Clause 1 - Purpose

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 4:00 pm on 28 February 2006.

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Amendment proposed [this day]: No. 20, in clause 1, page 1, line 7, after ‘legislation’, insert ‘for

(i)the removal or reduction of any burden,

(ii)the re-enacting of provision having the effect of imposing any burden, in cases where the burden is proportionate to the benefit which is expected to result from the re-enactment,

(iii)the making of new provision having the effect of imposing a burden which—

(a)affects any person in the carrying on of the activity, but

(b)is proportionate to the benefit which is expected to result from its creation, and

(iv)the removal of inconsistencies and anomalies.’.—[Mr. Heald.]

Photo of Martin Caton Martin Caton Labour, Gower

I remind the Committee that with this we are discussing the following:

No. 29, in clause 1, page 1, line 9, leave out ‘with or’.

New clause 1—Annual report to Parliament about section 1 orders—

‘A Minister of the Crown shall annually lay a report before Parliament detailing, for each government department that made an order under section 1 in that year—

(a)what burdens have been removed,

(b)what burdens have been simplified,

(c)what burdens have been imposed, and

(d)what has been the impact of each order.’.

New clause 4—Definition of ‘burden’—

‘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 (whether 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 5—Small business—

‘(1) An order made under section 1 must, where its application extends to small businesses, make specific provision to reduce the regulatory impact on small businesses where appropriate.

(2)In this section, the meaning of “small business” is the same as in section 249 of the Companies Act 1985.’.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I welcome you to the Chair, Mr Caton.

I was saying that exempting small firms from the impact of regulations is the lesser of two evils. The Better Regulation Task Force looked at whether providing exemptions created disincentives to growth, but found little evidence to support that. The   argument against small business exemptions is that they can create unfair competition. I accept that to remove regulatory burdens from all businesses is preferable, but it is not necessary to ensure that all suffer to the same extent.

Small firm exemptions are a useful tool and new clause 5 asks Ministers to reduce the regulatory impact on small businesses where appropriate.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Was the hon. Gentleman as surprised as I was to hear the Minister talk this morning about all of the actions taken to relieve the regulatory burden on the smallest businesses? In fact, the Institute of Chartered Accountants tells us that the burden borne by microbusinesses has actually increased: 73 per cent. compared to 69 per cent. the previous year?

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

The point made by the hon. Member for Somerton and Frome (Mr. Heath) is exactly right. I was about to quote a couple of remarks from the Institute of Directors and the Institute of Chartered Accountants in England and Wales. The Better Regulation Task Force report, “Helping Small Firms Cope with Regulation—Exemptions and other Approaches” made it clear that small firm exemptions are a useful tool.

The Institute of Directors published its own report on the issue. The nub of its argument was as follows:

“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.”

In a briefing to the Committee, the Institute of Chartered Accountants said that the relative proportion of the burden on the smallest businesses is too large. As the hon. Member for Somerton and Frome rightly said, that burden is increasing rather than diminishing.

I hope that new clause 5, or something like it, will emerge from the Minister at some stage. I was glad to have the support of all parts of the Committee for the argument that it is sensible to look at small businesses in a more structured way. If the Minister believes that, as he seems to, it is hard not to agree to an amendment or new clause, even if he does not like the wording of this new clause, which would make that a feature.

New clause 1 is an attempt to introduce an element of retrospective audit of regulatory impact assessments in respect of regulatory reform orders. That has been suggested by the Association of Chartered Certified Accountants, which in fact goes further and says that there should be

“compulsory retrospective audits of Regulatory Impact Assessments” to look at their accuracy and effect. We believe that that should be supported.

My hon. Friend the Member for Christchurch (Mr. Chope) made the point that new clause 1 might provide too soon an assessment of the impact. I will consider that point further. However, I hope that he will accept that I was trying to do something that   is good business practice, which is to have the retrospective audit of the impact assessments and the impact of the regulations.

I was encouraged by the intervention on that point by the hon. Member for Edmonton (Mr. Love). He said that he hopes for a later reference by the Minister to that matter, and to deregulation more generally, on Report. I hope that the Minister will engage with the Committee’s deregulatory spirit. I also notice that the Minister himself recognised that it was important that there should be later analysis of the impact of regulation. If he believes in that, why not include it in the Bill? I do not seek a separate Division on new clause 1 at this stage, but I hope that the Minister may return to the subject later, as he considers it important.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Is not this the critical part of the process for the entire Bill? Unless the Minister is prepared to put into statute what he asserts he agrees with, he will not have his Bill in its present form when it goes to another place. It is in his interest to listen to what we say and bring forward appropriate amendments in Committee or on Report.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I could not agree more with the hon. Gentleman. We are being very constructive. None of the amendments is framed so as to be impossible for the Minister to accept. He may not like some of the drafting details and he might want to change that, with the help of his thousands of officials. I accept that, working in opposition with limited numbers, one can get these things wrong. However, surely a reasonable person could hardly argue with the spirit of what we suggest, and the ideas behind it. Certainly, as to new clause 1, the Minister’s own words suggest that he could return to us with a gift.

Amendment No. 29, tabled by my hon. Friend the Member for Christchurch, is designed to stop Ministers expanding or changing Law Commission proposals. The Law Commission deals with some controversial matters. The Sunday Times recently ran this comment:

“Thousands of co-habiting couples are to be the subject of ‘palimony’ provisions being drawn up by the Law Commission”.

That was on 29 January. It was reported as being a very controversial matter. The report continued:

“Critics are likely to see the proposals as the latest threat to the status of marriage”.

The Law Commission website confirms that the property, family and trust law team is considering

“the potential financial hardship suffered by cohabitants or their children on the termination of a relationship”.

A consultation paper is expected in early 2006. Those sorts of proposals should, as I have already said, be subject to full debate before the House. They should not be dealt with by the order-making power in part 1, but by a proper Bill proceeding in the usual way.

The point that I am making is that if the Minister wanted to, he could take the Law Commission proposal and change it—a proposal about a controversial matter—quite substantially. For example, if the Law Commission wanted to give rights to cohabitants who had lived together for 20 years, he   could, if he wanted to, say, “I think it should happen after five years”—or 10 or 15 years, or six months. There would be nothing in the Bill to prevent that.

The Parliamentary Under-Secretary of State for the Cabinet Office (Mr. Jim Murphy) indicated dissent.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

The Minister shakes his head. When he was talking about it he said that the Government could make only a minor change to a Law Commission proposal, and that anything more than that would mean that they were in breach of the law, so it could not happen. However, the Bill does not say that the change must be minor. That may be the Minister’s hope or intention. His idea may be that he does not want to make more than a minor change under the Bill. If so, the Bill should state it.

The point that the TUC made, and which has been made from both sides of the Committee, is that the Minister’s personal assurances apply to him. They do not even apply, in a sense, to the Government as a whole. If he were to move on to a different Department another Minister might decide that he did not totally agree with the way the relevant provision had been expressed; under the Bill, with no firm safeguard, that would be in the hands of the individual.

We are talking about making law for the future. As the TUC said, there might be a different Government in the future. That Government might not agree with the Minister about some of these points, so we need the Bill to say the right things. I am thinking of some of the other proposals that the Law Commission is considering, on tenants’ rights and on provocation in respect of the law of murder. In those areas, if a Minister did not agree with the Law Commission proposal and expanded what was proposed, that would be a very controversial measure and something that the House should consider, but it would not be considered properly by the House.

One matter that the Law Commission is considering is codification of the general principles of criminal law. Are the Government really saying that they should have the power to change general principles of the criminal law by order and to depart from the Law Commission recommendations and that we should not have a full say on that in the House of Commons? That would be deeply worrying. I hope that my hon. Friend the Member for Christchurch will seek to divide the Committee on amendment No. 29, in respect of which the Minister seems to have no argument that he can advance to persuade the Committee of his view.

The key amendment, No. 20, and new clause 4 would focus the Bill on the purpose of deregulation and provide a vital safeguard. As my hon. Friends the Members for Christchurch and for Forest of Dean (Mr. Harper) said, constituents are concerned about the breadth of clause 1; it gives power to govern by ministerial fiat. The Minister says that he would not do that and he should be trusted. Fair enough, but we do not make law in the belief that one Minister will remain continuously in office. Even someone as ambitious as this Minister cannot believe that he will be a Cabinet Office Minister in, say, 100 years’ time, but this is the sort of law that will not be abolished.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

Even if the Minister were the deputy Chancellor of the Duchy of Lancaster in 100 years’ time, there would be no guarantee that the Home Secretary of the day, the Lord Chancellor or even the Chancellor of the Duchy of Lancaster himself might not refer to his better judgment the question whether a particular matter should be put through a proper degree of scrutiny.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

The hon. Gentleman makes a good point. If there were Ministers like some of those whom we have come to know over recent years, who have been prepared to propose quite draconian laws in the area of civil rights, one would be extremely worried that this measure was on the statute book and that there were no proper safeguards in relation to it.

Amendment No. 20 would redefine the ambit of clause 1 to make it a matter of allowing deregulatory reform and removing burdens from business. New clause 4 would define the term “burden” far more widely than the 2001 Act does, specifically to meet all the concerns that the Government expressed in their document. Those measures would give the Government what they consulted on. They accepted that the removal of burdens should remain part of the picture and be a focus for clause 1. They added simplification measures, which my proposals would allow for, provided that the simplifications could be justified as removing some inconvenience or cost. The Government must have available their own draft along the lines of amendment No. 20 and new clause 4, because it is inconceivable that they would have consulted on such a proposal otherwise. What I propose is basically what the Government consulted on and what was supported by business. The Government have decided to go off on this frolic of their own, to use a legal phrase, and have gone for something much more draconian. However, as the Regulatory Reform Committee said in its excellent report, safeguards are needed. If the Minister will not think again, I will press amendment No. 20 to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Division number 2 Nimrod Review — Statement — Clause 1 - Purpose

Aye: 6 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Amendment proposed, No. 29, in clause 1, page 1, line 9, leave out ‘with or’.—[Mr. Chope.]

The Committee divided: Ayes 7, Noes 9.

Division number 3 Nimrod Review — Statement — Clause 1 - Purpose

Aye: 6 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I beg to move amendment No. 30, in clause 1, page 1, line 12, leave out ‘or local Act’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss amendment

No. 31, in clause 1, page 1, line 13, leave out paragraph (b).

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

These amendments are linked and I do not think that I need to introduce them at great length. They offer an opportunity to ask the Minister why he believes that it is necessary to take the power to use this procedure to change local Acts.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

We have an initial problem. There is no reference in “Erskine May” to “local Act.” Nor does it appear in the standing orders of the House. There are local authorities Acts and Acts applicable to several localities—one example is the Home Counties (Music and Dancing) Licensing Act 1926—but there is no reference to local Act. I wonder whether the Minister might intervene on the hon. Gentleman to explain what he understands by the term “local Act”. Would the Government of Wales Bill be a local Act, for instance?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Gentleman makes a very good point. I may be seeking to remove something for which no one has a definition. I will happily sit down to allow the Minister to intervene.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Member for Somerton and Frome (Mr. Heath) has drawn our attention to the definitions that might apply or the ones that do not apply, but this will be new, wide drafting. Basically, anything that the Government want to do they will be able to do with the power that is currently proposed in the Bill. I think that we should take it out and likewise I do not understand why the Government want to be able to change subordinate legislation through this method.

Subordinate legislation can be changed already by statutory instrument. The procedures for dealing with statutory instruments are pretty streamlined. Many of us would say that where the negative resolution applies, there are effectively no powers for elected Members to intervene, because subordinate legislation is implemented before the House has a chance to do anything about it. If the House does anything, it can only be after the event.

Why do the Government believe that the powers that can be exercised through statutory instruments, whether through negative or affirmative resolution, are inadequate and need to be streamlined further in the way proposed? I do not understand what they have in mind. The Minister may have some examples, which I hope he will share with us, of a public demand that something be changed using the new powers. I have not received any representations about such a demand and until I am convinced, I shall remain of the opinion that the change is unnecessary.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I assumed that the term “local Act” referred to local authority Acts, but I suppose that it could refer to private Acts related to particular localities, of which there are many. Does my hon. Friend have any thoughts about whether the definition of local Acts would be so wide as to include such private Acts? If so, would there be any danger of the Bill suffering hybridity?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

That is another good point, and I am sure that the Minister will be able to issue a certificate to say that he has no intention to mix private interests with the public interest and thereby create a hybrid Bill. My hon. Friend raises an understandable concern.

When the House legislates on local issues, whether by a private Bill or through a private Act of Parliament, it often creates a controversial situation. I well remember that when I was the Member of Parliament for Southampton, Itchen, Southampton city council proposed to bring forward what was described as the Southampton Rapid Transit Bill, a highly controversial piece of legislation. It was eventually defeated in a free vote late one evening, much to my delight. That was a private piece of legislation concerned only with the people of Southampton, but it was highly controversial.

We see in the Bill that the Government wish to take powers to make significant changes to private or local legislation. We know that local legislation is often used as a pathfinder for Government legislation. We have seen a lot of examples of that recently, such as the Mayor of London and the London Assembly seeking powers for all sorts of draconian measures to be used against motorists in particular and others within the Greater London area. That legislation has gone through and then normally turned out to be the precursor to similar legislation with a more general application. Much of it, as I recollect from its consideration in the House, has been pretty bland and has gone through without much problem. However,   there are always things slipped in when somebody has decided, “Let’s try it on. Let’s have a go to try and extend our powers in one respect or another.”

Although this point is in parentheses, and our main concerns are about the Government’s power under the Bill to change primary legislation—public general Acts, as they are called—we should not forget the impact that local legislation can have on individuals and businesses in our constituencies. The Minister should be put to proof in that regard.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

With respect to amendment No. 31, is my hon. Friend concerned as to why it should be necessary to use the order-making power under clause 1 to effect changes, for example, to Orders in Council, orders, rules or regulations, when a simple system is already in place to do that? It is not as though Ministers have great difficulty in changing orders. In fact, they are often so badly drafted that they need to be changed two or three times soon after their introduction. Does my hon. Friend share my concern as to what the Government are getting at in subsection (3)(b)?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The mind boggles as to what the Government are getting at. As legislators, we try to put safeguards into legislation. Safeguards are sometimes accepted by the Government—sometimes only reluctantly after a ping-pong between the two Houses. I think that it may well be in the Government’s mind that they could reach an agreement or a compromise between the two Houses on a piece of legislation and then, immediately after it is passed, use the provisions in the Bill to remove the effect of the ensuing subordinate legislation.

I think, for instance, of a controversial piece of legislation that I was involved in on more than one Friday; the high hedges legislation. That was pretty controversial even when it applied only to evergreen hedges, but there is a power in that legislation to extend the provisions to deciduous shrubs. If the power in the Bill was used to extend that legislation—effectively, that would be legislating by fiat—to define a hedge as a high hedge even if it was comprised of deciduous plants, it would cause many people a lot of grief, and they would have no say.

Although there are some safeguards in the Bill, which can be dealt with when it goes to the Select Committee, those who are not represented in the House—the small minority interests—may lose to the greatest extent. Such people often do not realise what has happened until it is too late. Their interests may not be known to Members of the House, either collectively or individually, yet if the Government use the power before there has been chance to make clear to the general public what the implications are for particular interest groups, we will find that the legislation is on the statute book.

An incoming Government of a different political persuasion might be tempted to use the powers that the Government are giving themselves for totally different purposes. I can envisage someone saying that we could emasculate the Hunting Act 2004 by using the powers in the Bill. That should be a cause for concern for   Members on the Government Benches as well as for Opposition Members, because it shows that the powers could be abused or used in an unpredictable way.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

On that point, Government Back Benchers might like to think about which member of another party they trusted the least and then ask themselves whether they would like that individual to have the powers being granted in the Bill to do pretty much anything they wanted with the statute book. If they were uncomfortable with the answer, perhaps they should think again about whether to support the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I agree with my hon. Friend. I hope that during the Committee’s proceedings there will be a groundswell of opinion on the Government Back Benches that puts the Minister under pressure. The Minister has already been put under pressure by some of the speeches of Government Back Benchers on Second Reading, but the concerns expressed by those individuals are not necessarily reflected in the membership of the Committee. With a few more examples like the ones that we are beginning to raise, a greater interest may be taken in our proceedings by Government Back Benchers.

We have already heard that organisations such as the TUC are a little concerned as to what the implications could be were there to be a change of Government. Even under this Government, things that they hold dear might suddenly be taken away before their eyes without any proper scrutiny or debate. The point is a short one. I hope that the Minister will either accept the amendments or justify these provisions.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 4:30, 28 February 2006

Thank you, Mr. Caton. It is a great pleasure to serve under your chairmanship; I hope that this is the first such occasion of many.

The amendments would remove the words “or local Act” and the entire reference to subordinate legislation from the Bill. I return to the preliminary point that was raised regarding what a local Act is. It seems to be an important point in favour of the amendment that if we do not know what a local Act is, perhaps references to local Acts should be removed from the Bill. As my hon. Friend the Member for Somerton and Frome said, there is no reference to the phrase “local Act” in the Standing Orders of the House of Commons, or in “Erskine May” as far as we can tell. There is certainly no reference to it in the index of “Erskine May”, and local Bills are not referred to where it discusses kinds of Bill.

At first sight, the term seems ambiguous. It could mean an Act of Parliament promoted by a local authority, in which case it would normally be a private Act, or it could be a public Act that applies only to one locality or, to complicate things further, several   localities. If the latter meaning is used, the phrase “or local Acts” seems to add nothing to the Bill, since the phrase before it refers to public Acts.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I do not know whether the hon. Gentleman has thought of this, but it might refer to hybrids such as the Cardiff Bay Barrage Act 1993, which took up a lot of time in this place; I see that at least one other member of the Committee remembers that Bill with affection. Such hybrid Bills are, as the hon. Gentleman said, public Bills, but they relate to a particular area and so are treated as hybrids and have a special procedure in the House. That might be what is meant by local Acts.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

Yes; that is an interesting problem for this Bill. “Erskine May” defines a hybrid Bill as a public Bill that

“affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class.”

The question that comes to the fore is: if “local Act” refers to that sort of Act or a private local Act—an Act promoted by a local authority as a private Act—is this Bill a hybrid? That is a serious problem that should be considered.

I return to the public Act meaning of “local Act”; even with that interpretation, the situation is unclear. Are the Scotland Act 1998 and the Government of Wales Act 1998 local Acts in that sense? What about the Government of Wales Bill that is currently before the House? One could argue that those areas are too big to be considered local. Parts of the Bill that we are considering deal with some devolution questions, although not all of them. There is an interesting problem with the interaction between different parts of the Bill. What about the many Greater London Acts? Are they local Acts in that sense?

It seems to me that the other meaning of local Act is the more disturbing—this is where the hybridity point comes in—because the other meaning of local Act is a private Act, which goes through a very different procedure in this House. The reason for that procedure is precisely because such Acts can directly affect the rights of individuals. We are therefore allowed to petition the House directly, and such Bills go through a different Committee system.

The Government seem deliberately to have left out of clause 1 any reference to private Acts of Parliament in the ordinary sense. During the consultation, there was some discussion of whether such Acts should be included, but that would lead to grave difficulties of the sort that we have discussed. Private Acts can take away property rights and seriously affect individuals’ interests in ways that they do not affect other individuals’ interests.

Local Acts in the local authority sense can have similar effects. Traditionally, Acts promoting tramways, railways, roads and so on have included provision to take people’s property, although they offer compensation. In effect, they provided an alternative route to compulsory purchase before there were general compulsory purchase provisions. These days, things are often done differently, through a   transport and works order. However, the Bill allows changes to be made not only to more general Acts, but to existing private Acts of Parliament promoted by local authorities. At the time, such Acts had the effect of taking property without consent and offering compensation instead.

We see a similar problem if we look at some of the private Bills before the House at the moment, which would come under the heading of local Bills. I believe that the London Local Authorities and Transport for London Bill alters the regulation of taxis and hire cars in ways that might be said to affect particular people’s livelihoods. A proposal to reform such a local Act would presumably add to or remove a burden on the particular class of people whose interests were affected.

If the Government want the Bill to refer only to local Acts whose character is public and therefore to avoid any hint that private rights will be affected by reforms to an existing private Act or otherwise, they must accept the amendment or table another amendment to make clear the distinction between the two different sorts of local Acts, because I do not see such a distinction in the Bill.

That was a preliminary point. My other point on the amendments is a policy point.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

Let us assume for a moment that a local Act is a private Act that deals with a particular locality. In my constituency, for example, we have the Letchworth Garden City Heritage Foundation Act 1995, which deals with the estate of Letchworth, who owns it and how it is to be managed as an industrial and provident society. Why would the Government want to take a power to change that Act, which was promoted by the Letchworth Garden City Heritage Foundation and which deals with part of my constituency? What is the rationale for subsection (3)(a)?

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

It seems difficult to discern, unless the Government want the power to reform such Acts because they have in mind a situation in which they might change the balance of interests—the costs and benefits—between different sections of the public. They might want to change the structure of management in such a way that some people benefit and other people lose. If that is the case, the danger of the Bill being hybrid would increase, because it would affect particular individuals in a way that it did not affect other individuals.

I turn now to a policy aspect of the amendments and to the question of localism. If we read the Bill carefully, we see that the Government are giving themselves the power not only to amend, but to repeal local Acts without the elaborate petitioning procedure that would have gone into the passing of the Bill in the first place. That threatens a good deal of local autonomy.

Local authorities promote Bills to give themselves extra powers. Why would the Government want the power to repeal such Acts? It seems that they would want the power to do so because they want to promote uniformity. They want to remove variation in law and practice across the country. For a century or more   there has been a political discussion in this country between people who think that central Government should make sure that the law is uniform across the country and those who believe, on the contrary, that local variation and experimentation is a good thing and that it is a good idea to test out ideas in particular localities to see whether they work and whether other localities might learn from them.

It is possible—as appears historically to be the case—that business interests are not keen on such differences. They often prefer uniform regulation. To return to the question of motivation, the move might be a response to large national companies that prefer uniformity. That goes against new clause 5, which deals with the interests of small businesses. Small businesses are usually far more adapted to their local circumstances and plugged in to their local areas, and far less concerned about national uniformity. I am concerned about that and about the consequences that such a measure might have on participation in local affairs. If the Government take the power to get rid of local Acts, that will reduce people’s desire for local politics by reducing their ability to make a difference locally.

I want to draw attention to an aspect of amendment No. 31 that will produce an associated effect. Byelaws are one of the forms of legislation referred to in clause 1(3)(b), and they are passed by local authorities to deal with some particular local problem. They need confirmation from the central authorities, but the initiative comes from local government and local people. There has been a tendency over the past century or so for standard byelaws to be passed—it is easier to do it that way—but it is still possible for new ideas and solutions to problems to be produced in byelaws by local authorities.

When I was the leader of a council, a number of such problems came up. For example, we once had a problem with people parking on grass verges to sell cars as a business. It turned out that there was no proper way legally to regulate that. I notice that in the Leicester City Bill the council is looking for primary legislative powers to deal with the same problem. We devised and passed a byelaw that made that specific practice illegal. Central Government often blocks such unusual byelaws, but that one was not blocked and is now in force. Without amendment No. 31, the Bill would give the Government the power to repeal that byelaw by statutory instrument.

As I said, central Government sometimes blocks byelaws. They have that power, if they feel that an attempt to use a byelaw is inappropriate or inconvenient. When I was leader of the district council, we also attempted to deal with the problem of street drinking by using a byelaw. The powers that were then available to us in national legislation—the designated public place orders—were not adequate in our view. They meant simply that the problem of street drinking was pushed from one locality to another. We thought also that some of the powers under the order were too subjective, so we devised a byelaw that was citywide, not just neighbourhood wide, and, in our view, legally sounder.

It turned out that, for reasons that I will not go into, the Government did not like that byelaw, and informally—without using formal procedures—dissuaded the council from passing it. It seems to me that that is the way in which things have been done—central Government has powers to prevent byelaws from going through. Unamended, the Bill would grant central Government a second go at defeating or repealing byelaws.

Photo of Andrew Love Andrew Love Labour, Edmonton 4:45, 28 February 2006

I apologise to the hon. Gentleman; I suspect that I should have asked the hon. Member for Christchurch this question. Amendment No. 30 would take out “or local Act” in line 12, whereas amendment No. 31 would take out the whole of subsection (b). If we were to be ruthlessly consistent, we would only take out of subsection (b) “or local Act”. Do those two amendments aim to limit the ability of an order to impact on Orders in Council, orders and rules for any general public Act? If so, is that appropriate?

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

As I understand it, the intention of amendment No. 31 is broader than that of amendment No. 30. The intention of the latter is to remove the words “or local Act”—the aim is simply that and nothing else. The intention of amendment No. 31 is to remove the power to use the procedure set up in the Bill to change subordinate legislation, which would include byelaws as I have just been discussing. On the face of it, that seems sensible because there will be ways of changing every one of those forms of subordinate legislation, except for byelaws, in another Act of Parliament. There does not seem to be a great need for a power to change statutory instruments under the procedure in the Bill given that such powers will already exist in the parent Acts of those statutory instruments.

As I said, that is with the exception of byelaws. In my view, the clause is trying to sneak in a power to repeal byelaws. That would be unfortunate—

Photo of Andrew Love Andrew Love Labour, Edmonton

I apologise; I suspect that I am being thick. Let us make the assumption that an order is introduced to reform a public general Act. The consequence of the two amendments would be that they could actually reform the Act, but not any orders, rules, regulations or any other subordinate instruments made under that Act. Is that sensible?

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

Presumably, the rules, orders and so on, made under that Act could themselves be changed, either under the Act itself unamended, or by waiting until it has been amended and making changes under the new version. If the Government were to be silly and forget in the amended Act to give themselves the power to make rules or subordinate legislation, that would be a problem, but one of their own making. In fact it seems that no sensible Government would make that mistake—the civil service would think about it before proposing changes.

It seems to me both on these formal grounds and, more importantly, on grounds of policy and encouraging localism and diversity of experimentation in the fight against the clone town nature of many of our localities, that we should resist this attempt to put in place ways in which legislation can be made more uniform. I realise that that is not necessarily a very popular view and that those who pay lip service to localism sometimes say, “Yes, I am in favour of localism, but surely you do not mean that things will be different in different areas.” Well, I am afraid that localism does mean that regulation, and to some extent legislation, can and should be different in different areas of the country.

I support both amendments. I see great merit in the first amendment in that it removes from the Bill a phrase that makes no clear sense and which threatens the Bill with hybridity. I support the second amendment because it removes from the Bill what I hope is an accidental effect of creating a power to repeal byelaws.

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich

I agree with so much that the hon. Member for Cambridge (David Howarth) said. I could not really have put it better myself, but I will try. Without the amendments, the Bill will offer extraordinary room for centralising and further stamping out local diversity. There has been talk about the ambiguity over what constitutes a local Act. There has also been talk about how that could allow subordinate legislation to be amended without proper recourse to local circumstances and local conditions. That is a valid point and one that I was not aware of myself until recently.

The Bill has the potential to centralise power in a way that we have not seen before. It is richly ironic that a few days ago the Government were talking about the need to devolve power down to local communities. Yet here we see a measure which, if passed, would centralise power to an extraordinary extent. The ability of local authorities to approach things differently and to do things in a way that would suit local circumstances could be snuffed out by this measure. My hon. Friend spoke about how as a local councillor he tried different ways to deal with particular problems. He talked about the problems of traffic on grass verges, drink and yob culture. If we are to deal with those local problems we must accept as a country the need to allow local solutions and the democratic dynamic. We must allow a mosaic of different solutions to be experimented on at a local level.

The clause will put back the localist agenda and, despite all the Government’s talk of devolving power down to local communities, this is a very centralist, harmonising measure. On those grounds, whatever their political party, everyone who believes in localism should unite against the clause and in favour of the amendments.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I should first like to clarify a point about amendment No. 31 for the hon. Member for Edmonton. The hon. Member for Cambridge explained it very well. We very much did mean to   remove the ability to use this Bill to make amendments to orders and subordinate parts of legislation for the very reason that it is more appropriate for such changes to be made under the parent Act and the rules that are set out therein. That is certainly the most elegant solution and the most sensible one. That was deliberate. It has the added benefit, which the hon. Member for Cambridge picked up, that it would prevent the sneaking in of a power for the Government to remove byelaws.

The clause also specifically does not include any instrument that is made under Northern Ireland legislation. That seems a little strange given that the United Kingdom Law Commission’s definition specificially includes the Northern Ireland Law Commission. It seems a little odd that the Government are taking powers to implement recommendations from the Northern Ireland Law Commission, while not including

“any instrument which is, or is made under, Northern Ireland legislation.”

Amendment No. 30 relates to local Acts. The definition of those is not incredibly clear. No doubt we are waiting for the Minister to put us straight on that, but I spent a short time examining Acts relating to my constituency that, for want of a better definition, one might consider to be local. I have not had long to do so, and have managed to find only 21. The Committee will be pleased that I do not intend to detain it on the detail of all 21. However, I shall try to give a flavour of the matter.

Some are public Acts, in which specific clauses relate to the Forest of Dean, and some are private Acts. They include the Dean Forest (Timber) Act 1808 and the Woods and Forests (Amendment) Act 1832. An important one is the Dean Forest (Mines) Act 1838, which was very important in the setting up of free mining rights in the Forest of Dean, something that people there take incredibly seriously. It is an historic tradition and many of my constituents are very concerned about the possibility that it might be removed, and have been contacting me about it.

Others in the list are the Dean Forest (Poor) Act 1842 and the Dean Forest (Ecclesiastical) Act 1842, the St. Briavels (Court of Requests) Act 1842, the Woods and Forests (Amendment) Act 1845, the Commons Inclosure Act 1845, the Small Debts Act 1846, and the Woods and Forests (Amendment) Acts 1851 and 1852. That is an illustration of how a gamut of legislation exists affecting one small corner of England. Proposals by Ministers to change any of those Acts would in many cases be very controversial. I recognise that they would be controversial only in the Forest of Dean, and not elsewhere, but that would not be a reason to allow Ministers to change them by order.

I shall pursue the matter a little further. The Dean Forest (Mines) Act was amended in 1904 and 1906. More recently, and very importantly, the Forestry Act 1981 was very important to the Forest of Dean. Legislation introduced by the previous Government raised concern there that it could be used to sell off parts of the Forest of Dean. Amendments were made   to the Bill to ensure that the Government would not have the power to sell all or part of it. That is another instance in which change to legislation would be of considerable concern to my constituents. Other Members of the House—notably my hon. Friends the Members for New Forest, East (Dr. Lewis) and for New Forest, West (Mr. Swayne)—will be similarly concerned about measures pertaining to the statutory forest in their constituencies.

As an example of the historical scope of the matter, commoning in the Forest of Dean is another tradition. Sections 1 and 3 of the Wild Creatures and Forest Laws Act 1971 preserved provisions contained in many previous Acts that were repealed by it. Parts of Acts that were repealed were then reinserted into later Acts, which are still relevant, making things rather complicated. The list of repeals in that Act spanned the time from 1297 to 1961.

My example suggests the need for the Minister to clarify the term “local Act” and whether it encompasses private Acts. Several of the Forest of Dean Acts are private Acts. If the Minister cannot accept an amendment on that point, we shall table amendments to exclude specific items of legislation. However, that is not a very elegant way to legislate. A relatively simple trawl from my constituency has highlighted a number of Acts, and I am sure that the whole country would produce a staggeringly large number of Acts that needed to be excluded specifically. It would be much more sensible to accept amendment No. 30 and exclude local Acts as a class rather than do them one by one. I look forward to hearing the Minister explain local Acts. The Committee will then be able to take appropriate action.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 5:00, 28 February 2006

I have been researching the matter and, with the assistance of the Clerk, I have found that “Erskine May”, in dealing with the difference between public and private Bills, mentions Bills relating to London. On page 970, it states:

“Owing to the large area, the vast population, and the variety of interests concerned, bills which affect the entire metropolis used ... to be regarded as measures of public policy ... and were introduced as ... public bills”.

It continues:

“In recent years, however, bills relating to detailed local government and allied matters in London have mostly been promoted as private bills by the former Greater London Council or, now, by the Greater London Authority, the City of Westminster on behalf of the other London Boroughs, and statutory authorities such as the Port of London Authority, and the London Development Agency.”

I think that the local Acts referred to in clause 1 must be the private or local Acts that have gone through the private procedure and that relates to localities. That raises the question of whether the Government intend the provision to cover all private or local Acts. For example, the United Reformed Church Act 2000 deal with a class, but it is not based on a locality. It would be helpful if the Minister could explain exactly how far he is going down that route. Is a local Act a private Act relating to a locality? What is the definition?

I can see that, in some circumstances, it might be helpful to get rid of a local private Act—one that has had its day, its purpose having been worked out. I am reminded of the Channel tunnel rail link, for which a Bill went through the House. Let us assume for the moment that it was a private Bill. If it was a private Bill—I cannot remember whether it was—now that the rail link has been built, all the things that it provided for have been achieved. One can see a purpose in removing it from the statute book, but whether that needs to be done using this provision—whether that is what the Minister has in mind—is not made clear in the Bill.

We come back to the old problem of not knowing exactly what we are talking about. My hon. Friend the Member for Forest of Dean has, on a number of occasions, mentioned all the private Acts that refer to the locality of the forest; they benefit the local people and are very popular, and we do not want the sticky fingers of the Government interfering. Equally, a private Bill governs much of the estate in Letchworth in my constituency; we would not want the Government interfering in that. I do not think that the United Reformed Church would want too much interference, and I doubt whether the corporation of the City of London, which has had the odd private Act passed, would want the Government interfering too much.

If there was a purpose to the provision—if the Government could point to a purpose and say that they have sensible reasons, and provided safeguards were put in place—no one would mind. I think that my hon. Friend the Member for Christchurch is on to a good point in asking why local Acts have been included.

The hon. Member for Cambridge mentioned devolution. The Government of Wales Act 1998 and the Scotland Act 1998 were general public Acts, as they should have been. We will come later to the question of how those Acts, particularly the Government of Wales Act, will be dealt with under clause 1, but it seems odd to propose in clause 9 that it should be possible to use the procedure under clause 1 to give the Welsh Assembly further functions, especially given all our debates and our concern about giving such functions in the first place. We are now debating them again; indeed, my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) is speaking in the Chamber as we talk. There is a question in that regard, which the Minister will have to answer in due course.

What is the point of clause 1(3)(b)? It deals with Orders in Council, orders, rules, regulations, schemes and the like. The Government are always introducing yet another order amending an order that went before. They hardly ever get them right, which is why we have 4,000 a year. The procedure to change an order is simple. Most of them are subject to the negative procedure and they whizz through the House of Commons—in fact, they do not even whizz; the Minister signs off a piece of paper and that is the change made.

Why do we need such a proposal in clause 1? My suspicion is that we are beginning to see the first signs of the Napoleonic ambitions of the Chancellor of the Exchequer. It may be that the grand plans that the Minister keeps talking about are to be effected by massive plans that can be put forward using part 1 of the Bill. If that is the case, we are right to be worried, because no one would want a power of the strength and breadth of the power in clause 1 to be used in a Napoleonic, ambitious way. One would want that power to be used in a very cautious, sensible way to achieve deregulation and not much more than that. I shall therefore be interested to hear what the Minister has to say on amendments Nos. 30 and 31, both of which seem to me to have merit.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

As is appropriate, I enthusiastically welcome you, Mr. Caton, to your role as our co-Chair, Sir Nicholas’s brother Chair or however it was determined this morning. That was only this morning, but it seems further away than that. I have enjoyed listening to the conversation that has taken place thus far. I think that the contribution by the hon. Member for Harwich (Mr. Carswell) was his first in a Standing Committee and I welcome him and his comments. I am sure that, in the six Committee sittings that we still have before us, we will hear from him more often.

I knew the predecessor of the hon. Member for Forest of Dean, and she always took the opportunity to talk about how beautiful and picturesque her constituency was. Even during discussion of the Dean Forest (Mines) Act 1838 and the other Acts from 1845 and 1846 that were mentioned, I was still able to conjure up images of the Forest of Dean, which she regularly spoke of in this place. I have not had the opportunity to visit the hon. Gentleman’s constituency. Incidentally, I am not seeking an invitation here today. We have heard from other hon. Members, too, and I shall seek to respond to their specific points.

It was a fascinating line of attack on the Bill to pray in aid the TUC, as the hon. Member for North-East Hertfordshire (Mr. Heald) did. I have heard before the comment that he made. His argument seems to be that the TUC is broadly content with things at the moment—with the Government’s approach to what is a dynamic economy, with full employment, the minimum wage and continued economic growth—but that one day there might be a Conservative Government and then people will not be so happy. For him to pray in aid the fact that the Conservative party in government would be so dreadful that the Bill could not be trusted in its hands is not an awe-inspiring clarion call or a reason to support the amendments tabled by the hon. Member for Christchurch.

I am absolutely satisfied as the Bill goes through its stages, which will include Report, that the safeguards are in place to deal with the concerns raised by the TUC. Indeed, given the safeguards in the Bill and the further reassurances that I said on Second Reading we are minded to provide, if the Conservatives had won the election last year they could not have introduced the patient’s passport or the pupil’s passport by this   means, because those safeguards and the powers for the relevant Select Committees would not have allowed that.

Sitting suspended for a Division in the House.

On resuming—

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I was in the middle of saying that there is enough protection in the Bill to protect Parliament and the country from a future Conservative Government. I wish to reassure the hon. Gentleman that in the assessment of the Government and of Parliament, there is protection in the Bill against the excesses of a future Conservative Government, which the TUC was understandably concerned would be unleashed on the public. [Interruption.] Of course. I wish to reassure the hon. Gentleman that the country would indeed be safe from a Conservative Government and that the Bill would not allow a Conservative Government to do whatever they wished.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

The Minister is making an ad hominem point against the Conservative party, but surely that point does not meet the TUC’s concern. It is thinking constitutionally. It thinks that one should grant only those powers that one would grant to one’s political opponents or political enemies. The Minister says that the protections in the Bill are sufficient, but the TUC is obviously saying that they are not, otherwise it would not have made the point that it did.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The hon. Gentleman makes his own point in his own way. The TUC has made its observation, and as I said on Second Reading, we shall offer further reassurance on specific issues, which should satisfy most fair-minded people. I hope that that includes the hon. Gentleman, who, at this early stage in our deliberations, I have no reason to suspect is anything but—[Interruption.] Yes, he is well informed, but I hope that he is also fair minded.

I turn now to the specific points that have been raised. As has been said, the amendments would significantly narrow the breadth of the order-making power in clause 1 and specifically exclude secondary legislation and local Acts from it. In general, the 2001 Act allowed only reforms of primary legislation and consequential amendments to secondary legislation. That meant that necessary changes to secondary legislation that was part of the regime that an order was reforming could not be dealt with in the order itself and might have to be addressed via another legislative vehicle.

Amendment No. 31 would prevent orders from reforming secondary legislation, so in that respect the present power would be narrower than that in the 2001 Act. Clearly, neither I nor the Government could support that position. Indeed, we are looking to learn the lessons from the difficulties with the 2001 Act, rather than to narrow the powers in it further.

The amendment would also prevent an order from usefully combining reforms of secondary and primary legislation. The process for reforming legislative regimes would needlessly be made more bureaucratic. As we have seen, the arbitrary and technical restrictions in the 2001 Act have prevented the delivery of worthwhile reforms. The Government are adamant that the Bill should not create further technical restrictions.

I turn now to the issue of whether local Acts should be amendable by order. I must say at the outset that the Government cannot support the amendment for the principal reason that it would prevent several potentially valuable reforms. In delivering those reforms, of course, we must ensure that the Bill contains the necessary safeguards.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I hope that the Minister will forgive me if he is about to come to this, but he has still not explained what local Acts are. It would be helpful if he did that before telling us what he proposes to do with them.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I do not consider the hon. Gentleman’s intervention to be impolite, so of course I forgive him for seeking to catch your eye, Mr. Caton. I shall come to his specific point and if he does not feel that I have addressed it in enough detail, I shall give way to him again.

The 2001 Act can be used to reform Acts, but the 2001 power does not explicitly extend to the reform of local Acts. We have explicitly provided in the Bill that the order-making power extends to the reform of local Acts. The explicit inclusion of local Acts in the power is not that substantial; the need for orders to implement initiatives to which I shall come simply necessitated making explicit the fact that the definition of legislation includes local Acts. Therefore, the change is technical and limited. For example—this is an important point—I do not propose that it should be possible to amend personal Acts that concern only named individuals and regulate matters such as family trusts or estates.

Worthwhile proposals for regulatory reform orders have not been taken forward, because the power under the 2001 Act might be thought not to extend to the reform of local Acts. Orders under the Bill can amend primary and secondary legislation, as well as public general Acts and local Acts, so reforms can be delivered comprehensively and consistently in one order.

I turn now to the definition of local Acts, which the hon. Member for Forest of Dean asked about. Local Acts cover limited areas and deal with matters such as port and harbour authorities, charities or education institutions. By definition, local Acts tend to affect particular sets of rights, duties or other obligations in respect of narrowly defined groups, organisations or individuals.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The Minister is telling us what he thinks “local Acts” means, but says who? Where is “local Acts” defined? We need to know, because the term is absolutely crucial to our understanding of the provisions.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The House of Commons and the House of Lords have dealt with numerous local Acts in the past. I am not in a position to identify which page the term “local Act” comes from, but local Acts have been a matter for consideration by the House, our Committees, the other place and the Law Commission. The term is understood, the precedent is well established and we have legislated through local Acts on many occasions.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

There is the expression “private or local Acts”, which covers private Acts, some of which relate to localities and some of which do not. For example, the United Reformed Church Act 2000 is a private Act that covers that Church and its administration. Would that Act be covered by the provision concerning an employer?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

As I think the hon. Gentleman is aware, any proposal to go through the order-making process would be dealt with on a case-by-case basis. First there would be a ministerial assessment, but—perhaps more pertinent to this discussion—the relevant Select Committees, tasked by the House of Commons and the other place, would then make an observation on whether each proposal on a local Act was appropriate, fell within the scope of the Bill and, importantly, satisfied all the conditions and safeguards. Those Select Committees will rightly have the power to reject any proposal from the Government.

Additionally, there would be a statutory need for consultation with all those affected by a local Act. To respond to the points that the hon. Member for Forest of Dean made, but without going into the detail of the 1845 or 1846 Acts, whoever was affected by current legislation would be consulted. Their views would be taken into account, as would those of the local authority and others in the Forest of Dean, to ascertain whether there was broad support or anything highly controversial. If the legislation commanded support among the wider public in the Forest of Dean, the Government may be minded to propose it as an order. Even if the Government and the local people who were consulted thought that the proposal was sensible, the relevant Select Committees of the House of Commons and another place would, however, have the power to reject it.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

Does the Minister agree that the Select Committees in their deliberations would still need to know the definitive meaning of “local Act” to enable them to decide whether something was appropriate to consider?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I am delighted to hear from the hon. Lady—she is a talking Whip, although I do not know whether that habit is encouraged on the Government Benches. I do not want to give too much away by saying that the last time we spoke in any detail was while walking down Fifth Avenue in New York in the snow, because that is for another conversation. However, I did not know at that time that she was a member of the Monday Club—I discovered that as part of my research for this Committee. Nevertheless,   her point is fair. It might be helpful to offer additional guidance and clarification in time for Report on some of the technical definitions that have been sought today.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

If my hon. Friend is going to clarify some of the technical issues, could he include hybridity and say whether the special petitioning rights will be retained?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I think that I can offer that clarification this evening. Notwithstanding the points that I made a moment ago about the technicalities of where the definition of a local Act is drawn—I will of course provide those additional details and reassurances in advance of Report—my hon. Friend makes a fair point. If an order enabled by the Bill was tabled and considered hybrid in its nature, the petitioning rights and specific Standing Orders related to a hybrid proposal would be enacted. I can certainly offer her that reassurance and I am happy to provide further clarification on the specific terminology before Report.

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich 5:45, 28 February 2006

Given that the Minister is unable to provide entirely clear definitions of what constitutes a local Act, would he let me know now—or later, if he has to consult with his civil servants—whether harbour Acts, such as that governing Harwich port in my constituency, are included under his definition of local Acts? He talks about the need for consultation to change the law; we used to have consultation to change the law through something called the ballot box, followed by democratic deliberation rather than diktat.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The hon. Gentleman started with an entirely fair point and then ruined it with an utterly pointless political attack. We had consultation through the ballot box last year in the general election; that is why the hon. Gentleman is sitting on his side of the Committee and we are sitting on this side.

I make the point again that local Acts affect the interests of individuals or localities that are different from the generality. Examples include Acts that confer on a local authority powers that are not enjoyed by other local authorities or that relate to particular charitable and educational institutions.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

There is one thing that I was informed about, which the Minister might like to check. If the Bill was passed and used by a Minister to amend some of the Acts that affect the Forest of Dean, and if there was a consultation process, the Government would have to consult everybody who lived in the locality. That would be a mammoth consultation exercise. I want to give him that idea of complexity, which he should bear in mind.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

That is a fair point. The central thrust is that if a Minister at some point in the future was minded to amend a local Act through the enabling powers in the Bill—in the Forest of Dean or elsewhere—that statutory public consultation would   take place. However, even if the Minister was in favour and the good people of the Forest of Dean or elsewhere supported such a proposal, the relevant Select Committees would still have the power to reject it.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

What I do not understand is this: the Government are not able to introduce a local Act—it is introduced, as the Minister said, by a local authority, a charity or another such body—so why should they be able to repeal it, amend it or whatever? Why is it right that the Government should be able to do such things?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I will give way to the hon. Member for Cambridge as well and address all the points at once.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

I have a separate point. The Minister has said several times that Select Committees will have the power to reject orders. Perhaps I have not spotted it in the Bill, but will he tell me where that power is laid out? It seems that the power given to Committees simply allows them to shift the order up the scale of parliamentary scrutiny from negative to affirmative procedure and from affirmative to super-affirmative procedure. There does not appear to be any power to reject an order. Is he suggesting, or promising, a change to Standing Orders during the passage of the Bill?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

That issue was addressed on Second Reading. Under the 2001 Act, it is under ministerial assurance that the Government would not seek to override the recommendation of the relevant Select Committees. I will not tempt your patience, Mr. Caton, by wandering on to debates that we are likely to have in Committee in the future, but I draw the attention of the hon. Member for Cambridge to the comments that I made on Second Reading about seeking to provide additional reassurances beyond a ministerial undertaking.

I want to come to the point raised by the hon. Member for North-East Hertfordshire about local Acts. Neither the Government nor Departments are seeking to take power to implement local Acts in a prescriptive way. The issue concerns local organisations and individuals seeking changes to local Acts which are not currently implemented for various reasons—for instance, the pressures of parliamentary time, which do not allow local Acts to get time on the Floor of the House or elsewhere. For example, the Department for Environment, Food and Rural Affairs, which, for a reason unbeknownst to myself—I have sought justification—is generally responsible for Covent Garden Market Authority

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The hon. Gentleman is aware of that. I do not see it as a centralising power; I do not say that it is appropriate for the Government to do that. It is appropriate for the private sector to deal with the Covent Garden Market Authority, even though it was introduced under the 1966 and 1969 local Acts. Through consultation, the Government should reform local Acts, so that there is a degree of devolution; for example, a removal of DEFRA’s ability to control that local market in a way that is currently inappropriate.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

It is interesting that we now have at least an example of what the Government have in mind as a local Act, treated in “Erskine May” under the heading, “Bills brought in by the Government for local purposes, etc”. Indeed, the Covent Garden Market Bill of 1960–61, the Festival of Britain (Supplementary Provisions) Bill, the Park Lane Improvement Bill and others were introduced on that basis, but are referred to clearly in “Erskine May” as hybrid Bills. We need to look at the issue more closely, because all the Bills that relate to localities are treated as either private legislation or hybrid Bills. The Minister will have to do a little more homework before coming back to us on Report, to elucidate exactly what the new definition means, and what is excluded and included.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I do not think that that is the case at all. I have set out the Government’s approach to local Acts, the safeguards that are in place, the powers of the relevant Select Committees and the need for statutory public consultation with those affected by any proposal to reform a local Act. However, I have agreed to provide additional detail on some of the technical definitions that the hon. Gentleman has sought fairly.

I can reassure the hon. Member for Forest of Dean, because I know that he has asked parliamentary questions—quite appropriately—about local Acts and how they affect his constituency. I can confirm that the Government have no plans to reform the legislation that might affect the rights of free mining or any rights of common that might exist in the Forest of Dean. I hope that that will reassure his constituents.

The Bill, however, is about enabling the delivery of the reform of local Acts. The relevant Select Committees, of the House of Commons and the other place, will make individual, case-by-case observations as to whether that is appropriate.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Will the Minister give an undertaking that he will put the definition of local Acts on the face of the Bill?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I do not know whether that would be attractive. I have agreed to provide further details about the various technical definitions that have been exchanged today, particularly with regard to the clarification of some of the terminology, so that the House will be able to conduct an informed debate on Report. I hope that—

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State

I am grateful to the Minister for giving way; he has been generous.

Why can the Minister not drop Committee members a line, perhaps even tomorrow, once he has had a chance to go back to the legal team in the Department? Will he send us the definition of a local Act or how it is understood by the draftsman or the legal team at the Cabinet Office? If we want, there are opportunities to discuss definitions later in the Bill—in clause 18, for example. If we are still not happy we could return to the subject next week.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I am tempted by that idea, and I will see whether it can be done within the short space of time that we have.

I emphasise that the Bill does not prescribe a list of local Acts or proposals to be brought forward. It provides an enabling power to allow the Government, through consultation with those affected outside, and within this place and another place, to reject any proposal for reform of a local Act. It is envisaged that proposals such as the one at Covent Garden that has been mentioned and the reform of harbours and ports would emanate from the locality in which the relevant organisations, charities, educational institutions and others are based. There will be a bottom-up approach to the reform of local Acts. There is not a mandarin in Whitehall with a list of local Acts and local powers that we would like to see centralised—far from it.

The power would also ensure that if an order affected a particular group or groups of people, such as individual ports or charities, their views must be sought and the Minister must detail their opinions in the explanatory document laid before Parliament. The explicit power to amend local Acts would deliver significant and worthwhile benefits, for example in the Covent Garden case that I mentioned, and in Acts relating to railways and harbours.

It is something of an historic artefact for DEFRA to have such a degree of involvement in the running of a private commercial activity, and DEFRA is actively looking for ways to return the Covent Garden market to the private sector. Major stakeholders have welcomed that suggestion, which would be an active and entirely appropriate process of devolution to the private sector. However, the transfer of responsibility will have to be effected through a legislative route, and we are all aware that securing parliamentary time for such a Bill is difficult when the subject matter is by nature a low priority. As a combination of public general Acts and local Acts govern the ownership and running of the Covent Garden Market Authority, the transfer of ownership is an example of a proposal that could be made under the order-making power provided for in the Bill.

Several consultation respondents agreed that the Bill should be extended to include local Acts. For example, the Law Commission commented that the proposals for reform of the law by the Commission—

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich

The Minister talks a lot about the need for local consultation before a decision is taken on whether to give the green light or the red light to the proposal. Will he elaborate on what he means by consultation? Will there be formal criteria for assessing whether there is a red light or a green light? What will the mechanism for the consultation be?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

Without wishing to delay the Committee greatly, it is envisaged that there will be a statutory public consultation over a period of 12 weeks, and that all of those affected by proposals to reform a local Act, or their representative bodies, will be consulted. Those consultations will then form part of an explanatory memorandum that will go before the   relevant Select Committees of this House and another place. The Select Committees will decide on a case-by-case basis whether the change is appropriate.

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich

Does that mean a referendum?

Photo of Martin Caton Martin Caton Labour, Gower

Order. It would be useful if the hon. Member made his interventions by standing up in the normal way.

Photo of Douglas Carswell Douglas Carswell Conservative, Harwich

Will the Minister please be more specific? Will consultation mean a local referendum or a glossy brochure to every household? What will the statutory consultation actually involve? How will a local resident get to have their say?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

Again, that would be decided on a case-by-case basis. In some particularly controversial instances, for example when a local authority will be affected by a local Act, that authority may suggest a referendum. It may be a matter of consulting affected stakeholders or business organisations. If the hon. Gentleman wished to prescribe a certain way in which a consultation should take place then I think that that would be a centralisation far too far and not something that we would be attracted to.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

I am interested in the Minister’s description of how the reform of a local Act will be dealt with. Will he give a similar reassurance to the Committee about the repeal or amendment of byelaws?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I think I can, yes.

I shall draw my comments on the amendments to a conclusion. As I was saying, the Law Commission commented:

“Proposals for reform of the law by the Commission do from time to time require amendment” to private legislation. For example, a significant number of private Acts concern land—particularly land held by railways—utilities and charities. If the power is to be used to implement uncontroversial Law Commission proposals, its usefulness might be limited if changes cannot be made to private or hybrid legislation. As the ability to implement Law Commission recommendations is a central purpose of the Bill, it is crucial to retain this power in the Bill. For those reasons, the Government cannot agree to the amendments and will resist their inclusion.

Finally, the amendments would reduce the powers retained in the 2001 Act. There seems to be an agreement—I thought that there was an agreement—across the House that that Act was limited in its ambition and its ability to deliver for the better regulation agenda. To accept the amendments would leave us with powers weaker than those in the 2001 Act. The Government are not tempted to do that, as it would not deliver on their better regulation agenda in respect of the private sector, charities, the voluntary sector and public sector workers. Notwithstanding the point of clarification that I offered, I urge my hon. Friends to reject the Opposition amendment.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 6:00, 28 February 2006

I am not convinced, Mr. Caton. My suspicions—and, I suspect, those of many members of the Committee—have been raised rather than allayed by the Minister’s response. At the end of his comments, when he talked about the Law Commission justification for making such changes, he used the expression “uncontroversial Law Commission proposals”, yet he has refused to allow the word “uncontroversial” or “non-controversial” to be put in the Bill. He uses expressions from the Law Commission that incorporate that phraseology, yet he wants to go much wider. Why does he want to go much wider? Why will he not put “non-controversial” or “uncontroversial” in the Bill?

Photo of Andrew Love Andrew Love Labour, Edmonton

Could the hon. Gentleman define “non-controversial” in terms of the type of legislation he would not want to be eligible?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I can; I would describe it as legislation that is unanimously supported by all elected Members of Parliament. I would regard that as non-controversial.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Even with such legislation, there might be some private interests from outside who might say—[Interruption.]

Photo of Martin Caton Martin Caton Labour, Gower

Order. There are too many comments from a sedentary position.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Even if all Members of Parliament agree on something, it does not necessarily mean that that is the right answer, and even my generous definition of “non-controversial” might cause concern to outside interests that are not represented in this House. However, we could probably reach a consensus on the definition of “non-controversial”; then all these concerns would not have to be articulated.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

My hon. Friend’s reason for saying that not a single Member of Parliament could object to a Bill if it was to be non-controversial was to capture exactly the point about local Acts. If the Minister proposed to change an Act that affected only the Forest of Dean, 645 Members of the House could be quite content and might not have a problem with it, but the hon. Member for the Forest of Dean would find it objectionable. It would be outrageous if this process could be used if all Members were content except for the one who represents the area concerned. My hon. Friend’s definition is therefore appropriate.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

My hon. Friend makes an excellent point. May I go further and illustrate the argument that what the Minister calls streamlining will be undemocratic? Take the example given by my hon. Friend the Member for Harwich about the harbour revision orders in relation to Harwich and other ports in the country. I got to know a little about this before the last general election, because I put in an objection to those orders, as did others who were concerned about them.

Under the existing legislation, somebody who objects to a harbour revision order can trigger a public inquiry where there can be an objective assessment of the merits or otherwise of the objections. There is a formal process in which the people who want to make the change have to make their case and the objectors make theirs. That is a protection for individuals and organisations that is available under existing private legislation.

The Government are proposing to sweep all that away. That would be fine if it was on the basis that it would be done if there were no objections. That already happens under the harbour revision orders. If there are no objections the orders can go through on the nod. If there are objections a public inquiry is triggered, which is a much better form of consultation, to echo the point made by my hon. Friend the Member for Harwich, than general talk of some sort of consultation that can be overridden.

Not that long ago I was chairing a Statutory Instrument Committee where I observed, from my neutral position in the Chair, a Minister trying to defend a situation where he or his predecessor had given an undertaking in relation to an agreement that was reached on a criminal justice Bill relating to the issue of whether jury trials could be abolished in fraud cases. My recollection is that as part of the agreement that was reached to deal with Lords amendments, the Government gave an undertaking not to bring forward a statutory instrument relating to that without full consultation. In the end the Minister had to agree that there had not been that full consultation.

That recent example illustrates the weakness of general undertakings to consult about a matter. To remove the safeguards in the present harbour revision orders legislation by Government fiat would be a regressive rather than a progressive move. Even where the Minister says that he has it in mind to change the Harbours Act 1964, that will be to the detriment of natural justice. The same is true, for all I know, with the Covent Garden Market Act 1961.

Interestingly, the individual private people who are affected by this will not be able to initiate the process; it will have to be done by the Government. At the moment private interests come forward, engage in consultation, employ parliamentary counsel and get their tackle in order before they bring forward their Bill. They can do that irrespective of the views of the Government. That is their right of access to Parliament. But under the provisions of this Bill, the Government are saying, “You can only use these accelerated procedures if we endorse it.” What sort of justice and equity is that?

It seems to me that the Government have not made their case here at all. The Minister says that he will clarify the technical issues by Report, but it is disappointing that he cannot clarify these things sooner. What if we take the precedent of what he told the Procedure Committee, which is where we started proceedings today? He said that he would come forward with his response in good time before the Standing Committee. He is now using the expression “by Report”, but would that be sufficiently far in   advance of Report to enable hon. Members to table amendments in the light of his comments, or would we find ourselves in the same situation as we are in today? Would he tell us that he had satisfied that commitment by coming forward with some letter on the day of Report, by which time he knows jolly well that it is too late to table amendments?

Even taking the Minister’s assurance that he will clarify the technical issues by Report at face value, I do not find that a satisfactory response. He should come forward later this week with a definition, to satisfy the substantive points made by the hon. Member for Cambridge.

I know that the Minister finds it frustrating that I am still speaking at 6.10 pm—

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am glad that the Minister has plenty of time, because I want to remind him of something. Perhaps one reason why he is being so stubborn is that three of the most articulate spokesmen for the amendments won seats from his party at the last election. That may be riling him. My hon. Friend the Member for North-East Hertfordshire spoke of the powers not being used in a Napoleonic way, but the only way to ensure that the powers are used responsibly is to have it written into the Bill. The Minister declines to do that. He says that the   Government are adamant that no restrictions should be imposed on the powers that they seek in the Bill. Again, that indicates that they want to go a lot further than they have so far declared.

I, and all who have spoken for the amendments, do not trust the Government. We think that the Bill would be better if the amendments were accepted.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 4 Nimrod Review — Statement — Clause 1 - Purpose

Aye: 5 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Further consideration adjourned.—[Mr. Dhanda.]

Adjourned accordingly at thirteen minutes past Six o’clock, till Thursday 2 March at Nine o’clock.