Clause 31 - Commencement

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 2:00 pm on 9 March 2006.

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

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following:

New clause 6—Expiry—

Part 1 of this Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force.’.

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

New clause 6 fulfils a promise that I made in my speech on Second Reading, when I said that I should propose a sunset clause for the order-making part—part 1—of the Bill. Many hon. Members in Committee agree that we make inadequate use of post-legislative scrutiny in this country. In circumstances where a Minister puts forward a Bill and there is considerable controversy about it, it may be appropriate to introduce a period after which post-legislative scrutiny should take place.

We in Parliament are getting better at considering Bills in advance, and I am a strong supporter of pre-legislative scrutiny. To be fair to the Government, they have published more than 40 bills in draft form, many of which have been considered by Committees in advance. A sunset clause is for the other end: the consideration of matters afterwards. The Minister knows that great concern is developing about part 1, particularly because there are no adequate safeguards for such a wide, general order-making power.

The latest of many submissions that I have seen from people and organisations that are worried about the Bill comes from the Maranatha community. It says that the Bill has been presented as a low-key, tidying-up measure, but in any other European country a proposal with such far-reaching effects would require an amendment to the constitution. It goes on to say that the Bill as proposed threatens to undermine what remains of parliamentary democracy, and that it could be used to endanger the liberty or freedom of speech of any individual, group or organisation. The Maranatha community submits that the Bill should not continue in its present form.

Members of a gentle Christian community have put forward that view because they are worried that some future Minister—not this particular Minister—might have the power to affect the protections available to individuals or ethnic or religious groups. They do not want that sort of change to be made unless the traditional full procedures of the House and all the protections that those involve are available to them as individuals and to us as parliamentarians.

As we have discussed, the background to the Bill is that the Government consulted on a deregulatory Bill with non-controversial changes. The Bill that has followed that consultation does not meet the terms on which the consultation was taken. What we have now is the wide, fast-track power to amend, repeal or introduce primary or secondary legislation by order for any purpose. The Bill does not refer to using the power for deregulation. Indeed, clause 12(2) openly contemplates the use of the fast-track power to increase costs to business or to cause disbenefits, and requires the Minister to assess them in a statement to be filed with the draft order. That is not what business expected. As John Cridland of the CBI commented recently, the intended outcome should be

“to deliver more and swifter deregulatory measures for the benefit of business and society”.

The Bill is controversial because that wide order-making power is not being given for a clear or well-defined purpose such as deregulation. It is being given for any purpose. That must be changed.

Clause 4 gives that fast-track power not just to a Minister but to any person. I assumed that that proposed mechanism was designed to build on the suggestion in the Hampton review that regulators’ regulation-making powers should be merged, a suggestion which I support. However, when I suggested that the Bill should say that, the Minister replied, “The Bill doesn’t say that partly because our ambitions are wider than that.” What are those wider ambitions?

The Bill needs three kinds of safeguard, and I have tabled amendments on three things. First, purpose: it should only be possible for the fast track to be used to deregulate or make non-controversial simplifications or pass Law Commission Bills. Secondly, reserved matters: it should not be possible to use the fast track for constitutional, important or controversial changes. Those should be reserved for our usual procedures. Thirdly, procedural veto: there should be a procedure whereby a Committee or the Houses of Parliament can simply veto use of the fast track for inappropriate measures.

Until the Bill is amended to provide safeguards, it is unlikely to be passed. During Committee debate, the Minister has promised to make changes, but so far we have not seen those amendments, although a meeting has been arranged. He has welcomed the Select Committee report suggesting changes, but it is worth noting that many of my amendments—there have been dozens of them—have been based on the Select Committee’s findings and have followed its wording almost exactly, and those amendments have not found favour with him. Unless proper protections are put in place, the Bill will have profound implications for democracy and will be a move towards government by ministerial fiat.

We have bent over backwards in Committee to provide the Minister with opportunities to put things right. It is not just me; the Liberal Democrats have tabled amendments on the same themes, and all parties on the Opposition Benches have supported them.

There is a need for a Bill to help with deregulation, and the Government’s own consultation showed support for the sort of Bill for which we are arguing. But concern is growing on both sides of the business world, with business organisations pressing for the necessary safeguards and not wishing to lose a Bill that could help with deregulation, and the TUC expressing concern that the Bill should not be too widely drawn in case another Government with a different political perspective were to remove valuable protections that it holds dear.

I am not saying that a sunset clause is my preferred option. I would prefer to see amendments of the sort that I have tabled being accepted by the Minister. Maybe he will want to redraft them, but I want those safeguards in the Bill. As a last resort, if we go ahead and have a Bill, it must be limited in time so that we can reflect on whether the order-making powers have created the sort of problems that many think they will create, myself included.

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

I even hear the Chairman saying, “Definitely, yes.”

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

That was a slightly different question.

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

I realise that you would be unable to comment, Sir Nicholas.

A sunset clause is a last-ditch attempt to put at least some protection or roadblock in place. The real answer would be for the Minister to come back on Report with the strong safeguards that everybody wants.

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

I agree with everything that the hon. Member for North-East Hertfordshire said. I am glad that he is following the threefold exposition of the types of protection that we are looking for that I proposed in my speech on the programme motion, which now seems a very long time ago. He is correct that concern about the Bill is growing. The Government have staunchly resisted any suggestion that the purposes for which the Bill can be used should be restricted in any way. They have also resisted any suggestion that its subject-matter should be restricted. The only matter on which they have given way is the possibility of procedural protections, and the only protection that they favour, or at least are willing to examine, is not as great as it should be because the Government hold a majority in the Committees of the House.

The alternative method of procedural protection that I put forward, whereby a certain number of Members of the House could block the use of the Bill, has not been accepted. It seems that we are in the last ditch in our attempt to insert a sunset clause, although I should like to make a couple of comments when we come to clause 33 on the short title of the Bill.

The hon. Member for North-East Hertfordshire made a good point. We need to ask the Government, “Why do you want these powers, and why do you want   them for so long?” The Minister has given a number of reasons that refer to quite short-term problems. He referred constantly to firefighters’ pensions and to the Hampton review. Why do the Government want to hold such wide-ranging powers beyond the time that they would need to bring in the sort of changes to the regulatory regime that they propose? The sunset clause would give the Government those powers but only for a limited time.

The Committee should realise that the sunset clause has a defect: the limit applies to the power to make the orders, but not to the orders made under it. If orders were passed that were inappropriate or highly controversial—or even subversive of the constitution—they would still be valid even once the powers of the Bill to make such orders had lapsed under the sunset clause. Nevertheless, it would be worth withdrawing that power after a limited time—in other words, it would give the Government five years to subvert the constitution, and if they had not done it by then the power to do so would cease.

I am worried that the Government want to be able to exercise those powers for such a long period. My feeling is that they want them not for specific purposes but just in case something crops up for which they need a wider power. However, the wider ambitions are not specified at this point. Opposition Members sometimes wonder whether the Government have some specific wider ambitions but are not telling us about them. I am coming to the view that that is not so—that they do not know what their wider ambitions are, and that they are asking for those powers just in case they need them, or want them. In addition, the Cabinet Office does not get all that many opportunities to bring Bills before the House, and it does not know what sort of problems it will be required to address in future. Just in case, it has brought us a Bill that is drafted as broadly as possible.

I offer my support and that of my hon. Friend the Member for Somerton and Frome for the sunset clause in the knowledge that it is not a perfect solution. It is the last ditch, and I hope that the Government take the opportunity at least to offer some hope to those of us who feel that the Bill is dangerous.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I, too, support new clause 6. The Bill is part of a pattern. Sir Nicholas, you were in the Chamber during business questions today and heard the Leader of the House tell me that proposals are circulating in Government that are designed to restrict the power of Members to ask ordinary written questions. The Leader of the House admitted as much today. Why are the Government seeking to rein back on the power of Members of the House to legislate, ask questions and try to hold the Executive to account? We are debating the Bill in a very unhealthy atmosphere.

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

The hon. Member for Cambridge (David Howarth) was quite charitable about what the Government’s aims might be. Does my hon. Friend share my concern that at the end of his period of tenure, the Prime Minister will become frustrated with   all the fuss and bother of Parliament—a place for which he has not had much respect—and that this is his last throw of the dice? He wants to get rid of all this fuss and nonsense—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. Will the hon. Gentleman address the Chair, as my age has made me slightly hard of hearing?

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

Yes, Sir Nicholas.

The Prime Minister wants to get rid of the fuss and nonsense that gets in the way of the Napoleonic vision of the “great leader”.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

One could almost sum up the attitude of the Prime Minister as follows: it is unfortunate that Members of Parliament, and particularly Labour Members, are a legal necessity. He would like to do away with all that. My hon. Friend is too charitable in saying that it is simply frustration on the part of the Prime Minister. I suspect that he finds the whole process too burdensome and that he would like to spend more time with his family—or less time in the House, answering for the Government’s failures.

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

Does my hon. Friend agree that the Prime Minister often says that every time he has made a change he always wished that he had gone further? Under the Bill, he will be able to go as far as he can see and then go further still using the order-making power of the Bill to build on that platform. If the Education Bill is slightly damaged by the rebels, when it comes to the crunch once it is in statute, he could just use one of those orders to get in all the rest of it.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I have allowed that intervention, but I do not think that we should pursue that line of argument.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

New clause 6 would introduce a sunset after five years. I wonder whether that might still be during the course of this Parliament if the powers in the Bill are used. It has the power to extend Parliament beyond five years. That may be for the convenience of the Prime Minister.

New clause 6 is generous, because it offers five years. If the Bill goes through in anything like its present form—I am sure that it will encounter much difficulty during its remaining stages in this House and the other place—I hope that he will be able to persuade the incoming Conservative Government that, in a period of much less than five years, part 1 of the Bill should be scrapped in toto. I hope that it will be an early undertaking for the Leader of the Opposition in his quest for power.

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

Setting aside the hon. Gentleman’s optimistic view of the chances of the Conservative party forming another Administration, will he accept—this is not a party political point—that no Government of any hue shall dispense lightly with those extraordinary powers? That is precisely our problem. Any Government would be tempted to keep rules that allow them to do almost what they want with their parliamentary majority without the threat of parliamentary scrutiny.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Gentleman is absolutely right. I shall explain why I concede his point. When I was first on Wandsworth council, in 1977, we as an opposition so provoked the incumbent Labour majority that it brought in a guillotine. It introduced the guillotine just before the May 1978 elections, and ever since, that guillotine has been used very effectively by the Conservative majority on the council. That is what happens. That is why it is essential that with powers as great as those in the Bill, we should have a clear and collective undertaking from the Opposition parties that they intend to repeal the legislation within—I hope—five years.

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

I have enjoyed listening to some of the debate and conjecture from Opposition Members. To some extent, it was a rerun of parts of the debate that we had in our part 1 deliberations. I shall seek not to rehearse all aspects of part 1, because we had that debate at length for four sittings. You will keep me in order if I wander from the debate, Sir Nicholas.

Clause 31 sets out when the provisions of this legislation come into effect, which is at the end of the period of two months beginning the day on which the Bill is enacted. Technically, that means two months after Royal Assent. That follows the general rule that Acts should not come into force until two months after they have been passed.

New clause 6, moved by the hon. Member for North-East Hertfordshire, draws on the suggestion that we should have a sunset clause. Hon. Members on both sides will not be surprised to hear that I am firmly against the idea of sunsetting part 1. To set an arbitrary date for the expiry of part 1 would, for the reasons that I am about to give, be wholly inappropriate.

I spoke at our first sitting about the need to change the culture across Whitehall in terms of the better regulation agenda, the need to build a momentum, and the need for an enormous amount of work, energy and effort, to alter the way in which Whitehall and others approach better regulation. Having a sunset clause for part 1 of the Bill would greatly undermine our ability to do that and create uncertainty about the longevity of part 1.

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 2:30, 9 March 2006

There is an alternative way in which the Minister could look at the situation. If civil servants knew that the Bill was only going to be enforced for five years, it could be looked upon as a spur to get them to introduce deregulatory matters more speedily, knowing that that opportunity would end after five years. It could act as a spur to efficiency.

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

That would be a fair point if the better regulation agenda was temporary and only lasted five years. Our intention of course is to ensure that we deliver on simplification, better regulation—

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

Well, last week we joked about the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) and a Ming dynasty, which I think lasted for 276 years.

The point made by the hon. Gentleman would be fair, if our ambition and determination to deliver on better regulation had a time limit. We want to deliver a change in culture and in the way in which Whitehall regulates, and to maintain a momentum. Our assessment is that a sunset clause would affect our ability to deliver that change in culture, to get the investment and prioritisation across Whitehall, to invest resources, time and energy, and to engage senior people with the agenda. A sunset clause would create uncertainty in our ability to deliver and would stall our momentum.

Of course, our intention immediately after this legislation is enacted will be to start to deliver on the Government’s simplification plans. We expect that as we implement the first set of plans that come out of Departments, we will challenge those Departments to come up with additional plans to remove unnecessary bureaucracy, outdated regulations and unnecessary burdens.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

Taking that point further, what the Minister seems to be saying is that the Bill will create a perpetual motion machine in which, on one hand, half of the Government and civil service will be busy creating complicated Bills that are difficult to understand and that will impose burdens, and on the other hand there will be a diligent Minister with a team of civil servants creating orders to sweep away the complexity created by the other part of Government. If he can implement a culture change, surely the Government’s legislative measures will be more simple and straight forward, and less burdensome in the first place, so the necessity, once the step change has been made, for powers to sweep away that complexity will end.

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

In addition to the simplification plans, when the Government introduce a new proposal, we will seek to identify offsetting measures. That will be part of the culture change within Government.

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

But only a month or so a go, the Department of Trade and Industry set out its list of new proposed regulations. The list ran to 40 pages. Why was there not a similar list of measures that were going to be scrapped?

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

The DTI has published its simplification plan. I think that it is a publicly available document, but I will undertake to send the hon. Gentleman a copy of the DTI’s simplification plan in which it identified ways in which they could introduce offsetting measures, simplify legislation and reduce unnecessary bureaucracy and burdens.

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

I think that the Minister might have misunderstood my point. The DTI publishes a list of all Government regulations proposed for the two dates that there are for regulations to be made. This year, that list runs to 30 pages—it is not just for the DTI. I   welcome any plans, of the sort that he described, that the DTI might have, but the question that I ask is this: why does not the DTI or the Cabinet Office publish a list of what will be scrapped at the same time so that one in, one out works?

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

It might be helpful to explain to the hon. Gentleman what is happening. I come to the point mentioned by the hon. Member for Forest of Dean (Mr. Harper). Instead of one Minister at the centre of Government coming up with better proposals for regulation and simplification, every Department is now being challenged. With the creation of the panel for regulatory accountability, chaired by the Prime Minister, every Department must pursue simplification plans. Not just one Minister in one Department but every Department is doing that work.

Many of the documents respecting those specific proposals are already publicly available, and that must be welcomed. I am not aware that it has happened before. I do not seek to make a party political point; that is just part of the wider agenda of implementing simplification. It is welcomed by business, and Departments seem to be taking up the process enthusiastically. The Bill will enable the delivery of many of those simplification proposals and plans.

It might help the hon. Member for North-East Hertfordshire if I provided him with the Department of Trade and Industry plan, as he referred to the DTI in particular. I shall ensure that the publicly available DTI simplification plan is sent to him, so that he is aware of the specifics.

I strongly believe that having a sunset clause of the nature advocated by the hon. Member for North-East Hertfordshire would undermine our ability to drive the better regulation agenda throughout Government in a determined way. I am happy to make an undertaking that, as with the 2001 Act, a Minister of the Crown will report to the House no less than five years after enactment on the operation of the proposed Legislative and Regulatory Reform Act. A similar undertaking was given after the 2001 Act was passed, which led in part to the review of the Act and discussions about its effectiveness.

The hon. Member for Cambridge mentioned this general point, and I do not know whether it undermines his ability to vote for his own amendment: he accepts that under the Bill we would be implementing simplification proposals and lightening the burden on business. The way that his sunset clause is drafted, with no savings provision, means that anything delivered by the 2005 Act would be lost. He referred to that—in a different manner, of course.

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

That is not my interpretation of the new clause, although what the Minister says is of course a possible interpretation. If he is now engaged in discussing drafting points, perhaps he will accept the point of the clause and come back to it on Report.

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

No. As I said, that is not the significant point that I wished to make; it is a matter of the way that it is drafted. If the hon. Gentleman wishes to, he may check that I said that. It was a specific point about the way that he drafted the new clause, and I wondered whether he was aware of it.

For example, clause 28(4) of the Bill is a savings provision respecting the 27 orders delivered under the 2001 Act. Those orders would be saved by virtue of clause 28(4), but in the absence of a similar savings provision in his new clause, any meaningful simplification plans delivered or burdens lightened—even those that the hon. Gentleman might support—would be lost as a consequence of his new clause.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The Minister has attacked my hon. Friend’s new clause, but can he address whether he believes as a matter of principle that sunsetting is a good way of restricting the burden of regulation?

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

I do not think that the comments that I made about the drafting of the new clause tabled by the hon. Member for North-East Hertfordshire could be misconstrued in any way as an attack. They were a gentle probe. The new clause is technically inefficient in its drafting. The Bill has a savings provision—

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I think that the Minister has misunderstood my intervention. I wanted to find out whether the Minister believes in the principle that an effective way of reducing the burden of regulation is to ensure that any regulations that are made are subject to sunset clauses. Does the Minister agree that that is a useful proposition or not?

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

In general I do not. One of the things that we all hear from the business community and others about regulation is that common commencement dates for regulations are needed. We are moving on that, which is generally welcome. Hon. Members on both sides will find that small businesses in their constituencies welcome common commencement dates and we may wish to go further than that. But to have as a norm a sunset clause on simplification and better regulation proposals would create an enormous degree of uncertainty.

In the past we had situations where businesses quite rightly said that we had to seek legal advice about when proposals were coming into force and that has been dealt with in some part by common commencement dates. With automatic sunsetting clauses businesses would have to seek advice from accountants and others about the date on which those simplification and better regulation proposals are sunsetted.

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

But is it not the Cabinet Office that has asked Sir Roger Toulson and the Law Commission to engage in a consultation on post-legislative scrutiny, which includes ideas such as sunsetting and the like? Can the Minister really set his face against that, particularly when the consultation has only just started? There was an excellent seminar last week in which the Law Commission explained that it was   looking at those points and asking for evidence. It seems rather wrong just to cut off sunsetting as a principle in this way.

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

As I said in response to the hon. Member for Christchurch, in general I am not attracted to sunsetting clauses in the way he suggests. One area where a greater degree of post-legislative scrutiny is needed is regulatory impact assessments. I have no idea whether we are within the scope of the new clause, Sir Nicholas, but one of the things about regulatory impact assessment is that an assessment is made when a proposal is brought forward by Government identifying costs, benefits and likely impacts. My sense is that there is not often enough a retrospective analysis of whether those impact assessments were accurate, whether the expected benefits were delivered, the expected costs were accurately assessed and the predictions in the proposal, which partly in a sense justified the proposal, were accurate. There is in a general sense a great case to be made for much stronger and more consistent retrospective assessment of whether impact assessments were effective predictors of likely outcomes. We are trying to move to that across Government.

The hon. Member for North-East Hertfordshire spoke about a sunset clause being a necessary protection. I do not feel that that is the case. In addition to the points that I made about changing the culture across Whitehall, the Government assert that the preconditions within 3(2) and, without wishing to rehash the debate about necessary protections and continuing to exercise any right or freedoms, the need for statutory public consultation with those who would be affected—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. May I remind the Minister that we are dealing with clause 31, which is about the commencement date, and new clause 6 which relates to a sunset clause? He is going a little wide and unnecessarily so. Perhaps he can direct his remarks to clause 31 and new clause 6?

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office) 2:45, 9 March 2006

Of course I will obey your strictures, Sir Nicholas. The hon. Member for North-East Hertfordshire said that a sunset clause was a necessary safeguard. I am making the point that there are other safeguards and protections in the Bill and in our procedure. Not least among them is that under the 2001 Act there is a ministerial undertaking not to press ahead with proposals that the relevant Select Committees oppose. The additional protection that we have conceded in Committee is that we will have conversations with Conservative and Liberal Democrat Front Benchers—I think that it will be the week after next—about the specific shape of the principle of a veto. That is a substantial and significant additional protection that we are now committed to putting into the Bill as a consequence of points raised by hon. Members, particularly those opposite, and by   the relevant Select Committees. In our opinion, that and the other reasons given mean that the sunset clause is not necessary.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I feel that I should give notice to the Committee that the Opposition have indicated that they may wish to press new clause 6 to a Division, in which case I shall put the question only after we have disposed of new clause 2, which is also for Division only.