Clause 2 - Provision

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 1:15 pm on 2 March 2006.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 1:15, 2 March 2006

I beg to move amendment No. 32, in clause 2, page 2, line 7, leave out ‘repealing or replacing’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following:

Amendment No. 33, in clause 2, page 2, line 8, leave out subsection (2).

Amendment No. 69, in clause 2, page 2, line 20, leave out paragraph (b).

Amendment No. 34, in clause 2, page 2, line 21, leave out subsection (4).

Amendment No. 35, in clause 2, page 2, line 25, leave out subsection (5).

Amendment No. 45, in clause 2, page 2, line 25, at end add—

‘(6)But no order under this Act shall confer on any person the power to legislate.’.

Amendment No. 46, in clause 2, page 2, line 25, at end add—

‘(7)No order may be made under section 2(1) for any purpose substantially different from that for which the legislation was passed.’.

New clause 7—Excepted Acts—

‘(1)Schedule (Excepted Acts) shall have effect.(2)Provision under section 2(1) may not amend this Act or any provision amending this Act or the Human Rights Act 1998 or any provision amending that Act, or any Act specified in Schedule (Excepted Acts) to this Act or to any provision amending those Acts.’.

New clause 8—Judicial Tenure—

‘Provision under section 2(1) may not affect the appointment, terms of engagement, dismissal or tenure of any judge.’.

New clause 9—Principles of natural justice—

‘Provision under section 2(1) may not affect, abrogate or modify any of the principles of natural justice.’.

New clause 10—Powers and composition of Parliament and elections—

‘Provision under section 2(1) may not affect, abrogate or modify the law relating to the powers or composition of Parliament or the law governing elections.’.

New clause 11—Powers and composition of Parliament—

‘Provision under section 2(1) may not affect, abrogate or modify the powers or competences of the House of Commons or the House of Lords.’.

New clause 12—Church of England—

‘Provision under section 2(1) may not affect, abrogate or modify the law relating to the Church of England.’.

New clause 13—Habeas corpus—

‘Provision under section 2(1) may not subject anyone to detention without charge or remove from anyone the remedy of Habeas Corpus.’.

New clause 14—Jury trial—

‘Provision under section 2(1) may not affect the right to or the availability of jury trial.’.

New clause 15—Extradition—

‘Provision under section 2(1) may not subject any person to extradition.’.

New clause 16—Confiscation of property—

‘Provision under section 2(1) may not authorise the confiscation or appropriation of property, whether with or without compensation, except to the extent to which it is authorised by the legislation which the order amends.’.

New schedule 2—‘Excepted Acts—

The Acts referred to in section (Excepted Acts) are—

Act of Settlement 1700

Anti-Terrorism, Crime and Security Act 2001

Bail Act 1976

Bill of Rights 1688

Church of England Assembly (Powers) Act 1919

Church of Scotland Act 1921

Civil Contingencies Act 2004

Claim of Right 1689

Constitutional Reform Act 2005

Criminal Justice and Public Order Act 1994

European Communities Act 1972

Freedom of Information Act 2000

Government of Ireland Act 1920

Government of Wales Act 2006

Government of Wales Act 1998

Habeas Corpus Acts 1679 to 1862

House of Lords Act 1999

Identity Cards Act 2006

Immigration Act 1971

Local Government Act 1972

Magna Carta 1215

Ministerial and Other Salaries Act 1975

Ministers of the Crown Act 1975

Northern Ireland Act 1947

Northern Ireland Act 1998

Official Secrets Acts 1911 to 1989

Parliament Acts 1911 and 1949

Parliamentary Constituencies Act 1986

Police and Criminal Evidence Act 1984

Prevention of Terrorism Act 2005

Protestant Religion and Presbyterian Church Act 1706

Public Order Acts 1936 to 1986

Regulation of Investigatory Powers Act 2000

Representation of the People Acts 1981 to 2002

Scotland Act 1998

Security Service Act 1989

Statute of Westminster 1931

Succession to the Crown Act 1707

Terrorism Act 2000

Terrorism Act 2006

Union with England Act 1707

Union with Scotland Act 1706

Welsh Church Disestablishment Act 1914.’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The theme of these amendments is to try to deal with and control the extensive powers that the Government are taking in this legislation and to rein back that scope so that we are left with the purely essential. I am very disappointed about what happened in relation to clause 1. The Minister’s response to recommendations 4 and 5 in the Regulatory Reform Committee’s special report of Session 2005-06, which argued that Parliament should be able to veto the delivery of individual proposals by order and prevent the Government from reintroducing an order to address the policy problem from two years after that veto, was:

“As the Bill enters Committee stage the Government will listen carefully to the views of Parliament and seek its support in achieving the right balance between powers and protections.”

So far the Minister does not seem to have been able to deliver on what he said as recently as Friday of last week in a letter to the Chairman of that Select Committee. I hope that he can do a bit better when we consider these amendments to clause 2.

The purpose of my amendments is essentially to try to get the Minister to justify the powers that he is taking. In order to put the spotlight on those individual powers I have drawn up these amendments, which I am pleased to see are supported by others in several respects. Amendment No. 32 would remove from subsection (1) the power to repeal or replace any legislation. It is an attempt to get the Minister to justify all the words that are in the subsection at the moment.

Amendment No. 33, which is supported by the Liberal Democrats, would cut out the power enabling the Government to

“amend, repeal or replace legislation in any way that an Act might” and to

“amend, repeal or replace legislation so as to—

(a) confer functions on any person (including functions of legislating or functions relating to the charging of fees);

(b) modify the functions conferred on any person by legislation;

(c) transfer, or provide for the transfer or delegation of, the functions conferred on any person by legislation.”

I should like the Minister to give us some examples of what he would consider to be a mischief that needs to be addressed by this provision and to explain why he feels that these powers should be so extensive. I hope that he will take his responsibilities to do that seriously. He has not necessarily shown much flexibility up to now. I hope that he will realise that unless we can receive assurances that these provisions are essential for the avowed objective of deregulation, we will draw an adverse inference and think that these powers are designed to give the Executive even more power than they already have over Parliament.

Amendment No. 69 is a significant amendment, if I may say so modestly, Mr. Caton. It draws attention to the common law that has developed and evolved in this country over many centuries. It would remove subsection (3)(b) and thus make it impossible to make an order under section 1 for a purpose specified that would make provision for codifying rules of law.

I cannot understand why the Government want to replace the common law; with its capacity to evolve in line with changes in society through the use of precedent, convention and rulings in the courts of this land, it has served this country extremely well over many centuries. Why do they want to make changes to that law under the delegated powers? It would mean, in effect, that if a Minister were to suffer a reverse in the High Court—that happens from time to time under all Governments—and a measure was struck down as ultra vires or as having a different intention from the one that the Minister hoped that it had, an order could be rushed through rectifying the situation and negating the entire judicial process.

Statutes have been struck down in the High Court in the past and the Government have tried to put the matter right in primary legislation, which is their privilege. But surely they should not be able to correct every error in the law by fiat, using an accelerated   procedure that denies the power of Members of Parliament to hold the Government to account, to amend the proposals and to discuss them in full.

Amendment No. 35 would omit subsection (5), which is about binding the Crown. Why do the Government want to bind the Crown under this Bill? I hope that the Minister will answer that question. He will be aware of the articles suggesting that the monarchy could be abolished under these provisions and it might not be so easy to do so if the amendment removing subsection (5) were accepted.

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

Does my hon. Friend agree that it would also be helpful to have some information about what consultation has taken place with the Palace about this provision?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I do indeed agree that that would be very useful. The Minister may say that the proposal has been greeted with tremendous enthusiasm, but it may be otherwise. I would be very surprised if it had been greeted with enthusiasm by the Crown, but it is for the Minister to justify his position.

This group of amendments contains a series of specific proposals, most of which have been tabled by Liberal Democrat Members. I hope that the Minister will address each of them seriatim, and justify the opposition to each of those amendments if that is the Government’s position. It is very valuable to have a chance under these detailed amendments to consider each provision specifically. I will not comment further and steal the thunder of those who tabled the amendments; the fact that we have a chance to consider each of the provisions separately will add to the quality of our debate and enable us to scrutinise the Bill with maximum focus on the powers that the Government are seeking and why.

Several hon. Members rose—

Photo of Martin Caton Martin Caton Labour, Gower

Before I call the next speaker, it might be helpful for the Committee to know that as the amendments cover the substance of clause 2, I will not call a separate stand part debate. Hon. Members should bear that in mind in their contributions.

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

I want to cover four separate aspects of the amendments. The first is sub-delegation, which is raised in amendment No. 45. the second is the purpose for which the Bill might be used, to which we refer in amendment No. 46. The third is the new clause and the new schedule, which constitute the first of two attempts to restrict the power of the Government to use the Bill to deal with particular Acts of Parliament, which would be protected from the order-making power in the Bill. Finally, as the hon. Member for Christchurch (Mr. Chope) mentioned, there is the series of new clauses about important aspects of the law, including civil liberties law. We hope that the Government will, in each case, either tell us why they want to be able to use   the power in the Bill to overturn or overcome it, or accept the amendment because they have no desire to use the power.

Let me start with amendment No. 45. In a way, it is consequential or additional to the amendment that seeks to remove part of clause 2. It seeks to remove clause 2(2)(a), which allows legislative functions to be conferred on other persons, and to replace it with its opposite: that no order under the Bill shall confer on any person the power to legislate. Why do the Government want a power to transfer legislative authority to any person? It is bad enough that they want a power to change primary legislation by statutory instrument. How much worse is it that legislative power might be transferred to another person who, as far as I can tell, will be able to make further legislative change without a statutory instrument or any parliamentary scrutiny at all? In many ways, that is the most dangerous part of the Bill.

We are considering the transfer of legislative power to people who are not even Ministers, so would not be capable of being questioned by the House about any use of the power granted to them under the clause. Who are those people? If the Minister will tell us, perhaps we can attempt to write something into the Bill that will accord with his wishes.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

While the hon. Gentleman was so ably explaining his concerns, it occurred to me that there is no provision concerning the nationality of such people. It is entirely possible that under this clause the Minister could transfer legislative powers to a foreign Government or Head of State, effectively transferring to some extent the sovereignty of our country. That is allowable within the provisions of the Bill. It might sound outlandish, but that is what it gives Ministers the power to do.

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

That is absolutely right. I was coming to precisely that point. Depending on the kind of nightmares that hon. Members might have, this provision would allow, presumably by changes to the Parliament Acts, the transfer of the sovereignty of Parliament to President Bush

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

Or President Chirac or, perhaps even worse from the point of view of the Conservative party, to the President of the European Commission. There is nothing in the Bill that would prevent that from happening. Because there is nothing in the Bill about what sort of legislative function is being referred to—

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

We often loosely talk about Henry VIII powers. That is precisely what this is. It is the power that Henry VIII took upon himself to issue any edict and for it to be termed a law passed by Parliament. It seems to me that we have regressed several centuries.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 1:30, 2 March 2006

To be fair to Henry VIII, he was not taking any powers as great as this. In fact, he removed the jurisdiction of the Bishop of Rome, so transferring legislative power abroad is the opposite of what he was doing.

This seems to be the most extraordinary clause in an extraordinary Bill.

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

It opens up the spectre of the Government contracting out tax raising and similar issues, taking us back to the middle ages and the days when people such as the sheriff of Nottingham were given power to levy taxes in whole areas of the country. At the time of Morton’s fork, subcontractors were just told to go out and levy taxes. That may be going a little too far, but it is a matter of concern that whole areas of government could be farmed out to all sorts of organisations. They might have important functions and we would have little say over whether that should happen or not.

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

The hon. Gentleman raises a point that the Minister must address—sub-delegation—and referred to increasing taxation. Clause 5 states:

“Provision under section 2(1) may not impose or increase taxation.”

However, the question is whether that clause refers simply to the first order made under clause 2 or whether it also applies, although it does not say so, to any order issued by any person to whom legislative authority has been transferred. If the latter is possible, all the safeguards in the Bill—there are not many, but the Minister keeps referring to them—would be avoided simply by the device of first transferring legislative authority to another person and then giving that other person power to legislate without the safeguards or restrictions in the Bill. That is the reason for amendment No. 45.

Amendment No. 46 is an attempt to impose on the Bill a notion of purpose or scope which is derived from the legislation that the order would purport to change. No order for any purpose substantially different from the purpose of the legislation that is being changed would be allowed. The idea is to ensure that any new policies or principles brought forward by the orders would not be allowed to go through the Bill procedure and would have to be discussed in primary legislation. This morning, I discussed the principle, which I hope the Committee accepts, of this and the previous amendment that it is important for Parliament to discuss in a Second Reading debate any policy or principle that has not previously been authorised by Parliament. The purpose of amendment No. 46 is to reinforce that principle.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Does the hon. Gentleman believe that without amendment No. 46 the Government could amend the Bill outside the terms of its long title? We cannot do that in Committee even when we are considering it as primary legislation.

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

That is precisely right. The scope of a Bill is a parliamentary concept and does not necessarily apply in the outside world or in public law outside this Palace. There is a grave danger of what the hon. Gentleman says: that without the amendment that notion of scope will not escape outside the Palace of Westminster and legislation could be changed under the Bill outside the scope of the long title of the original legislation. That would be extraordinary because it would be more than we can do in our own procedures.

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

The hon. Gentleman is making a cogent case. He said, quite rightly, that scope is a parliamentary concept, but that ultra vires is a legal one. Without that modification, it seems that the legislation would have the ability to circumvent the concept of ultra vires by effectively allowing anything to fall within the Minister’s powers without reference to the primary legislation. That principle cannot be legally sound.

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

That is right, and without amendment No. 46, it would be difficult for a court to take a different view from that just mentioned by my hon. Friend.

I do not want to delay the Committee for too long so I shall now turn to new clause 7—

Photo of Andrew Love Andrew Love Labour, Edmonton

Taking up the point just made about courts, could the hon. Gentleman envisage a situation in which a court took a substantially different view of the legislation from that intended by Parliament, and that the latter might wish therefore to amend that legislation in a way that was more appropriate for its original idea? In those circumstances, would not the issue of substantially different purposes be called into question because of the different view taken by the courts from that taken by Parliament?

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

I thank the hon. Gentleman for making that point; it allows me to make it clear what the amendment is about.

Parliament can, of course, do whatever it likes, as long as it does it by primary legislation. If a conflict were to occur between the courts and the Minister about the purposes of previous legislation, the issue would have to be brought back for Parliament to decide. I fear that the hon. Gentleman’s intervention starts to confuse what should not be confused—the power of Ministers with that of Parliament. In fact that is entirely what the Bill is about; it keeps the notion of Parliamentary sovereignty separate from that of Ministerial power.

Let me turn to new clause 7 and new schedule 2—

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

Before the hon. Gentleman does that, will he recognise that Acts often set up many regulation-making powers, and bodies or regulators, and what they do is done through secondary legislation? That means that with, for example, the Education Bill, which runs to more than 200 clauses, and in which many powers are given to various bodies and so on, Ministers will, in order to avoid difficulties   that they might have with some of their colleagues, be able to pass the law in its current form and change all sorts of provisions within it afterwards. They could give greater powers to certain regulators and lesser ones to others. They would be able to do all that on the basis of 90 minutes of discussion, rather than a full day on the Floor of the House, thus avoiding difficulties.

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

Yes, that is absolutely right. The danger is that we transfer the authority of Parliament to the Minister, and allow that latter, in effect, to transfer that authority to subordinate bodies, which ought to be subject to the courts. I am not talking about Parliament being subject to the courts, but subordinate bodies.

I shall now turn to new clause 7, and new schedule 2, to which it is attached. New clause 7 lists two specific Acts of Parliament that should be immune from the Bill, and the new schedule lists a number of others. I shall deal first with the two Acts of Parliament listed in the new clause. The first is the Bill before us. The powers in it must not be used to change the Bill itself when it becomes an Act; otherwise, anything that we talk about here, this week or next, would be utterly pointless. The Minister has frequently responded by saying that there are safeguards in clause 3. In due course we shall discuss whether the safeguards in clause 3 are adequate. Even if they are adequate, however, if the Bill is allowed to be applied to itself, they could be removed by statutory instrument, with a short discussion in Committee and an hour and a half of debate, or less, on the Floor of the House, followed by a vote. So the Minister cannot resist restricting the use of the Bill such that it cannot apply to itself.

The second Act that is specifically mentioned in the clause is the Human Rights Act 1998. The reason for that is that the Human Rights Act applies unless legislation specifically says that it does not. It has been said that orders under the Bill could not be too destructive of political and civil liberty, because those orders might themselves be subject to human rights review in the courts. The trouble with that argument, even if it is true, is that it is flawed. The order under the Bill could itself, at the same time, amend the Human Rights Act, so as to give no room to the courts to review the new law under human rights standards. Again, therefore, I do not see how the Minister can resist incorporating a provision whereby the Bill may not change the Human Rights Act. All we are asking for is acknowledgment from the Government that, in the hierarchy of law—statute law in particular—the Human Rights Act stands at a higher level than the Bill.

New schedule 2 is an attempt to list another set of Acts that should perhaps be immune from the provisions of the Bill. It is a long list, and if I had time I could go through each item one by one and say how important it is. I am not necessarily tied to that list; if other Members want to propose other Acts that   should be added, I should be glad to consider them. However, I should perhaps mention what types of Act we have included as a starting point.

Many of the Acts are the basis of the constitution itself. The Act of Settlement 1700 is one, as are the Acts regarding succession to the throne. Then there are the Acts regarding Parliament, such as the Parliament Acts 1911 and 1949 and the various Acts concerning the House of Lords, as well as the Acts about the composition and powers of Parliament, and statutes that govern democracy—in fact, which in many ways constitute our democracy. In addition, there are the statutes that govern elections and parliamentary constituencies, and statutes which mention the rule of law. There are also the statutes that establish the independence of the judiciary, such as the Constitutional Reform Act 2005.

So that is the first set: the constitutional statutes. Then there are statutes about other constitutionally important relationships, such as that between the Executive and the legislative branches: the Ministers of the Crown Act 1975 and the Ministerial and Other Salaries Act 1975—it is because of the latter that the unfortunate Minister for Women is not allowed to be paid at the moment, because otherwise the Government would exceed the limit on Members who can be paid a ministerial salary. That provision is important because it limits the power of patronage that the Administration has over the House of Commons.

Secondly, there is the relationship between Church and state. As a Liberal, I am from a political tradition that would rather like to see them separated—the disestablishmentarian tradition. Even so, I would find it outrageous if the Church of England and the Church of Scotland were to be disestablished by order. If that were to be proposed, it should be done by primary legislation. Of course, the Church in Wales was disestablished under a Liberal Government, and it would be outrageous if it were to be re-established by statutory instrument.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 1:45, 2 March 2006

One point that occurs to me, tempting though it may be for a Catholic, is that it is effectively an anti-Henry VIII provision, because it could give people the power to reunify the Church of England and the Church of Rome.

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

That should certainly be a matter for primary legislation—or, if the Church was disestablished, a matter for the Church.

The list in new schedule 2 includes also the devolution settlements for Wales, Scotland and Northern Ireland. Although the Bill already provides for that, it would give extra protection to insert those statutes. Another Act in the list is the Local Government Act 1972, rightly so because the relationship between local and central Government is of constitutional importance. Structural reform,   which the relevant Minister mentioned only a few weeks ago, should be done by primary legislation and not by order.

The relationship between the United Kingdom and the Commonwealth, which is dealt with in the Statute of Westminster 1931, and between us and the European Community, which is dealt with in the European Communities Act 1972, are of fundamental importance—as are civil rights and liberties. The list is probably incomplete, but it is a starting point.

We want the Government to respond individually to the new clauses and to say why they want the power to change the law in those respects by statutory instrument. The new clauses deal with judicial tenure and the independence of the judiciary, the House of Commons and the House of Lords, the establishment of the Church, fundamental rights such as habeas corpus, the fundamental rules of public law and of natural justice, elections, jury trial, extradition and compulsory purchase—or, for those with connections with the common law tradition as it appears in the United States, the appropriation of property. Why do the Government require the power to change fundamentally those aspects of the law by statutory instrument? They should be dealt with by Act of Parliament.

That concludes the four matters that I wished to bring to the Committee’s attention, and I hope to have justified the amendments and new clauses.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I shall limit my remarks primarily to those amendments that stand in my name and that of my hon. Friend the Member for Christchurch.

When we were discussing clause 1, I thought that it was the most worrying part of the Bill, but I agree with the hon. Member for Cambridge that it is subsection (2), which would be removed by amendment No. 33. That provision effectively allows Ministers to confer powers on others to make legislation. At least transferring powers to Ministers and the Executive means that they are still accountable to the House of Commons. I would like the Minister to explain exactly what type of individuals or organisations he has in mind to delegate legislating powers to and the scope of such delegation. If the Government plan to give legislative functions to individuals other than Ministers, what controls would they wish to exercise over such persons to retain even the hint of parliamentary accountability. Unless the Minister has a comprehensive answer to that, clause 2(2) should not remain in the Bill.

Amendment No. 32 is sound. Again, it limits somewhat the Bill’s ability to amend legislation and stops Ministers wandering off and using the Bill much more widely. If Ministers were unable to repeal entire Acts or replace them in total and could only make amendments to them, it would restrict the powers at least to some extent. However, if that were the only change, it would not be particularly welcome. I will not dwell on this. My hon. Friend the Member for Christchurch has sensibly set out our concerns about Ministers wanting to make substantial replacement of   the common law with statute. Common law has served this country well. I see no great reason for codifying great swathes of it.

My final point is on amendment No. 35. The proposal to bind the Crown is of great concern. We know that in Parliament and in public discussions have started about the proper use of the royal prerogative. Those prerogative powers to make international treaties and to commit Her Majesty’s forces to war are incredibly important. Any changes to those powers should be decided by proper discussion in Parliament on the Floor of the House. They should not be changes that Ministers can make by order.

To reduce or move the control of those prerogative powers to Parliament, or worse, possibly create new prerogative powers under clause 2(5) that could then be taken by the Prime Minister and added to all the others, takes us in the opposite direction to that which people generally feel is desirable. These are modest amendments, in terms of keeping the Bill on track with the Minister’s stated objective of being of a deregulatory nature. I look forward to hearing him take us through each part of the clause and explaining why the wording should remain as it is and why he cannot accept our amendments.

I turn briefly to the new clauses and the new schedule tabled by the hon. Member for Cambridge. I will not dwell on them at length because he has gone through the reasons for them very well. These are sensible proposals. They are largely constitutional in nature. Again, the Minister should take us through each one in turn; if he rejects any of them, he needs to tell us why. The only reason I can think of is that there is an intention or, at least, a wish to keep the options for this Bill available for use in those areas. Otherwise, I cannot see why he cannot accept our amendments.

As my hon. Friend the Member for Christchurch said, we are simply looking at what the Minister said both in the House and in his response to the Regulatory Reform Committee. We are trying to get the Bill accurately to reflect the Minister’s and the Government’s stated purposes. If he chooses not to accept our attempts to do that, he may wish to table amendments which, with the help of the vast number of civil servants and parliamentary draftsmen, can be drafted in a more sophisticated and elegant fashion. If he cannot do that, it may simply be that there is some more sinister purpose behind the Bill. I look forward to the Minister reassuring us—to use the word of the week—that that is not the case.

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

I shall make just one or two comments. Clause 2(2) is worrying, so amendment No. 33 is important. Amendment No. 45 also touches on the point.

Why is it that the Government want to confer functions–including legislative functions—on other people? If one reads the explanatory notes, the answer is supposed to be in annex A. The notes say, in relation to clause 2, that annex A

“sets out a few examples of some of the ways in which it is anticipated that the order-making power may be used.”

Yet when one looks at annex A, on page 18 of the explanatory notes, there is nothing that talks about giving powers to people to legislate in the way that clause 2(2) mentions. Annex A refers to the Department for Trade and Industry having proposals to simplify legislation on employment, the construction industry, weights and measures, consumer rights and the energy industry. The annex says that the proposals will be implemented under Part 1 of the Bill. What power is it that the Minister is proposing to confer on another person about legislation relating to employment? Many of us would be worried if important issues on governance of trade unions or on employment rights were dealt with by anybody other than a Minister.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

My hon. Friend’s remarks prompt me to think of a large flaw in the proposed provisions. The point he makes about trade union law could also be made about business regulation. As the Bill is currently drafted, Ministers could delegate powers to the very bodies that those powers refer to. Trade unions could be given the power to make laws relating to trade unions, and businessmen could receive powers to make laws referring to competition law. That would be intolerable.

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

Of course there is that threat. Alternatively, it could be that the Government are just going to farm things out to a regulator, quango, executive agency or something of that sort. As someone who practised as an employment lawyer for years, acting on both sides—for trade unions and employers—my view is that these are important matters. They are rights that were fought for. Both the Conservative and the Labour parties have introduced important rights in the labour law field over many years. The Liberals’ record is less good.

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

I will give the hon. Gentleman the Trade Disputes Act, but whatever one says, both sides of the House have considered for a century or more that employment rights are an area in which the House should have its say, and where Ministers have an important function. Likewise, the construction industry is one of our most vital industries. Is it really said that the main provisions for that industry should be dealt with by some other person, and, if so, who is that? Weights and measures are also of great importance to a major industry in the country. Consumer rights are fundamental rights in many cases; young people are protected up to the age of 18 at present, and have quite strong protection from credit agreements and the like. There are many consumer rights that I would not want to see farmed out to a quango, or at least I would want to have a good say about it and look at the detail before agreeing.

The Government are proposing major changes to the energy industry and that nuclear power stations may be built for the first time in a generation. Do we really want such important decisions about energy policy and changes to the law put into the hands of people who are not Ministers?

The Minister may have an explanation for that, but I do not think it is in annex A. As far as I can see, it does not say anything about handing powers to other persons. I would be grateful if the Minister points out where it says that. Similarly, it does not say anything about clause 2(5). An order under clause 1 may bind the Crown, but if it is thought that prerogative powers are involved, or a change in the relationship between Executive and Parliament, it should say so in the notes, at the very least.

That is a reflection on amendment No. 35 to remove subsection (5). It is a probing amendment—at least I think it is a probing amendment; it is tabled by my hon. Friend the Member for Christchurch, and he may well think that it is. It would be interesting to know what the Government have in mind in clause 2(5) and to know whether the palace has been consulted about what may be an important change from its point of view.

On clauses 7 to 16, it was clear from the discussion on new clause 2 that many Acts would come under the categories that I set out as important in relation to those orders that should not be made. It is right that the Minister should go through each of those. One has the suspicion that Departments may be producing plans to deal with religion, and there may be plans to do something about the Church of England. I mentioned the United Reformed Church Act 2000, which could be affected by the Bill. If the Government have no plans to change the laws on Churches by order, surely they can say so, include that in the Bill and make it the law.

Similarly, judicial tenure is of constitutional importance. The Government should not interfere with judges. Natural justice would have been introduced under my proposal as part of the European convention on human rights and the Human Rights Act 1998. It is an important provision.

We then come to habeas corpus, or what is left of it following the Government’s actions in recent years. Jury trial is under threat and there is also the problem of extradition. The more we consider such things, the more we realise that these are controversial matters. The Government are proposing that there should not be a jury in complicated fraud cases. On extradition, they have agreed with the Americans that British citizens can be exported over there without any evidence being presented in a court, but the same reciprocal arrangement does not apply here.

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

An important part of our liberty is being affected. The confiscation of property is also important. All of that is taking place against a   background of the introduction of other measures that also limit our liberties. The new clauses refer to the Civil Contingencies Act 2004, which is an important Act that takes liberty away from the individual.

The hon. Member for Somerton and Frome, in his shadow Home Office guise, has dealt with numerous Bills that curtail liberty. The Identity Cards Bill is on track and other proposals concerning terrorism have been put before the House. Now we are asking whether all that remains of habeas corpus can be thrown away—removed and abolished—by an order that may not be debated by the House of Commons. That is being done in the name of business, which is being told, “This is for you. We will take burdens off your back, and we’re going to do it with this Bill.” What business wants to abolish habeas corpus by order? None that I have come across has ever said that. I do not think that businesses would want property to be confiscated. Do they want an end to jury trial? I do not think so. Extradition? They may have concerns after the recent NatWest case, because bankers will be worried that their extradition position can be changed by order.

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

The hon. Gentleman makes a powerful case in support of my hon. Friend the Member for Cambridge. He mentions the number of Home Office Bills, as I did. He will recall that those were often extremely hard fought in both Houses. The other place has provided the constitutional safeguards that this place has been unable to provide, and we have often ended up with compromises involving safeguards being written into legislation. The problem with the procedure before us is that all those safeguards could be unlocked the moment that primary legislation has gone through, by an Order in Council, to which it is very difficult for the other place to apply the same blocking procedures. That essential constitutional lock on the powers of an elected dictatorship is therefore missing.

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

I wonder whether business would want to lose a Bill like this one simply because the Minister cannot provide the safeguards that he agrees are necessary.

I agree with the hon. Member for Somerton and Frome, and the Home Office Bills to which he referred were often accepted by the Minister in question. I remember the right hon. Member for Sheffield, Brightside (Mr. Blunkett) saying after a particularly bloody encounter with the other place that he recognised that the final outcome of the Bill was a fair compromise.

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

The right hon. Gentleman probably had gritted teeth, but our procedures exist for a reason. I do not think that the Minister wants to use the order-making powers in the Bill on the most important matters. Why will he not concede that a matter such as judicial tenure—the Government interfering with judges—is off the agenda? Why will he not agree that for the British Government to interfere with the rights of natural justice would be a scandal? Why will he not   say that interfering with the way in which we deal with elections is off the agenda? If we want to do such important things, we should follow the normal procedures of the House. Is the Minister seriously going to disestablish the Church or abolish jury trial by order? If so, then it is time that the Government were kicked out.

Photo of Andrew Love Andrew Love Labour, Edmonton

May I try to put the other side of the case? In the previous Parliament, the Regulatory Reform Committee abolished the last vestiges of the Sunday Observance Act 1780, and there has been much comment over the past few years about reusing the blasphemy laws. A considerable number of ancient statutes still apply. Is not the danger of having the catch-alls that hon. Gentleman sets out that we will catch a lot of ancient, redundant legislation that could best be dealt with in the procedure before us?

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

I do not think so. The hon. Gentleman makes his case in a much more coherent way than the Minister, and makes the fair point that there have been difficulties in deregulation. He will have seen the consultation document that the Government put out, which suggested a way of broadening the definition of burdens, introduced simplification without the burdens test and suggested that non-controversial Law Commission Bills should go through. We all agree about that, and that is what is so ludicrous. Business wants the Bill, yet it is in danger of losing it because the Minister will not introduce the changes that would make it acceptable to all reasonable people in the House of Commons and the other place. He is wrong to force us to suggest that he might be able to use the amendment to abolish the Church of England or disestablish it. I am anti-disestablishment, but we are making a serious point. These matters are at the very high end of important House of Commons considerations, and they should not be dealt with by a fast-track procedure that cuts parliamentary corners.

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

Again, we have had a series of interesting contributions from Opposition Members. They made some probing points and made several debating points for the sake of it. I understand why they must do that.

Although this is the clause stand part debate, I shall comment specifically on the amendments. Amendment No. 32 provides that orders should not repeal or replace legislation, but only amend it. It would not be possible for an order to modernise regulatory regimes and replace outdated provisions. Therefore provisions could not be consolidated and simplified in an order. Amendment No. 32 would prevent orders from delivering wide-ranging reforms, such as the fire safety regulatory reform order. It is important that orders can deliver substantial reforms and bring legislative changes together into one order when that is the most appropriate method.

Amendment No. 33 would seriously impede the Government’s better regulation agenda, which the Opposition claim to support. In general, the ability to confer the function of legislating is of particular importance, as orders need to be able, when   appropriate, to deliver large-scale reforms to entire regulatory regimes. Bills that establish regulatory regimes often confer powers to make secondary legislation, since it is often not appropriate or possible for all the detail of a statutory regulatory regime to be set out in primary legislation. Reforms that amend those regulatory regimes must therefore be able to confer the same powers. The ability of an order to make provision to confer, modify or transfer functions is essential to ensure that the mergers of regulators recommended by Philip Hampton can be delivered by way of orders under part 1.

Hon. Members may welcome some background to the debate. In the 2005 Budget, the Government accepted—as did the Opposition—the recommendations of Philip Hampton’s report “Reducing Administrative Burdens: Effective Inspection and Enforcement”. It was extensive in its scope: it considered the work of 63 national regulators and 468 local authorities. It specifically recommended that 31 of those 63 national regulators should be consolidated into seven thematic regulators.

Philip Hampton said, and the Government agreed, that those smaller regulators were unable to take a whole-system view of their regulatory field and, as such, were less able to make good risk judgements than regulators with a broader remit. It was also more difficult and more expensive to have a comprehensive risk assessment system if data were split across several regulators with similar areas of responsibility.

Aside from those policy disadvantages, smaller regulators suffered from diseconomies of scale. The data gathered in the Hampton report show that regulators with fewer than 200 staff are on average more than £8,000 per staff member more expensive than regulators with more than 200 staff members.

The Hampton mergers—the efficient delivery of which depends on the existence of this provision—will also be beneficial in reducing the number of interfaces between businesses and regulators. The mergers have widespread support from business and regulators.

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

I support the idea of merging the regulators. Will the Minister explain what will happen and provide a practical example—let us say the DEFRA example? What are the current functions, and how would they be merged? He does not have to use DEFRA as an example; if he wants he can use the Department of Trade and Industry to explain it. Will he explain any specific plans so that we know what he means?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office) 2:15, 2 March 2006

The specific suggestions in Philip Hampton’s report are about having thematic regulators. The idea is that through the orders enabled by the Bill, the smaller regulators and non-contentious mergers would be delivered. I hope that that reassures the hon. Gentleman—if that is what he is seeking.

The Government, however, made it clear before consideration of the Bill that the more contentious larger mergers of more substantial regulators would have to be done by primary legislation. Those larger mergers would be done in an entirely different way. With regard to enablement in the Bill, we are talking about non-contentious mergers that command the support of business and those consulted. To reassure the hon. Gentleman—I think that he is looking for that—the substantial mergers of the larger organisations in the thematic areas spoken about by Philip Hampton would still require primary legislation.

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

I will make some progress first.

Amendment No. 34 removes the ability of orders to make

“consequential, supplementary, incidental or transitional provision”.

Clause 2(4) reflects the situation under the 2001 Act, which enables, for example, an order that repeals a particular provision to make the necessary consequential changes to any other provisions that refer to it, so that out-of-date references to provisions that no longer exist are not left littering the statute book. Amendment No. 34 would remove the ability of orders to tidy up the law and make the necessary additional changes.

Amendment No. 35 would mean that the Bill would not explicitly provide for orders to bind the Crown. Not unreasonably, there were some questions about that, which I will, of course, seek to answer. In the absence of that explicit provision, Crown servants on Crown business could argue that, while they can take advantage of favourable provisions in orders made under clause 1, onerous provisions do not apply to them. For example, they could argue that the provision of orders that impose criminal offences or restate provisions relating to criminal offences did not apply to them.

The reform of the regulatory regimes will often remove or lessen the burdens that they impose. If the amendment were made, however, it would cast into doubt the ability of orders to impose onerous requirements upon the Crown and its servants. I will give a concrete example of how the amendment would cast into doubt the ability to make desirable orders. The delivery of the Hampton mergers, by way of order, is likely to require, in some cases, provisions that bind the Crown, such as in the transfer of assets from the current regulator to the new merged regulator.

I would like to reassure opposition Members. The definition of the Crown, in paragraph 1,321 to Halsbury’s guide to English law on the extent and applications of Acts is as follows:

“The doctrine of Crown immunity is not limited to the monarch personally, but extends to all bodies and persons acting as servants or agents of the Crown, whether in its private or public capacity. In particular, the doctrine embraces all elements of the Executive Government, from Ministers of the Crown downwards. This brings in Government Departments and their civil servants,   members of the armed forces and other public bodies or persons. Where it is intended that the Crown shall be subject to the provisions of an Act, the usual practice” which we are following

“is to insert a provision, near the end of the Act, saying that this Act binds the Crown.”

That is an important clarification in order to reassure Opposition Members. Perhaps fairly, they sought reassurance that the issue did not relate to Her Majesty or any member of the Royal Household.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister says that the justification for the measure is that it can be used to merge regulators, but that it will not be used to merge substantial regulators. Where does it say that in clause 2? Is clause 2 specifically restricted to the merger of regulators?

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

If the hon. Gentleman will allow, I will respond to those comments a little later.

Amendment No. 46 provides that orders could not reform legislation for a purpose substantially different from that of the original legislation. Although it is obviously unclear on the issue raised by the hon. Gentleman—that of substantially different purposes—putting that phrase in the Bill would not add to the merit of the Bill. The Government’s approach is different. We seek to provide general safeguards and protections, which we will debate as the Bill is subject to further Standing Committee consideration. What would be considered as substantially different purposes is open to debate and legal interpretation. As a Government, we have committed ourselves to one of the most radical regulatory reform packages anywhere in the world, which has been welcomed by business and others. Of course, we intend to deliver on that agenda, and I am concerned that the specific point in amendment No. 46 would prevent us from doing so. I have alluded to how it would affect our ability to bring about mergers of different organisations that were formed for different purposes in legislation.

Amendment No. 45 relates to the conferring by order of powers to make subordinate legislation. The amendment is designed to prevent orders from conferring powers to legislate on any person. It would therefore impose one of the same restrictions on the order-making power as exist under the 2001 Act. Consultation responses revealed that the inability of orders to confer powers to legislate has caused problems for Departments and impeded the delivery of both small and large-scale reforms.

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

Could the Minister give us examples of such reforms? That might enable us to table an amendment that would deal with those problems and yet avoid the problem with this measure, which is that it is far too wide; it transfers legislative power potentially to any person in the world.

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

I can give specific examples of the problems experienced as a result of the 2001 Act. A proposal to devolve fee-setting powers for local land charge services from the Lord Chancellor to local authorities in England and Wales was impeded. It was   not possible to widen the power to sub-delegate risk assessment as part of the Regulatory Reform (Fire Safety) Order 2005. A proposal to give the Secretary of State powers to determine functions of the new public health agency was not possible under the 2001 Act either.

The decision to include in the Bill the provision for legislative sub-delegation by order was directly informed by the views of consultation respondents, most of whom supported the measure. The Institute of Directors, for instance, commented that

“the safeguards should be more than enough to ensure that this power is not abused, and it is essential that we take this opportunity to add real teeth to the RRO process.”

As I said, one example of measures impeded by the restriction on conferring extended legislative powers by order involves additional aspects of the fire safety RRO, which was a substantial reform brought about as a result of the 2001 Act. It involved merging different pieces of existing legislation. However, we could have gone further with the power to sub-delegate.

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

It is important that mergers can take place and it may be appropriate to do some of them by order, but why would it not be possible to amend clause 2(2)(a) so that it says, “confer functions on any person exercising a regulatory function”, which is how regulators are described later in the Bill? One understands that conferring functions on a regulator in a particular way to get mergers through might be a good idea, but why does the Bill not just say what I have suggested?

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

The Bill does not say that partly because our ambitions are wider than the specific point that the hon. Gentleman makes. The hon. Member for Forest of Dean (Mr. Harper) asked for examples of “any person”, and we heard debating points about Berlusconi, Bush and various other people all over the world. I am sorry to disappoint Opposition Members, but that is not what is commonly considered to be “any person” in UK legislation. Examples of any person would be local authorities, traffic authorities and railway operators. Local authorities have powers delegated to them by primary legislation so that they can make byelaws affecting local areas and issues. Traffic authorities, including county councils and Transport for London, have powers under the Railways Act 2005 to make byelaws.

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

Is the hon. Gentleman seriously saying that the definition in English law of the word “person” is restricted to the categories that he has just described? Is that really what he is saying?

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

No, that is not what I am saying. What I am saying is that “any person” is a commonly used phrased. I was highlighting some examples of these powers being sub-delegated in the past to local authorities and relevant public bodies. That is the appropriate way to progress with this matter. Any proposal to sub-delegate to any person would have to be subject to the similar protections and guarantees   that the Government have offered. The relevant Select Committees in this House and the other place will judge whether it is appropriate sub-delegation. It is clearly the case that the ridiculous suggestions about Berlusconi, Bush and others would rightly be considered to be highly controversial. That is part of the statutory consultation in the Bill. The Government have given a commitment not to bring forward highly contentious proposals, and the relevant Select Committees themselves—

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

No, I will make some progress. The relevant Select Committees themselves would say that what the hon. Member for North-East Hertfordshire sought was inappropriate sub-delegation, but I understand it to be a parody of a debating point to talk about Berlusconi, Bush or others. It is not the intention of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister referred to the expression “guaranteed”. Most people purchasing goods would not accept an oral guarantee; they would want a written guarantee. Why will not the Minister give us a written guarantee?

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

As I have already said, when the 2001 Act was considered the Government offered a ministerial assurance on these matters, which operated effectively. There has been no contention on these matters since 2001 in terms of the ministerial assurance; I have given a commitment that we should not rely on ministerial assurance. As I have said on a number of occasions, we will seek ways to provide further reassurance so that there is a power of veto to the relevant Select Committees. The powers within this Bill are extended in a way that those in the 2001 Act were not in order to protect Parliament’s ability to scrutinise these proposals properly, which is part of our more ambitious regulatory reform agenda. So more than simply putting that in writing to the hon. Member for Christchurch, at the relevant point we will be offering reassurance by placing it in the Bill and seeking opportunities to do so.

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

The hon. Gentleman says “ah”. I made that point on Second Reading and referred to it in my evidence to the relevant Select Committees. I am happy to do so again. However, a blanket restriction on conferring powers to legislate by order would, as I said, also have a significant impact, as I mentioned, on the mergers recommended in the Hampton report. When merging a regulator an order would have to address issues such as transfer of staff, as I have already mentioned.

I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition. The Committees will be provided with information necessary to enable them to consider   whether the powers to legislate are being conferred appropriately. The Bill requires that the explanatory document that accompanies a draft order must identify and give reasons for any powers to legislate conferred by the order and the procedure requirements attached to those powers. I hope that hon. Members understand that the restriction that amendment No. 45 would impose on the order-making power is something that the Government would wish to avoid.

Amendment No. 69 would remove the ability of orders to codify the common law. In relation to the common law, or rules of law as described in clause 2(3), codification can take place only if it has been recommended by the Law Commission, about whose expertise in codifying the law I am sure we are all confident.

The Government believe that such a beneficial Law Commission recommendation should be implemented by order and for that reason we cannot support amendment No. 69.

On new clauses 7 to 16, we have already debated the merits and drawbacks of listing specific subject areas that should not be amended by order. Similar issues are at stake when we consider enactments.

Despite the invitation of the hon. Member for Christchurch, I do not intend to discuss for the Committee’s benefit each of the 40 or so Acts that he listed in his new schedule, but it is clear that in clause 3 on preconditions, which we will discuss, many if not all the points that he made would be covered by paragraph 3(2)(d) respecting necessary protections and 3(2)(e) respecting

“continuing to exercise any right or freedom”.

I am sure that he is aware of that, but I understand why he made that debating point. The conditions in the Bill guarantee those freedoms and protections, which could not be overturned in the way to which he alluded.

In addition to the preconditions in clause 3, the Government have given an assurance that they will not come forward with highly controversial proposals and that they will empower the relevant Select Committees. The lists of reserved areas of competence and Acts of Parliament excepted from the order-making powers in part 1 of the Bill are not the right way forward and might even obstruct the aim of removing unnecessary burdens on business. Even the hon. Member for Christchurch acknowledged that his list might not be exhaustive, and my hon. Friend the Member for Edmonton (Mr. Love) referred as well to whether it was exhaustive.

Although protections are guaranteed by clause 3 and by the powers of Select Committees, because of the need—

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 2:30, 2 March 2006

Based on what the Minister says, the crucial point is the question of the application of the Bill to itself. He refers constantly to the protections in clause 3. We shall come to them in a while; they are not as adequate as he claims they are. Surely he must   take the point that the Bill itself could be used to remove those very protections, and that he should therefore, at the very least, accept new clause 7.

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

I do not accept that the Bill could be used to reform itself, for all sorts of reasons. Not least of those are the Government’s assurance in 2001, which has been generally accepted, that they should not introduce highly controversial proposals, and the Select Committees’ power to reject any proposals by order. Those are important powers that would protect Parliament from such a suggestion. Additionally, statutory public consultation would echo that point.

The specific listing of enactments would undermine our ability to reduce the burden of the bureaucracy that might follow from some of the enactments. As I said earlier, the Departments are working on simplification proposals about ways to reduce bureaucracy.

I suspect that we would not seek to change most if not all the Acts listed in the hon. Gentleman’s new schedule—or indeed those mentioned by my hon. Friend the Member for Edmonton and others that we could list—because they would be highly controversial, the Select Committees would rightly reject them and the Minister would not make such a proposal. However, we wish to cut the bureaucracy and the burdens arising from many Acts of Parliament, and to have such a prescriptive list—one that, in my interpretation, restricts the ability to reduce bureaucracy, form-filling and information sharing—would undermine entirely a large aspect of our better regulation agenda.

We must reduce bureaucracy, and an ability to do that to all sorts of different Acts which themselves are highly controversial—the Government do not propose to introduce amendments to the policy but to amend the bureaucracy attached to them—is the right way to progress. I recognise that some administrative burdens are necessary, but if we can reduce the burden on business where appropriate, we should. I am sure that Opposition Members agree with me on that.

I appreciate why such amendments have been suggested but, for the reasons that I have outlined, I cannot support them. I therefore urge my hon. Friends to oppose them. With the safeguards that I have mentioned, the clause should stand part of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

That was another extraordinary performance by the Minister. At least we have, at last, got the concession that he is thinking of tabling some amendments on Report. When are we going to see those amendments? Will they be produced at such a late stage that it will not be possible for them to be considered by the House other than as a fait accompli? Will we be faced on Report with a timetable that allows the Government to dominate the agenda with their new clauses and amendments, which always take priority, so that there will not be time to reach everybody else’s amendments? If the Government produce lots of extra amendments on Report, will the Minister reconsider the amount of time that is available for consideration at that stage?

The Minister keeps talking about debating points. Surely this is a debating Chamber. Our amendments seek to preserve debate in Parliament, rather than allowing legislation by Government fiat with no public or parliamentary debate. The Minister seems to find that rather awkward. He keeps going on about “highly controversial” and guarantees, but when we challenge him he uses an expression that we should note carefully: “Our ambitions are wider”. He gives us lots of innocent-sounding examples, but when we try to tie him down and ask him to limit the Bill to its ostensible purpose he says that that will not do; he has wider ambitions—but he will not tell us what they are. Perhaps he will let us know during a later debate.

Then the Minister talks blandly about bureaucracy—if there is too much bureaucracy, that can be a justification for removing a host of civil liberties. One of the new clauses set out by the hon. Member for Cambridge is about judicial tenure. Obviously, in that case we could reduce bureaucracy by changing the rules—we could abolish jury trial, with all those letters that have to be sent out to potential jurors asking them whether they will attend the Crown court on a particular day. It is not adequate to cite the need to reduce bureaucracy as a justification for removing civil liberties and freedoms from the people under this process.

The Minister has not given us the sort of assurances that we need, and I hope that we will be able to put one of the amendments to the vote—I shall beg to ask leave to withdraw amendment No. 32 so that we can vote on amendment No. 33, which is much deeper. If it were adopted, that would remove a lot of our concern about the Bill. The Minister has not assured us, for example, that it will not be possible under these provisions for the Government to legislate to extend the scope of existing Acts of Parliament. An expert in the Room has rightly drawn to my attention the fact that I was wrong in saying, in my intervention on the hon. Member for Cambridge, that that is governed by the long title. It is the scope of the legislation, not the long title that is at issue. What guarantee have we that the scope of existing Acts of Parliament will not be extended by subordinate legislation without Parliament’s having the chance to exercise proper scrutiny?

The story goes on. I asked the Minister what guarantee there was that the powers would not be used for major mergers. If I remember correctly, he said that he would answer that point later. He has not answered it. He asserts that the powers will not be used to govern major mergers, which would have to be done through primary legislation.

What is the definition of a “major” merger of regulators, compared with a minor merger? If one is working for an existing regulator and one faces the prospect of losing one’s job as a result of a merger, or if one feels that a conflict of interest would be created by a merger, surely that is something that one should be able to take up with one’s Member of Parliament, who would expect it to be the subject of primary legislation and therefore subject to proper scrutiny.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

On the point about regulators, the Minister was challenged several times, and he drew attention to one specific example—implementing the Hampton report. Given the weight that he puts on the report, it seems extraordinary that the Government do not find time, using primary legislation, to implement it. It seems to me that implementing the report is the primary justification for the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

My hon. Friend makes an excellent point. If it is necessary to use primary legislation for major mergers, why cannot minor mergers be included? It would take only one big Bill to rationalise the regulatory authorities. It might or might not be controversial, but it could at least be scrutinised by Parliament. The Minister’s justifications for the Bill strike me as spurious. He is disregarding the safeguards that we have been trying to write in.

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

Was my hon. Friend happy with the Minister’s response to my earlier intervention? I suggested that we could reword subsection (2) so that it referred to regulators being merged. One could easily take the language from later in the Bill, where it describes regulators as “persons exercising a regulatory function”, and include it in subsection (2). The Minister would thus have everything that, up to that point, he had said he wanted; but he then said, “Ah, no; it would not go far enough, because we have further ambitions.” Does my hon. Friend have a better idea than I do about what those further ambitions are? Is that not the worry?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

It is indeed the worry. That is why we are contesting the Bill so hotly. My hon. Friend and other members of the Committee are trying to constrain the Government.

I used to sit as a Minister in Committee. In those days, if someone came forward with a sensible suggestion, as my hon. Friend did today, the Minister would say, “That is a very sensible suggestion. I cannot guarantee to follow it up, but I shall take it away and think about it.” We have not had a single instance so far of the Minister saying, “I agree; it may be going too far”—or perhaps a little wide or rather ambiguous—“but I shall take it away and think about it.” Not once has the Minister said, “I will come forward with a specific amendment or new clause on Report.” That is a highly unsatisfactory way of proceeding. I do not know whether the Minister lacks the authority to exercise discretion or show flexibility but, for whatever reason, he is being intransigent and not responding to the spirit of co-operation and helpfulness that we are trying to promote.

We are indeed having a debate. I do not regard debate as a dirty word. Debate is fundamental to the whole of the British constitution and the freedom of our people. I hope that hon. Members will join me in supporting amendment No. 33.

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

I do not want to add much to what the hon. Member for Christchurch said, all of which I agree with. I should like to take up the Minister’s point   about the procedural protections that he is apparently now offering in the Bill. Previously he would only repeat the word reassurance.

The problem with the Minister’s position is that we do not know what he is proposing. There is no specificity to his proposals. The Committee will debate later whether Committee procedures are the best way to provide protection. Committee majorities are automatically in favour of the Government, and the Government whips have ways of changing Committee membership. We do not know precisely what the Government are proposing, so the Minister cannot be surprised that those on this side are not satisfied with the assurances that we have been given, especially considering how long it took to drag out of him the commitment to put some reassurance in the Bill rather than simply give verbal reassurance. I therefore suggest that the Committee should take some votes at this point.

I am happy to withdraw any suggesting of voting on amendment no. 45, because its substantive point is fully covered by amendment no. 33. However, I urge the Committee to consider what it is doing by leaving the words “any person” in the Bill. I suggest that we vote on amendment no. 46, because although the Minister says that he does not intend to use the Bill to go beyond the original purposes of the legislation, for some reason that we cannot ascertain he is not prepared to put that assurance in the Bill itself.

If possible I will also insist on a vote on new clause 7. We come back to the fundamental point that the protections in the Bill are vulnerable to the procedure of the Bill itself. New clause 7 would cover that point. I cannot understand why the Minister refuses to accept that point, when his view seems to be based on the constant repetition of the remark that there are safeguards in the Bill. Finally, I think that we should have a vote on one of the proposed new clauses; I suggest that we vote on new clause 8, on judicial tenure, to see whether the Government are at least prepared to accept that the procedures in the Bill should not be used to undermine the rule of law.

Amendment, by leave, withdrawn.

Amendment proposed: No 33, in clause 2, page 2, line 8, leave out subsection (2).—[Mr. Chope.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Division number 6 Nimrod Review — Statement — Clause 2 - Provision

Aye: 5 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

Amendment proposed: No. 46, in clause 2, page 2, line 25, at end add—

‘(7)No order may be made under section 2(1) for any purpose substantially different from that for which the legislation was passed.’.—[David Howarth.]

The Committee divided: Ayes 6, Noes 8.

Division number 7 Nimrod Review — Statement — Clause 2 - Provision

Aye: 5 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

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

On a point of order, Mr. Caton. Earlier, the Minister kindly indicated that he would provide members of the Committee with information about the meaning of the phrase “local Acts”. We have not heard when we are to receive it, but it would be convenient to have it soon because if we are not happy we might want to table amendments to later provisions.

Photo of Martin Caton Martin Caton Labour, Gower

That is not really a point of order for me. However, it is a point well made, and I am sure that the Minister heard what was said.

Question proposed, That clause 2 stand part of the Bill.

The Committee divided: Ayes 8, Noes 6.

Division number 8 Nimrod Review — Statement — Clause 2 - Provision

Aye: 7 MPs

No: 5 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly agreed to.