Clause 3 - Preconditions

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 2:45 pm on 2 March 2006.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 2:45, 2 March 2006

I beg to move amendment No. 36, in clause 3, page 2, line 31, leave out ‘he considers that’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following amendments:

No. 48, in clause 3, page 2, line 31, after ‘he’, insert ‘reasonably’.

No. 47, in clause 3, page 2, line 31, leave out ‘considers’ and insert ‘ascertains’.

No. 37, in clause 3, page 2, line 39, leave out subsection (2) (d).

No. 38, in clause 3, page 2, line 41, leave out from ‘freedom’ to end of line 42.

No. 21, in clause 3, page 2, line 42, at end insert—

‘(f)the relevant committees of both Houses of Parliament have issued certificates that in their opinion the provision is not controversial.’.

No. 39, in clause 3, page 2, line 42, at end insert—

‘(f)the provision will remove or reduce a legislative or administrative burden.’.

No. 70, in clause 3, page 2, line 44, leave out from ‘legislation’ to end of line 3 on page 3.

No. 40, in clause 3, page 3, leave out lines 2 and 3.

No. 41, in clause 3, page 3, line 4, leave out subsection (4).

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Amendment No. 36 is but the first of a number of amendments to clause 3. We certainly hope that it will find some favour with the Government. So far, we have tried to limit the Government’s powers in relation to clause 1, and failed; and we have tried to do so in relation to clause 2, and failed. I hope that we might be able to get some concession from the Minister in relation to this clause. In the previous debate, he described it as providing protections. The Bill calls them preconditions.

The amendment is fundamental, because it would introduce an objective test, rather than a subjective one, into the protection or precondition procedure. That point was expressed on Second Reading by a number of hon. Members, particularly the Chairman of the Public Administration Committee, the hon. Member for Cannock Chase (Dr. Wright). He said that the wording that is in the Bill at the moment is meaningless, because it is non-justiciable—basically, the Minister would be able to say, “I consider this, and that is final.”

Amendment No. 36 would remove the phrase “he considers that” so that a Minister would not be able to make an order under section 1 containing provision under section 2(1) unless the conditions in subsection (2), where relevant, were satisfied. It would not be for the Minister to decide in his own cause whether the conditions were satisfied, it would be a matter of an objective test. If it was obvious that the test was not satisfied it would be possible to challenge it in court.

As it is worded at present the Minister will be the judge and jury of whether the conditions, which he says are safeguards and which are the only restraint upon the exercise of his absolute power, apply. He will be the sole person to decide whether those safeguards should operate. That is unconscionable and I hope that the Minister, on reflection, will accept that the amendment should be accepted. It would strengthen the clause quite significantly.

The other amendment to which I should like to speak briefly is No. 37, which is a probing amendment to find out what the expression “necessary protection” means. At present one of the conditions is that

“the provision does not remove any necessary protection”.

Does that mean any necessary protection of the freedom of the individual? Does it mean any necessary protection for the freedom to look after the environment? I know that some people in the trade union movement have been told that any necessary protection will allay their concerns that the Government might do something which would reduce health and safety legislation or other employment law. But at the moment necessary protection is not spelt out.

The only information we have is that contained in the notes on clauses, paragraph 31 of which rather worryingly states:

“No order can be made unless the Minister is of the opinion that it would maintain any protections that the Minster considers to be necessary.”

That introduces another way in which the Minister himself would be the sole governor of whether this was a protection and, if so, whether it was a necessary protection. If the clause is indeed to provide protection and preconditional safeguards it should be spelt out. I hope that the Minister will accept that no provision should remove any necessary protection of human rights, fundamental freedoms and liberties of the individual subject and so on. We could extend that list but at the moment I do not think that this is very satisfactory.

Amendment No. 38 would remove the qualification on freedom. Why do we need to qualify our freedom in the way that this subsection does at present? It states:

“the provision does not prevent any person from continuing to exercise any right or freedom”.

Why not just leave it there rather than add

“which that person might reasonably expect to continue to exercise.”?

The prospects under the present Government are pretty grim. Reasonable expectations have fallen quite significantly. I suppose that the Minister would be able to say, “These days people do not expect to be able to continue to exercise those freedoms and so we might as well take them away from them.” Why do we need that qualification in subsection (2)(e)?

Amendment No. 39 is an additional safeguard that has been drafted to take up the point made by the Minister when he addressed the Select Committee on Procedure last month. I put question 64 to him:

“Throughout the Minister has relied upon the burden procedure and said that what the Government is trying to do is to reduce burdens. Can I ask the Minister why, in the original consultation paper, the Government said it would retain the requirement that all Regulatory Reform Orders must remove or reduce a burden—that was the basis on which you went out to consultation—but subsequent to consultation you have removed the concept of burdens entirely from the legislation?”

The Minister replied:

“As I understand it, that is an assessment based on the previous position of a legal burden, because under the 2001 Act it was a legal burden rather than an administrative burden. We can all define our own sense of what constitutes a burden but under the 2001 Act it was designated as removing a legal burden and we think we should go further than that.”

Elsewhere in that Select Committee’s proceedings, the Minister made similar comments about the fact that as it is currently defined, the word “burden” does not include administrative burdens. I thought that we should therefore put forward an amendment which would not include the previous phraseology relating to the necessity of removing a burden but would refer to the necessity of removing or reducing

“a legislative or administrative burden”.

I hope that the Minister will accept that amendment, because it is consistent with what he told members of the Procedure Committee. A number of us might not be surprised if he does not, because it would not be the first time that he has changed his mind in a short period and said something different to the Committee from what he said earlier.

Amendment No. 40 would limit the Minister’s powers—

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 3:00, 2 March 2006

Does my hon. Friend wish to join me in congratulating the right hon. and learned Member for North-East Fife (Sir Menzies Campbell), who has just won the Liberal Democrat leadership contest?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Based on how Members from his party have been performing on this Committee, I shall certainly do that. It is indicative of the Liberal Democrat party’s conscientious approach to this important constitutional Bill that two of its Members are here rather than joining in celebrations.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

It just goes to show how important we collectively think the Bill is. Constitutional significance must override party political leadership elections, of which there seem to be quite a lot these days.

Going back to the amendment, I do not understand why we should try and change the wording of the law to make it more accessible or more easily understood; the law is accessible—it is available in tomes. There are also “Halsbury’s Laws of England”—the Minister referred to part of one volume earlier. The law is accessible. How is it going to be more easily understood? And by whom? Who is going to decide that?

If we introduce changes to the law and want to simplify legislation, surely a good starting point would be not to duplicate legislation that is already on the statute book. For example, private Member’s Bills are often introduced to the House that already cover situations that are against the law or subject to regulation. However, the process of restating or duplicating the law sometimes is thought useful because it draws public attention to a particular problem.

An example of that approach is the Government’s desire to legislate against driving a motor car while using a mobile phone. It is already an offence to drive a motor vehicle without due care and attention or reasonable consideration for other road users. It is not necessary to have a specific provision outlawing the use of mobile phones by drivers, because if a driver uses a mobile phone and thereby drives without due care and attention, he is already guilty of an offence. That is an example of the temptation into which the Government falls—of wanting to increase the number of restrictions and regulations on the statute book, rather than relying on the more general provisions that are already there. In relation to that amendment, I put the Minister to proof of that.

Amendment No. 70 would remove the whole of the relevant provision in toto. The Minister will be able to respond to those issues and I look forward to hearing him agree that there should be an objective test for how those protections and preconditions are to be policed under the Bill. If he is going to be the judge and jury, there will be no effective way to police the provisions in clause 3.

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

I hope that you will allow me the indulgence, Mr. Caton, of welcoming the election of my old Friend the right hon. and learned Member for North-East Fife as leader. I am grateful also to the hon. Member for Christchurch for his comments; it is important that even when there are party political matters, something as important as the matter before us gets the proper scrutiny. I hope that we are evidence of that.

I rise to speak to the two amendments in my name and that of my hon. Friend the Member for Cambridge—amendment Nos. 48 and 47. We will be covering some of the ground already covered by the hon. Member for Christchurch.

Our great difficulty is that we have what the Minister calls safeguards or preconditions that, were they objective, might be of some help. But they are not objective; they are moderated by the opinion of the very Minister who wants to make an order but who may want to avoid the scrutiny of the full parliamentary process.

The matter is crucial. Unless we have an objective test, there is no safeguard. Whatever a Minister’s opinion might be is frankly of no interest to Parliament. We want to ensure that safeguards apply whatever the personal views of the Minister involved. We are not talking about the Cabinet Office Minister, but about the Home Secretary, the Secretary of State for Work and Pensions or whichever Secretary of State might consider making an order under the Bill. What they may think satisfies those conditions may be very different from what Opposition Members or Government Back Benchers think are proper conditions on the use of orders, and still less what members of the public think.

The difficulty that we have with subsection (1) is that it qualifies every one of the conditions in clause 2. What appear to be objective tests are in fact subjective. We cannot remove that subjectivity entirely, but we   can ensure that the Minister’s opinion is properly used. We should invite justiciability—a word rightly used earlier by my hon. Friend the Member for Cambridge. We should invite the courts to take a view as to whether a Minister has behaved reasonably in coming to his view. It is not a question only of whether the process is appropriate. It is also a matter of whether the opinion is reasonable.

I entirely take on board what the hon. Member for Christchurch said about paragraphs (d) and (e) of subsection (2). What on earth is a “necessary protection” if it is only in the mind of the Minister of the day? In the past, some Ministers thought that protections were anything but necessary. Ministers, not necessarily in the present Administration but in previous Governments, have thought that protections had a very low order of priority—perhaps when dealing with employment law. Are we really content to allow Ministers to determine whether those protections are necessary when dealing with future legislation? I invite Labour Members to consider that question carefully, because I think that that is not sufficient.

I also take on board the point, perhaps made slightly tongue in cheek, about the phrase

“any right or freedom which that person might reasonably expect to continue to exercise”.

Judging by my experience of the past few years, there are very few rights or freedoms that one can reasonably expect to continue to exercise. For instance, one can no longer reasonably expect to walk across Parliament square without being accosted by a police office and told that if one is part of a demonstration one must have the permission of the Metropolitan Police Commissioner. I, as a simple soul, may have thought that that was a right or freedom that I ought to be able to continue to exercise. Some of the people who recently felt it appropriate to read out at the Cenotaph the names of those who had died in a war might have thought that it was a right or freedom that they could reasonably expect to continue to exercise, but Ministers thought the reverse. They think that that is not an appropriate right or freedom for a British subject and that they can take it away. They have expressed every confidence in the courts that they were right to prosecute people for reading out a list of names of war dead at the cenotaph, and that those people should be found guilty.

That puts our concerns about the proposal in context. Our amendments are extraordinarily modest. They would give us some hope that at least the courts might consider what is in the interests of the citizens of this country, even if Ministers—in this or a future Government—do not.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 3:15, 2 March 2006

Amendment No. 21, which I tabled with my hon. Friends the Members for North-East Hertfordshire and for Christchurch, relates to the issue of controversy—something that the Minister has   several times referred to. He has talked about non-controversial or highly controversial matters. My hon. Friend the Member for North-East Hertfordshire said on Second Reading that he would address that matter.

We welcome the assurances that the Minister has given that the Bill will not be used for controversial or highly controversial matters, but we should be more comfortable if those assurances were in the Bill, and did not rely on ministerial assurances. Modest though the amendment is, it strikes at the heart of the use that will be made of the powers under the Bill.

It has been suggested in the press that the Government hoped to sneak the Bill under the radar. Indeed, the hon. Member for Cambridge went one step further in his article in The Times, commenting that

“British democracy is sleepwalking into a sinister world of ministerial power”,

and suggesting that the Bill should be renamed the “Abolition of Parliament Bill”. We shall not go quite that far now, but it is important to consider amendments such as mine.

The amendment is short and simple, but as with many of our amendments it would enact something that the Minister has promised—or in this case something that he says is in the Bill. We dispute that. He has several times talked about Select Committees of Parliament having a veto. The amendment would give them a veto. In both Houses of Parliament they would have to agree that a measure proposed under the Bill was non-controversial and that it would be appropriate to proceed under the Bill. The alleged veto to which the Minister has several times referred does not appear, on our reading, to be in the Bill.

On Second Reading the Minister assured us that the right of veto—which was based on ministerial assurances made during the passage of the Regulatory Reform Act 2001—was in place. However, again—I think that I speak for both Opposition parties in the Committee—we are not convinced that goodwill and assurances from the Minister are adequate. The items should be included in the Bill.

The amendment would add to the preconditions in clause 3(2) that an order must meet to be acceptable under the Bill. Those preconditions are:

“that—

(a) the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;

(b) the effect of the provision is proportionate to the policy objective;

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) the provision does not remove any necessary protection”—

I shall touch on that matter when I speak to some of the other amendments in my name—and that

“the provision does not prevent any person from continuing to exercise any right or freedom”.

Adding the extra check, that the measure should be non-controversial, and that that should be agreed by relevant Committees in both Houses of Parliament,   rather than just relying on ministerial opinion, is a modest change, and is very much in line with what the Minister says he wants of the Bill.

I want to touch briefly on the other amendments in the group. Again, I support what my hon. Friend the Member for Christchurch said. The words in clause 3(2)(e),

“which that person might reasonably expect to continue”,

may not have been thought to be controversial until relatively recently, but there are some historic rights, which go back many centuries, that people could reasonably have continued to exercise, but recent Government measures call that into question. I am not sure that the measure adds a huge amount of protection and it would be interesting if the Minister would comment on that.

The biggest point is on amendment No. 36, which would remove the words “he considers that”, for the reasons that my hon. Friends set out. It is important that the tests in legislation can be considered by a court of law. Conservative Members are not entirely comfortable with that depending on ministerial opinion, especially as many of the safeguards depend purely on ministerial assurances.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

I shall touch briefly on amendment No. 21, which appears to take the route that the Select Committee proposed, but is actually slightly more restrictive. Although this is the appropriate place to consider including a veto facility in the Bill, I urge the Minister to consider the proposal and the wording suggested in paragraph 59 of the Select Committee report. I hope that the Minister will give us a commitment to take the matter forward on Report.

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

I am pleased to be able to respond to the points made by hon. Members and to the amendments tabled by Opposition Members. I also want to pick up the point made by my hon. Friend the Member for Plymouth, Devonport.

I start by joining the Committee in congratulating the right hon. and learned Member for North-East Fife on his successful election. I am delighted that both Liberal Democrats were able to be present throughout; I do not know whether they were invited to the party. The hon. Member for Cambridge campaigned for the person who I assume came second and the hon. Member for Somerton and Frome would not declare who he was supporting. He has no doubt gone to join the party to say, “I was on your side all the time.” [Interruption.] I see that he is now back from the party. However, that is not the point before us—

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

That is a debating point.

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

It is an enjoyable point. I want to comment on amendment No. 21, which addresses an issue which is the subject of ministerial undertakings that I have made before and which I reiterate now.

The amendment is unnecessary. The Government have made a commitment not to use the order-making power in the Bill to deliver highly controversial measures. However, it should be possible to form areas in which the principles might be broadly controversial   if the order deals solely with detail and does not open up those principles. A good example is the Regulatory Reform (Prison Officers) (Industrial Action) Order 2004, which seemed controversial but nevertheless was allowed to progress. A highly controversial issue would have been identified during the consultation period for that order, and an explanatory memorandum placed before Parliament which must detail the consultation responses received.

The Government do not believe that the size of orders should be an issue relevant to whether the proposals are appropriate. Members of the Regulatory Reform Committee said that they would like to examine more substantial proposals. That is one reason why the Regulatory Reform Committee will rightly consider its terms of reference in consultation with the Leader of the House as part of the recommendations in its report.

Having the ability to deliver wide-ranging reforms by order is essential to make a real difference in cutting red tape and reducing unnecessary bureaucracy. The undertakings made in relation to the 2001 Act have worked well. So far, the majority of orders that the Government have proposed have been approved by the Committees. That has not been the case in all circumstances. The draft Regulatory Reform (Registration of Births and Deaths) (England and Wales) Order 2004 was rejected by both Committees as they were concerned that the proposals went beyond the undertakings relating to the 2001 Act. The Government are not now pursuing those proposals by RRO, and that example shows that the ministerial undertakings given in 2001 were an effective protection.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister will recall that, at his meeting with the Procedure Committee, he guaranteed that if there were not a veto in the Bill, as he thought that there was, he would put one in. Is he now reneging on that?

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

The hon. Gentleman anticipates my next comments in response to my hon. Friend the Member for Plymouth, Devonport. There is a technical defect in amendment no. 21. I do not want to make a big point about it, but it appears that by virtue of clause 12(2)(c)(i), a certificate from Committees will be required when the order is drafted or first laid before the House. That will give the Committees a chance to see the relevant order and explanatory document. However, that is not the specific reason for not supporting the amendment. In the light of the assurances that I wish to give, the amendment is not ambitious enough.

I can give a commitment to the Committee today, in the way that I have on previous occasions, to give the power of veto to the relevant Committees here and in another place, and to the Committees charged by the House of Commons as being the appropriate Committees to consider orders. The Bill should be amended to include that veto, which is a significant change from the 2001 Act. It is an appropriate change as we seek to extend our better regulation agenda.

I underline again that there has been no suggestion in the interim period from 2001 that the current ministerial undertaking has not been adhered to. However, having listened to the observations and comments that have been made, I think it appropriate that a veto be placed in the Bill. That will be brought forward on Report.

We will now enter into a period of discussion, and if Opposition Members wish to have consultation about the specific nature of the veto, I invite the Front Bench Members of both parties opposite to have conversations with myself and officials if they feel that that would be appropriate. To get the veto provision correct will take a great deal of work and thorough consideration.

Photo of Alison Seabeck Alison Seabeck Labour, Plymouth, Devonport

May I thank my hon. Friend the Minister for that undertaking? He has been heavily criticised today for apparently not listening, and I think that he deserves credit for having taken concerns on board.

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

I give way to the hon. Member for Somerton and Frome.

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

I am extremely grateful. I am happy to give credit to the Minister when he makes a concession. He has now done so, and I am grateful. I think that it is about time.

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

I would like to add my thanks to the Minister for making an important concession, which goes some way to meeting the concerns that we have expressed. It is very welcome, and for my part I would be interested in taking part in discussions about the wording of the amendment to add the veto power. I think that it might also be helpful, if the Minister is prepared to do so, to consult the Chairman of the Regulatory Reform Committee, as it has played an important part in the process.

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

I am enjoying these 30 seconds—I am not sure if it will last. I do not know if it is a feel-good factor caused by the election of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell).

Photo of Andrew Love Andrew Love Labour, Edmonton

Don’t go down there.

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

I am not going to.

I am happy to enter into discussions with the Opposition Front Bench spokesmen of both parties to see whether we can find a specific wording for the veto provision. However, I wish to underline again that we will not do so in a way that undermines our ability to bring about our wider agenda of better regulation. Of course we shall take up the reasonable suggestion made by the hon. Member for North-East Hertfordshire about involving the Chairman of the Regulatory Reform Committee, my hon. Friend the. Member for Ellesmere Port and Neston (Andrew   Miller), to see what specific suggestions he would have deriving from his great experience in chairing that Select Committee.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 3:30, 2 March 2006

I am grateful for that important concession. Will the Minister also include the Chairman of the Procedure Committee in his consultations? Will he remember that the undertaking that he gave to that Committee was for an “absolute veto”? I hope that nothing that he is saying constitutes a reining back from that commitment.

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

I do not want to get involved in discussing the specific nature of the veto, but the veto will be that the relevant Select Committees have power under the Bill to reject proposals. I do not wish to speculate on specifics beyond that, but I shall seek wide and effective consultation to see what specific suggestions hon. Members have about the shape and nature of the veto. I hope that, in the light of what the hon. Gentleman charitably and accurately calls an important concession, some of the other concerns would diminish. I know that there are some specific and additional concerns, but with the Select Committee veto in the Bill, some of the wider concerns would be overcome.

I turn to amendments Nos. 36, 47 and 48, on which unfortunately I have rather less good news. They aim to alter the preconditions in clause 3 which orders must meet. Clause 3 provides that orders cannot be made unless the Minister is satisfied that the preconditions are met. Amendment No. 36 would remove the reference to the Minister’s opinion so that if the conditions are not satisfied, the order could not be made. Amendments Nos. 47 and 48 would strengthen the reference to Ministerial opinion, so that instead of a provision whereby the Minister must consider that the conditions are met, the Minister would have to reasonably ascertain that the conditions were met.

The Ministerial opinion requirement worked well under the 2001 Act and indeed under the 1994 Act. There is no evidence that it should be changed, and until the contributions to discussion today, no suggestion of that nature had been brought to my attention as part of the consultation. The arrangement worked well under the two previous regulatory reform Acts.

The Minister is already under a public law duty to act reasonably and to reach his decision on a reasonable basis. If, when making a decision, a Minister ignored compelling evidence from the consultation responses that the necessary conditions had not been met, he would be acting unreasonably. The Minister’s decision would, of course, be subject to challenge by judicial review in the courts, and the courts would decide whether the Minister had acted unlawfully or unreasonably in reaching his decision, and could quash the decision if he had.

For those reasons, amendment No. 48 is unnecessary and adds nothing to the clause that it would amend. In practical terms, the Minister will not lay an order before Parliament unless he is confident on the basis of consultation and evidence that the preconditions are met. There would be little advantage, therefore, in changing the reference, from one where the Minister must consider the preconditions to be met, to one where he must ascertain that they are met. For that reason amendment No. 47 is also unnecessary.

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

May I return to the point on reasonableness? The hon. Gentleman is right that if a Minister did not look at evidence that had been adduced, he would be acting unreasonably, and that would be justiciable. If, however, he had looked at that evidence, and had nevertheless reached a view different from that commonly held by Parliament, that would not be justiciable, because he would have considered the evidence and come to a view, and that would be entirely consonant with this part of the Bill. So we are not just asking for the Minister to act reasonably; we are asking him to come to a reasonable conclusion.

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

Of course, if the Minister’s recommendations and view were not based on the evidence, that would be justiciable. The phrase that I believe was used in the 2001 Act was “of the opinion that”. Having acknowledged the consultation and the evidence arising from it, the Minister would then recommend an order to the relevant Select Committee. Bearing in mind the concession that I have already identified, even if the Minister had paid attention to the evidence and the consultation, the Select Committee could then veto the Minister’s recommended order. That is a double protection.

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

I just want to agree with the Minister. The veto is important because it at least provides some sort of check. He could still come to a perverse conclusion, but provided that it were not one that—what is the phrase from the Wednesbury incorporation?—no reasonable person could have come to, he would still be acting within the law.

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

The Commons itself would then, rightly, take a different view and act appropriately, so there is that double protection. I do not wish to labour the point, because I think that the hon. Gentleman acknowledges it.

Amendment No. 37 would enable the condition safeguarding necessary protection to be removed. That would mean that orders could take away necessary protections. The condition was in both the 2001 Act and the 1994 Act, and has helped Committees to get to grips with proposed orders. For example, the Delegated Powers and Regulatory Reform Committee questioned a proposed business tenancies regulatory reform order to amend the provision in the Landlord and Tenant Act 1954. It is important for the order-making power to be flexible enough to deliver better regulation in the context of the rights and freedoms precondition.

Amendment No. 38 takes out the reference to rights and freedoms that a person might reasonably expect to continue to exercise. That would detrimentally change a safeguard that worked well under the 2001 Act. The reference to reasonable expectations recognises that it would not be fair to take certain rights away from people by order, but that not all rights and freedoms are reasonable. For example, a company might pollute and expect that to be considered a right or freedom, even though, of course, its ability to do so should not be extended or maintained.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister has rather glibly gone over that important issue. Is he saying that some rights and freedoms should not reasonably be expected to be maintained?

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

The right and freedom to pollute, for example, should not be maintained.

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

That is a helpful sedentary intervention. It would not reasonably be expected to be. That is the type of freedom that should not be maintained. Hence, I cannot accept the provision in amendment No. 38 that orders should be able to maintain rights or freedoms that the person enjoying them could not reasonably expect to keep.

Amendment No. 39 creates a new condition that orders must

“remove or reduce a legislative or administrative burden”.

That would create an order-making power that moved back in the direction of the 2001 Act, which the Regulatory Reform Committee and, I think, all parties in the House acknowledged had an inherent weakness. I know that the Regulatory Reform Committee, which has acknowledged expertise on regulatory reform orders, has not proposed that the concept of burdens should form part of the way in which a clause 1 power is framed.

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

Perhaps for the last time, because we are not making progress.

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

I am grateful to the Minister. One of the points that business people make to me is that they would like the overall effect of the Minister’s proposed measures to be a downward revision—in other words, the regulation on them will become less burdensome than it is now. They do not want to face the possibility that there will be more regulation and more legislation. I know that the Minister is not aiming for that, but is there any mechanism that he can consider between now and Report that will ensure that we achieve a downward revision for business, rather than leaving open the possibility of more regulation? Will he look again at whether he can do something in the Bill to sort that out?

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

I am not sure that that is an issue for the Bill. I shall be happy to reflect on the issue, but whether the Government are committed to better   regulation—stripping out unnecessary bureaucracy and outdated statute—is a matter of political will rather than of the content of the Bill.

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

I am grateful to the Minister for giving way again. He is right that it is an issue of political will. However, we would like it very much, and so would business, if he could find a way not only to have the will, but also to have it in the Bill.

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

Of course, the Bill is an enabling Bill and it intends to enable the delivery of the political will that now exists. It is generally accepted by business and others that this is the most ambitious better regulation agenda of any UK Government. I am concerned that narrowing the power in this way might prevent the merging of regulators by order. The amendment also subjects the implementation of Law Commission reports to a test that is inappropriate in that context. In other words reports could be implemented only to the extent that they would do so to remove or reduce burdens.

We had all hoped that the 2001 Act definition of a burden would effectively capture regulatory reform but it did not. That fact is recognised by the Regulatory Reform Committee. I am concerned that amendment No. 39 would replicate the problems with the 2001 Act. In effect we would still have a narrow, technically defined power that is complex to use. As part of the agenda of changing the culture within Whitehall in respect of regulation it would create an additional technical hurdle for Departments and would act as a disincentive to the change in that culture that we all proclaim that we wish to see.

These amendments maintain some of the most problematic aspects of the 2001 Act as detailed in the review of that Act. This is third time that we have tried to create an effective legislative vehicle for delivering regulatory reform by order. The Deregulation and Contracting Out Act 1994 contained powers that were too narrow as did the 2001 Act. Amendments Nos. 40 and 41 would prevent a Minister from including in an order provision that simply restates legislation or codifies the common law.

Amendment No. 70, along with amendment No. 69, which relates to clause 2, further refines the drafting on this issue, but the effect is the same. As the condition which the amendment removes requires that the law can only be restated in ways that make it more accessible or more easily understood, I do not see the benefit of that amendment.In relation to the common law, or rules of law as it is described in clause 2(3)(b), codification can take place only if it has been recommended by the Law Commission and we rely on its recommendations.

I think that I have responded to most if not all of the points. I wish to emphasise again the Government’s willingness to discuss with interested parties the nature and shape of the veto power in the Bill. That significant change was signalled on Second Reading and the intention was also signalled during the evidence sessions of the various Select Committees. I hope that the veto will reduce some of the genuine concerns that   Opposition Members have about the ability to protect Parliament’s rights while also delivering in a way that the two previous regulatory reform Acts failed to do and in a way that is meaningful and maintains economic growth in the United Kingdom.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

This has been rather like pulling teeth. In the end we managed to get this very important concession from the Minister about a veto on the face of the Bill. We are describing it now as a concession, but as the Minister conceded when he spoke to the Select Committee on Procedure, he already thought that the Bill contained an absolute veto. That is why he so readily told the Chairmen that if it did not contain an absolute veto he had no objection to it doing so. I hope that nothing that he has said this afternoon will mean that the “veto” will be anything other than absolute.

Some of the energy that we have expended on trying to scrutinise this Bill might not have been necessary if the Minister, when making his initial response to the Regulatory Reform Committee’s first report, which he sent to the Chairman on 24 February and which we saw late on Monday or on Tuesday morning, had mentioned the fact that he was willing to put a veto in the Bill. If it had, we would probably have started off on a slightly different basis.

Having said all that, I do not think that the veto should be the be all and end all. I am disappointed that the Minister has not been willing to strengthen clause 3 in the way that amendment No. 36 and the Liberal Democrat amendments would achieve. If the Minister is right that it does not make any difference whether it is a ministerial view or an objective view, why not have it as an objective view? We know that there are distinguished lawyers, and others who are less distinguished, who think that the wording makes it difficult for the Minister’s conclusions to be challenged, even if they are manifestly unreasonable. I hope that the Minister will think again about amendment No. 36.

He covered amendment No. 37 far too superficially. The protection offered is only such protection as the Minister deems necessary and it is very vague. I hope that he will think again about that. As far as the restrictions on freedom are concerned, if we are to restrict people’s freedoms we should do so through primary rather than subordinate legislation. I find it hard to conceive a situation in which restricting people’s freedoms should be done by an accelerated procedure and could be regarded as anything other than controversial.

I was disappointed in the content of a lot of the Minister’s response, but obviously he had been saving up his response to amendment No. 21, which was ably spoken to by my hon. Friend the Member for Forest of Dean and supported by the Regulatory Reform Committee. That has meant that we will go into the weekend in a slightly better humour than we would   have done otherwise. I still find it extraordinary that something that the Minister agreed in principle before a Select Committee is now coming forward as a concession. I do not think that one concession on this important Bill is enough.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Secretary of State 3:45, 2 March 2006

Before my hon. Friend the Member for Forest of Dean, who moved amendment No. 21, asks for the permission of the Committee to withdraw it in the light of the Minister’s most welcome concession, I want to make two points. First, there is merit in my hon. Friend’s point about the nature of the test under clause 3 and whether it should be objective rather than subjective. If he wants to push that to a Division, I would certainly support him. It could be looked at again by the Minister.

Secondly, I personally hope that clause 3 will stand part of the Bill. Although it is right to say that it could be better, it is providing some protection. Personally, I would wish to see clause 3 stand part, even if it is not amended in the way that I would like.

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

I entirely agree with that last sentiment. Now that we have clause 1 and clause 2, against our reservations, we have to have clause 3.

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

Exactly. The hon. Gentleman, as so often, sums it up pretty neatly.

The other point that I was going to make is that the hon. Member for Cambridge andI both tried to use our drafting skills—his are more academic than mine—and made a good effort to focus the Bill on a deregulatory overall effect. I was going to ask the Minister whether it would be possible for us to come forward with suggestions and, in the co-operative spirit that we have over the veto, to see if we cannot find some way of expressing the fact that the sum of the revision of law under part 1 should involve a downward-only ratchet. Business does not want the power to be so widely drawn that it could be used to impose regulation. I do not think that the other side of industry wants it to be so broad that it could damage its interests. If we came up with draft suggestions, would the Minister be prepared to consider them, discuss them and see whether there was a consensual way forward?

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

If the hon. Gentleman has specific drafts, I shall obviously be happy to consider them. However, I remind the Committee that, in my opinion, the determination to reduce the burden of bureaucracy on business, public sector workers, voluntary organisations and charities is a matter of political will and determination rather than of legislative structure.

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

To respond briefly, it is, of course, a matter of will. If the Minister were to be fairly non-party political for a moment, he would accept that two Governments have had a pretty good will or wish to deregulate, but neither has so far done as much as it would have hoped.

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

It is a long time since the Liberals had a go.

The burdens barometer is up £50 billion since 1997. The Minister made some criticisms, and I do not totally disagree about the previous period not being as successful as we would have liked. If we have the political will to find a way of including in the Bill a downward-only ratchet, that would be better still.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

I pick up on that last point in a spirit of co-operation. The Minister is right that it is a matter of political will; the powers in the Bill can help reinforce the desire of Ministers to drive regulation downwards if the Bill can be used only for that. If that is the intention, the Bill will help Ministers in a Government committed to reduce the regulatory burden to carry it through. It will also help them in their battles with civil servants, as they explain to them that the Bill can be used only for certain things. There is some merit in what my hon. Friend the Member for North-East Hertfordshire says. I hope that the Minister considers it constructively.

The Minister gave a commitment to bring forward Government amendments on Report to include a veto in the Bill for Committee of both Houses of Parliament. I beg to ask leave to withdraw the amendment.

Photo of Martin Caton Martin Caton Labour, Gower

The hon. Gentleman’s amendment has not been moved. Amendment No. 36 was moved by Mr. Chope.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Division number 9 Nimrod Review — Statement — Clause 3 - Preconditions

Aye: 5 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

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

Clause 3 ordered to stand part of the Bill.

Further consideration adjourned—[Mr. Dhanda.]

Adjourned accordingly at six minutes to Four o’clock till Tuesday 7 March at half-past Ten o’clock.