Clause 1 - Purpose
Legislative and Regulatory Reform Bill
9:00 am
Oliver Heald (Shadow Secretary of State for Constitutional Affairs & Shadow Chancellor of the Duchy of Lancaster (Assisted By Shadow Solicitor General), Constitutional Affairs; North East Hertfordshire, Conservative)
I do think that it is an important area and I would be happy to discuss with colleagues in Committee or elsewhere exactly which areas should be reserved. The hon. Gentleman may be right that we could go into the area that he mentioned, and amendments that we shall probably discuss later today go into others that I have not included in my list, such as the Church of England. I am not saying that the list is proscriptive and I would be happy to look at other proposals. Freedom of information is important and my party supports it. We have been critical of the operation of the Freedom of Information Act 2000 and of the huge delays that have built up in some of the processes involved.
To continue with my point about reserved areas of competence, provisions that are incompatible with the European convention on human rights should not be made by order. The convention contains vital rights and freedoms, including provisions protecting everybody’s right to life and ensuring that a person is not deprived of his liberty except in accordance with law. It also provides that the determination of civil rights and obligations or of any criminal charge should be carried out in a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Such rights, which are protected by international law, should not be interfered with through the use of regulatory reform orders.
Similarly, areas relating to the Human Rights Act 1998 should not be amended without full parliamentary debate. The Act makes it unlawful for public bodies to violate the rights in the ECHR unless legislation expressly provides for that, but would the declaration of compatibility requirement in section 19 of the Act apply to orders made under the Bill? We do not know. Amending or repealing without full debate legislation relating, for example, to freedom of thought, conscience, religion or expression or to the prohibition of discrimination would clearly be unacceptable. That would run counter to the Bill’s purpose, and safeguards should be put in place to prevent it. The Human Rights Act and the ECHR secure fundamental rights and liberties in our constitution, and we should make changes only after the fullest debate, with Parliament able to scrutinise matters fully.
The third reserved area of competence in new schedule 1 relates to Parliament. The Bill should not confer the power to interfere with legislation of a constitutional nature, such as the Parliament Acts, without full parliamentary scrutiny. At a time when there is much debate about constitutional matters, such as the reform proposals for the House of Lords, we should not allow such constitutional reforms to be effected by means of a fast-track procedure. In the recent case of Jackson and others v. Her Majesty’s Attorney-General, which concerned the validity of the Parliament Act 1949, the Court of Appeal cast real doubt over the use that could be made of the Parliament Act 1911 to effect significant constitutional change in the future. The House of Lords eventually disagreed with the Court of Appeal, but the issue provides a useful warning against implementing legislation on constitutional matters by means of anything other than the fullest possible procedure.
I turn now to the fourth reserved area. The Minister said in evidence to the Regulatory Reform Committee that he would not want a regulatory reform order used to tackle issues such as the Parliament Acts. If that is the case, I do not see why we should not have that provision on the face of the Bill.
The fourth reserved area of competence is the civil service. There is much discussion at the moment about civil service reform and Sir Gus O’Donnell has indicated his desire to see a new code in place. Clearly, that is an important matter. We have raised it on the Floor of the House on a number of occasions. I presented a Civil Service Bill last year and unfortunately it was blocked by the Government, but we had a good debate. It seems to me that when we are trying to control the Executive and their operation with the civil service, such matters should be discussed in Parliament in the normal way. That process should not be short-circuited.
Legislation about the courts should also be a reserved area of competence. Acts such as the Constitutional Reform Act 2005, which put in place the Supreme Court, the Criminal Justice Acts and the Bail Acts are constitutionally important, or can be, and any repeal or amendment of them should be carefully scrutinised. We should not allow the possibility that small but potentially significant changes to such legislation may be made by order. Even if the modification that is being made is only minor, it is often important to put it in context and to appreciate that there can be the law of unintended consequences. In areas such as this, which are of the highest importance, it is right that the proper procedure should take place so that as we discuss them over a period of time the difficulties can emerge.
The other reserved areas of competence in the schedule—the registration and funding of political parties, international relations, defence, treason, terrorism and national security—are controversial, or can be, and should therefore lie outside the scope of the Bill. The schedule that I propose is not exhaustive; some Acts of constitutional importance might not be protected in the list that we could discuss. There may well be other matters. I was going to mention the Freedom of Information Act, which has already been mentioned, but the same point could be made for the Immigration Act 1971 and the Church of England Assembly (Powers) Act 1919. Indeed, I am open to the idea of expanding new schedule 1 to cover other important areas.
The important thing is to provide safeguards within the Bill that limit its scope of application to that which it was intended to cure: the over-regulation burden that affects businesses and the need to simplify our law and even to have post-legislative scrutiny of it and to change it, but only if the areas are not controversial. The common perception that Executive power is being ever increased at the expense of due democratic process should not be dismissed. The powers conferred by the Bill as drafted are too wide and this schedule of reserved areas would play an important part in restricting the scope of the Bill to its fundamental purposes: the facilitation of deregulation, simplification and the ability to pass Law Commission Bills provided that they are non-controversial. That is why we have tabled the new clause and schedule, and I would be interested to hear the Minister’s reply before commenting further on the question of clause stand part.
I believe that we are about to hear also from the Liberal Democrats about amendments Nos. 55 and 61. I will not speak at any length about those, except to say that they both make an important contribution to the debate and I can see that they are in line with the thinking that has already been demonstrated by the hon. Member for Somerton and Frome (Mr. Heath), which I largely agree with.