statutory instruments is rarer than the negative one, and that is quite correct, but the negative one is mainly used for routine regulations that do not engage in any change to primary legislation. When primary legislation is changed, that ought to be brought to the House.

[Michael Tomlinson]

My hon. Friend says that this is being slipped in, but surely now, today, we have the opportunity to debate it and he has the opportunity to speak against it. We are having that discussion right now.

[Mr Rees-Mogg]

That is absolutely right, but I think that slipped in is a perfectly fair phrase on Fridays, because the debates then tend to be quiet and relatively poorly attended. However, it is nice to see our Benches so full and well trooped, if I might say so, by people who are in the Chamber to support the Bill. I am rather surprised that our friends from Scotland are all absent, but I suppose that the Bill does not immediately affect them, at least not in the first half.

I want to move on to the comparison between the amendment getting rid of the affirmative route for statutory instruments and the one on public consultation. It seems to me to be an extraordinary approach to take to say that when a regulation is changed by the Secretary of State, it is better that it should be consulted on with a group of self-selecting individuals who take the time to get in touch, taking away the ability of this House to act as that safeguard and check. Surely we are here, with a democratic mandate, as the main people to be consulted on behalf of our electorate, to whom we have to report every so often. Issues should not be put out to local consultation, which, as my hon. Friend the Member for North West Hampshire (Kit Malthouse) said, is often more of a fig leaf and an attempt to consult and either achieve a result that is already intended. If not, the consultation is ignored. Consultation has become immensely fashionable and we should always be cautious of fashion. Fashion ebbs and it flows, it comes and it goes, but there is a permanence to this House and in our way of doing things. We are the democratic sounding board for our constituents, so that there are not endless self-selecting consultations with people who are not necessarily particularly interested in the issue.

[Mr Rees-Mogg]

Mr Speaker, as always, you are correct. I think that I would take being called fashionable as a grave insult, although I know that your ties are regularly a model of fashion.

[Michael Tomlinson]

Moving away from the dangers of fashion back to the substance of what we should be debating, will my hon. Friend address the point about the principle of the public consultation and the fact that this very Bill was the product of public consultation?

[Mr Rees-Mogg]

I am grateful to my hon. Friend for that intervention, but I am afraid that I think that most public consultation is bogus. It is about going through the motions and pretending we are interested in views when the Government, or councils or whatever else, want to get on and do whatever they wish to do anyway. It simply allows opportunities for judicial review to gum up the process. We should be incredibly cautious about chucking public consultation into Bills, because that does not actually achieve anything.

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[Mr Rees-Mogg]

My hon. Friend hits the nail on the head. That is the problem with this endless consultation; nothing gets done. Last May, people voted and gave us a mandate to do things, not to ask them what we should do.

[Michael Tomlinson]

May I ask my hon. Friend to consider this point? He mentioned the word “appropriate”. Nowhere does my amendment suggest a three-year consultation period—rather, it suggests an appropriate consultation.

[Mr Rees-Mogg]

I raised the question of what the word “appropriate” meant earlier and I was indeed intending to come back to it. Appropriate, inappropriate, unacceptable and disappointing are those new Labour words that get dropped into conversations and they mean remarkably little or what, in a Humpty Dumptyish way, what the person hearing them wishes to think that they mean. What is an appropriate consultation? There is no qualification or clarification in the amendment, so what is it intended to achieve? Does “appropriate” mean that signs should be put on noticeboards, as with planning issues? Does it mean that letters should be written to local residents? Does it mean that something should be squirrelled away on the internet? Does it mean that a paper should be laid before this House, or put in the Library, where, no doubt, many people would follow its contents closely? Or does “appropriate” mean that the Secretary of State has a word in his office with the permanent secretary, saying, “Do you think this would be a good idea, Sir Humphrey?”, then Sir Humphrey replies, “Well, you would be very brave, Minister,” and then the idea is dropped on the basis of that consultation? Does it mean the Secretary of State can have a word at home with his family—with his kitchen cabinet—telling them that he is minded to appoint or not appoint a few trustees? I could tell all sorts of anecdotes about how that used to happen in the good old days, but I think it might be wandering slightly from the point. “Appropriate” is a very imprecise word and legislation ought to be precise.

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[Michael Tomlinson]

Is my hon. Friend not at risk of falling foul of his own test? He criticised my amendment’s use of the word “appropriate”, but is not his use of the word “may” just as vague and risky?

[Mr Rees-Mogg]

Of course not. “May” is a very precise word: it is an allowing factor and it gives permission to somebody to do something, and they are allowed to use their discretion to do it. The amendment uses “may” so that people may go directly to the Secretary of State, who is democratically accountable, and get the decision made, rather than have to go off to a bureaucracy that is not accountable or that is accountable only indirectly. “May” is about restoring democratic and, ultimately, parliamentary control over something that belongs to the nation as a whole.