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'(1) A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2).
(2) That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation.
(3) In this section "burden" means any of the following—
(a) a financial cost;
(b) an administrative inconvenience;
(c) an obstacle to efficiency, productivity or profitability; or
(d) a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity.
(4) Provision may not be made under subsection (1) in relation to any burden which affects only a Minister of the Crown or government department, unless it affects the Minister or department in the exercise of a regulatory function.
(5) For the purposes of subsection (2), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand).
(6) In this section "legislation" means any of the following or a provision of any of the following—
(a) a public general Act or local Act (whether passed before or after the commencement of this section), or
(b) any Order in Council, order, rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to in paragraph (a),
but does not include any instrument which is, or is made under, Northern Ireland legislation.
(7) Subject to this Part, the provision that may be made under subsection (1) includes—
(a) provision conferring functions on any person (including functions of legislating or functions relating to the charging of fees),
(b) provision modifying the functions conferred on any person by any enactment,
(c) provision transferring, or providing for the transfer or delegation of, the functions conferred on any person by any enactment,
(d) provision abolishing a body or office established by or under an enactment,
and provision made by amending or repealing any enactment.
(8) An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate.
(9) An order under this section may bind the Crown.
(10) An order under this section must be made in accordance with this Part.'.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Amendment (b) to new clause 19, in line 3, leave out second 'or' and insert 'and'.
Amendment (c) to new clause 19, in line 17, leave out from 'means' to end of line 23 and insert 'a public general Act'.
Amendment (d) to new clause 19, in line 28, leave out 'functions of legislating or'.
Amendment (e) to new clause 19, in line 36, at end insert—
'(7A) Provision made under subsection (7)(a) may only confer functions relating to the function of legislating to the extent permitted by section [Sub-delegated legislative functions].'.
Government new clause 22— Northern Ireland.
New clause 1— Restriction on powers under Part 1—
'A Minister may not make any provision by Order under Part 1 unless that provision would have the effect of—
(a) simplifying or modernising legislation,
(b) making the overall effect of legislation less onerous, or
(c) removing inconsistencies or anomalies in legislation.'.
New clause 4— Part 1 (limitation on burdens and costs)—
'(1) Save insofar as the Order relates to a person exercising a regulatory function, a Minister may not by order under Part 1 make provision which—
(a) makes more onerous any duty which may be owed by any person, or any obligation under which any person may be;
(b) imposes any duty or obligation on any person which is greater than any duty or obligation from which it relieves that person;
(c) results in increases in cost for any person; or
(d) creates any disbenefit for any person which is greater than any benefit to that person.'.
New clause 8— Section 12 (Limitation on Burdens and costs)—
'Each draft Order laid in accordance with section 12 shall contain a certificate made by the Minister to the effect that it does not make provision which—
(a) makes more onerous any duty which may be owed by any person, or any obligation under which any person may be;
(b) imposes any duty or obligation on any person which is greater than any duty or obligation from which it relieves that person;
(c) results in increases in cost for any person; or
(d) creates any disbenefit for any person which is greater than any benefit to that person.'.
New clause 9— Part 1 (impact on small business)—
'(1) An order under Part 1 must, where its application extends to small businesses, be for the purpose of—
(a) removing or reducing any burden,
(b) re-enacting provision having the effect of imposing any burden in cases where the burden is proportionate to the benefit expected to result,
(c) the removal of inconsistencies and anomalies.
(2) In this section, the meaning of "small business" is the same as in section 249 of the Companies Act 1985.
(3) In this Act "burden" includes—
(a) a restriction, requirement or condition, (including one requiring the payment of fees or preventing the incurring of expenditure) or any sanction (where criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition,
(b) any limit on the statutory powers of any person (including a limit preventing the charging of fees or the incurring of expenditure), and
(c) any matter which in the opinion of a Minister of the Crown causes inconvenience or imposes cost.'.
New clause 17— Disapplication of European Communities Act 1972 (No. 2)—
'(1) An order made under Part 1 containing provision relating to Community treaties, Community instruments or Community obligations shall, notwithstanding the European Communities Act 1972, be binding in any legal proceedings in the United Kingdom.
(2) In section 1 and this section—
"Community instruments" and "Community obligations" have the same meaning as in Part 2 of Schedule 1 to the European Communities Act 1972 (c. 68);"Community treaties" has the same meaning as in section 1(2) of the European Communities Act 1972.'.
Government amendment No. 10
Amendment No. 2, in page 1, line 11 [Clause 1], leave out from '"legislation"' to end of line 3 on page 2 and insert—
'(a) means a provision of—
(i) any public general Act or local Act, or
(ii) any Order in Council, order, rules, regulations, scheme, warrant, byelaw or other subordinate instrument made under a public general Act or local Act,
(b) in relation to and notwithstanding the European Communities Act 1972 (c. 68), includes provision made before the passing of this Act under Community treaties, Community instruments and Community obligations,'.
Amendment No. 4, in page 2, line 5 [Clause 1], at end insert—
'(3A) In this Part, "reforming" shall mean repealing, simplifying or clarifying or making different administrative arrangements for achieving its purposes.'.
Government amendments Nos. 11 and 12
Amendment No. 74, in page 2, line 36 [Clause 3], after 'he', insert 'reasonably'.
Government amendments Nos. 13 to 22, Nos. 24 to 26, Nos. 28 to 32 and Nos. 35 to 37.
Amendment No. 75, in page 6, line 24 [Clause 12], at end insert—
'(ba) explain why the Minister considers that the provision cannot be made by primary legislation;'.
Government amendments Nos. 38 and 39, Nos. 56 to 58 and Nos. 60 to 63
Amendment No. 78, in page 19, line 3 [Clause 34], leave out
'extending outside England and Wales, Scotland and Northern Ireland'.
Government amendments Nos. 64 and 65
I thank Mr. Heath for his good wishes.
Let me begin by thanking my friend and predecessor, my hon. Friend Mr. Murphy, for his hard work in taking this Bill through its Second Reading and Committee stages. I know that it has been a great wrench for him to have to leave this Bill to take up his new post in the Department for Work and Pensions. [Laughter.]
Today, we are debating a series of important amendments to the Bill, which are in large part the Government's response to some of the criticisms raised and fears expressed about the Bill. As my hon. Friend the Member for East Renfrewshire made clear at earlier stages, the Government did not approach those issues with a closed mind. We said that we would listen, but we were also anxious to have a better regulation system, which could root out and change unnecessary or outdated burdens on business, the public sector, charities and the voluntary sector. We should not forget that this is the third time in 12 years that Parliament has legislated on these issues.
The amendments will rightly take us into some detail, but the wider need for the Bill could not be clearer. We operate in a more global and competitive world economic environment than has ever been the case in our history.
I welcome the Minister to his interesting job. What measures will he want to bring forward for repeal or amendment under these clauses: His predecessor seemed to find it difficult to give us a list of examples? He can rest assured that Conservative Members are waiting for those and will support them.
That, of course, will be a matter for the Departments once the powers are in place.
Huge changes have brought hundreds of millions, potentially billions, of people into world markets and the world trading system for the first time—for instance, the tearing down of the Berlin wall and the communications and technology revolution over the past 10 to 15 years.
I, too, welcome my near neighbour to his post and wish him well. He gave a perfectly reasonable answer to my right hon. Friend Mr. Redwood, but could he not circulate a questionnaire to the Departments and return tomorrow with a shopping list from each one?
I am not sure whether the Departments will have provided such lists by tomorrow, but I shall be giving examples of what we might do under the orders.
I join others in welcoming the Minister to his new position. He will know that each year the Department of Trade and Industry puts on its website a list of all the new amendments that it will make on two dates during that year. The latest item on the website shows that over the next year we shall see 40 pages of new regulations. Why will the Minister not commit himself to producing a list of the 40 pages that are to be scrapped?
That is exactly what the Bill is about. As the hon. Gentleman knows, there is a tendency for regulation to grow under Governments of both colours, which is precisely why we need a robust mechanism that can root out and remove unnecessary regulation.
Along with the rest of the House, I congratulate the Minister. Can he tell us, though, whether an item of regulation on which the DTI is consulting at this moment—the deregulation, as the Department calls it, of Sunday trading at the behest of the big companies—would be eligible to proceed under the Bill?
I do not think that it would, because of safeguards and other procedures in the Bill which we shall discuss in due course.
Opposition Members and I could, and perhaps will, exchange results of surveys showing how Britain is placed in various international economic leagues, but Labour Members, certainly, believe that it is well placed to succeed in the globalised economy. Employment is at record levels, reflecting the success of policies intended to secure employment opportunities for all. We have one of the highest rates of employment in the G7. We are a hard-working, enterprising and creative country. Our openness and flexibility are great strengths. The way forward is not to hide from the changes that are taking place in the world, or to wish them away; it is to ensure that we are best placed to succeed in this world by making certain that Britain remains a great country in which creativity, enterprise and hard work are allowed to flourish and to be rewarded.
It is sometimes said that this is a race to the bottom—a competition to level down standards and conditions of work. We reject that notion. We believe that people should be treated decently, that there should be a clean environment, and that there should be a labour market that ensures fairness. As I said earlier, however, we also know that under Governments of both parties regulations have tended to grow. We must have a process in Government to root out unnecessary regulation, and a remedy to hand that allows Government and Parliament to act when unnecessary burdens on businesses, charities and the voluntary sector have been identified.
It is precisely because the need for competitiveness is so important in the new and more open world in which we live that the Bill is necessary, and those outside the House look to us to keep our eye firmly on that bigger picture as we debate the legislation over the next two days.
I congratulate my hon. Friend. As one who expressed concern about the measure because of its potential effects, may I say how pleased I am that his predecessor, and the Government generally, listened to and recognised the concerns expressed not just by Labour and Opposition Members, but by the Trades Union Congress and other bodies? While the Government did not intend to do any of the things that it was suggested they might do, other Governments could have, and I am very pleased that, as far as I can see, the Bill now contains the necessary safeguards.
I thank my hon. Friend and parliamentary neighbour for those comments. I very much agree that the amendments that we are outlining today will show that the Bill is firmly focused on the better regulation purposes for which it is intended.
Following the remarks of my hon. Friend Mr. Winnick, will the Minister direct us to where in the amended Bill it is made clear that those powers apply only to regulation and not in any way to general legislation? If that is not the case, there is a danger that the burden that will be removed is the burden on Government to put legislation to the scrutiny of the House.
New clause 19 will outline the focus of the Bill on better regulation purposes.
Our subject matter is sensitive, because it is not just about what the Government of the day might want; it also takes us into the realm of the relationship between Government and Parliament, and Parliament's proper role in the scrutiny and approval of Government proposals in this sphere. In that respect, I thank the Chairs of the relevant Select Committees that produced reports on the Bill; they have contributed positively and constructively to the amendments.
The heart of what we are discussing is new clause 19 and the amendments related to it. Fears were raised that whatever my hon. Friend the Member for East Renfrewshire said, the Bill might be used not for the purposes of better regulation but to change fundamental rights and freedoms through secondary legislation.
I am glad that the Minister has reached the subject of new clause 19 at last. Does he agree that subsection (3) would still allow the Government to remove by secondary legislation the right to jury trial? Jury trial might be considered to impose "a financial cost" on employers or to be "an administrative inconvenience" to a number of different bodies.
I do not believe that the Bill in any of its guises would allow the removal of the right to trial by jury, nor could it be used, if amended today, in the way that the hon. Gentleman suggests.
I warmly congratulate the hon. Gentleman on his well-deserved promotion, together with the Parliamentary Secretary, Cabinet Office, Edward Miliband and the Minister for the Cabinet Office, Hilary Armstrong whom I wish well in her responsibilities.
Although this new clause allowing for the unscrambling of eggs that were wrongly scrambled might be an improvement, it does not remove the onus of responsibility on the Government in this field to consider moving towards sunset regulation, which would change the whole culture and ensure that bad regulation would have to come back to the House if it were to be renewed.
We shall come to an amendment dealing with sunset clauses later in the debate. Perhaps it would be better to deal with the hon. Gentleman's point then, so at this stage I will say only that it would seem odd to legislate for a new regime of deregulatory powers to give people certainty and then to say that they were only temporary. We owe those who operate the orders a degree of certainty.
I am most grateful to the hon. Gentleman. This is very early in the debate and in his ministerial career, but I urge him not to fall into the trap that his predecessor fell into when discussing the Bill, which is simply to assert that something will not happen or that he could not conceive of it happening or that it is not the Government's intention for it to happen, rather than actually expressing in statutory form that it cannot happen. That is exactly the difficulty that Mark Fisher pointed out; although the Minister may be absolutely convinced that he has no intention of using the Bill for an inappropriate cause, a future Government may, and that is why so many Members are concerned about it.
I thank the hon. Gentleman for that intervention, but it is precisely because those fears were raised and those concerns were expressed that we have tabled the amendments.
I should like to make a little progress.
New clause 19 makes it clear beyond doubt what the purpose of the Bill is and what the regulatory reform orders will be used for and, importantly, how they will affect Departments. Together with new clauses 20 and 21, those provisions make up the new order-making powers of part 1. New clause 19 provides a power to remove or reduce burdens that result from legislation, and it defines what is meant by burden.
New clause 19(2) states what the purpose of the new clause is, and subsection (5) states:
"For the purposes of subsection (2), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand)."
Which Acts of Parliament passed since 1997 would come into that category?
The hon. and learned Gentleman's intervention was worth waiting for. What is meant by that is that there are processes whereby legislation is consolidated into an understandable form or a more accessible form, as I think he is aware.
Clause 3 contains preconditions that stop the making of an order that would remove necessary protections or prevents anyone from continuing to exercise any right or freedom. That would be the response to the suggestion to do something as radical as removing trial by jury, which has been mentioned.
I thank the Minister for giving way again; he has been very generous with his time. The problem all along with clause 3 is that it is drafted in subjective form—what matters is what the Minister considers to be necessary, and the Minister might consider the abolition of jury trial to be necessary to achieve a ministerial objective. Will he give way on amendment No. 74, which would insert the word "reasonably" into clause 3, and therefore might go some way towards solving the problem?
We will come to that amendment, but the Minister's initial judgment is not the beginning and end of the process. There are a series of safeguards, including the verdicts of Select Committees, the consultation that must take place and the other safeguards in the Bill, so no order will be based purely on the Minister's opinion, reasonable or otherwise.
I should like to make some progress; I have been generous in giving way.
Government new clause 22, Government amendments Nos. 10 to 12, 13 to 22, 24 to 26, 28, 29 to 32, 35 to 37,38, 39, 56 to 58, 60 to 63, 64 and 65 are consequential on the new order-making power under new clause 19.
If, as I gather, the Minister is moving on from new clause 19, which is the hub of the whole thing, I am very grateful to him for giving way. I have listened to him give way repeatedly. Although the new clause is well-intended, its terms are still amazingly broad. Am I right in believing, looking at subsection (3), that these powers could be used to abolish a tax, to relieve an interest group or trade from a burden of taxation, or to abolish a crime, to make something lawful that was previously unlawful under the criminal law? Those may be very desirable things, but they are subject to more safeguards than consultation and Select Committees. They should be subject to parliamentary debate before any such step is contemplated.
The right hon. and learned Gentleman raised a number of issues. On tax, the Bill makes it clear that orders affecting taxation could not be raised in that way.
I was not aware of that, but I will let the statement speak for itself.
I will deal with new clauses 20 and 21 in more detail in due course, but let us explore new clause 19 further, because it provides a power to make provision in an order for the purpose of removing or reducing burdens—direct or indirect—that result from legislation. The definition of "burden" in new clause 19 would allow a Minister, by order, to remove or reduce burdens that take the form of a financial cost; an administrative inconvenience; an obstacle to efficiency, productivity or profitability; or a sanction, including criminal sanctions, for doing something or failing to do something in the course of an activity. That means that a Minister may propose by order to decriminalise offences or reduce or remove sanctions if they are no longer considered appropriate.
That definition of "burden" is deliberately broader than that in the Regulatory Reform Act 2001. That is because the definition of "burden" in the 2001 Act has proved too narrow in that it allows the removal of only a requirement, condition or restriction. As a result, the concept of "burden" in the 2001 Act is complex and difficult to apply. It puts a heavy and sometimes disproportionate burden of legal analysis on Departments. For instance, the regulatory reform orders under the 2001 Act cannot clarify or simplify legislation unless in so doing a narrowly defined legal burden is removed, reduced, re-enacted or imposed.
Does the Minister accept that a burden on one group in society may well be a freedom for another group? I do not understand how the interpretation of subsection (3) of the new clause would relate to, for instance, employment rights. From the point of view of the employer, which may be the state or a private company, employment rights are undoubtedly a burden on efficiency and productivity. According to my reading of the new clause, it would appear that employment rights could be removed by order of a Minister.
There is, of course, the protection of necessary rights and freedoms, which is set out in the Bill. That would protect against the situation that my hon. Friend outlines. The new definition of "burden" will also allow us to target more effectively the order-making power on removing or reducing the burdens that businesses, charities and voluntary organisations wish to see removed.
I listened carefully to the answer that the Minister gave to my right hon. and learned Friend Mr. Clarke on taxation. Clauses 5 and 6 offer us some comfort. However, it is quite clear that, under clause 6, the Minister is not prevented from adding to the criminal statute book offences that attract a penalty of up to two years. There are plenty of offences that the criminal courts deal with now that carry a maximum penalty of up to two years. Is he telling us that the word "burden" does not encompass new criminal offences that a Minister might dream up that do not attract a penalty of more than two years?
The great thing about Report is that one can have these to-ing and fro-ing debates. That is important and I am grateful to the Minister for entering into the debate in that spirit. This point is most important. We are dealing with primary legislation that gives a Minister huge powers to make legislation. If the Minister is telling me that I, as a representative of my constituents, will have to rely on some as yet unformed Select Committee to exercise its judgment in a way that would be helpful to me and my constituents, that is extremely worrying. He must surely be able to understand that the making of criminal law should be dealt with here, right the way through every stage.
There are penalties in the 2001 Act, which, in some ways, reflect those in the proposals before us. Under the 20-odd regulatory reform orders that have been produced under that Act, I do not think that the kind of problems that the hon. and learned Gentleman is setting out have transpired.
Not at the moment.
The types of better regulation initiatives that the order-making power will allow us to deliver include reducing the administrative burdens of regulation, consolidating and simplifying legislation to make it easier to understand and work with, and deregulation. It will also allow us to reduce administrative burdens, such as by simplifying administrative requirements for business when setting up a business or hiring staff, by ensuring that inspection is risk-based to reduce the burden on those who comply with regulation, thus concentrating inspection on those who do not, by simplifying and making more transparent and less onerous the way in which people and businesses need to apply for consent from public authorities, and by allowing, in certain key instances, the complete exemption of small businesses, charities and others from burdensome regulation to allow them to concentrate their effort where it is most needed.
The hon. Gentleman knows that the Bill deals with us having a much clearer and more simple process of translating into British law some of our obligations from the EU. It does not somehow change our relationship with the EU on a policy basis so that we do not have such obligations, although I suspect that he wishes that it did. I am afraid that whatever I can offer the House today, I cannot offer the hon. Gentleman satisfaction on that point.
Of course, I do not have the advantage of being a lawyer, but I am rather worried about what the Minister has just said. Is he suggesting that if the Government of the day decide, those who run small businesses may be exempted from safety legislation that is available to those who work in larger companies?
No, I am not suggesting that at all. If a measure that would do away with a necessary right or freedom was proposed, it would not be in line with clause 3 of the Bill, so I do not believe that such a thing could happen.
If I can move on to deal with the four definitions, it may help the House. On financial cost, an order may change legislation if its effect would be to remove or reduce a financial cost on an individual, business, voluntary organisation or charity. A Minister may thus propose an order that reduces or removes any unnecessary costs that result from legislation. That definition includes both direct and indirect costs, so an order may reduce both the costs incurred by a regulated business, charity or voluntary organisation and the costs that they pass on to their customers. For instance, the power could be used to deliver exemptions for small businesses from some disproportionately stringent audit requirements, which could have a marked effect on reducing their costs. It could also be used to deliver a proposal in the Charity Commission's simplification plan that would exempt small charities from certain audit and registration requirements altogether so that they could focus their resources on providing help to those whom they were set up to support.
Let me return to my previous point. The hon. Gentleman is giving a narrow illustration of what lifting a financial cost means, but I still cannot understand why the Bill would not allow a Minister to seek to repeal a tax by using the process. Let me be helpful to him. If, for example, a future Government wished to repeal the climate change levy, it seems to me that that could be done by statutory instrument so long as the Government ensured that they had a majority on the relevant Select Committees. I would hope that no Government would want to do that, but we do not want to legislate to enable a Government to do so. It is no good for the Minister to say that such a thing will not happen because that is what his predecessor kept saying. Will he point out the provisions in the Bill that would rule out any abolition of a tax by use of statutory instrument?
Clause 5 states:
"Provision under section 2(1) may not impose or increase taxation."
[Interruption.] Bear with me. It is not possible to use the powers to create a new tax, but it will be possible to reduce a tax if it meets the procedures and safeguards. In practice, however, tax reform would be dealt with in either a Finance Bill or a tax law rewrite project, as the right hon. and learned Gentleman knows.
I wonder whether I can move on to administrative inconvenience.
No. I am terribly sorry to interrupt the hon. Gentleman again, but his answer to my right hon. and learned Friend will not do. The hon. Gentleman has just offered a normative statement; that this is the way it ought to be done, courtesy of a Finance Bill. I ask him again; what guarantee can he offer that that would not happen in the future and that the clause would never be used for the purpose to which my right hon. and learned Friend referred?
The hon. Gentleman illustrates why the Conservatives propose a deregulation Bill, which would put on the face of a Bill all the things that we wish to amend or deregulate, so that the House has the benefit of a proper debate. Those of us who want to deregulate also have worries of a constitutional nature. Why does not the Minister put on the face of this Bill all the things that we want to deregulate so that it is done properly?
Precisely because we wish to allow Departments and Ministers the flexibility to propose deregulatory measures in a wide-ranging way. We have responded to some of the fears and criticisms by making what the Bill is to be focused on clearer. The right hon. Gentleman's suggestion would be too inflexible.
I welcome my hon. Friend to his post. He has made a considerable impact in Wolverhampton, and I am sure that he will do the same as a Minister.
I apologise because I have to leave the Chamber shortly to go to a meeting, but I suggest that my hon. Friend outline to the Opposition the background, which they do not seem to understand, to new clause 19 in terms of the safeguards that are built into the Bill. It is not a matter of a Minister simply putting some forward. My understanding is that if the Government amendments are successful, any proposal will have to go through two Select Committees. There may be a Government majority on those, but there is a Government majority in the House. That is the way in which the House works. Having voiced considerable concerns on Second Reading, I am now worried that there are so many safeguards that the Government have gone too far the other way. I urge him to keep an open mind and explain the safeguards.
My hon. Friend and constituency neighbour makes a typically sensible point. I have referred several times to the safeguards in terms of a Minister making a proposal, his explanatory note for the proposal, the consultation required and, crucially, as he said, the consultation with the Select Committees and their power to reject a proposal.
I want to make some progress, if my hon. Friend will allow me.
The definition of burden relating to administrative inconvenience will allow the Government to deliver reductions in administrative burdens on business that are being identified through the comprehensive administrative burden reduction project taking place in government. The final results and Government targets to reduce administrative burdens will be published in departmental simplification plans in due course. Where appropriate, the order-making power will allow the Government to deliver real savings in time and money for businesses, charities and voluntary organisations by, for instance, reducing form-filling requirements and making it easier to comply with regulations. Those reductions in administrative burden will free up time and money so that businesses can improve productivity and promote innovation.
The definition of burden as "administrative inconvenience" will also allow the Government to amend rules that are now considered unnecessary but, because they are enshrined in statute, can still bind companies and impose an administrative inconvenience. For instance, the Department for Environment, Food and Rural Affairs has committed to taking forward a proposal, submitted via the better regulation portal on the internet, to amend the rules on selling game. I am sure that many Conservative Members will take an interest in that.
Under the Game Act 1831, anyone wishing to sell game from a shop must apply for a licence from the council and affix to the front of the shop a board stating so. Repealing those requirements will save businesses hundreds of thousands of pounds and relieve the administrative burden on them. That is a small measure, but it is the kind of thing that could relieve those affected of a substantial burden. As the rules are enshrined in primary legislation, only a Bill could repeal them. The order-making power in new clause 19 will provide a more proportionate measure for repeal.
I emphasise again that we also want to reduce administrative inconvenience for our public services and voluntary organisations. Reducing administrative inconvenience will, for example, allow teachers, who often raise this with all of us as MPs, to spend more time with pupils, and allow the NHS to concentrate more of its time on caring for patients.
As I said earlier, independent surveys have often found that the UK ranks highly in international comparisons of competitiveness, but in the face of global change no country can afford to be complacent. As Mr. John Cridland, the deputy director-general of the CBI stated in The Times in March, the Government must be able to deliver more and swifter deregulatory measures to ensure that the UK remains competitive.
Although my constituents will no doubt be interested in my hon. Friend's example about game, may I take him a little closer to the real world in my constituency and ask him to confirm that administrative inconvenience cannot in any way be interpreted as something that would cover necessary protections? For example, record keeping under the Health and Safety at Work Act, etc. 1974 is unambiguously a necessary protection. Will he confirm that nobody could use the clause to interpret it as a burden?
My hon. Friend, the Chairman of the Select Committee on Regulatory Reform, makes a very strong point and he is right to say that clause 3 talks of the provision not removing "any necessary protection" or
"any right or freedom which that person might reasonably expect to continue to exercise."
While my hon. Friend is on the issue of barriers to productivity, will he return to the point made by Mr. Clarke about taxation and the climate change levy? Many companies see that levy as a barrier to productivity. In answering the right hon. and learned Gentleman, my hon. Friend referred to clause 5, which is about precluding taxation, but it precludes only the ability to impose or increase taxes. Why does it not include the ability to reduce or delete taxes? If it did so, it would meet the right hon. and learned Gentleman's point and ensure that such provisions could not be abused.
My hon. Friend will have his opinion of whether that would count as a deregulatory measure, but we have an annual Budget and Finance Bill which set out the taxation proposals, and that is how we deal with such matters in this House.
I shall move on, as it would be churlish to mention VAT on fuel and the other taxes introduced by the hon. Gentleman's party.
An example of a measure to boost productivity is one that allows companies to patent a new technology that would encourage greater innovation in the economy. That is something in which the Department of Trade and Industry takes a great interest. We could remove obstacles to productivity by making it easier for someone to set up a company and by reducing bureaucracy and the number of forms that need to be filled in. The fourth limb of the definition of a burden involves a sanction, whether criminal or otherwise, and we wish to allow Ministers to propose by order to decriminalise offences or reduce or remove sanctions for regulatory offences. That has been carried over, as I said earlier, from the legal definition of "burden" in the Regulatory Reform Act 2001. The Government believe that it should be possible to decriminalise or reduce sanctions on people who have not complied with regulatory obligations in cases in which targeted sanctions are no longer considered appropriate.
I do not believe that that is the case. Subsection (2) of the new clause states that the
"purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation."
The provision could not be used to increase the burden. However, the burden may increase for someone in the system, even if it is reduced overall.
I should like to make some progress.
The definition of "burden" in new clause 19 provides the flexibility to supply the wide-ranging better regulation initiatives necessary to deliver the reform that businesses, the public sector and voluntary and charitable organisations want. The new clause focuses the order-making power in a different way from the 2001 Act, as it is output-focused and concentrates not on the way in which legislation should be reformed, but on the reasons for that reform. The order-making power in the 2001 Act concentrated more on the way in which legislation could be reformed. It removed legislative restrictions and so on but, after five years, that has proved limiting, and it has not provided the breadth of better regulation initiatives necessary to deliver the Government's better regulation agenda. It has not provided the scope of deregulation to which the main Opposition are committed, so useful regulatory reform orders could not be delivered. The change in emphasis will make it easier and quicker for Government Departments to introduce proposals to make a genuine difference to the regulatory and inspection burden.
It is interesting to consider to whom the burden applies. There is a protection built into new clause 19, as the provision cannot apply only to a Government Minister or a Department. However, the caveat is limited by proposed subsection (4), which exempts Ministers and Departments that "exercise...a regulatory function". Can the Minister tell me where "regulatory function" is defined, or can he provide me with an assurance that that provision will not be misused?
The hon. Gentleman anticipates the next part of my contribution. If he bears with me, I hope to provide him with reassurance.
New clause 19 has been drafted to prevent the inappropriate removal of orders that fall only on Ministers or Government Departments. In earlier proceedings, the fear was expressed that the order-making power could be used by Ministers suddenly to stop providing public services. The new clause provides that burdens falling only on Ministers or Government Departments can be removed, but only in so far as they are burdens that affect the Minister or Department in the exercise of a regulatory function. We believe this answers the fears expressed on those core public service points, although we did not believe that those fears would ever be realised through the operation of the Act. The new clause ensures that it will not be possible to make an order that stops the provision of public services because they may be considered a burden on Government.
To some extent, what the Minister has just said is reassuring. However, public services are increasingly being farmed out to the private sector or the quasi-private sector. They are being off-loaded by Ministers so that they need not have responsibility for them. Would the Minister's comments bite on those extra-governmental organisations which provide a public service?
The Department remains responsible for the regulatory function. I am interested to hear that the hon. and learned Gentleman seemed to imply some criticism of flexibility in the provision of public services, to which his party is also committed. The new safeguard is substantial and ensures that an order can remove a burden falling on Government only where the Government themselves act as regulator.
On the point raised by Mr. Garnier, the central question is what is meant by Government Department. How far does that go? Does it include quangos, private sector providers and anyone who might count, for the purposes of the Human Rights Act, as a public body, which would include bodies such as universities? The Minister should take the opportunity to explain to the House what is meant by the phrase.
If the hon. Gentleman will allow me to continue, perhaps I shall do that.
The Government have a number of regulatory functions—for example, the company law regulatory functions within the Department of Trade and Industry, and the pesticides directorate, which has regulatory functions in the Department for Environment, Food and Rural Affairs. The Government believe that these regulators, too, should conduct their business in a manner that is risk-based. For that reason, it should be possible to use an order, if necessary, for better regulation purposes to change an aspect of these Government regulatory functions, so that all regulators conduct their business in a way that is risk-based. Orders should be able, for instance, to move these Government functions into those of an independent regulator if it were more efficient to do so.
Two consequential amendments should be mentioned in this context. Of the many amendments before us, I draw the attention of the House to amendments Nos. 38 and 39, which ensure that any Minister laying an order to be made under new clause 19 must include in the explanatory document laid before Parliament, as appropriate, an assessment of the extent to which it would remove or reduce burdens as defined in new clause 19. So we have on the one hand the more focused order-making power, and on the other hand an explanatory memorandum from Ministers relating precisely to that power.
Two further consequential amendments on which I shall touch briefly are amendments Nos. 60 and 62, which relate to the definition of regulatory functions. Amendment No. 62 inserts the definition of regulatory functions, which was previously part of clause 24, in clause 32 instead. That is because it is now relevant to both part 1 and part 2, because of new clauses 19 and 20.
New clause 19 provides that an order may not remove or reduce burdens which affect only a Minister or Government Department unless, as I said, that is in the exercise of a regulatory function. New clause 20 provides that a Minister may, by order, make provision which he considers would secure that regulatory functions are exercised so as to comply with the five better regulation principles. We shall discuss that new clause in more detail later in our proceedings.
The focusing of the power in new clause 19 on the removal or reduction of burdens and the additional safeguard that has been added mean that we are confident that the clause creates the output-focused rationale for a legislative vehicle to deliver regulatory reform effectively.
The Minister accepted amendment (b) in defining the scope of new clause 19. Without amendment (b), all overall burdens are not necessarily removed. Provisions can be restrictive in allowing just the removal of any burden. In the process of that door being opened by removal of any burden, that could overall provide more burdens on people.
I am grateful to the Minister for giving way. He has been incredibly generous and solicitous towards the House.
I am still concerned about the potential application of the new clause to the proper responsibilities of public services. Let me offer the Minister a scenario. The hon. Gentleman will be aware that there are responsibilities on, for example, national health service trusts under the terms of the Health and Social Care Act 2001, where they are considering changes in the provision of services to involve local people in and consult them on the proposed changes. Can the Minister assure me that nothing in the clause would ever allow such public agencies to argue for a removal or reduction of their public consultation responsibilities? On the face of it, the danger exists, at least under a less benign and progressive Minister than the hon. Gentleman, for precisely such an eventuality to occur.
It is clear—it has been made clear in new clause 19—that only Ministers and Departments will be affected in terms of their exercise of a regulatory function. In these scenarios, which have been rehearsed throughout the passage of the Bill, it may always be possible to predict this and to predict that. If we go down that road, we will end up with a Bill that will be a beautiful parliamentary instrument in that it closes up every possible avenue to which the hon. Gentleman and others may draw attention. At the same time, it would not be an effective weapon in reducing deregulation.
That scenario has not been dreamed up by me. It is what has happened on two occasions when the House has tried to legislate on these matters. I ask hon. Members who raise these matters, which they have every right to do, to bear it in mind that business is watching our proceedings. Businesses, charities and the voluntary sector want an outcome at the end of this proposed legislation that will work. We must beware of continuing to amend, close off and hamper legislation so that it becomes, as I have said, a beautiful parliamentary instrument but not a useful deregulatory instrument.
I shall draw my remarks to a close by saying that new clause 19—
Will the Minister confirm that he has said nothing to alter the fact that new clause 19, even with the restrictions in proposed subsection (3), would prevent a future Government from perhaps looking at the burdens on those involved in pest control and deciding to use that vehicle to remove, for example, the ban on fox hunting?
I do not know how many hours, weeks and months the House spent discussing fox hunting. If the right hon. Gentleman thinks that any Minister could propose a deregulation order that would sail through a Select Committee, he predicts a future House that I do not think will be in place. However, there is another point that has been raised in relation to the Bill, which relates to the extreme Government point, as we might wish to term it. What if these powers could be used by an extreme Government to destroy our freedoms? If we ever had an extreme Government in the United Kingdom, I do not think that at the top of our list of worries about what they might do would be regulatory reform orders.
They would be able to use primary legislation to pursue their ends—a point that I ask the House to bear in mind.
No; I really do want to make progress.
New clause 19 and its associated amendments are a response to some of the fears and concerns that have been raised about the Bill. I hope that, in discussing them today, we have been able to assuage some of those fears. Those amendments give us a deregulatory power that is firmly focused on the better regulation aims that we want, and which the official Opposition say that they want, to achieve. They focus the Bill in such a way as to answer those fears and concerns, but they have not crossed the boundary that my hon. Friend Rob Marris rightly warned us about crossing. I commend them to the House.
We are grateful to the Minister for setting out the effect of these significant new clauses and amendments. We particularly welcome new clause 19, which is a major climbdown; combined with the other new clauses and amendments, it is definitely a step in the right direction. But as will become clear during our debate—you would expect this of any good Oliver, Mr. Speaker—we want more. [Interruption.] The Minister scoffs, but I thought it worth making the point.
The House will be aware that these new clauses and amendments would not have been necessary had the Government been prepared at the outset to listen to the widespread concern about, and criticisms of, their original proposal. I pay tribute to the Select Committees and their Chairmen, which have played an important role in the campaign, but also to those outside Parliament such as the TUC, the Institute of Directors, the press and other media, and various blogsites. This is an important victory for Parliament and parliamentary scrutiny.
Time and again in recent years, we have had to deal with badly drafted and ill-thought through legislation, or legislation that simply does not have the effect that the Government intend or claim. That was certainly the case with this Bill, which in its original form was dubbed by some of its fiercest critics an attack on parliamentary scrutiny, and even the "abolition of Parliament" Bill. It is good that a major concession has been made at this stage, rather than having to rely on their lordships in the other place to make all the running.
Of course, the Bill should have been about deregulation and reducing the burdens on British business, which have escalated under this Government. Perversely, it has turned out to be almost entirely constitutional in its impact. Deregulation was not mentioned at all, despite the fact that, as I pointed out on Second Reading, the British Chambers of Commerce estimates that the increase in regulatory burden has cost some £50 billion since 1997, that we are passing 15 regulations a day—50 per cent. up on the figure under the previous Government—and that during the same period, we have fallen from fourth to 13th in the league of the world's most competitive countries, according to the World Economic Forum. According to the International Institute for Management Development's "World Competitiveness Yearbook", we have fallen from ninth to 22nd, but whatever measure one looks at, it is clear that, after nine years of Labour, Britain is less competitive and moving in the wrong direction. The burden of regulation is one of the most consistent complaints that Members in all parts of the House hear when talking to business men and women, whether at national or local level.
Like all the business organisations that responded to the Government's consultation before the Bill was introduced, we were in favour of legislation that would make deregulation easier. I thank the BCC, the CBI, the IOD, the Forum of Private Business and the Federation of Small Businesses for all their help and support. They wanted proper safeguards to be included in the Bill, just like everyone else.
I predicted that we would be trading surveys. Does the hon. Gentleman accept that the World Bank survey of September '05 said that the United Kingdom was second in the European Union and ninth in the world as regards the country with the best business conditions?
The Minister says that he wants to trade surveys, but the problem is that our position is getting worse. All the surveys show that the trend is adverse—it is against Britain and against competitiveness, and that is what needs changing.
This really was a dreadful Bill, and we said from the outset that a range of changes needed to be made if it was to have any chance of making it on to the statute book. It needed to focus on deregulation, and it needed to have what I described as a veto. Luckily, Ministers are now prepared to consider that, although their proposals are still too restrictive. The Bill also needed to specify what kinds of laws cannot be dealt with using the order-making power. When first introduced, it said that a Minister could change any law in any way for any purpose. That was clearly unacceptable. Ministers are now moving to try to concentrate on deregulation and provide the veto. That is welcome. However, there remain some areas of concern that we will want to debate, not least the Law Commission proposals, where there seems to be very little to constrain what happens, and the veto, which seems to have been very tightly drawn.
When the concessions started to be made, I was quite amused by the way in which Ministers described what they were doing. Mr. Murphy, who struggled through this long campaign and must be relieved to have moved on, said:
"The time has come for those who claim to want to tackle bureaucracy to stand up and be counted, and let the Government of the day get on with the crucial task of cutting unnecessary red tape."
"I...stress the need now to get on with the task of removing barriers to productivity that will benefit hundreds of thousands of businesses, charities and public sector workers".
One begins to ask oneself where they have been for the past nine years as the Government have piled on the bureaucracy and the red tape, and which party has consistently argued for proper deregulatory measures during that time.
Does my hon. Friend agree that our proposal before the last election of having an annual deregulatory Bill to implement the necessary regulatory budgets Department by Department would be a much better way forward, because we would not only be able to debate all these matters in Parliament, but genuinely cut the burden?
Of course, my right hon. Friend has a proud record in this area. Let us not forget that it was the Conservatives who invented deregulation.
The Department for Trade and Industry has on its website a list of all the measures that are going to be taken on the two dates when regulations are laid. It amounts to about 40 pages of new regulations that are coming through. The Government spend a lot of time talking about the principle of one in, one out—for every new regulation, one will be scrapped—but does it ever happen? Does it heck. We see no list of regulations that are to be scrapped, just vague promises. It is time to change the culture in Whitehall to one that is about light regulation, deregulation and trying to take the burdens off the back of business.
New clause 19 may not be perfect, but it is a major step forward, and we certainly welcome that.
New clauses 1, 4 and 8 represent my attempt to focus the fast-track procedure solely on deregulation. The Government have gone far enough for me not to wish to press the new clauses. However, new clause 4 touches on a point made in amendment (b), tabled by my hon. Friend Mr. Chope. He was very active in Committee and was one of the original members of the deregulation taskforce, so he has strong credentials on deregulation. If he moves that amendment, I am likely to support him. My hon. Friend is seeking to establish that the net effect of an order made under new clause 19 should always be deregulatory. We believe that that is a sound principle, and that proposal is to be supported.
Amendment (a) to new clause 19 and amendment No. 74, tabled in the names of the hon. Members for Somerton and Frome (Mr. Heath) and for Cambridge (David Howarth), would require Ministers to be reasonable in their considerations under new clause 19 and clause 3 respectively. I look forward to hearing the arguments for those amendments, which I suspect are implied in their wording. I certainly would not rule out supporting that approach. There is always a possibility of judicial review if a Minister acts in a totally unreasonable way, but the amendments could add a lesser sanction to the provisions that would provide a useful way of concentrating minds.
I was quite critical of the Government's original proposals, and I am very pleased that these changes—the hon. Gentleman calls them concessions—have now been made, as I said to my hon. Friend the Minister earlier. I have been listening carefully to the hon. Gentleman since he started speaking at the Dispatch Box. Is it the case that he does not agree—I will put it no more strongly than that—with his hon. Friends, whose various interventions on the Minister gave the impression that the Government would continue to have the powers that we do not want them to have, even theoretically? May I assume from what the hon. Gentleman is saying that he disagrees with his hon. Friends?
I would go so far as to say that the amendments tabled by the hon. Member for Cambridge and my hon. Friend the Member for Christchurch would improve the drafting of new clause 19, and I am therefore supportive of their efforts. However, I cannot argue with the fact that new clause 19 represents a major climbdown and a step in the right direction. I personally feel that it has saved parliamentary accountability in an important area. I am still unhappy with certain other areas of the Bill, however. For example, it confers far too wide a power in saying that the Law Commission may make a recommendation on any matter—even a highly controversial and important one—without any guarantee that it will be debated on the Floor of the House. I do not accept that. Similarly, the terms of the veto that have been offered are inadequate. However, new clause 19 is a step in the right direction. I hope that that explains my view to the hon. Gentleman.
I also welcome amendments Nos. 23 and 26, which will tighten the way in which the Law Commission's recommendations are to be dealt with. I am still not satisfied with the overall arrangements for the Law Commission's recommendations, but I welcome that tightening. We would certainly be prepared to look at the whole Law Commission issue with the Government. Previously, the House has always dealt with Law Commission recommendations using the Standing Orders of the House. Standing Orders Nos. 58 and 59 apply a fast track to consolidation measures, for example. I am not sure that that is not a better way of tackling Law Commission measures than what is proposed in the Bill. Unless we can find a way of allowing non-controversial Law Commission recommendations to pass, while ensuing that controversial ones are properly debated, I shall be unhappy with new clause 21. That is just a warning, however, because we have not reached that new clause yet.
New clause 9 is an important proposal, and I look forward to hearing the Government's views on it when the Minister winds up the debate. We believe that it is necessary to consider the needs of small businesses separately when measures of deregulation are proposed. There is already a plethora of examples of that happening, including exemptions in different categories involving businesses with fewer than five, 10 or 15 employees, and so on. Some exemptions apply when a business's rateable value is below a certain point, or when its turnover is lower than a certain amount. There is also a range of regulations providing different kinds of exemptions for small businesses.
When considering the regulatory regime for business, there is a strong case for requiring the appropriate Minister to consider whether the proposed regulation will be appropriate for small businesses. There is wide support for that requirement in the business community, even among large businesses. For example, the Institute of Directors believes that, on balance, there is a case for applying small firm exemptions. In its report on the subject, it said:
"The burden of regulations often has a disproportionate impact on SMEs because they lack both the resources and the staff to deal with them...Exemptions...should be determined on a case by case basis. Small businesses have flourished in the USA partly as a consequence of this approach."
What we are talking about is allowing Government the choice to impose a regulatory burden on big business, which might be appropriate, and to decide that it would not be appropriate for small business.
I would be happy to do that. As the hon. Gentleman knows, the Better Regulation Commission considered whether providing exemptions created disincentives to growth, but did not find much evidence of that. Its report, "Helping Small Firms Cope with Regulation", on exemptions and other approaches, made it clear that small firm exemptions were a useful tool to ensure that there was not an over-burdensome regime for those companies. I mentioned the various categories and thresholds that apply, and there are small business exemptions in 50 or 60 areas. At the moment, however, there is not a legal requirement that there comes a time when the small business impact is considered, although the Cabinet Office talks about that. I believe that there would be no harm in a specific provision that deals with small business, and I suggested such a provision in Committee. Interestingly, the Institute of Chartered Accountants has said that it believes that the relative proportion of the burden of regulation on small business is too large, and that it hopes that Ministers will consider such an approach.
I want to clarify this point, as the Regulatory Reform Committee, of which I am Chairman, must look to the future when there might be a less benign Government. Is the hon. Gentleman saying, on behalf of the official Opposition, that he would not include in those remarks measures such as the minimum wage and the Health and Safety at Work, etc. Act 1974?
All that I am saying is that, at a time when regulations are being made or removed, the role of the small company needs to be considered. I am going no further than that. As the hon. Gentleman will know, our policy is to accept the minimum wage. [Interruption.] Well, we accept the minimum wage, so he has not made a superb point.
New clause 17, tabled by my hon. Friend Mr. Cash, seeks to ensure that where a fast-track deregulation order is made in connection with a provision concerning our EU obligations, it would be legally binding and effective. It is hard to disagree that that should be the position, and I believe that it probably is the position, but I would be interested to hear the Minister's views. The manner in which member states make their law is a matter for member states, and if Parliament decides to make law by order, that is for our Parliament rather than the EU.
The Government climbdown in new clause 19 is to be welcomed. There is a case for some amendment of it, about which we will hear in a moment, and we are open to considering that. I would like to hear the Minister's response to new clause 9, which is designed to help small business. At this stage, we are minded to support my hon. Friend the Member for Stone on new clause 17, which clarifies the law as regards the EU.
I agree with the hon. Gentleman that new clause 19 represents progress—indeed, substantial progress. To send a note of caution to my hon. Friends in the Cabinet Office, let me say that I was mightily pleased to receive a letter dated
I thank my hon. Friend.
My worry about the Bill is that there have been two steps forward and one step back. The new clause represents real progress, but this debate would have been unnecessary had the Government listened to my Committee's advice in the first place. The Committee said that the matter should have been dealt with by means of pre-legislative scrutiny, and a number of Ministers have told me privately that they agree with that. The House produced a device for the purpose of looking to the future, and we could have used it sensibly. After all, the underlying principles of the Bill do not divide the House; what we are arguing about are the detailed mechanisms involved.
I consider new clause 19 to be a substantial step in the right direction, and I urge the House to accept the principles that it embodies, but a number of points should be considered carefully. The Minister will deal with most of my concerns when he explains where the line will be drawn in the limitation of orders, but we shall not be able to get to grips with some other aspects until we examine the Standing Orders and determine how the RROs should properly be dealt with. We need to establish whether they will be dealt with through the existing Legislative and Regulatory Reform Committee, through a hybrid of some kind, or through a vehicle yet to be devised. We need to keep an eye on the ball. We also need to think ahead about how we will expect the House to empower the Committee or Committees involved to do the necessary work.
I agree with the thrust of the Minister's remarks, but what he should glean from the debate and his extensive and interesting weekend reading is the fact that, while the Regulatory Reform Act 2001 has not proved as effective as it might have, the blame lies not with the House but with Government Departments. I do not blame Ministers. There is an inertia in the system, with which any Member who has been in the House any length of time will have had to deal. Certainly two or three Conservative Members who have been Ministers in important Departments will take the point. It is extremely difficult to achieve momentum, however determined a Government may be.
On page 13 of my Committee's report, the First Special Report of Session 2005-06, we have published a chart. It is in microdot form, but there is a good deal of data that are worth examining. The worst example given is that of the Sugar Beet Research and Education Order 2003, which was dealt with by the predecessor Committee. I do not suppose that any Member present recalls what the order did—that does not constitute a challenge—but it spent 1,800 days floating around the Department for Environment, Food and Rural Affairs. That is extraordinary. I do not know the reason for that because no one ever explained it to the House, but therein lies the core problem that makes the Minister's job that much more difficult.
We worked hard—I say "we", because the Government generously consulted all four relevant Select Committees closely, and there has been dialogue with the Liaison Committee through the Father of the House, as well—to find a way through the difficult area of definition, and I hope that the methodology adopted proves to be right way. It is better than the alternatives that some of us floated, which included having omnibus lists of exclusions—I look at David Howarth, who had the biggest omnibus of the lot. I think that the mechanism adopted is the better one, but we need to be extremely precise and to make sure that it is clearly understood that we are discussing not burdens on Ministers, but burdens on people outside this place—burdens that the Minister has the power to do something about, for it is he, the Minister, who will bring an order before our Committee.
Under existing legislation, we spent a tortuous afternoon dealing with the most recent Forestry Commission order. We had to debate what the Forestry Commission was, in constitutional terms. Before that debate, I was not aware that the commission is a non-ministerial Government Department. That raised the interesting technical question: if it is a non-ministerial Department, which Minister introduced the order? However, just as the House accepts the Paymaster General introducing orders on behalf of Her Majesty's Revenue and Customs, we accept the structure that relates DEFRA Ministers to the Forestry Commission.
The hon. Gentleman is clear in stating the areas in which he does not want the power to be used, but are there any in which he would like it to be used? Does he have a list of measures that he would like to be removed?
Yes—I could list a number of items. I would like the House to consider giving my Committee or a successor body investigatory powers and the power to recommend to the Government areas in which they should act. The right hon. Gentleman has done private work in that respect on behalf of his Front Bench. Serious consideration should be given to whether, in future, my Committee or its successor should have investigatory powers, which it lacks under its current Standing Orders. In our everyday work, we all come across examples of regulation that cause us to ask why they are still on the statute book, or why they were put on to the statute book, whether by a Conservative or a Labour Administration. That matter should be examined in the context of the debate on the Standing Orders.
I congratulate the Parliamentary Secretary, Cabinet Office, my hon. Friend Mr. McFadden, and his predecessor, my hon. Friend Mr. Murphy, on the sterling job they have done of getting us away from the rather odd debate in which the House found itself as a result of the Bill that emerged from Committee. Substantial progress has been made, although a few obstacles remain in the way of getting the legislation smoothly on to the statute book. I hope that during our proceedings today and tomorrow, Ministers will listen carefully to the serious points that are made, in particular by members of the four Select Committees, with a view to ensuring that the Government's replies do not preclude further amendments, should they be necessary. However, I congratulate my hon. Friend the Parliamentary Secretary on adopting the imaginative approach that new clause 19 and the associated amendments reflect. I hope that the new clause will have the support of the House.
Andrew Miller said that the Bill that left Committee engendered an odd debate. I do not think the debate was remotely odd; it was entirely proper and necessary, because the loose wording that had been adopted drove a coach and horses through our proper parliamentary scrutiny, which is why so many of us were extremely concerned.
I again welcome the Minister to his new responsibilities. I am sorry that his first parliamentary outing is on one of the most controversial Bills of the year, although at least he has the advantage of introducing amendments that improve it rather than make it worse. He tried manfully to put as good a gloss on the process as possible, although he was not aided by the Minister for the Cabinet Office who left after 12 minutes, which I found surprising given the context of the Bill—but there we are.
The Minister said that the Government had listened to what had been said by the Committees that have considered the Bill. The Government may have been listening but they certainly did not give the impression that they were prepared to budge an inch in the Standing Committee, where the then Under-Secretary at the Cabinet Office simply replied with assertion after assertion after assertion that it was not his intention, and that if it was not his intention it could not possibly be anyone else's intention, to abuse the terms of the legislation, so it was all right.
The only thing that made the Government think again was the message from the Government Chief Whip in another place, who told them that the Bill was as good as dead unless it was substantially amended before it went there. That is why the Government have tabled the amendments that we are discussing today—rightly so, because the Bill is important. We all wanted to support it and to develop a consensus that enabled us to do so, but we can do that only if the Government remove the wholly unsatisfactory parts of the measure. However, I can tell the Minister that I wholeheartedly agree, without demur, with one of his amendments: No. 10, which leaves out clause 1. That is an extremely good amendment.
New clause 19 makes the situation better, but it is by no means the final article. It moves some way towards providing a limiting definition, but that definition is still open to misinterpretation and abuse. The problem with the original scope of the Bill was the huge width of interpretation that it allowed Ministers, and indeed a future House. In Committee, we argued that that could be dealt with in three ways: prescription, proscription or protections. All three are valid and more than one of them will be necessary to achieve a workable Bill.
In this case, the Government have adopted prescription. They have set out the matters that are the province of the Bill. They have said, by definition, what the Bill is intended for and thus, by implication, that there are other matters for which it is not intended and that are outside its scope.
Some hon. Members would argue strongly—my hon. Friend David Howarth may well be one—that it would be better to have a proscriptive list of those statutes or aspects of statute that should fall outside the Bill's scope. Nevertheless, I welcome new clause 19 as at least a move in the right direction, but as the Minister knows, we and others have tabled amendments to new clause 19, and I ask him, rather than simply rejecting them out of hand, to look carefully at what they would do, because they would not work against the principles that he espouses. Indeed, they would support his view. Amendment (a) would introduce a single but very important word—"reasonably"—into new clause 19. That test of reasonableness would provide an objective, rather than subjective test of whether a Minister was doing what the Minister says would always be a Minister's intention in those circumstances.
I cannot deal with the right hon. Gentleman's misconceptions about my party, but when he intervened earlier on Andrew Miller, I thought that the reply was valuable. The Regulatory Reform Committee ought to have a wider brief than simply responding to what Ministers put to it. The hon. Gentleman suggested an investigatory role, but it could have a collating role. I should like that Committee to perform a genuinely deregulatory function in inviting suggestions for deregulation that ought to be put before the House in the form of an order.
I do not understand why such things must come from a Minister. The hon. Gentleman said that he excused Ministers from responsibility over what happens in their Department. I do not excuse them for a moment. They have the responsibility of making decisions in their Departments and, if they do not do that well enough, another Minister should be found. It is helpful to listen to the business world and the outside world generally about what deregulatory measures could properly be introduced.
I also think—this is partly an answer to the right hon. Gentleman—that the need for sunset clauses in legislation made by order is a prerequisite for good regulation. We should not have regulations that simply carry on, year after year, long after the original need has been removed but remain on the statute book, applying burdens to people in business that they could well do without. As one of the few Members who has run a small business, I know of what I speak, and I feel that that is a necessary protection for businesses.
Amendment (a) would apply the test of reasonableness to the decision that the Minister takes when determining whether he is acting in an appropriately deregulatory way. It is no good for Ministers to say, "We don't need the term 'reasonably'", because they use it in another part of the Bill—not, of course, applying to Ministers, but to members of the public who may wish to make a complaint about the way in which Ministers behave. Let us not argue about whether the word "reasonably" is otiose but simply consider whether it adds to Ministers' responsibilities, and I say that it does. I do not want to make a Minister's decision justiciable in that sense, because I do not want decisions of parliamentary procedure to become a matter for the courts, but I want Ministers to behave appropriately in making that decision, and the insertion of the word "reasonably" would have that effect.
Mr. Chope will speak to his amendment (b), but, as Mr. Heald said, it is self-evidently a necessary protection. I hope that the Minister will seriously consider it. He seemed to dismiss it earlier, but if he thinks about it further, he will realise that it is a sensible change that would not reduce the Bill's effectiveness but simply define it more accurately.
I do not propose to talk about amendments (d) and (e) today, for the simple reason that they also relate to new clause 15, which leads a group of amendments tomorrow, and I can explain the purpose for which they were tabled at that point. We have a slightly confused process. Nor do I need to dwell on amendment No. 4, which relates to the definition of reforming. The reformulation of the Bill means that we will have to return to that in another place. At the time when we tabled the amendment, it was crucial, but it is less crucial in the context of the Minister's new clauses.
Amendment No. 74 also inserts the word "reasonably", but this time in clause 3, which covers the preconditions that a Minister must apply. Again, I hope that a Minister would behave reasonably. He would be required to do so under administrative law because otherwise he would be subject to judicial review, but I do not want to be in the business of encouraging the judicial review of Ministers' decisions in terms of how they present matters before the House. That is not the right way of doing business. We should make it absolutely clear that we are not talking about an assertion—to use a term that I used earlier—by a Minister or a subjective view. A Minister should have to test objectively whether he is behaving reasonably when applying those preconditions and accepting whether they have been met. That seems sensible.
The last amendment that I wish to mention is amendment No. 78, which deals with something that has not been mentioned yet. It is a probing amendment on clause 34, which comes right at the end of the Bill and relates to its extent. When I asked the Minister's predecessor in Committee, he did not appear to have a clue why the clause was written in the way that it was. I do not want to cast aspersions on the previous Minister, but I can see why he had to be promoted, because he clearly did not understand this aspect of the Bill or many others. I want to know why the Bill asserts extraterritorial jurisdiction for itself. I am struggling to find the areas in which the orders that might be amended, repealed or replaced might apply outside England and Wales, Scotland and Northern Ireland. Under what circumstances would that apply and under what circumstances would it be appropriate for the House to fast-track an amendment to legislation, which, for one reason or another, applied presumably to a Crown dependency? There are very rare occasions on which we have extraterritorial jurisdiction, for instance in relation to some sexual offences. I simply want the Minister to explain why he thinks that that has to be in the Bill. I did not get an explanation in Committee, so I hope that I will now.
I feel strongly about amendment (a), because it is the litmus test of whether Ministers are serious about rewriting the Bill. I hope to have the opportunity to test that in the House, given that the Bill has been completely rewritten. We are virtually back to the Committee stage with this part of the Bill, so I hope that we will have the opportunity to test the will of the House on that. I also hope that, unless the hon. Member for Christchurch gets a satisfactory answer, he will feel able to press amendment (b). If he does, we will support it.
I know that Mr. Cash will wish to speak on new clause 17. It is axiomatic that, if a matter is dealt with through this procedure in order for a deregulatory measure to go forward, it should not be overridden by the European Communities Act 1972 and provision elsewhere. If the principles of subsidiarity are to mean anything, they must mean that. I hope that the Minister will be able to reply that that is already the case, but I fear that he may not. If he does not, and the hon. Gentleman intends to press new clause 17, I will advise my right hon. and hon. Friends to support him.
The Government have got into a terrible mess with the Bill, so it is good to know that the new Minister in charge of it is doing his best to dig them out of it. When the Minister's predecessor presented the Bill, he did so as if it had a different title and was called simply the "Regulatory Reform Bill". I do not think that he mentioned the word "legislation" in his Second Reading speech. As hon. Members on both sides of the House have been frustrated by and tangled in the mess of regulation that has accumulated due to legislation over the years, the Bill was waved through on Second Reading—the House did not even divide. The Bill was totally misrepresented and thought of as uncontentious.
If the hon. Gentleman checks the speeches, he will find that the Conservative Front-Bench spokesmen and I made it clear that the Bill was a constitutional outrage, but that we would not divide on it until Third Reading in the hope that the Government would see the error of their ways.
The criticism was muted. My perception of the Bill's history is that it was not until a few days after Second Reading, when David Howarth wrote a staunch article in The Guardian—[Hon. Members: " The Times."] I am so sorry . It was only when the hon. Gentleman dubbed the Bill the "Abolition of Parliament Bill" in his article that people started to recognise that it had many dangers and, indeed, the purpose suggested by its title: the Legislative and Regulatory Reform Bill. It was seen that the Bill was extremely dangerous, so I am glad that many, although by no means all, the dangers associated with the legislative aspect of the Bill are being put right by new clause 19.
The hon. Gentleman is entitled to his interpretation of his speech, but my interpretation of the debate was that the House took its eye off the legislative ball and waved through a Bill that was not in the interests of Parliament.
Unfortunately, I was not present on Second Reading because I was attending a funeral, as is recorded in Hansard. Does my hon. Friend recognise that the criticisms that he and Mr. Heath have made about the Bill are set out in my Committee's report, which was published before the Second Reading debate?
I certainly do not want to fall out with my hon. Friend. However, the attention of the House was not focused on the acute dangers of the Bill. If the Bill had gone through in the form in which it was considered on Second Reading, it could, as the hon. Member for Cambridge said, have taken away all the powers of Parliament, but the outrage that the House should have felt about that was not expressed. Hon. Members might say, with a certain amount of casuistry, "Oh, but I spotted it and gave warnings," but those warnings were muffled. In its original form, the Bill was a parliamentary disgrace, so it is good that the Minister has recognised that and is rowing us back from that disastrous position. Sadly, his predecessor did not fully appreciate how serious the situation was.
The hon. Gentleman should have been here on Second Reading, because many people, especially Conservative and Liberal Democrat Members, spoke out strongly against the Bill. They made it clear that we were considering an issue of constitutional importance and that changes would have to be made to the Bill. However, we did want a Bill on deregulation, and we are still fighting for that because, my goodness, this country needs one.
There is the problem. Everyone wanted a Bill on deregulation. What they were given was a Bill that went very much wider than that, and did so in dangerous ways. Everyone is now alert to those problems. I have to confess that I did not attend the debate on Second Reading.
Absolutely. I am ashamed of myself. As someone who believes in, and who has based most of my career in the House on, the principle of defending Parliament against the Executive and defending the scrutiny of Parliament, I am thoroughly ashamed that I did not spot the dangers. Other hon. Members seem less keen to admit that they slipped up too. One of the few people who comes out of this at all well is the hon. Member for Cambridge, but others may wish to protect their reputations.
That is not the burden of my speech. Instead, it is the extent to which the Government are rowing back from that disastrous position with new clause 19. It is a good and serious attempt, but it is not quite right. It needs to be buttoned down in a solid way. The dangers inherent in the original Bill were enormous and complacency still exists, with hon. Members in some interventions saying, "I spotted it all." The original Bill gave powers to Ministers to subvert the process and bypass the whole of Parliament. The "abolition of Parliament" was not a loose phrase. We could have packed up and gone home with the removal of almost all our functions, yet neither the press nor the House was up in arms in the way that they should have been. I am delighted that the Government are rowing back with new clause 19, but it is not quite enough.
Does the hon. Gentleman have a view on why the Government introduced the Bill in the way that they did? Was it just a mistake by civil servants or something more sinister?
It is not for me to speculate on why and I am not sure that it is interesting now. Hon. Members, and there are plenty on both sides of the Chamber today, have been concerned about how the shift of power in politics has moved from Parliament to the Executive over recent years. Indeed, the former right hon. Member for Bexley and Old Sidcup, in his last speech on the Conservative Benches, said that it had been moving inexorably during the 50 years that he had been a Member of the House. Those of us in the group Parliament First, who are interested in such matters, recognise that the balance of power has shifted enormously. The Bill seemed to be the most dramatic and horrific example of that. Had it gone through unamended, it would have totally changed the balance and nature of our parliamentary system. Indeed, it would have neutered large parts of it.
New clause 19 is important because it is the one hand against that trend. I congratulate the Minister on introducing it and ensuring that the Bill has some constraint. In the light of the generous number of interventions that he took, I hope that he will go back and think about some of them, and see that there are still weaknesses. I do not feel that he responded fully to the point that Mr. Clarke made on the climate change levy. He deflected it by saying, "Ah, but legislation is covered by clause 5." However, it is only covered in one direction—to "impose or increase taxation." The right hon. and learned Gentleman suggested the possibility that orders could reduce or delete taxation. The Bill, with the current wording, does nothing to stop an order being made. It would have to go to a Select Committee, but a Select Committee of a different House, with a different Chair and a different balance could well wave it through. It could be persuaded that a climate change levy was a thoroughly malign thing. That would not be good for Parliament. It would be extremely bad for the way in which we conduct our business.
I suspect that the same is true of a future Government deleting the top rate of tax. That could happen and it could bypass the scrutiny of a Finance Bill. It is certainly true of the rather less important and frivolous example of fox hunting. I deplore the fact that the House has wasted 700 hours debating fox hunting. Anything more pointless and more to the shame of this House could hardly be imagined. Under this Bill, an order to delete all that legislation—if the order got through a Select Committee—would not need to go before the House; it could be a ministerial order. As a member of the middle way group who voted against the legislation, I would be happy and relaxed about that, but that is not the intention behind the Bill or the way in which we should conduct parliamentary business. I do not see anything in new clause 19(3), which defines the burdens, to prevent such things from happening. I know that the Minister intends that subsection (3) will preclude all those things, but that is not apparent from the wording. It would be very much simpler if the Bill were confined solely to regulation. Does the Minister want to intervene?
There was an air of expectancy that my hon. Friend was about to rise to his feet.
We still have a way to go to pin down and limit the effect of the Bill simply to tidying up and cleaning up the mess of regulation in our legislative system. We must by all means, either in this House or in another place, ensure that the Bill can in no way touch primary legislation, because that way lies perdition.
May I begin as everybody else will begin by praising the policy intention behind the Bill? I very much doubt whether there is any right hon. or hon. Member, either present or elected to this House, who does not support the principle of deregulation. We all acknowledge the tremendous pressure that we are under to reverse the inexorable growth of regulation in recent years and the constant reminder we are given by British business about its damaging effects on our competitiveness, so this ought to be a non-controversial Bill. It is a minor miracle that the Government have succeeded in turning it into an extremely controversial piece of legislation. I agree with Mark Fisher that there is no point in going back now, but I cannot understand why the Government thought that they could carry general support for deregulation into support for a Bill of the kind that they first drafted.
New clause 19 is indeed extremely welcome. It is the first time that the Government have moved substantially from where they started. The original Bill was drafted in an extraordinary fashion; parliamentary procedure would have been bypassed on every kind of occasion if a Government were minded to do so. New clause 19 has sought to narrow that, but it still has not gone far enough. The Government are still not inclined to restrict their scope sufficiently to reassure me that there is not the danger, perhaps a few years hence, that the provision will be misused and in a way that would further erode the power of this Parliament to check the activities of the Executive. In the light of recent history, that is something of which we in this House should always be conscious.
The best point made by the new Minister, whom I welcome to his post and who did his best to get back to common sense on deregulation, was that there is a danger that we will all be so sensitive about parliamentary procedure that we will become extremely pedantic and Governments will again find that their deregulatory legislation is quite inadequate for anything except making such minor changes as to be of no consequence to anyone. I tell myself—and I hope that everybody else will in this debate—that one must guard against that before looking at new clause 19 and saying that it is not adequate. However, I have done that and I still think that whoever produced the new clause has been too cautious.
Proposed subsection (3) leaves open the possibility of the repeal of any kind of taxation in response to demands from pressure groups and commercial lobbies. Procedures made illegal by the criminal law could be legalised, and debate prevented by the fast-track procedure. I cited the example of the repeal of the climate change levy, because I thought that the proposal might attract the Minister's interest. Conservative Members support that repeal— presumably, he is not favour of that—and there is nothing in the Bill to prevent the Government from introducing it. The Bill could be used to provide an exemption to value added tax on goods or services in response to a well publicised and financed commercial lobby. VAT has become nonsense because so many exemptions have been allowed over the years for political purposes. Plenty of people would argue that their goods or services are so desirable that an exemption is the obvious thing to provide. It would be easier to give way to them, if any Government are so minded, by using the legislation. Airport passenger tax, insurance duty and all kinds of unpopular measures could be repealed under the legislation, subject only to the consultation and the veto of the Select Committee on which the Minister relies as protections.
Our debate has touched on new clause 17, but I cannot begin to understand it. Having heard reference to it, I look forward to my hon. Friend's explanation of what it is supposed to do. If it merely restates the existing or original law, I shall not be upset, but I do not think that it intends to do so. I believe that my hon. Friend is trying to insert a subtle provision to allow all our treaty obligations to be ignored, provided that procedures under the Bill are followed. That would encourage any Government of whom he wholly approved to make frequent use of the measure if they ever assumed office. However, let us wait for his explanation.
Turning to the criminal law, I have suggested that the procedure could be used to end the illegality of fox hunting. Most of the great liberal reforms abolishing criminal penalties have been introduced by the House, but some people advocate the introduction of things that they regard as liberal reforms. I do not approve of euthanasia or assisted suicide, but the criminal penalty on that act could be lifted under the Bill, subject only to the safeguards on which the Minister relies. He disappoints me by repeating the arguments deployed by his predecessor in response to such examples. He accepts that the Bill as drafted would allow anyone to repeal such penalties, but he says that the Government do not envisage doing so. He says that it is not realistic to expect anyone to do so in future.
I am not asking the right hon. and learned Gentleman or any other Member to rely purely on my personal assurance in the case of the emotive examples that he has just cited. May I direct him to clause 3, which deals with the protections, rights and freedoms that would clearly be infringed by those examples? It is not my personal assurance that provides a guarantee against such measures being taken by a future Government—it is the Bill.
I do not see—perhaps in the reply an attempt will be made to persuade me to see—that clause 3 answers my arguments on taxation or the criminal law in the slightest. Of course they could be put forward, and they would have the effect of lifting the criminal penalty from a particular category of people, or lifting the financial burden from another category of people, but it would be difficult to say that that automatically restricted the freedoms of others. It might deeply offend the sensibilities or the interests of others, but not their freedoms, so clause 3 is not an answer.
If the Minister wants to give a specific answer, let him deal with my example of taxation. I have not heard him yet explain why clause 5, which could deal with the point, could not be amended to include any reduction in taxation. If my point about changing taxation is so preposterous, why does the wording of the Bill leave it open to allow the change in the burden of taxation? Why does clause 5 not include reductions in taxation, so that lobbies cannot try and persuade a Government to use the power?
That goes back to a point that I made not on the Floor of the House, but in a private debate with the Minister's predecessor in the precincts of the Palace organised by the Hansard Society. There would never have been any difficulty with the Bill if all the things that Ministers have been prepared to say as assertions, promises and beliefs in principle had been incorporated into the text. If Governments are accepting various scenarios, why do they not bring them fully into the text?
I move on to the safeguards to which the Minister keeps coming back: all these things require consultation, and all would fail if the two Select Committees, or the relevant Select Committee, were prepared to exercise a veto. That is not good enough. That could be used to take away the powers of Parliament on practically every subject. If we could all be reassured by that, why on earth are we spending our time debating anything on the Floor of the House?
There are occasions when debate on the Floor of the House is needed, not always because the majority is opposed to some prospect, but to protect the rights of minorities as well. I have taken part in protracted debates on the Floor of the House where I have been in the large majority in the House. We have known that we would get our legislation and I have known that I would be voting on the winning side, but that does not mean that I thought it was an irritating waste of time to allow a powerful section of public opinion to voice its objections, to test the detail and to go through the arguments. That is the whole point of Parliament. It must never be regarded as just a nuisance that stands in the way of the parliamentary majority for the time being getting its way.
What about the protections about which we are told? I regret to say that I do not think that the veto by a Select Committee is good enough. The two Select Committees that have studied the Bill have done a very good job. Select Committees do a very good job in the House, but I would not rely upon them as the last defenders of parliamentary privilege and parliamentary process in every case. It is a fact that the Government determine the majority of every Select Committee. A Government determined to get their way, who are irritated by what they see as time-wasting and filibustering opposition, will ensure that Select Committees do not veto their legislation and get it back on to the Floor of the House.
Does my right hon. and learned Friend agree that to strengthen the Select Committees, an absolute veto is required, so that they can say, "We don't like the look of this order for this process"? A veto such as the one suggested, which we shall debate later and which is so hedged round with restrictions, does not give much confidence in the process.
I agree entirely. I am glad to know that when we return to the matter, my hon. Friend will press those points strongly, because he is right.
In expressing my reservations still, in spite of the need for as flexible a deregulatory measure as possible, let me make it clear to the Minister that I do not fear that we will suddenly go to extreme government. I realise that some of the examples that have been cited by opponents, including David Howarth in his article, were fairly preposterous in the context of today's politicians. Those examples would never happen. We no longer need to argue whether the right to jury trial would be taken away. There are those in the Government who would like to take it away in a wide range of cases, but in the modern state that is today's Britain, they would never have dared to suggest that that should be done without any proper parliamentary process.
As I have said, I do not think that we are going straight away to extreme government. However, over 50 years we have seen a steady nibbling at the edges of the parliamentary process. Those of us who have been in this place for any length of time have seen a considerable nibble, almost always for the best of intentions in the mind of the Government of the time. I fear that for this Government, and perhaps for future Administrations for all I know, the pressure on the parliamentary timetable leads them to look for short cuts. I am not reassured by the Minister for the Cabinet Office—recently the Government Chief Whip—who is now in charge of the Bill. To get vast amounts of legislation through the House, the time made available for debate on any particular measure has been confined as never before.
We can hear the arguments already when the first of the proposed changes in legislation or in the criminal law comes up. We shall hear: "We have a mandate. We have just fought the election. The opinion polls are wholly in favour of what we propose. The people who are obstructing the process are unrepresentative. They are an irritating minority." Already, time and again, the Government keep making proposals, at present about the procedures of the upper House. Those proposals are designed to stop the time-wasting, the day-by-day discussion, which irritates the Government because it delays their ability to get their way. Secondly, it reduces the amount of legislation that they can introduce, and holds up other measures on Report.
I am extremely grateful.
I think that my right hon. and learned Friend is being a little too sanguine about the nature of the House. We have experienced landslide Governments in recent years. The optimism and enthusiasm of an incoming Government with a large majority does not weigh with the proposition that my right hon. and learned Friend is raising. They are enthusiastic and determined.
I am grateful to my right hon. and learned Friend for giving way, and my hon. Friend Mr. Shepherd is absolutely right. I hope that my right hon. and learned Friend will accept that the Government are not justified in seeking to argue for new clause 19, at least in part, on the basis of what he describes as the pressures of the parliamentary timetable, as though they were some independent variable with which Ministers have to reckon. Does he accept that the pressures of the parliamentary timetable are substantially the result of the insatiable legislative appetite of the Government of the day?
Yes. This place has turned into a legislative sausage machine, and the quality of legislation has declined as a result. That is partly because there is no proper time for parliamentary discussion.
Is there not an important lesson in a debate about deregulation and a debate about the effect of legislation on business? A failure to scrutinise legislation effectively in this place and an ability to rush legislation through are why business is facing such a burden of regulation.
The right hon. and learned Gentleman is being very generous. I, too, must accuse him of being a little too sanguine. He said that the Government would never use a procedure for nibbling away at jury trials. They have used Order in Council procedure to do just that in the context of the Criminal Justice Act 2003. They have used Orders in Council to remove the requirement for prima facie evidence for extradition to the United States. That is precisely the way in which the Government work. That is usually on the pretext of fighting terrorism or rebalancing, whatever that might mean.
I accept the rebuke. I was going to end by saying that although I do not think that we are going for extreme government—I do not think that we are likely rapidly to see unlikely things happen—we have seen some unlikely things happen. During the past three or four years I have seen processes on the Floor of the House that I would not have believed could take place had I been challenged 10 years ago to say that such things might happen. The Minister dealing with the Bill on anti-terrorist measures calmly announced on Report that he was abandoning its previous wording—that he was going to alter it all in the House of Lords. We spent the timetabled three hours—the entire Report stage—discussing the text of a letter that had accidentally been leaked, and which had given the House some inkling of what that Bill was eventually going to be like. That was, so far, the occasion on which the Government have most clearly demonstrated their extreme contempt for the processes of this House when political pressures are upon them.
Although such dangers might not be imminent on all fronts, they are very real. That is why, although what has been achieved so far is very welcome, it is most definitely not enough. I hope that the Government will accept some of the amendments being pressed on them today, and that this House and the other place will continue in their efforts to ensure that the wording eventually reflects the intention behind the Bill, and that it ties this Government down to that intention only.
It is a great pity that so far in this debate on this important new clause, we have had from Government Members and the Liberal Democrats not a single example of a deregulatory measure that could be deployed under this power, with the single exception of game licences. Although I am very happy to welcome that one, it is not going to change the world a great deal. One would have expected the Government, when constructing this legislation over many months, to have in mind many examples of how they wished to use this power—to be limited a bit under new clause 19—and why it was reasonable in the light of what they wish to do.
I want the Government to succeed at deregulation. It is a bit like suggesting that a tiger should become a vegetarian, but one lives in hope that the Government believe that deregulation is necessary and wish to do it. However, it would have been so much easier to have done it in the way that we proposed in a debate before the last election in this very House. We gave the Government 63 items for deregulation, including some very big ones, which were also given in writing to the Minister's predecessor. The Government said that a parliamentary debate somehow did not count as a way of expressing our views on this matter, so I followed it up with a letter to the Department, thereby enabling officials to see that list of items for themselves. We said that that list should form the content of a deregulation Bill.
The fact that we are yet again having a longish debate about the constitutional implications of this Bill, just as we did on Second Reading and in Committee, shows that it is not a very good way of achieving the desired objective. Given that the leading Opposition party is more in favour of deregulation than are the Government, if they had introduced a proper deregulation Bill full of good ideas, it would probably have gone through much more quickly than the constitutional outrage before us on Second Reading, or the rather more limited constitutional outrage before us today.
Mark Fisher is a Member whom I normally respect and praise. He is very good at defending the virtues of this House and its liberties, but he should have taken the precaution of attending Second Reading or reading the Hansard report of it. Had he done so, he would have realised that I and my hon. Friends the Members for Huntingdon (Mr. Djanogly) and for South-West Hertfordshire (Mr. Gauke) made it very clear that the substantial and wide-ranging powers taken in the first draft of the Bill presented to this House were unacceptable. They allowed Ministers to regulate and legislate without going through the normal parliamentary processes. They enabled a major bypass of constitutional practice by effectively allowing primary legislation to be made by Ministers with very little reference to the House of Commons, in a regulatory, as well as deregulatory, direction.
We are now told that new clause 19 will limit these wide-ranging powers to legislating in a deregulatory direction. As someone who desperately wants more deregulation, I say one cheer for that. But as someone who strongly believes that Parliament has a right to debate all such matters properly, I share the concern of my right hon. and learned Friend Mr. Clarke and others that there are still too many powers inherent in new clause 19. It would still give Ministers wide-ranging powers to do things that would be better done in the open.
When I advised a former Government with a very large majority and a strong sense of political direction on privatisation, we had a choice. We could have said, "Let's take one piece of legislation to the House of Commons to give us an overall power to privatise anything we wish", and then do it by order-making, industry by industry; or we could have done it by primary legislation, industry by industry. I advised—I think that the Cabinet was of the same view anyway—that it should be done industry by industry with separate pieces of legislation in each case. That meant far more effort and difficulty for the Ministers concerned, but it was the right and democratic thing to do. As those major nationalisations had been put in place by separate pieces of legislation, industry by industry, we thought that they should be undone industry by industry, with much more lengthy and bruising debates in the House of Commons. It is extraordinary that the Government can still think it right, despite the change of heart represented by new clause 19, to propose deregulatory measures that take the form of removing pieces of primary legislation that have been passed by this House without going through the reverse process that would be expected.
Why should not we have not only an annual Finance Bill but an annual deregulation Bill? Indeed, the House might discuss and vote on the proposition that there should be a combined finance and deregulation Bill every year. It would be wonderful if the Treasury learned the habit of deregulation and legislated for its tax revenues in a deregulatory way instead of the very regulatory way that it does under this Government year after year, with hundreds of pages of new and complex provisions for old taxes as well as new ones. We could then have deregulatory budgets, Department by Department, so that each year a Department would know that there was a piece of legislation that it could use to fulfil the requirement to cut the regulatory burden it was imposing.
Alternatively, the Government could achieve their deregulatory aims by ensuring that each major departmental piece of legislation had an additional deregulatory section. We hoped that that was what the Prime Minister had in mind when he told us, in respect of regulations, that it would be a case of one in, one out. We hoped that each piece of regulating legislation would therefore contain a complementary deregulatory section so that we could be assured that the overall burden was not going up. But the Government never do that. They do not take advantage of the many legislative vehicles trundling through this House of Commons year after year, usually covering each of the main Departments in turn, by including them in their deregulatory ambitions. Today, we are again left with a truncated and guillotined debate on big changes in constitutional practice.
Like my hon. Friend Mr. Heald, I welcome new clause 19 compared with the original measure. I will not be churlish enough to vote against it, because it is moving in the right direction and I welcome it in preference to having nothing in its place. However, I urge the Government to think again about how serious they are about deregulation and whether there is a better way of achieving it than using the very considerable powers that the Bill will grant the Government if it goes through without further major amendment.
It is disturbing that we can have many long debates on deregulation without anything of a deregulatory nature being mentioned, apart from game licences, welcome though that is. Ministers still do not seem to understand that many colleagues on both sides of the House are very worried by this power for different reasons—not only those who fear that the Government may deregulate something that they think is good regulation, but those of us who are strongly in favour of far more deregulation than the Government have in mind but would like it to be done properly by the front door instead of improperly by the back door.
My hon. Friend the Member for North-East Hertfordshire and I find ourselves placed in a dilemma that is not of our choosing. We will not vote against new clause 19, but nor do we welcome this legislation. We welcome its intent, but we do not believe that the Government are really serious about it. If they were, they would by now have had their long lists of items that they were going to deregulate. We are left with the paradox that we may have a Bill that does not deregulate very much, but leaves on the statute book some worrying powers for future Ministers.
"We reaffirm the recommendation of our predecessor Committee that Departments should be assessed on their progress in removing unnecessary regulations and controls and not simply on their progress in simplifying matters."
Does he agree with that?
I seem to remember that in the '80s the Government undertook a lot of deregulation and liberalisation that greatly benefited whole sectors of industry such as telecoms, in which I was privileged to be involved as Minister.
Yes, I do agree with the recommendation by the hon. Gentleman's Committee. I praise him for him for its work and for being one of the many voices that drew attention to the problems involved in the Bill.
I imagine that my right hon. Friend is aware that amendments that we tabled in Committee, and now new clause 2, would require a regular report on progress.
I agree. Of course, it was a Conservative recommendation from before the last election that every Department should have a regulatory budget. Under Conservative control, those budgets would be reduced year after year across all Departments as a whole, and if one Department needed or wished to increase its regulatory burden, it would have to find other Departments that would take a proportionate cut so that the overall burden did not go up. One would need an annual deregulatory Bill to go through to implement that.
My right hon. Friend says that he will vote for new clause 19. Would it not be more cautious to say that that is dependent upon acceptance of the qualifying amendments (a), (b), (c) and (d), so that the vote is conditional? That is what I would urge on him and on my party.
I, too, would like those amendments to be carried. However, I think that I said that it would be churlish to vote against new clause 19 and left open the position on how far we would get in amending it and whether we wanted to increase the Government's possible majority.
Finally, I turn to the amendments on the European issue tabled by my hon. Friend Mr. Cash. Nowadays, so much of our regulation comes from Brussels that we cannot exempt that from scrutiny and from our deregulatory urge. New clause 17 makes a good attempt to draw the House's attention to that and to make Ministers understand that they cannot have a deregulation policy worth anything unless they are prepared to tackle quite a number of the regulatory burdens coming from Brussels. That would preferably be through renegotiation of those individual items, but it would be good to have a legislative back-up to make it crystal clear that if this House wishes to deregulate something, that should be law made here in the United Kingdom.
I am glad to follow my right hon. Friend Mr. Redwood in his remarks. I, too, have reservations about the principal objective of this Bill, which is to have a fast-track procedure for dealing with matters that is very far-reaching even with the changes proposed in new clause 19, as my right hon. and learned Friend Mr. Clarke and other hon. Members have said. The fact is that this is a very invasive Bill. No doubt we shall wait to see what happens on Third Reading, when all our other debates have been concluded.
In an earlier intervention, I said that there was a vast omission—indeed, a black hole—in the proposal before us, which has been dressed up and presented as a deregulatory measure to reduce the burdens on business. That raises some practical questions. I am delighted to say that some six weeks ago, 50 of my right hon. and hon. Friends put their names to my amendments, which would ensure that we got the clarification in our own law that would enable us, where necessary and after appropriate negotiations—it would be done in a responsible and prudential fashion—to insist that we should deregulate on our own terms at Westminster and make it law in this country, binding on the judiciary and overriding the requirements of section 2 of the European Communities Act 1972 in that regard. Having spoken to senior advisers in the House, I understand that this is the first time that an amendment of this significance has been selected for debate since 1972. There was an attempt, during the passage of the 1972 Act, to table an amendment that proposed that nothing in the Act should derogate from the sovereignty of the United Kingdom Parliament.
Some of us will recall the Single European Act that was passed in 1986. I tabled a similar amendment to that legislation. It was on the Order Paper, and my name remained in splendid isolation until I walked into the Lobby on the afternoon of the debate, where a certain very distinguished parliamentarian came up to me and said, in his inimitable fashion, "I think you will be interested to see that I have put my name to your amendment." Of course, it was none other than the right hon. Enoch Powell. He perfectly understood the object of the exercise.
Despite the best efforts of the European Scrutiny Committee and the European Standing Committees, the present volume of European legislation, and the fast-track procedures that are used to introduce that legislation into the House, are such that the accusations made by my right hon. and learned Friend the Member for Rushcliffe about the reduction—and, some would say, the redaction—of our legislation within the procedures set out in our Standing Orders could easily be explained in terms of the European legislation that we have to accept under section 2 of the European Communities Act. That legislation receives scrutiny, but if anyone ever attempts to do anything about it by voting against a particular provision in a European Standing Committee, the House immediately reverses the decision. Many people, including me, regard those procedures as a waste of parliamentary opportunity.
Does the hon. Gentleman think it wise that this country should breach the principle of the supremacy of Community law, which is what his amendment would appear to seek to achieve, by means of a statutory instrument and not of a Bill?
That would be a valid point, were it not for the fact that the only way in which it is possible to assert the legislative supremacy of this House is under, and by virtue of, primary legislation. The hon. Gentleman is a distinguished lawyer, and he probably anticipated my saying that. In my legal opinion, it would be impossible to seek to override section 2 of the European Communities Act merely by order. However, I can assure the hon. Gentleman that the mechanism that I have employed in my new clause has been before parliamentary counsel and cleared for this purpose. It says
"notwithstanding the European Communities Act 1972", and refers to any order repealing, amending or replacing other legislation that has been introduced under section 2 and is therefore binding on this Parliament only by virtue of the 1972 Act. We could not change that by order, but if the authority were given by primary legislation, using the words
"notwithstanding the European Communities Act 1972", that would attract the legislative supremacy of the primary legislation that the Bill before us would then provide. At that point, the provision would have effect with regard to the fast-track procedure, notwithstanding my concerns about the fast-track procedure in principle, which will no doubt be resolved on Third Reading.
The hon. Gentleman has made my point for me. The only procedure available under the Bill is the statutory instrument, which does not receive sufficient parliamentary scrutiny. That is why many of us have objected to the Bill over the past few months. The hon. Gentleman is seeking to use a regulatory reform order, which would not receive sufficient scrutiny, to violate the principle of Community law supremacy. That would be an extraordinary thing to do, diplomatically.
I am glad that the hon. Gentleman added the word "diplomatically" Ultimately, this is a matter not only of grave constitutional importance but of political significance. I would say it was more political than diplomatic, but it is a matter of great importance, for all the reasons that I shall outline.
The ill-judged intervention by David Howarth, who clearly does not understand the important point that my hon. Friend is making, shows that the Lib Dems are craven and slavish on European matters. They want our regulations to come from Brussels, and they do not want this House to be able to influence or change them.
I do not want to antagonise the Liberal Democrats too much. I am not in the business of laying traps for people, but Mr. Heath said that he was minded to support my new clause, and I hope that he will stand good on that when we go into the Lobby.
Important questions arise that are not merely of an abstract nature. The House has a long history in this regard. Those who have studied constitutional law will remember Henry VIII and the Statute of Proclamations, the great Edward Coke, the achievement of the legislative supremacy of Parliament in 1688, following the final denouement of the Stuarts' attempts to insist on the divine right of kings at the expense of the people of this country, and the assertion in the Bill of Rights in that year that decisions would be made by Parliament and not by the monarchy. Those issues are not dissimilar to the questions that arise in the context of the European Communities Act 1972.
I am sure that my hon. Friend would not suggest that any of those great measures should be set aside by statutory instrument, subject to the veto of two Select Committees. He is helping the arguments of those who think that the Government have not gone far enough. The Government say that no politician would conceive of abolishing a tax or a criminal offence by statutory instrument, yet my hon. Friend is advocating the repudiation of our treaty obligations—and, effectively, our leaving the European Union—by a parliamentary process that would allow those of us who are pro-European merely the opportunity to object to a statutory instrument, or to get a Select Committee to block it.
I am delighted that my right hon. and learned Friend has now entered into the debate with gusto. I had hoped that I might be called to speak before him, so that he could have engaged in a series of interventions on me. I am afraid that the issues that he raises do not add up.
Since 1972, we have been subjected to a constant stream of legislation that has been brought in by prerogative. Let us take the Maastricht treaty as an example, or the treaties of Nice or Amsterdam. I do not need to weary the House with the vast amount of legislation of that kind that has gone through this House, actively encouraged by my right hon. and learned Friend. Much of it has been resisted by popular sentiment, even though not everyone has understood every jot and tittle of it. My right hon. and learned Friend himself said that he found it difficult, to use the words of new clause 19,
"for example, where the legislation is hard to understand".
With regard to the population at large, the same applies to much of the European legislation, which is regularly visited on them by virtue of the extremely truncated, undemocratic and unaccountable methods employed through the European treaties and the mechanisms of the House. Ultimately, those lead to legislation going through effectively because we are told that the European Communities Act is inviolable, cannot be touched and is in concrete, that there is an acquis communautaire, that we should forget about any changes, and that the constant stream of European integration must therefore continue. Well, I have news for my right hon. and learned Friend—this is a moment when we say no.
Is not my hon. Friend being a little incautious in his advocacy of this altogether welcome new clause? The manner in which he is proposing it and dealing with interventions not only from my right hon. and learned Friend Mr. Clarke but from David Howarth is widening the gulf between those who are in favour of the new clause and those who are against it, rather than bringing together those who have some concerns with those who are in favour of the new clause. When the hon. Member for Cambridge says that the supposed supremacy of European law is being set aside by a mere order, it is not an order that is doing that but this new clause. My hon. Friend was wrong to agree with the hon. Member for Cambridge on that.
With respect, my hon. Friend might consider that matter again. The mechanism to enable the constitutional procedure to have the effect that I desire is contained in the new clause. I think that David Howarth understood that. We need the backing of primary legislation, using the magic words,
"notwithstanding the European Communities Act 1972", and then referring to the fact that it shall be binding in legal proceedings in the United Kingdom. That provides the mechanism whereby the judiciary are under a duty to give effect to that latest Act of Parliament.
Before I move on to the question whether legislative supremacy is a principle to which we still adhere, I want to deal first with why, from a practical point of view, I regard it as extremely important that we understand how invasive the burdens have been in relation to the business community, industry, competitiveness and enterprise. Leaving aside the system that I have employed to achieve my results, that is my main point. For example, a short time ago, the British Chambers of Commerce produced figures showing the accumulated cost of burdens that arose in respect of a number of regulations. It did not, however, demonstrate that the top six—the most burdensome and most costly ones—were all of European origin, of which I could give several examples. The total cost, from the moment that the burdens were introduced to the moment that the figures were published, came to £25 billion. The regulations concerned included the working time regulations, the Data Protection Act 1998, the Employment Act 2002 and so on.
In addition, Sir David Arculus, the Government-appointed chairman of the Better Regulation Task Force, estimated the cost to business of over-burdensome regulations—I stand to be corrected, as the figure seems extraordinarily high, but it is the one that he gave, as far as I can recollect—as £100 billion. No wonder the Government are looking for a way to deal with the problem. We can break down the European element of that, but we should also consider the percentage of legislation passed through the truncated, unaccountable, unattractive and undemocratic procedures in the House, which impose those expensive regulations on British business. Those regulations are then in concrete, and we can do nothing about them, whatever their merits. Once such regulations have been passed by a qualified majority vote, the legislation is imposed on us, and other member states might have a vested interest in not making changes that may be required.
I take seriously the point made by my hon. Friend Mr. Turner. However, I do not want or intend to over-egg the pudding on this point. For me, this is essentially a practical question about the burdens on business and deregulation. It is not a foray into the abstractions of sovereignty; it is about the way in which the system works. It is a time check on reality. Are we going to allow this legislation to continue to invade our business community? The House should remember that I have always said that I am in favour of trade and political co-operation, and I voted for the Single European Act, notwithstanding my attempt to preserve the sovereignty of the United Kingdom, for that reason. I wrote an article in The Times for that purpose at the time. I foresaw that we might find ourselves saturated in unnecessary burdens and that we would need to relieve them in the interests of competition. It was therefore essential to have the mechanism to enable us to do that. Unfortunately, under the rules of the supremacy of Community law—the other law, in the parallel universe that exists in legislation—we are not allowed to have that mechanism, under the terms of the case law of the European Union. The hon. Member for Cambridge and I could go through all the case law, and I would agree with him that the position is clear under Community law.
However, all that case law, every one of those burdens and every aspect of that European legislation depend on one thing only—the legislative supremacy of this House in passing the European Communities Act . As a consequence, it is open to our judiciary—as in the different context of the Human Rights Act 1998—to interpret and apply that law. That is solely, exclusively and entirely because of the European Communities Act passed by this House. If this House decides that it wishes to make changes, by whatever procedure, it is incumbent on the judiciary to give effect to that subsequent inconsistent law, provided it is express and unambiguous. That case law is laid down unequivocally by Lord Denning in the case of McCarthy's v. Smith, by Lord Justice Laws in the case of the metric martyrs and by Lord Steyn himself in a lecture in 1996.
There are so many misunderstandings about the role of the judiciary in these matters. So much confusion is created by invoking the principles of Community law when we are dealing with, and must continue to insist on, the principles of United Kingdom constitutional law. From the earliest days of the 17th century, in a constant movement towards the establishment of the democratic Parliament that we have today, that has been dependent on the fact that we legislate and the judges obey. I do not mean that in a derogatory sense; it is what the judges say of their own function.
I mentioned Lord Steyn. He is well known as a distinguished lawyer, with—I would say—some influence, and with strong views about the European Community. We understand that he is enthusiastic about it. In a lecture that he gave in 1996, however, he made his opinion abundantly clear. He said
"in countless decisions the courts have declared the unqualified supremacy of Parliament. There are no exceptions."
It is always worth listening carefully to the hon. Gentleman. I agree entirely with his point about legislative supremacy in the context of the European Communities Act 1972, and, as he knows, I agree largely with what he says about the proper application of subsidiarity and excessive regulation. However, he has posed a conundrum to both the Liberal Democrats and his own Front Benchers, who in Committee supported new clause 7, which excluded the European Communities Act from consideration of the procedural device that the Government propose. We agreed that it was not a matter that should undergo the fast-track procedure. Now the hon. Gentleman is inviting us to place it squarely and centrally in the fast-track procedure. As I think he will recognise, that poses a great difficulty both to us and to Mr. Heald.
I think my hon. Friend will agree that using the order-making power to amend the European Communities Act 1972 might be a bit strong, even for him. Is not his point that, if a procedure allows us to change the law in this country and if there is a principle of sovereignty, it is open to our Parliament to use that procedure to change laws that affect our European Union treaty obligations? Of course, whether that is a good idea is a different question, and it is possible that my right hon. and learned Friend Mr. Clarke and I would not make the same judgment as my hon. Friend. In terms of the sovereignty of Parliament, though, it must be right for us to be able to change laws that break EU treaty obligations. It is just that it is probably not a very good idea.
My hon. Friend has put the case well from his point of view. Looking at the complexion of this Government, I should not have thought that there was a cat in hell's chance of their using the fast-track procedure in any way to affect the European legislation, but the case that I have made in respect of the burden on business is unanswerable, as is my observation that it is not included in the package. I do not expect the Government to take it up, but my hon. Friend is right to point out that if we are to be correct and accurate in regard to our constitutional position in UK law, and in the context of the legislative supremacy of Parliament, it is incumbent on us to recognise the issues and to recognise that, through a process of absorption, osmosis and camouflage, they have been overtaken. People have come to believe that everything is set in concrete. It is not, and that is part of the point of my new clause.
My hon. Friend is right, especially in one respect. The new clause demonstrates clearly to those who are persuaded by the reasons given for membership of the European Communities that they can be changed and irrevocably broken by a statutory instrument. That is what is wrong with the Bill.
Indeed. It is undesirable that fast-track procedures should be regarded as the best way to go about things—we have been through the argument already, and we may well vote against that proposal on Third Reading—but it is important to establish and reassert a principle. We have not had many opportunities to do that in the context of a substantive Government Bill to which amendments can be tabled for purposes of clarity.
Let me say this to my right hon. and learned Friend the Member for Rushcliffe, a distinguished chairman of the Conservative party's democracy commission. It would not be good enough to assert—if he were to do so—that what I propose is not possible through the legislative supremacy of the House of Commons. He cannot avoid the fact that what I am saying is good constitutional law of the United Kingdom.
My hon. Friend is a long-standing opponent of section 2, in particular, of the European Communities Act. Surely it is open to any Government to introduce legislation to repeal that section, if they so wish. My hon. Friend and I would disagree on the desirability of such a measure, but a proper way of dealing with the issue would be to present primary legislation—which, I would hope, would be debated at the same length as the original legislation—on the Floor of the House of Commons. My hon. Friend is a great parliamentarian, and I cannot understand why he of all people should suggest that no more than the Bill and a statutory instrument should be employed to enact a drastic measure on which he and I will not reach speedy agreement.
For the avoidance of doubt, will my hon. Friend confirm that new clause 17 could not be used to amend or repeal the 1972 Act, but could be used to make explicit that Parliament can change statutes notwithstanding the provisions of the Act? That is a rather unexceptional constitutional convention under which we all live. My hon. Friend's new clause is thus a modest measure that will certainly not lead to the vast constitutional revolution posited by my right hon. and learned Friend Mr. Clarke.
My right hon. Friend has put it very well. The principle embodied in new clause 17 is the vital principle of preserving and reasserting, and the Bill has given me the opportunity to do that. Notwithstanding the concerns of my right hon. and learned Friend the Member for Rushcliffe, which are primarily political, and those of the hon. Member for Cambridge, which appear to be primarily diplomatic, I insist on my point.
I am referring to new clause 17. If it were incorporated in the Bill, it would confer authority—on the basis of principles that I need not repeat—enabling the legislation to have the effect that I want: that is, where necessary to override the 1972 Act to reduce the burdens on business. I think that that point is well catered for.
I hesitate to intervene in this debate among what one might call the European trainspotters, but if I understand the hon. Gentleman correctly, if the new clause were to be inserted, we would be able to override the principles of the 1972 Act. What does he think would follow in terms of our relationship with the European Union?
Predictably, there would be enforcement proceedings, infraction proceedings and various other actions. Until very recently, my party had precisely such a policy in respect of the common fisheries policy, except that we had not spelled out the legal mechanism for doing that. We are perfectly happy to accept that, where matters of vital national interest are concerned, Europe does not necessarily get it right. In fact, the low growth and high unemployment, the riots in France, the problems implementing economic reforms that Angela Merkel is experiencing, the difficulties that Mr. de Villepin experienced, and so on—the list is endless—are all indications of the fact that the Lisbon agenda does not work—
Obviously, the hon. Gentleman is a late entrant to the debate. My hon. Friend the Member for North-East Hertfordshire said that hey will support new clause 17. I hope that that helps the hon. Gentleman.
The basis of legislative supremacy is that the courts obey Acts of Parliament. You are right, Mr. Deputy Speaker, to bring me back to that point, because that is the essential point that must be understood.
"The rule of judicial obedience is in one sense a rule of common law...it is the ultimate political fact upon which the whole system of legislation hangs."
Those are the words of Sir William Wade, one of the great constitutional authorities. I mentioned the judgments of Mr. Justice Edward Coke, which, relying on the sovereignty of Parliament, stated that the courts could void Acts of Parliament. We now have democracy, votes and general elections but, unfortunately, in the context of the Human Rights Act 1998, which I shall not dwell on, and the European Communities Act 1972, the judiciary have been trying to push the boundaries beyond the established legislative supremacy of Parliament, by drawing down a greater degree of supranationalism. They have even been saying that treaties have a special status. Neither treaties nor convention can stand in the way of legislation—of Acts of Parliament. All the judicial decisions given in the past several centuries have reasserted that main proposition. Ultimately, the judiciary derive their judicial authority from Parliament and, I should say, from the source of their payments, salaries and allowances.
"the duty of the court is to obey and apply every Act of Parliament"
What is required to deal with the problem facing us of burdens of business is a clear and unambiguous statement in the Bill, for which the appropriate form of words is:
"notwithstanding the European Communities Act 1972"
Even the case of Factortame, which dealt with the Merchant Shipping Act 1988, ultimately depended on the passing of the European Communities Act 1972. In the words of Lord Bridge, Parliament's surrender of sovereignty in the 1972 Act was voluntary. What has been given can be taken away; that is the principle. It does not necessarily follow from my new clause that there would be a political decision and a vote in the House of Commons to do that, although I believe that we have gone far too far in European integration and that we need a substantial and radical retrenchment. Even the judgment of Lord Hope in the recent case of Jackson and others v. Attorney-General ultimately depends on the 1972 Act. Mr. Justice Laws referred to "constitutional statutes", which were purported to be given an additional status over and above ordinary Acts of Parliament. In the context of the European legislation, they themselves would depend on the fact that Parliament had passed the necessary legislation.
The Parliamentary Secretary, Cabinet Office, Mr. McFadden, has it in mind that some gold-plating can be removed. However, where that gold-plating ultimately depends on the fundamental and intrinsic nature of the European directive or regulation on which it is based, merely removing it and all the Cabinet Office mechanisms that are employed, including regulatory impact assessments, transposition notes, and so on—complicated stuff that nobody in the small business community really knows exists—will be of no value at all if the fundamental issue is not tackled. In the democracy in which we live, the United Kingdom Parliament acquires its authority from the voters at general elections, which decide the Government. Mark Fisher is correct: Parliament is first. The bottom line is that we have the right to be able to decide what legislation is to be passed.
There are those, such as my right hon. and learned Friend the Member for Rushcliffe, who—uncritically, I think—are willing to accept pretty well everything that comes from the European Union and do not want it to be amended or repealed. He would argue strongly, as he has today, that the mechanism that I propose is not to his liking. The reality is that we must stipulate that this House is the sovereign place where the democratic wishes of the people of this country are implemented. If it is necessary to override supranational legislation, whether the Human Rights Act or the European Communities Act, it is our right and our duty to do so.
The legislative supremacy of this House is what the Bill is all about and it is the reason I tabled new clause 17. I believe that, in the context of the burdens of business and deregulation, this debate has been necessary. I am extremely glad that my hon. Friends will go into the Lobby to support the new clause.
In one of the more arcane Committee debates, it was discovered that the words "local Act" included Acts of Parliament relating to universities, so as new clause 19 still includes those words I declare my interest as a fellow of a Cambridge college and a university reader.
Mr. Cash is right: in the end, it comes down to a political, diplomatic choice. It is perfectly open to the House to repeal section 2 of the European Communities Act 1972 either in whole or in part, and to do whatever it wants with our relationship with Europe. I would not deny any part of his speech when he was making those remarks, but the question is whether those actions would be wise and on that matter he and I might disagree.
I agree with my hon. Friend Mr. Heath that the best amendment in the group is Government amendment No. 10, which removes clause 1—a very good thing to remove. It is an extraordinary provision that allowed the Government to change any primary legislation at will. The theory that the Government appear to be following, and which they appeared to be following last Wednesday night when we were discussing House of Lords reform, is that by their mere existence as the Government they are entitled to whatever legislation they want. But that is not the constitutional theory on which this country is based. Parliament legislates, not the Government.
Another point that we tried to make in Committee, and a mistake into which the Minister appeared to be slipping today, is that it is not the motives of Ministers, or those of the Government that matter, but what the Bill actually says. In that regard, new clause 19 is still defective in two ways. The first is that there is still no control over the subject matter to which the Bill applies. As Mark Fisher said, under proposed subsection (6) the provision applies, in principle, to all legislation. In principle, the abolition of jury trial, for example, can be achieved under the Bill by statutory instrument. If new clause 26, which prevents the use of the Bill for amendments to the measure itself and to the Human Rights Act 1998, were passed, even that would not protect jury trial because the Human Rights Act does not in terms, or by implication, protect jury trial. That aspect of our legal tradition is not protected by the European convention on human rights or by our incorporation of it into our law.
Mr. Clarke said that outlandish possibilities were being discussed, but the erosion of the right to trial by jury by the Labour Government is far from an outlandish possibility. Indeed, every time the Prime Minister talks about changing the balance in the criminal justice system he means measures of that sort.
A second reason why control over subject matter is important is that it would still be possible under new clause 19 to institute major constitutional change by statutory instrument as long as a Minister considered that it would relieve or reduce burdens. That might include abrogation of section 2 of the European Communities Act and would certainly include matters such as the radical reform of local government, which should, in my view, be achieved only by primary legislation. Although the new clause is welcome, it needs to go much further in a number of ways. In a later group, we shall discuss new clause 16, which deals directly with subject matter, but there are other problems with the measure.
The second major problem is the subjective test. The new clause, like the original provision, leaves the decision about whether use of the Bill is appropriate in the hands of the Minister—if the Minister considers that the conditions for its use are fulfilled. The Minister might consider that jury trial—to take that example again—constitutes an administrative or financial burden. It is right that the new clause excludes from the scope of the Bill burdens on Ministers and Departments, but a Minister could easily consider that jury trial imposed burdens on employers, by removing employees from their workplace for the duration of a trial.
It is important to recognise the weakness of the subjective test under the new clause. Our amendment (a) would strengthen that test by inserting the word "reasonably", the effect of which would be to heighten the bar over which the Minister must leap to entitle him to use the Bill. In the longer term, the provision would give the courts clearer guidance when considering new orders under judicial review.
Does the hon. Gentleman agree that the provision would add an element of objectivity to the test? It would be necessary for a Minister, if pressed, or in judicial review proceedings, to show that there were reasonable grounds on which the reasonableness could be based. There would need to be substantial evidence to support it.
That is an important point. If there were a challenge to ministerial action, it is possible that there would be an attempt at judicial review, but what would be the test applied by the court? Without the word "reasonably", the only test that the court could apply would simply be whether it was true that the Minister indeed considered that the measure was lifting a burden. It would be difficult for a court to get behind a ministerial statement to that effect unless there was clear evidence that what the Minister was saying was not true, or was unbelievable. It is all too believable that a Minister might believe that trial by jury imposed an administrative or financial burden and should be abolished.
The same point applies to the insertion of the word "reasonably" in clause 3. Throughout the debates on the Bill, Ministers have pointed to the protections in clause 3 as a way of deflecting criticism about the removal of necessary rights and freedoms. There has been a debate, or perhaps a lack of understanding, between opposite sides of the House about what those rights are and which of them are necessary. Labour Members were concerned lest Ministers remove rights such as those relating to the minimum wage under the Bill, but Ministers have told them that under clause 3 those rights are "necessary protection". The problem with that is: who says that they are necessary protection? The answer: the Minister—subjectively. Were Mr. Redwood the Minister, he might have a different view and consider the matter differently from the present Minister.
Conservative Members were keen to emphasise that a different sort of right was necessary and the Minister tried to reassure them in the opposite direction. The Minister's defence of the Bill has run the risk of contradiction on a number of occasions.
The hon. Gentleman is on to a very good point. Could not a Government of one complexion use clause 3, for example, to remove administrative burdens and financial penalties from company directors, whereas a Government of a different persuasion could use the same provision to remove administrative burdens and financial penalties from trade unions? He is therefore absolutely right to say that there is not adequate protection in clause 3.
Yes, I believe that to be the case. In fact, Ministers from different parties could make opposite decisions on the same matter but still be within the terms of the Bill, because all that it requires is that Ministers consider that certain things are the case.
The Minister has followed his predecessor in asserting that none of this matters because tomorrow we will pass the Committee veto and all our concerns should fall in at that point. All I say in response is that the Committee veto is not a veto, because the Government retain the right to overturn it in the House as a whole. If it were a Committee veto and there were no appeal against what the Committee decided, the situation might be more interesting, but even then there is the problem to which a number of hon. Members have referred that the Government's in-built majority on all Committees—indeed, their ability to change the membership of Committees in advance, as the Chancellor of the Duchy of Lancaster no doubt knows from her previous job—is enough at least to throw into doubt whether that aspect of the so-called Committee veto is an adequate protection.
I find another aspect of new clause 19 particularly disturbing, but I will not refer to it at great length tonight because the best time for that discussion will be tomorrow in a debate on a new clause. However, two amendments in this group deal with the point, and I should explain to the House what they are about. New clause 19, like the old clause 2, contains a provision that allows, by order, legislative power to be transferred to any person. It strikes me as an extraordinary power to grant the Government, and the extent to which the person to whom that power is transferred will be subject to the restrictions in the Bill is not clear. It is that matter to which we will return tomorrow, but it is a major weakness of the Bill that the purpose for which that provision was proposed—it has been proposed again tonight—has never been made properly clear. New clause 19 is an advance on the old clause 1, but it is still deeply defective in many ways. Unless further amendments and further concessions are made, I fear that the Bill is still unacceptable.
I rise in support of new clause 17, and I wish to speak to it quite briefly, but by way of preface I should say that I have an interest to declare in that I have a number of business interests that might conceivably might be beneficiaries of the Bill if it passes into law. From that perspective, I can confirm to the House that over-regulation is the modern scourge. As a population, we are dividing into those who do things and those who stop people doing things. That is having very severe consequences for business activity and, indeed, international competitiveness.
My other credential for speaking in the debate is that I am a member of the European Scrutiny Committee and therefore am able to see that the regulatory itch has not abated in the European Union. Every now and then, the European Commission declares war on over-regulation—it did so again last year—but, again, I can report from my perspective on that Committee that, so far, over-regulation is winning that war. It has shifted into new policies, but the overall volume of legislation has not decreased. That is where new clause 17 becomes relevant.
I wish to remind the House of an example of over-regulation that could become the subject of the Bill. There have been many calls in the debate for hon. Members to give specific examples of regulatory overreach that could engage the House's attention if the Bill is passed. I wish to remind the House that, earlier this year, we passed regulations implementing the artist's resale right, or to give it its French title, the droite de suite regulations, which give living artists, and will eventually give to dead artists as well, a right to a percentage of revenue when their works are resold. The British Government opposed that EU directive, but it was imposed on this country and the House by majority voting. The implementing regulations were debated earlier this year.
Unfortunately, those regulations got into the hands of the Department of Trade and Industry and, specifically, a weak Minister in another place who spectacularly over-regulated. Instead of implementing that directive to the letter and sticking to what was strictly required by the artist's resale right directive, he ensured that the threshold was not €3,000, but €1,000 for a work of art, thus drawing into the net huge numbers of extra businesses and items and completely contradicting the Prime Minister's and the Government's earlier campaign in Brussels to try to get the directive rejected.
The Government understood that the directive would be intensely bureaucratic. Very small sums would be collected and possibly redistributed to artists if they could be found. If a work of art was valuable, it would simply not be sold in London; the business would go to New York. That was demonstrated beyond doubt. All those arguments were forgotten by the DTI. I hope that those regulations will be reconsidered in the course of experience, because they will undoubtedly damage London's position as a leading art market, as well as not in any real way enriching poorer artists.
In a year or two, the Government might wish to amend those regulations, and I hope that they will do so. Given that they are both EU regulations and domestically gold-plated, new clause 17 will be relevant. The House may decide simply to take the regulations back to what is strictly required by the directive; or the House may wish to go further and trespass on the terms of the directive in recognition of the campaign fought, as I have explained, right across the party divide against the directive in the first place. Therefore, it is important that Parliament is aware that those regulations could be amended even though certain requirements are entrenched in a directive. The political judgment at the time might well argue against that, and we might decide not to contradict any provision in the artist's resale right directive, but we do not know. That is a judgment, and it is important that Parliament understands and has it written into the Bill that it has powers to legislate notwithstanding the provisions of the European Communities Act 1972.
New clause 17 is entirely unexceptional; it would not direct the House in any way to touch the 1972 Act. Indeed, it does not mention the 1972 Act as an Act of Parliament; it simply makes it clear that, in future, Parliament could legislate notwithstanding the provisions of that Act. We are not repealing the 1972 Act; we are simply reminding the House and putting into primary legislation the doctrine of parliamentary sovereignty under which we all operate and have done ever since parliamentary powers were first discussed.
It is sometimes argued that the 1972 Act is entrenched in some way. Other countries in Europe and around the world have written constitutions that make it impossible for Parliament to legislate in conflict with an entrenched constitution. We do not have that doctrine in this country and if any hon. Member believes that we do, they need to say so now, because otherwise we are proceeding on a false assumption. As long as that doctrine of parliamentary sovereignty endures, I do not find it objectionable to amend the Bill to make it clear that if Parliament explicitly and expressly legislates accordingly, it could override directives that are in pursuance of the 1972 Act.
That is not a constitutional revolution—rather the opposite. The measure is very modest. I hope that the Government—the Minister has given some fairly unconvincing answers to interventions so far—will address the issue of parliamentary powers. We are not saying that a future House will wish to contradict treaty provisions, although the Government are contemplating doing so at the moment. The Human Rights Act 1998 is now under question. Following a suggestion from the leader of my party, the Government are apparently looking seriously at repealing, amending or replacing certain international provisions of the European convention on human rights. That is a specific example of where we may wish to legislate in contradiction to treaty obligations.
My right hon. Friend may care to know that one of the most important tomes on constitutional law unequivocally states:
"The legislative supremacy of Parliament is not limited by international law. The courts may not hold an Act void on the ground that it contravenes general principles of international law."
My hon. Friend knows his constitutional law. It is established beyond doubt in all parts of the House that the Dicey doctrine, as I have heard it expressed, endures and that no Parliament can bind a successor. Although the Parliament at the time passed the 1972 Act, that is not entrenched and cannot bind a future Parliament. Also, treaty law is not ipso facto binding in domestic law. Some countries, such as France, have a unitary system. When they sign international treaties, by that act, the treaties are binding in French law. We do not have that system.
In conclusion, new clause 17 is unexceptional. It clarifies the legal powers of the House and makes explicit the possibility of overriding international treaties and EU provisions. I therefore urge the House to accept it and I hope that we divide on the issue.
We come to the House today to watch a rare and wondrous thing; the Government eating a large and probably unpalatable portion of humble pie. The disappointment for all of us involved in the debate is that Mr. Murphy is not here to share in that, because he would have got a healthy portion of that humble pie. For months, he suggested that the amendments were not necessary, but today we are considering about 50 Government amendments and new clauses. After telling us that we were simply misunderstanding him and that he had no intention of using the powers, the Government are now spelling out how the changes should be taken forward.
It is not fair to criticise someone who is not in the Chamber. My hon. Friend Mr. Murphy came to my Committee and spoke to all four relevant Chairs and has done a darn good job in providing the House with an opportunity to discuss an amended version of the Bill that I hope we can all accept.
I think that I am grateful for the hon. Gentleman's intervention. I will come to his Committee's report—I hope that he will be patient for that. The hon. Member for East Renfrewshire was almost responsible for galvanising the sheer opposition to the measures that were being suggested. The way in which he continued to say that there was no problem or issue was totally disingenuous and we now see the Government scurrying to the Chamber to suggest these amendments and new clauses.
The hon. Gentleman should not allow the Government to get away with the fact that this is not the first time that this has happened. Bill after Bill, we have been told that the particular proposals are innocuous and do not mean what they seem to mean and that we are getting worried about things unnecessarily; Bill after Bill, the Government have to come to the House and taken the stuff out again.
I am grateful to the right hon. Gentleman, who has great experience in these matters. His words will be listened to carefully by the Government. He is entirely right that, when we start to scrutinise Bills—I credit the Select Committee chaired by Andrew Miller for providing that function—we see some of the sinister applications of some of that legislation. That is exactly the case here, with what we first presumed was an innocuous Bill. The Government proposed to give themselves almost unprecedented powers to change almost any law by order, rather than having it debated on the Floor of the House. While the Bill was in Committee, the then Minister in charge told us to trust him and that he would never consider highly controversial legislation, without even telling us what "controversial" was. When we asked him to include that in the Bill, he refused. Not having that in the Bill means that the statement is not worth the paper that it is not written on.
The Public Administration Committee weighed in with its concern. I applaud it for saying that the Bill
"gives the Government powers which are entirely disproportionate to its stated aims."
The Committee also wanted to place things beyond the Bill's reach and warned diplomatically that the Government's undertakings that they would limit the use of the powers were meaningless unless they were written in the law. I congratulate the Committee on those remarks.
A week ago, there was an announcement that there would be further amendments. That was the same night that the Government faced a humiliating gubbing at the hands of the local English electorate. The amendments mean that it is almost like we are considering the Second Reading of the Bill. The debate does not feel like the remaining stages; it feels like a Second Reading.
The hon. Gentleman is entirely right. The fact that it feels so much like a Second Reading means that the Bill is almost calling out for further scrutiny. We have seen a number of the amendments for the first time in the course of the past week. They need further debate and consideration and it is unfortunate that this House will not consider the important new changes; it will be the other place. We will not have an opportunity to influence that debate, because we do not have seats in the other place. I hope that when the Bill returns to this House, we will get a further opportunity to look at some of the measures. I hope that, when it returns to us, it will be a better Bill for us to consider.
We have a whole new raft of amendments and new clauses to address. In the main, I concede that most of the concerns have been addressed, but there are still issues and outstanding points that have to be looked at. That is why today's debate has been so important. There is no doubt whatsoever that new clause 19 is an improvement on the former clause 1, but there are still concerns and ambiguities. There are still lots of questions for the Minister to answer.
For instance, in the case of new clause 19, what constitutes a reduction in burdens remains totally ambiguous. I know that the Government give a list in subsection (3), but when we start to unravel it, as we have done today, we can see that there are issues and problems. We have to address what we should call the Rushcliffe question—after the question that Mr. Clarke put to the Minister today. We could be talking about something that applies to the climate change levy. We have had no satisfactory response from the Government about controversial legislation being addressed through orders under the Bill. The Rushcliffe question deserves an adequate response from the Minister.
Does the hon. Gentleman agree that the problem of vagueness and ambiguity in the Bill would be at least partly resolved if amendment (a) to new clause 19 were agreed to? If the word "reasonably" was inserted into new clause 19, the question of judicial review would be opened up in a way that would not be possible as the measure stands.
I am grateful to the hon. Gentleman for drawing my attention to amendment (a). He is entirely right. Amendments (a) to (e) would improve new clause 19, so I assure him that we will support them. I hope that amendment (a) is pressed to a Division.
There has been no debate whatsoever about some of the outstanding definitions in the Bill.
If the hon. Gentleman had volunteered to serve on the Committee, he would have been aware that we have had such debates. Perhaps he could have been here on Second Reading, too.
We in the minority parties have great difficulty securing places on Committees, so I look forward to the support of the hon. Lady when we try to do so.
I am grateful to the hon. Gentleman, but I think that I had best move on.
We have not heard about the definition of "legislation". There is an attempt to define it in subsection (6) of new clause 19, which states that it includes
"a public general Act or local Act (whether passed before or after the commencement of this section)".
Could changes be made to the provisions of the Scotland Act and, as my hon. Friend says, the Government of Wales Act without recourse to debate on the Floor of the House?
We must also consider subsection 7(c) of new clause 19 because although the measure includes an attempt to define "legislation", there is no definition of "enactment". Under the subsection, a ministerial order may provide for the transfer or delegation of
"functions conferred on any person by any enactment".
The broad-ranging power would enable Ministers to reconstruct completely many statutory bodies, executive agencies and non-departmental parties simply through subordinate legislation. Furthermore, subsection 7(d) gives Ministers the power to abolish any
"body or office established by or under an enactment."
It is noteworthy that subsection (7) uses the word "enactment", although the rest of new clause 19 uses the word "legislation". However, unlike the word "legislation", the word "enactment" does not seem to be defined.
Several further matters need to be addressed, so it is unfortunate that we have lost parliamentary time for debating a measure that is, in fact, a new Bill. I hope that the Bill will be improved in the other place. I do not want the Minister to choke on his humble pie because he has moved some way to improve the Bill, but I hope that we will have the opportunity to improve it further. I hope that we will have the opportunity to vote on the Liberal Democrat amendments to new clause 19 because they would improve the measure significantly.
I apologise to the Minister that I was not in the Chamber at the beginning of the debate to hear his speech. I welcome him to his new post and hope that I can co-operate with him to make the Bill better than it is at the moment and better even from how it will stand after it has been amended as the Government propose.
I was one of the Labour Members who were deeply concerned about the original Bill. When I read clause 1, I found it difficult to believe that the Government were seriously proposing a Bill that would allow them to legislate by order on almost any sphere of government and to amend any Act, including, apparently, the Bill itself. However, improvements have been made, so I am grateful to the Minister's predecessor, who wrote to me about the Bill and discussed it with me at length. My concerns were shared by several Labour Members, and one had to be worried about such a general measure.
Even in its amended form, the Bill will be too all-inclusive. I would prefer to have a Bill that specified positively what was included, instead of setting out exemptions. Such a Bill would thus specify the areas to which it related, rather than including a general provision to open the way to changing any legislation. Such a change of approach would be a major step towards a Bill that everyone could support.
I am worried about the question of burdens on business. I am one of those who think that business ought to have some burdens on it. Good regulations exist, but there is an implication that burdens of any kind are bad on business and that business should be as free as possible to do whatever it likes. I do not accept that. Let us consider simple measures, such as building regulations. Some 20 years ago, a builder did some work on my house. I thought that it was not right, so I called in the building inspector and the builder had to do the work again. There was a burden on that builder, but it meant that my house was safe to live in after the work had been done, so it was absolutely right.
We have heard a lot of concerns about regulation from Opposition Members, but people in the City and financial institutions say that the regulations that exist in the City attract financial institutions there from other parts of the world because they know that it will be a safe place to do business.
My hon. Friend makes a strong point. Regulations can be good or bad; beneficial or disadvantageous. I hope that we will continue to use building regulations.
Other aspects of regulation can be dealt with annually through the general Bills that come before the House. An obvious example is taxation, which is addressed in clause 5. Any change to taxation can be achieved through each year's Finance Bill. Clause 5 states:
"Provision under section 2(1) may not impose or increase taxation."
I know that the wording will be amended, but the Government will still be able to use delegated legislation to change taxation outside a Finance Bill. There is no reason whatsoever for such a provision. Indeed, I would prefer the provision to include the word "change" rather than the phrase "impose or increase" because it implies that imposing or increasing taxation is bad, but that is not necessarily the truth. There are areas of life in which I would like taxes to be increased and, perhaps, less tax in other areas. I would like clause 5 to be taken out of the Bill.
The hon. Gentleman is being disingenuous. Finance Bills provide every mechanism for increasing taxation and are subject to proper scrutiny. I hope that he is not suggesting for one moment that we should enter a realm of taxation by the means of an instrument?
Precisely. Provisions on taxation are misplaced in the Bill. Taxation should be covered by Finance Bills, and as we have a Finance Bill each year, there is no problem with delay. It is not as if we can legislate on taxation only every five or 10 years.
A Bill on business is going through the other place. Such a generalised Bill would be a mechanism to make changes that would no doubt help business to run more smoothly. All sorts of general Bills come through the House regularly, so they could be used to make such changes.
It was suggested that the Government need such an approach on changing legislation because of the frustrations of the legislative process, but I understand that the problems have a lot to do with delays in Departments of State. The difficulties that civil servants have when bringing forward changes is much more of a delaying factor for Government legislation than the House. Short and punchy Bills that make small changes can go through the House quickly with little debate. Such simple Bills would be the appropriate way of dealing with problems that concern the House.
There are other ways to approach the problems. A number of detailed changes could be made. I much appreciated the speech by David Howarth. It was thoughtful and well made. I have a great deal of sympathy with what Mr. Cash said. I was surprised to hear that he voted for the Single European Act, which I would not have done at the time. Had he not voted for it, and had his party not voted for it, a lot of grief would have been saved. We would have had a much more loose-limbed European Union, causing much less difficulty for us all in all sorts of ways.
As I came into the debate late, I do not intend to speak for long. I hope that the Government amendments and what the other place does to the Bill will make it something that we can all support.
Mark Fisher laid bare his soul by suggesting that he had been defective in not appreciating the burden of what the Bill was about. I join him in that state of sin inasmuch as the titles of Bills often deceive us as to their purpose or intent. For example, who could possibly have objected to the Civil Contingencies Bill? It was an important measure. Yet part 2 contained the right of Ministers, down to Whips, by statutory instrument or Order in Council, to change or suspend all the laws of this land with the exception, and only under pressure, of the European convention on human rights and therefore the Human Rights Act 1998. The title of a Bill does not necessarily indicate what it is about. We owe a debt of thanks to David Howarth, as we do to the Select Committee Chairman, Andrew Miller, for drawing our attention to what the Bill is and was.
On new clause 19, I accept that, following the furore in the press and the wider reaches of our nation, the Government agreed that the form they had adopted was inappropriate. I still think that the new clause as it stands, as a measure of unwinding parliamentary procedure and the authority of the House, is not satisfactory. It could be satisfactory to some extent if amendment (a) were agreed to. That is crucial. The point was well made that "reasonably" constrains and better defines what it is that the Minister must do, so that he can be challenged in court if he acts unreasonably. It is a critical amendment.
My right hon. and learned Friend Mr. Clarke well made the point about whether we can decrease taxation by order. It is unthinkable that one should do that. I will vote against—confidently—new clause 19 on the basis that, on such a delicate, essential assertion of what is the proper process by which we discuss and consider law, it does not meet the test.
The only other amendment that I intend to speak to is new clause 17, which I tabled. There is an extraordinarily important principle behind it, and it goes both ways. I made a simple intervention on my right hon. and learned Friend. Is the Bill the way to alter something that has been so important to the life of our nation? I wholly disagree with our membership of the European Community; do not doubt that. I did not stand by and vote for the Single European Act, unlike my more craven hon. Friend Mr. Cash. I voted against a guillotine, and it was guillotined, as is this debate. There are sections of the Bill that we cannot, or are unlikely to, discuss because of the figure of the great guillotine motion. I have spoken against those things all my political life in the House, and it bites us in the end.
On the disapplication of the European Communities Act 1972, new clause 17 addresses the elephant in our house. The Modernisation Committee went to Finland about two years ago. The Finnish committee that judges and scrutinises European legislation accepted that 80 per cent. of its legislation came from Europe. In the case of the German Bundestag—Mrs. Merkel made reference to it—70 per cent. of its legislation comes from the European Community. Last week—my hon. Friend the Member for Stone was in attendance—Vaclav Klaus gave a lecture in London to American business men, saying that 75 to 80 per cent. of the legislation of the Czech Republic emanates from Europe.
Our Cabinet Office two years ago suggested that, more modestly in Britain, only 40 per cent. of our legislation emanates from the European Community. How can we have a deregulation Bill without acknowledging that the greater part of our legislation, including the statutory instruments that follow it and the regulation that is attendant on it, now emanates from the European Community? In some instances, it has direct application in our law without even troubling the House. We have a process, through statutory instruments, by which those laws are nodded through.
What is the purpose of the new clause? First, can we ignore the fact that that quantum of legislation is not regarded for the purposes of the Bill? The new clause says no. My second concern, which is more important, relates to the constitutional affirmation accepted by, I think, the hon. Member for Cambridge and articulated by my right hon. and learned Friend the Member for Rushcliffe. I am a more simple Member of the House. The long march to our democracy is summed up by Churchill's exclamation as to who is sovereign: the people are sovereign. The new clause is an expression of that sovereignty. The bypassing of that sovereignty by other means is not appropriate.
If my hon. Friend wants new clause 19 to be amended, it has to be passed. Then we would have the opportunity of considering amendment (a). Does he agree that not to pass the new clause would mean that we end up with what was in the Bill originally, which was appalling—namely, that a Minister, by order, could pass any law for any purpose in any way? I hope that he is prepared to accept the logic that the new clause is a bit better, because then amendment (a) might be possible.
No. The effort of the House should go into making a piece of legislation appropriate and correct as we see it. We cannot have a vote on amendment (a) until we have had a vote on new clause 19. My vote—let me set out this condition—is wholly dependent on the Government saying that they accept "reasonable". That is how I would do it. If they say, "No, we will not accept it", then I will not vote for the new clause and will look to the other place to rewrite the Bill. I have no doubt that it will include the reasonable element.
I absolutely accept the point. Again, that reinforces why I will not vote for the new clause until the Minister has conceded, or accepted, the burden of the argument and will accept those amendments. That is a matter of principle. The House, having regard to its own dignity, should not just say that because the previous draft of the Bill was so dreadful and has, properly and rightly, been improved to some extent—I give credit to the Government for that—it does not seek the things that qualify the powers of a Minister. That is the heart of the matter, and why the argument is about ourselves and the sovereignty of this place, which my hon. Friend is trying to promote. This issue is incredibly important for the House, because it is about ourselves, our country and our authority—the authority that this Bill and a raft of other legislation confers, each reducing the power of the House for the benefit of the Executive. That is the struggle.
Why are we having to amend or to do away with so much legislation? It is because the volume of legislation and the sheer weight of statutory instruments are such that we cannot accord to them the traditional form of repealing an Act of Parliament by another Act of Parliament. It is a short cut. In the modern age we do not give the proper amount of time to deliberation on and consideration of matters before the House. That is what I am arguing for. I hope that the Government will accept amendments (a) and (b), and I hope that the House will acknowledge the importance of the constitutional principle that underlines my hon. Friend's proposal.
Does my hon. Friend agree that a Government who refuse to include the word "reasonable" are suggesting that in some circumstances they wish to act unreasonably and that the word "reasonable" is so reasonable that it would look very unreasonable if they did not accept it?
My right hon. Friend has made a brilliant point. He and I have made that point about Governments of other complexions who have resisted the concept of reasonableness because the Executive, advised by draftsmen or by their own self-importance, have felt that it is an unreasonable constraint to be reasonably constrained.
I apologise to the Opposition Front Benchers for not being here earlier, although I was present for the opening speech of my hon. Friend the Minister. I declare an interest as a member of the Law Society of England and Wales, which is a regulated body and therefore might be affected by the Bill.
I heard earlier, and have heard since returning to the Chamber following meetings, a lot of wounded outrage from Opposition Members, particularly Conservatives. Having sat through most of the Second Reading debate, my recollection is that at its conclusion there was no Division. [Interruption.] Somebody says that there was a one-line Whip, but I took the trouble to be present and other hon. Members could have done so. There have been howls of outrage from the Opposition because they feel that they missed a trick on Second Reading by not calling a Division.
On Second Reading, my hon. Friend Mr. Murphy, the then Minister, who is present tonight, said that he did not wish the Bill to be used for controversial measures. Understandably, he was asked what would be considered a controversial measure, and quite reasonably he said that that was a difficult definition which he had been discussing with parliamentary draftsmen and that he would table amendments at a later stage—and he has done so.
I make no attempt to justify after the event the position that I took on Second Reading, but I hope that the hon. Gentleman will recollect that I said clearly that there was a need for a deregulatory Bill but that part 1 was wholly unsatisfactory and that if it remained in the Bill I would be advising my hon. Friends to vote against Third Reading. Part 1 will not do.
The hon. Gentleman says that the former Minister came to the House on Second Reading having been unable to work out how to include in the Bill the safeguards, and on Report they are finally appearing. Is that not a classic example of why we have so much bad legislation? It comes to the House too soon, before it is ready. The Minister should have brought the legislation before the House once he had worked out how to include the safeguards that he wanted, so that under our procedures we could have considered them more efficiently, rather than leaving the issue to be discussed in a shorter debate on Report.
I understand the hon. Gentleman's argument. As often happens in this House, we like to have it both ways. The idea to my mind and for many hon. Members was to have a public debate on this important Bill. We have had that debate in the intervening period. The then Minister put forward proposals and serious reservations were expressed by Opposition Members and by Labour Members, including me, and the Minister said that he would consider them. He has done so, and his successor has come forward with quite wide-ranging amendments, on which I shall remark later.
Is not the truth that the Government were told by the Chief Whip in the Lords that they would never have got the Bill through in its original condition?
I cannot remember whether the hon. Gentleman was present on Second Reading—I do not think that he was—but the then Minister made it clear that the Bill was not in the final form that he envisaged would go to the other place. He was entirely honest and open with the House. He said that we needed more safeguards and that he was open to suggestions. He has listened to those suggestions, yet his successor is being slagged off for that.
The Government have listened to the arguments. They might not have accepted them all, but they have listened—hence the fairly fundamental amendments before us. If amendments that we shall consider today and tomorrow are accepted—it is up to the House whether they are—fairly fundamental safeguards will be in the Bill. There are the five locks of constitutional safeguards. As I said in my intervention on my hon. Friend the Minister, my parliamentary neighbour, I have concerns that we will end up with the same kind of Bill this year that we did five years ago—completely unworkable in the way that most Members would wish because of those safeguards. He referred to the Game Act 1831, which is why the wonderful Bridgewater's butcher that is about 100 m from where I live has a sign outside it. I am sure that Bob will be happy to dispense with that sign.
I suspect that most hon. Members would be happy if such regulation were got rid of. On the other hand, dealing with major tax increases—or tax cuts, which might still be allowed under clause 5—would not be appropriate under the Bill. There are five locks and among other things they involve two Select Committees—one in this House and one in the other place. Select Committees, certainly in this House, have traditionally had a majority who are members of the Government party. That is the way in which this House has operated since Select Committees were formed—in 1971 or whenever. Anyone who thinks that a Select Committee Chairman or his or her members are patsies have not served on one as I have. I refer not just to my hon. Friend Andrew Miller or whoever his successor might be. I have never come across a Select Committee member who is a patsy. Select Committees will put a block and a lock on a proposal if it is controversial, as I think amendment No. 56 says.
Talking about locks, what seems to be missing in this debate is what the public think. The public's expression of concern over the Bill has had quite a significant impact on the drafting of amendments. We forget that.
Indeed concern was expressed outside the House. I suspect that much of it was somewhat uninformed in the sense that many of those who expressed concern were not aware of the promises and undertakings given by the then Minister on Second Reading that there would be more safeguards—and there will be if the amendments are passed.
I speak in favour of the amendments, but I caution my hon. Friend, the present Minister, to be careful that the pendulum does not swing too far the other way so that, if I am fortunate enough still to be a Member in five years' time, I will have to take part in a debate in which people say that the 2006 Act had got rid of only 21 regulations in contradistinction to 19 or whatever it was under the 2001 legislation. Frankly, that will have wasted a whole bunch of the House's time.
I had the privilege of speaking on Second Reading, when I said:
"The Bill is the ultimate guillotine for debate and discussion."—[ Hansard, 9 February 2006; Vol. 442, c. 1079.]
My concerns were not understated, as I cited the Chairman of the Constitution Committee of the House of Lords, who said that the measure was the most constitutionally significant Bill for a generation. The new clause is an incredible improvement, but that does not mean that we should accept it willy-nilly. Unfortunately, the Government are adept at manipulating the procedures of the House, so we are in danger of being outmanoeuvred again by the Executive, as we do not have the power to press amendments to the new clause until the new clause has been accepted.
For the sake of people outside the House, will my hon. Friend clarify something? Does he agree that the Government introduced a Bill that they knew would not complete its passage through the House with the aim of introducing provisions that ought to have been included in the Bill in the first place and thus are extremely difficult to correct? We should not accept that constitutional extravagance.
My right hon. Friend is right. Previous deregulation Bills were subject to pre-legislative scrutiny. The Bill goes much further and wider, but it was not subject to such scrutiny. We can only assume that the Government's motive was to present us with a fait accompli. They tried to seduce us into accepting the provision on the ground that it was not as unreasonable as the original proposal. I very much agree with my hon. Friend Mr. Shepherd: in the absence of ministerial assurances on amendments (a) and (b), I am not minded to vote in support of new clause 19 and, indeed, shall register my opposition. If, however, it is accepted and the amendments are put to the vote, we have the chance to make it less odious. At least we will have had the chance to put our concern on the record in the event that the amendments are not tested.
My amendment (b) is an important and necessary measure. I appreciate the support that it has received from Members on both sides of the House, including my hon. Friend Mr. Djanogly, Liberal Democrat Members and, by implication, Mark Fisher. The Minister appeared to suggest that it was a good amendment, but went on to say that he would not support it. Indeed, he said that he would seek to oppose it. Unfortunately, we could not establish what he thought was wrong with it.
"removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation".
By my reading, provided that the Minister can establish that the purpose is to remove a burden from one person, even though that would increase the overall burden for 1 million others, there is no reason why he should not use the truncated procedures in the Bill with the limited safeguards that we have debated.
The title of the new clause—"Power to remove or reduce burdens"—is disingenuous, and we should add the words, "or increase overall burdens". The Government say that they wish to reduce the overall burden, but if that is the case and they do not have a sinister purpose in the Bill, they should accept my amendment (b).
I hope that the House will have the chance to divide on it, but I cannot guarantee that, so I am obliged to vote against new clause 19 unless the Minister gives an undertaking at the Dispatch Box to accept amendments (a) and (b). That is the only way in which we can proceed because, following the initiative that the Government have taken, humble Back Benchers cannot vote on the amendments before we vote on the new clause. As Chairman of the Procedure Committee, my right hon. Friend deserves a great deal of credit for the fact that we have two days of debate. Originally, the Government intended that we should have only one day of debate, as they knew that they wanted to make substantial amendments to the Bill. That would have squeezed even more the opportunity for Back Benchers to comment.
This is an important Bill. I had the privilege of speaking against it on Second Reading, and I served on the Standing Committee. As a result of our efforts in Committee, the Government have begun to see sense, but they still have a long way to go. I look forward to the Minister accepting amendments (a) and (b). As for amendment (c), which proposes that the new clause apply only to public general Acts, it is regrettable that he still insists that it should apply much more widely to local acts, Orders in Council, orders, rules, regulations and so on, as set out in subsection (6). The Bill would be better if the provision were confined to public general Acts. The only local Act that the Government have been able to cite is the Covent Garden Market Act 1961. If they used a truncated provision to change the legislation governing the Covent Garden Market Authority, it could have a severe impact on people who use the authority, businesses that rely on it, landowners and so on. Why should such local legislation not be subject to the full rigour of scrutiny and debate? People may believe that local Acts are less significant, but they are often supremely significant to people who live in the locality that is affected. Under procedures in this Parliament, they may not receive notice of proposed changes until it is too late and the measure has been considered by the Regulatory Reform Committee. The Bill should extend only to public general Acts, not to local Acts.
Has my right hon. Friend noticed that there is nothing in the Bill to stop the Government changing Acts of Parliament passed by the House but prepared by the General Synod of the Church of England? Under the new clause, they could change without question something decided by that forum, which underlines the fact that the provision is nonsense.
My right hon. Friend makes an excellent point that I hope will be reflected in amendments tabled in another place. It is a pity that we have not had a chance to consider amendments along those lines on Report.
The Government have a secret agenda in relation to the Bill. It has been exposed to an extent and they have had to pull back from the high watermark of what they were trying to achieve by way of suppressing parliamentary debate and scrutiny. They have fallen back to an intermediate line, which is still too high in terms of what we are giving up as scrutineers of legislation in Parliament. I hope that the Minister will give us assurances that he will go further and provide more safeguards than new clause 19 contains.
I declare my interests as they appear in the Register of Members' Interests.
This has been a complicated debate, not helped by the Government's ineptitude over recent months in taking the Bill through the House. The Government new clauses, including new clause 19, were tabled very late, which has not been satisfactory or productive. Here we are, on Report, debating the main clause, which was tabled only a few days ago.
The process of the Bill has been bizarre. I have never seen anything like it. On Second Reading, the Government were saying that the Bill was purely a tool for delivering their better regulation agenda. My hon. Friend Mr. Heald and I rebutted that on Second Reading. We said that it was a gross understatement of the purpose of what became the "abolition of Parliament Bill". We argued that, as a constitutional Bill, it should have had its Committee stage on the Floor of the House. The Government chose not to listen to us, but in retrospect they probably wish they had.
Pete Wishart rightly mentioned the lack of preparation. By the time of the Procedure Committee on
The timing of the proceedings has been unsatisfactory throughout. My right hon. Friend Mr. Gummer mentioned that in his intervention and noted that that is becoming increasingly common on the Government's part, although it is particularly the case in relation to the Bill. Not least for these reasons, my noble Friends in another place may well want to review carefully the implications of the clause, which has been impossible for us, because of the lack of time and the fact that the Government ripped out the main clauses of the Bill. Even now, they are tabling amendments to change the title of the Bill.
Government new clause 19, which was tabled only a few days ago, has, along with new clauses 20 and 21, the effect of replacing clauses 1 and 2. These changes, or perhaps I should say climbdowns, will refocus orders that are to be introduced under the Bill towards deregulation, as advocated by the Conservative party since Second Reading. Since the Bill's publication in January, we have consistently expressed grave concerns that the powers granted to the Government were too widely drawn and would result in a severe weakening of parliamentary power, the sidelining of legislative scrutiny and the possibility of a move towards ministerial authoritarian rule.
As my hon. Friend the Member for North-East Hertfordshire noted, we were happy with the Government's announcement on
The Conservative party has always supported measures that would result in the provision of a swift tool for delivering regulatory reform. However, we wanted to ensure that such a tool would not pose a serious challenge to the concept of parliamentary supremacy, which is a central element of the United Kingdom's unwritten constitution. Our policy is aimed at reducing the harm caused to the country by over-regulation introduced by the Government since 1997. The cost of regulation during that period is estimated to have surpassed £50 billion a year, despite the Labour party's manifestos for the 1997, 2001 and 2005 general elections promising to regulate only where necessary and to deregulate where desirable.
The over-regulation of business is a massive drain on the economy, leads to an inefficient bureaucracy, strangles small businesses and wastes the valuable time of thousands of police officers, nurses, teachers and people in the private sector on filling in forms.
The hon. Gentleman mentioned the sum of £50 billion. Quite a large part of that calculation, which I think was made by the British Chambers of Commerce, refers to the national minimum wage. Is he saying that he opposes the national minimum wage as a regulatory burden?
The figure does not refer to the national minimum wage. My hon. Friend the Member for North-East Hertfordshire dealt with that point earlier.
Over-regulation is severely damaging Britain's international economic competitiveness. As my hon. Friend reminded us, according to the World Economic Forum, between 1997 and 2005, the UK slipped from fourth to 13th in the list of the most competitive countries. The London School of Economics has cited over-regulation as one of the main causes of that decline. Small companies have been disproportionately hit, which is why in new clause 9 we propose that any Minister making an order under part 1 powers must ensure that it is deregulatory as it relates to small business.
That is also why, in new clause 17, my hon. Friend Mr. Cash seeks to ensure that, where a fast-track deregulation order is made in connection with a provision concerning our EU obligations, it should be legally binding and effective. The Minister responded that that was an attempt to change policy, but my hon. Friend's amendment deserves a more considered approach. I look forward to hearing the Minister's views.
In the context of legislative supremacy and the role of the judiciary, and in the context of the Constitutional Reform Act 2005, will my hon. Friend confirm that, irrespective of the rule of law, which insists that they should be independent, it is the duty of judges to give effect to Acts of Parliament, as has been historically, legally and constitutionally the case for generations?
That sounds like good law to me. The Minister will, of course, tell me if he thinks otherwise.
My hon. Friend John Bercow and the hon. Members for Stoke-on-Trent, Central (Mark Fisher) and for Cambridge (David Howarth) expressed concern that the Bill could be used for a wider purpose than striking out business regulations. An example given was the abolition of jury trials. The Minister, fairly, showed the lack of clarity in the 2001 Act and how clauses 5 and 6 answered the important points made, but he did not go far enough. There is more to come out in that respect, probably in the other place. Following an intervention from my right hon. and learned Friend Mr. Clarke, it turned out that the restrictions relating to tax relate only to increases in tax.
I apologise to the hon. Gentleman. We have not had many jokes during the debate.
The hon. Gentleman properly noted that Standing Orders of the House will need to be reviewed in the context of the Bill. I enjoyed hearing his views on the sugar beet order, or rather, the problems in getting rid of it.
The hon. Members for Somerton and Frome (Mr. Heath) and for Cambridge made many valuable points in the debate, not least identifying the posing threat of the laws forcing the Government to review the scope of the Bill in the first place, and also in reducing the scope of the Executive to interpret the provisions of the Bill. Their explanation of why amendment (a) should introduce the word "reasonably" to create objectivity rather than ministerial subjectivity was persuasive.
I agreed with many of the sentiments about the growth of the power of the Executive and the serious consequences that could follow from that, not least in relation to the Bill, expressed by the hon. Member for Stoke-on-Trent, Central, but he should have a quick read of the debate on Second Reading, including my remarks.
My right hon. and learned Friend the Member for Rushcliffe noticed the irony in what he called the minor miracle that turned what should have been a positive desire to reduce regulation into the messy Bill that is before us. He stated his position that new clause 19 is still too lax in its wording. I am sure that his arguments on the new clause will be carefully reviewed by colleagues, not least in another place. Many of his comments, not only in relation to veto rights, will be addressed later in our proceedings. We benefited from his experience in his summary of how Government have been nibbling away, as he called it, at parliamentary freedoms over the past 50 years. His comments were strongly supported by the remarks of my hon. Friend Mr. Shepherd, who also spoke up for amendment (a) and new clause 17, and gave a general call—
Does the hon. Gentleman agree that Mr. Clarke, who is not prone to over-exaggeration, slightly got things wrong? The hon. Gentleman will recall that the legislation enacted by his right hon. and learned Friend, in section 2(2) of the Value Added Tax Act 1994, means that a statutory instrument to change VAT could have effect only for a short period. That is notwithstanding all the restraints of the sixth directive. I think that the hon. Gentleman is slightly exaggerating the case.
The hon. Gentleman has made his point in his own way.
My hon. Friend the Member for Aldridge-Brownhills made a general call for proper time to be given to the important changes that are proposed. I think that he was making a general point about legislation being rushed through the House. My right hon. Friend Mr. Redwood loaned us the significant benefit of his large experience of deregulation. He questioned whether the provisions in the Bill were the best way to achieve the initial objective. He thought not, and I shall return to that key issue. I like the idea of having an annual deregulation Bill and the implied requirement to tutor civil servants in the merits of deregulation, that being key to the cultural change.
My right hon. Friend Mr. Heathcoat-Amory gave a good example of the dreadful droit de suite law as a showpiece of gold-plating of EU regulations and demonstrated the importance of keeping the 1972 legislation in the context of parliamentary sovereignty.
Kelvin Hopkins made a thoughtful speech. I liked his idea of short Bills. My hon. Friend the Member for Christchurch has closely followed consideration of the Bill, and was active in Committee. He put a good case for amendment (b). He argued that the reduction of the burden for one should not be justified by increasing burdens for others. On that, my hon. Friend has our support.
Will the Government amendments work? Will deregulation be improved as a result of the new formula that is proposed? The expectations of businesses are high. The Government have talked the talk. In May of last year, the Financial Times reported that the Bill would be an attempt to slash the estimated £100 billion of the cost of regulation on business. In January, the Minister then responsible was quoted as saying that the Bill is the
"cornerstone in achieving essential and long-promised reductions in unnecessary red tape."
It is part of a plan to achieve one of the most radical regulatory reform agendas in the world. The then Minister's press release in January spoke of savings through reducing bureaucracy of £10 billion, equivalent to 1 per cent. of gross domestic product.
The fact remains that regulations on business have continued to soar. We know that, since 2001, only about 20 regulatory reform orders have been made, although the target was 60 by 2005. On average, with 3,887 new regulations a year, let us say that the Government get really ambitious and raise the target of scrapping regulations from 60 every four years to 60 a year, or even 100 a year. Is that not like putting in a barrier the size of a road hump to stop a tidal wave? Are 60 fewer regulations worth the destruction of parliamentary sovereignty? That is what we were considering in the early stages of the Bill. We came to the conclusion that the answer was no.
We appreciate that the Government have gone some way towards understanding the issues and addressing the concerns of the House, not least with the amendments. However, in the new atmosphere of realism, will the Minister please care in his remarks to reassess the impact that he thinks that the Bill will have on regulation?
I feel that in some senses the ghost of St. Augustine has been with us in this debate. There have been many speeches from all quarters of the House about how much people want to see regulation cut, but not in the way that is proposed, and perhaps not yet. I think, as my hon. Friend Rob Marris said, that that is perhaps a danger for us as we come to debate the amendments. However, I welcome the comments that have been made about new clause 19, especially by the Opposition Front-Bench spokespersons. I do not pretend that they embraced the clause with open arms but they at least recognised that the Government had attempted to respond to some of the fears and concerns that have been expressed about the Bill. The Government did not accept that those fears and concerns would necessarily have been realised.
I shall try to stay out of some of the private battles that we heard this afternoon between my hon. Friend Mark Fisher and some Opposition Members. There were battles also between some Opposition Members about our membership of the European Union.
I turn to amendment (b) to the new clause, which concerns burdens and whether they can be reduced overall. New clause 19 permits the "removing or reducing" of a "burden". "Removing or reducing" a burden from one person may possibly increase burdens on another, even if the overall effect is downward in terms of deregulation. The example has been used of perhaps increasing the burden on a million but reducing the burden on one. That is not likely. However we could increase the burden on one and reduce the burden on a million. That is what we mean by saying that the overall effect should be downward. It is the same as the 2001 legislation that would allow the introduction of more targeted or more proportionate burdens in the context of an overall downward trend. New clause 19 also permits the removal or reduction of overall burdens. It could permit the introduction of new burdens if it is done in the context of reducing the burdens overall. For that reason, we may not be able to say yes to Mr. Chope.
The Bill provides that under part 2 the purpose is to remove or reduce any burden—including the overall burdens—that result either directly or indirectly for any person under the legislation.
The clause includes the word "or". The amendment seeks to replace that with "and". With the "or" still in place we can remove any burden but we do not have to remove overall burdens. The overall burden can increase. As I have said, there is an "or". The Minister can say that he is removing a burden even though there is an increase in overall burdens. There is still compliance as things stand.
No, the overall burden would be reduced. We cannot accept amendment (b) because if we did, in the context of reducing the overall burden, a burden could be increased on one person.
I anticipate that there will be future examples where legislation covering an entire area could be rationalised to benefit those regulated. However, amendment (b) would narrow the order-making power so much that many of the reforms that were possible under the Regulatory Reform Act 2001 would no longer be possible.
I turn to the reasonableness test in amendment (a). The Minister is already under a public duty to reach a reasonable view. We discussed who could object to a reasonableness test, and although the views expressed are on one level true, the amendment would add nothing to the duty that the Minister is already under to act reasonably. Case law has established that if a Minister's decision is not reasonable, it can be struck down by the courts, so the existing subjective test is a real one.
The Minister seems to be confused. The point is that under the subjective test in the Bill as it stands, all that the judicial review will study is whether the Minister considered a particular thing to be the case. If the word "reasonably" is included, deciding whether the Minister acted reasonably in that context becomes a more objective test. The Minister has a dilemma: either the word "reasonably" makes no difference, in which case, he should accept it; or it makes a very big difference and on a ground that he does not want to accept, in which case, he should resist it on that ground.
We are of the view that the amendment would not make a difference. We will reflect on it, but we cannot accept it tonight.
A number of safeguards will ensure that orders that are beyond the scope of the Bill will not be delivered. Before an order is laid, the Minister will be required to consult widely with the relevant stakeholders. In addition, the Government have undertaken not to use the order-making powers in the Bill to create highly controversial measures, or to force through orders in opposition to the Committees. We will of course hear more about that issue tomorrow.
The Minister said that he would reflect on amendment (a), and I find it difficult to understand what he will be reflecting on. But—this is the big "but"—this is the only opportunity that this House has to express an opinion on it. He can reflect as long as he likes, but this House will not have the opportunity to express its opinion unless it does so tonight. So can he reflect a little more quickly, and perhaps accept it?