Clause 3 - Preconditions
Legislative and Regulatory Reform Bill
2:45 pm
Christopher Chope (Christchurch, Conservative)
Amendment No. 36 is but the first of a number of amendments to clause 3. We certainly hope that it will find some favour with the Government. So far, we have tried to limit the Government’s powers in relation to clause 1, and failed; and we have tried to do so in relation to clause 2, and failed. I hope that we might be able to get some concession from the Minister in relation to this clause. In the previous debate, he described it as providing protections. The Bill calls them preconditions.
The amendment is fundamental, because it would introduce an objective test, rather than a subjective one, into the protection or precondition procedure. That point was expressed on Second Reading by a number of hon. Members, particularly the Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). He said that the wording that is in the Bill at the moment is meaningless, because it is non-justiciable—basically, the Minister would be able to say, “I consider this, and that is final.”
Amendment No. 36 would remove the phrase “he considers that” so that a Minister would not be able to make an order under section 1 containing provision under section 2(1) unless the conditions in subsection (2), where relevant, were satisfied. It would not be for the Minister to decide in his own cause whether the conditions were satisfied, it would be a matter of an objective test. If it was obvious that the test was not satisfied it would be possible to challenge it in court.
As it is worded at present the Minister will be the judge and jury of whether the conditions, which he says are safeguards and which are the only restraint upon the exercise of his absolute power, apply. He will be the sole person to decide whether those safeguards should operate. That is unconscionable and I hope that the Minister, on reflection, will accept that the amendment should be accepted. It would strengthen the clause quite significantly.
The other amendment to which I should like to speak briefly is No. 37, which is a probing amendment to find out what the expression “necessary protection” means. At present one of the conditions is that
“the provision does not remove any necessary protection”.
Does that mean any necessary protection of the freedom of the individual? Does it mean any necessary protection for the freedom to look after the environment? I know that some people in the trade union movement have been told that any necessary protection will allay their concerns that the Government might do something which would reduce health and safety legislation or other employment law. But at the moment necessary protection is not spelt out.
The only information we have is that contained in the notes on clauses, paragraph 31 of which rather worryingly states:
“No order can be made unless the Minister is of the opinion that it would maintain any protections that the Minster considers to be necessary.”
That introduces another way in which the Minister himself would be the sole governor of whether this was a protection and, if so, whether it was a necessary protection. If the clause is indeed to provide protection and preconditional safeguards it should be spelt out. I hope that the Minister will accept that no provision should remove any necessary protection of human rights, fundamental freedoms and liberties of the individual subject and so on. We could extend that list but at the moment I do not think that this is very satisfactory.
Amendment No. 38 would remove the qualification on freedom. Why do we need to qualify our freedom in the way that this subsection does at present? It states:
“the provision does not prevent any person from continuing to exercise any right or freedom”.
Why not just leave it there rather than add
“which that person might reasonably expect to continue to exercise.”?
The prospects under the present Government are pretty grim. Reasonable expectations have fallen quite significantly. I suppose that the Minister would be able to say, “These days people do not expect to be able to continue to exercise those freedoms and so we might as well take them away from them.” Why do we need that qualification in subsection (2)(e)?
Amendment No. 39 is an additional safeguard that has been drafted to take up the point made by the Minister when he addressed the Select Committee on Procedure last month. I put question 64 to him:
“Throughout the Minister has relied upon the burden procedure and said that what the Government is trying to do is to reduce burdens. Can I ask the Minister why, in the original consultation paper, the Government said it would retain the requirement that all Regulatory Reform Orders must remove or reduce a burden—that was the basis on which you went out to consultation—but subsequent to consultation you have removed the concept of burdens entirely from the legislation?”
The Minister replied:
“As I understand it, that is an assessment based on the previous position of a legal burden, because under the 2001 Act it was a legal burden rather than an administrative burden. We can all define our own sense of what constitutes a burden but under the 2001 Act it was designated as removing a legal burden and we think we should go further than that.”
Elsewhere in that Select Committee’s proceedings, the Minister made similar comments about the fact that as it is currently defined, the word “burden” does not include administrative burdens. I thought that we should therefore put forward an amendment which would not include the previous phraseology relating to the necessity of removing a burden but would refer to the necessity of removing or reducing
“a legislative or administrative burden”.
I hope that the Minister will accept that amendment, because it is consistent with what he told members of the Procedure Committee. A number of us might not be surprised if he does not, because it would not be the first time that he has changed his mind in a short period and said something different to the Committee from what he said earlier.
Amendment No. 40 would limit the Minister’s powers—