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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
†Mr. Martin Caton, Sir Nicholas Winterton
†Austin, Mr. Ian (Dudley, North) (Lab)
†Banks, Gordon (Ochil and South Perthshire) (Lab)
†Carswell, Mr. Douglas (Harwich) (Con)
†Chope, Mr. Christopher (Christchurch) (Con)
†Cooper, Rosie (West Lancashire) (Lab)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
†Harper, Mr. Mark (Forest of Dean) (Con)
†Heald, Mr. Oliver (North-East Hertfordshire) (Con)
†Heath, Mr. David (Somerton and Frome) (LD)
†Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
†Howarth, David (Cambridge) (LD)
†Keeley, Barbara (Worsley) (Lab)
†Love, Mr. Andrew (Edmonton) (Lab/Co-op)
†Murphy, Mr. Jim (Parliamentary Under-Secretary of State for the Cabinet Office)
†Seabeck, Alison (Plymouth, Devonport) (Lab)
†Watkinson, Angela (Upminster) (Con)
Frank Cranmer, Geoffrey Farrar, Committee Clerks
† attended the Committee
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Thursday 2 March 2006
(Morning)
[Sir Nicholas Winterton in the Chair]
9 am
The Chairman: It is a lovely day, and I hope that this morning’s consideration of this important Bill will be very satisfactory.
I had hoped to be in the Chair this afternoon, but I have received a surprise invitation to appear on “Question Time”. [Hon. Members: “Hear, hear.] I think that one of my colleagues is ill. Notwithstanding that, it is an opportunity not to be missed. I was first likely to be invited in 1979, when the Conservatives were in opposition, but we won the subsequent general election, and I was not invited because I was not and never have been a Front Bench spokesman or Minister. Having said that, I hope that my co-Chairman will be able to make it this afternoon.
Clause 1
Purpose
Question proposed [28 February], That the clause stand part of the Bill.
Question again proposed.
The Chairman: With this we are taking the following:
Amendment No. 55, in clause 18, page 9, line 30, at end insert—
“‘reforming” means repealing, simplifying or clarifying or making better provision for achieving its purposes;’.
Amendment No. 61, in clause 18, page 9, line 35, at end add—
‘(2) In section 1, ”changes” means only those changes that are reasonably related to developments in the common law since the date of the Law Commission’s Recommendation.’.
New clause 2—Reserved areas of competence—
‘(1) Schedule [Reserved areas of competence] shall have effect.
(2) A Minister may not make an order under section 1 containing provisions relating to the reserved areas of competence as set out in Schedule [Reserved areas of competence].
(3) A Minister of the Crown may, subject to a resolution of both Houses of Parliament, amend by order the reserved areas of competence in Schedule [Reserved areas of competence].’.
New schedule 1—Reserved areas of competence—
‘For the purposes of this Act, the reserved areas of competence are those relating to—
(a) provisions incompatible with the European Convention on Human Rights;
(b) the Human Rights Act 1998 (c. 42);
(f) the registration and funding of political parties;
(g) international relations;
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Mr. Oliver Heald (North-East Hertfordshire) (Con): I wish you every success with “Question Time”, Sir Nicholas. I am sure that the whole Committee would say that it is long overdue. I do not suggest that the Programming Sub-Committee should reconvene so that we can watch it, but we would enjoy it. By then—who knows?—we may find one of our distinguished colleagues as leader of the Liberal Democrats later today.
The question whether the clause should stand part depends on whether the terms and conditions for making an order under clause 1 are acceptable. It would therefore be necessary for the Government to assure us that the effect of an order made under clause 1 would be deregulatory in effect, or that it would involve a non-controversial simplification of the law or the introduction of a non-controversial Law Commission Bill. Sadly, the Minister has so far not been able to provide such an assurance in the Bill.
New clause 2 is an attempt to remedy the problem. In our first attempt to remedy it, we tried to define what should be the purpose orders made under clause 1, our amendments suggesting that the purpose should be deregulatory. In new clause 2 and new schedule 1, we suggest limiting the subject-matters to be covered by such orders. The powers granted in part 1 are wide, so new clause 2, which is based on the recommendations of the Regulatory Reform Committee, suggests that the limitation of powers should be similar to that which applies to the Scottish Parliament. I have gone a little further by adding some variations and additions. It is an amendment on which I think we should be able to agree.
The principle of allowing Ministers to amend existing legislation by order to remove regulatory burdens has been well established in law for some years. However, certain areas of policy are of a higher order of concern than others. For example, it may be perfectly reasonable for a law relating to housing regulations to be amended by order, with a lower level of parliamentary scrutiny; but it would be entirely different for laws relating to our constitution or our civil liberties to be altered by order. The reserved areas of competence suggested in new schedule 1 are so important that they should be excluded from the powers set out in clause 1. The Minister might argue that a matter relating to terrorism involves only a technical change and should therefore come within the order-making power for convenience. My argument, however, is that some areas of jurisdiction are so important that only full parliamentary procedure will do, even if the change concerned is minor.
Mr. Andrew Love (Edmonton) (Lab/Co-op): Would not the hon. Gentleman consider freedom of information to be such an area of cardinal importance?
Mr. Heald: I do think that it is an important area and I would be happy to discuss with colleagues in Committee or elsewhere exactly which areas should be reserved. The hon. Gentleman may be right that we
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could go into the area that he mentioned, and amendments that we shall probably discuss later today go into others that I have not included in my list, such as the Church of England. I am not saying that the list is proscriptive and I would be happy to look at other proposals. Freedom of information is important and my party supports it. We have been critical of the operation of the Freedom of Information Act 2000 and of the huge delays that have built up in some of the processes involved.
To continue with my point about reserved areas of competence, provisions that are incompatible with the European convention on human rights should not be made by order. The convention contains vital rights and freedoms, including provisions protecting everybody’s right to life and ensuring that a person is not deprived of his liberty except in accordance with law. It also provides that the determination of civil rights and obligations or of any criminal charge should be carried out in a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Such rights, which are protected by international law, should not be interfered with through the use of regulatory reform orders.
Similarly, areas relating to the Human Rights Act 1998 should not be amended without full parliamentary debate. The Act makes it unlawful for public bodies to violate the rights in the ECHR unless legislation expressly provides for that, but would the declaration of compatibility requirement in section 19 of the Act apply to orders made under the Bill? We do not know. Amending or repealing without full debate legislation relating, for example, to freedom of thought, conscience, religion or expression or to the prohibition of discrimination would clearly be unacceptable. That would run counter to the Bill’s purpose, and safeguards should be put in place to prevent it. The Human Rights Act and the ECHR secure fundamental rights and liberties in our constitution, and we should make changes only after the fullest debate, with Parliament able to scrutinise matters fully.
The third reserved area of competence in new schedule 1 relates to Parliament. The Bill should not confer the power to interfere with legislation of a constitutional nature, such as the Parliament Acts, without full parliamentary scrutiny. At a time when there is much debate about constitutional matters, such as the reform proposals for the House of Lords, we should not allow such constitutional reforms to be effected by means of a fast-track procedure. In the recent case of Jackson and others v. Her Majesty’s Attorney-General, which concerned the validity of the Parliament Act 1949, the Court of Appeal cast real doubt over the use that could be made of the Parliament Act 1911 to effect significant constitutional change in the future. The House of Lords eventually disagreed with the Court of Appeal, but the issue provides a useful warning against implementing legislation on constitutional matters by means of anything other than the fullest possible procedure.
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I turn now to the fourth reserved area. The Minister said in evidence to the Regulatory Reform Committee that he would not want a regulatory reform order used to tackle issues such as the Parliament Acts. If that is the case, I do not see why we should not have that provision on the face of the Bill.
The fourth reserved area of competence is the civil service. There is much discussion at the moment about civil service reform and Sir Gus O’Donnell has indicated his desire to see a new code in place. Clearly, that is an important matter. We have raised it on the Floor of the House on a number of occasions. I presented a Civil Service Bill last year and unfortunately it was blocked by the Government, but we had a good debate. It seems to me that when we are trying to control the Executive and their operation with the civil service, such matters should be discussed in Parliament in the normal way. That process should not be short-circuited.
Legislation about the courts should also be a reserved area of competence. Acts such as the Constitutional Reform Act 2005, which put in place the Supreme Court, the Criminal Justice Acts and the Bail Acts are constitutionally important, or can be, and any repeal or amendment of them should be carefully scrutinised. We should not allow the possibility that small but potentially significant changes to such legislation may be made by order. Even if the modification that is being made is only minor, it is often important to put it in context and to appreciate that there can be the law of unintended consequences. In areas such as this, which are of the highest importance, it is right that the proper procedure should take place so that as we discuss them over a period of time the difficulties can emerge.
The other reserved areas of competence in the schedule—the registration and funding of political parties, international relations, defence, treason, terrorism and national security—are controversial, or can be, and should therefore lie outside the scope of the Bill. The schedule that I propose is not exhaustive; some Acts of constitutional importance might not be protected in the list that we could discuss. There may well be other matters. I was going to mention the Freedom of Information Act, which has already been mentioned, but the same point could be made for the Immigration Act 1971 and the Church of England Assembly (Powers) Act 1919. Indeed, I am open to the idea of expanding new schedule 1 to cover other important areas.
The important thing is to provide safeguards within the Bill that limit its scope of application to that which it was intended to cure: the over-regulation burden that affects businesses and the need to simplify our law and even to have post-legislative scrutiny of it and to change it, but only if the areas are not controversial. The common perception that Executive power is being ever increased at the expense of due democratic process should not be dismissed. The powers conferred by the Bill as drafted are too wide and this schedule of reserved areas would play an important part in restricting the scope of the Bill to its fundamental purposes: the facilitation of deregulation,
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simplification and the ability to pass Law Commission Bills provided that they are non-controversial. That is why we have tabled the new clause and schedule, and I would be interested to hear the Minister’s reply before commenting further on the question of clause stand part.
I believe that we are about to hear also from the Liberal Democrats about amendments Nos. 55 and 61. I will not speak at any length about those, except to say that they both make an important contribution to the debate and I can see that they are in line with the thinking that has already been demonstrated by the hon. Member for Somerton and Frome (Mr. Heath), which I largely agree with.
9.15 am
Mr. David Heath (Somerton and Frome) (LD): Good morning, Sir Nicholas. You are absolutely right that it is a splendid morning, and I hope that this afternoon continues in the same way.
I rise to speak on clause stand part and to the two amendments tabled in my name and that of my hon. Friend the Member for Cambridge (David Howarth). I want to say at the outset that without amendment, clause 1 should not stand part of the Bill. Indeed, the Bill cannot proceed if clause 1 stands part in its present form. That is the crux of the argument between Opposition parties and the Government—an argument that will carry a great deal of weight in another place if the Bill should proceed that far. From our point of view and also that of the Minister, it is important that we get this right—ideally today, but certainly on Report.
A reason why the clause will not do is the laxity and latitude in the definitions of the terms used. As we have already said clearly and as my hon. Friend the Member for Cambridge has explained at some length, the provisions give an astonishing degree of power to the Minister of the day. We must be absolutely clear that we cannot proceed on the basis of this particular Minister’s assurances and assertions, however engaging he is and however benign his intentions, because it is not he who will decide how those terms will be interpreted in future. Even if he were to remain in the post of Deputy Chancellor of the Duchy of Lancaster for a great many years, it is by no means clear that the great officers of state would defer to the Deputy Chancellor of the Duchy of Lancaster in their interpretations of the terms in the Bill. We need better definitions if we are to proceed.
The first term that comes to mind is the rather woolly term “reforming”. Everybody is in favour of reform. The Conservatives used not to be in favour of it, but I gather that they now are. We look forward to hearing you on the airwaves later today, Sir Nicholas, as the embodiment of new conservatism. Reform is generally considered a good thing; it connotes something that we should encourage.
Reform without definition, however, means little. My hon. Friend and I tabled amendment No. 55, so that we can be clear about what reform means. It does
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not mean inventing a new law because it happens to seem a good idea at the time. It does not mean avoiding the parliamentary process because parliamentary time or proper scrutiny might have inconvenient repercussions. Reform means doing what the Minister has said the Bill is intended to do, and making sure that it does only what the Minister has said it will do. That is the purpose of amendment No. 55.
Mr. Love: The hon. Gentleman includes “making better provision” in his definition of “reforming”. That seems rather subjective. It will get him into the same problem that he has with the present definition of “reforming”. How can one possibly define “making better provision”?
Mr. Heath: The hon. Gentleman has a perfectly valid point. It is like the old saying that fleas have smaller fleas upon them; it is a progression ad infinitum. One can hope only to improve the definition and not to create a final definition, because at the end of the day, whatever the definition, it must be interpreted. I am saying that the present definition is almost a non-definition. It is simply the term “reforming”, without any explanation of what that might mean.
It is proverbially difficult to put into statute in a justiciable way matters relating to the process of legislation. We know that, so all that we can hope to do is refine areas of future consideration rather than make an entirely watertight definition. I accept the hon. Gentleman’s criticism that there is still latitude in the definition. Indeed, the Minister might feel that it is right that it should have some latitude. Our definition narrows the scope, which would be beneficial to the Bill.
Amendment No. 61 is an attempt to put into the Bill exactly what the Minister told us on Tuesday was his intention, so he cannot possibly have any difficulty with the amendment. Our great concern was that allowing the term “changes” in relation to Law Commission recommendations would effectively give a Minister carte blanche to put into law anything relevant to the commission’s recommendations that suited the purpose of the Government of the day, rather than the commission’s actual recommendations. I still have enormous concerns on the matter, and there is a problem of defining what comprises a recommendation of the Law Commission.
I also have some difficulty with the basic argument that there is never legislative time to deal with Law Commission recommendations. For my sins, having dealt with home affairs and constitutional affairs in the House for a good many years, I know that there is never a time when there are not two or three Home Office and Department for Constitutional Affairs Bills being dealt with. There is never a year when there is not a Criminal Justice Bill that is said to be the end to all Criminal Justice Bills and the answer to crime. Sometimes there is then another Criminal Justice Bill the next year that undoes some of the provisions of the
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previous year’s Bill before they have even come into force, and we wonder why we bother. To say that there are no legislative vehicles for basic Law Commission recommendations, particularly in the area of criminal law, is therefore a criminal assertion and simply not true.
Alison Seabeck (Plymouth, Devonport) (Lab): I follow the hon. Gentleman’s argument with interest. Will he clarify what the test of reasonableness would be under the amendment?
Mr. Heath: It is not about whether the developments are reasonable, but about whether they are reasonably related. As the hon. Lady knows, that is a term well known in law and in statute. Normally this argument works in the other direction, with the Opposition parties asking the Minister what “reasonably” means in statute and the Minister saying that the meaning is absolutely clear under all circumstances.
David Howarth (Cambridge) (LD): We are practising.
Mr. Heath: As my hon. Friend says, we are practising for the role. One can refer only to the word “reasonably” as the test; it provides at least a back-stop of justiciability, although I accept that it is not entirely simple. Given that the Minister asserts that there is a mad time lag of seven and a half years, which I think is avoidable through the machinery of government and the number of Bills that go through, there are occasions when it would be convenient to the House, not to the Government, to have a process by which Law Commission proposals can be dealt with expeditiously.
When we challenged the use of the term “change” in relation to recommendations, the Minister was clear that there were circumstances in which he could envisage change. He said in Committee on Tuesday:
“If the Government were seeking to introduce a Law Commission recommendation that had been amended substantively, this Bill would not be the way to do it.”
No, it would not. We agree with him on that. He went on to say:
“We are talking about implementing non-controversial Law Commission recommendations . . . to which there has been amendment not on policy, but based on the fact that law has evolved in the interim.” —[Official Report, Standing Committee A, 28 February 2006; c. 35.]
I have to accept that the Minister is entirely right on that point. There may be cases in which common law has evolved since a recommendation was made, although one assumes that the whole purpose of the proposal is to reduce that time substantially so that we do not have those time lags. Otherwise there is no point in having the provision. However, there may be circumstances in which there has been an evolution in common law since a Law Commission proposal that requires minor amendments, in the spirit of the recommendation, before being introduced into law.
Amendment No. 61 allows the Minister to do that—exactly what he says he wants to do—in what he says
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are the only circumstances in which he would wish to change the Law Commission’s recommendations. On Tuesday, he went on to say the following:
“It would not be appropriate for the type of Law Commission recommendation mentioned by the hon. Member for Cambridge, or the Government’s response to it, to be delivered through the Bill. I hope that that reassures him somewhat.”—[Official Report, Standing Committee A, 28 February 2006; c. 35.]
Well, I suppose that we would be reassured if that was written in the Bill. If it is not, we come back to the point that whatever the good intentions of the current deputy to the Chancellor of the Duchy of Lancaster, we cannot be assured that a future Minister, of whatever rank, would take the same view. We rely therefore on not the assertions of Ministers, but on what is written in the statute. That is the importance of amendment No. 61.
Mr. Christopher Chope (Christchurch) (Con): I congratulate the hon. Gentleman on ensuring that we debate the matter so early on because it puts the Minister on the spot. In our previous proceedings, the Minister conceded that the only purpose of clause 1(1)(b) is to cover the situation in which the Law Commission’s recommendations would
“impose penalties or create new powers of forcible entry above the usual limits under clauses 6 and 7.”—[Official Report, Standing Committee A, 28 February 2006; c. 34.]
So there are only very special circumstances in which clause 1(1)(b) will be relevant. In light of that, does the hon. Member for Somerton and Frome think that the Minister should accept the amendment?
Mr. Heath: Of course the Minister should accept it, and it goes without saying that he will because it is phrased in almost exactly the words that he used and simply puts into statute what he intends to be the result of the enactment.
New schedule 1 is tabled by the hon. Member for North-East Hertfordshire (Mr. Heald). He is right: it deals with definition again—in this instance, the definition of those things excluded from the terms of the Bill. Clearly there are things that should not be subject to the procedure. He attempts to tackle the problem with classes of enactment. My hon. Friend the Member for Cambridge has tabled a new schedule in a later group of amendments which deals with the problem by specifying statutes. Both are acceptable ways to deal with it. The difficulty, in part, with the hon. Gentleman’s treatment is that again it would be arguable whether a statute falls into one class or another. Perhaps not in the technical parliamentary term, but in a normal use of the term, it might be a hybrid between classes of enactment. However, it does provide valuable protection.
Mr. Heald: I do not know whether the hon. Gentleman agrees, but the advantage of new schedule 1 is that it covers a class of legislation, so there is no need to update it, over the years, as new Acts are introduced. The advantage is that the class would be covered. I agree that there is a definitional issue, but we did the same thing with the Scotland Act 1998, and I think, by and large, that has worked quite well.
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Mr. Heath: I agree entirely, although in the case of the 1998 Act there is an arbitrator who determines the situation. It is not clear where the arbitration would come in this case, other than a challenge within Parliament. The hon. Gentleman makes a valid point, however. I do not want to pre-empt the discussion on the next group of amendments, but using classes is a satisfactory way to proceed. Some statutes, such as habeas corpus and Magna Carta, ought to be written, if not in stone, certainly on vellum. I am not sure what the Magna Carta was written on, but I suspect that it was vellum, which was, famously, signed. We will support him he wishes to push the matter to a Division.
I finish with the point on which I started. The matter is critical. If we do not get clause 1 right we do not get part 1 right and the Bill will not proceed. The ball is in the Minister’s court. He can either listen and respond or he can ignore us, set his face against change and eventually lose his Bill.
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