Legislative and Regulatory Reform Bill |
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Mr. Harper: And it never will. Mr. Heald: An important part of our liberty is being affected. The confiscation of property is also important. All of that is taking place against a
The hon. Member for Somerton and Frome, in his shadow Home Office guise, has dealt with numerous Bills that curtail liberty. The Identity Cards Bill is on track and other proposals concerning terrorism have been put before the House. Now we are asking whether all that remains of habeas corpus can be thrown away—removed and abolished—by an order that may not be debated by the House of Commons. That is being done in the name of business, which is being told, “This is for you. We will take burdens off your back, and we’re going to do it with this Bill.” What business wants to abolish habeas corpus by order? None that I have come across has ever said that. I do not think that businesses would want property to be confiscated. Do they want an end to jury trial? I do not think so. Extradition? They may have concerns after the recent NatWest case, because bankers will be worried that their extradition position can be changed by order. Mr. Heath: The hon. Gentleman makes a powerful case in support of my hon. Friend the Member for Cambridge. He mentions the number of Home Office Bills, as I did. He will recall that those were often extremely hard fought in both Houses. The other place has provided the constitutional safeguards that this place has been unable to provide, and we have often ended up with compromises involving safeguards being written into legislation. The problem with the procedure before us is that all those safeguards could be unlocked the moment that primary legislation has gone through, by an Order in Council, to which it is very difficult for the other place to apply the same blocking procedures. That essential constitutional lock on the powers of an elected dictatorship is therefore missing. Mr. Heald: I wonder whether business would want to lose a Bill like this one simply because the Minister cannot provide the safeguards that he agrees are necessary. I agree with the hon. Member for Somerton and Frome, and the Home Office Bills to which he referred were often accepted by the Minister in question. I remember the right hon. Member for Sheffield, Brightside (Mr. Blunkett) saying after a particularly bloody encounter with the other place that he recognised that the final outcome of the Bill was a fair compromise. Mr. Heath: Through gritted teeth. Mr. Heald: The right hon. Gentleman probably had gritted teeth, but our procedures exist for a reason. I do not think that the Minister wants to use the order-making powers in the Bill on the most important matters. Why will he not concede that a matter such as judicial tenure—the Government interfering with judges—is off the agenda? Why will he not agree that for the British Government to interfere with the rights of natural justice would be a scandal? Why will he not
Mr. Love: May I try to put the other side of the case? In the previous Parliament, the Regulatory Reform Committee abolished the last vestiges of the Sunday Observance Act 1780, and there has been much comment over the past few years about reusing the blasphemy laws. A considerable number of ancient statutes still apply. Is not the danger of having the catch-alls that hon. Gentleman sets out that we will catch a lot of ancient, redundant legislation that could best be dealt with in the procedure before us? Mr. Heald: I do not think so. The hon. Gentleman makes his case in a much more coherent way than the Minister, and makes the fair point that there have been difficulties in deregulation. He will have seen the consultation document that the Government put out, which suggested a way of broadening the definition of burdens, introduced simplification without the burdens test and suggested that non-controversial Law Commission Bills should go through. We all agree about that, and that is what is so ludicrous. Business wants the Bill, yet it is in danger of losing it because the Minister will not introduce the changes that would make it acceptable to all reasonable people in the House of Commons and the other place. He is wrong to force us to suggest that he might be able to use the amendment to abolish the Church of England or disestablish it. I am anti-disestablishment, but we are making a serious point. These matters are at the very high end of important House of Commons considerations, and they should not be dealt with by a fast-track procedure that cuts parliamentary corners. Mr. Murphy: Again, we have had a series of interesting contributions from Opposition Members. They made some probing points and made several debating points for the sake of it. I understand why they must do that. Although this is the clause stand part debate, I shall comment specifically on the amendments. Amendment No. 32 provides that orders should not repeal or replace legislation, but only amend it. It would not be possible for an order to modernise regulatory regimes and replace outdated provisions. Therefore provisions could not be consolidated and simplified in an order. Amendment No. 32 would prevent orders from delivering wide-ranging reforms, such as the fire safety regulatory reform order. It is important that orders can deliver substantial reforms and bring legislative changes together into one order when that is the most appropriate method. Amendment No. 33 would seriously impede the Government’s better regulation agenda, which the Opposition claim to support. In general, the ability to confer the function of legislating is of particular importance, as orders need to be able, when
Hon. Members may welcome some background to the debate. In the 2005 Budget, the Government accepted—as did the Opposition—the recommendations of Philip Hampton’s report “Reducing Administrative Burdens: Effective Inspection and Enforcement”. It was extensive in its scope: it considered the work of 63 national regulators and 468 local authorities. It specifically recommended that 31 of those 63 national regulators should be consolidated into seven thematic regulators. Philip Hampton said, and the Government agreed, that those smaller regulators were unable to take a whole-system view of their regulatory field and, as such, were less able to make good risk judgements than regulators with a broader remit. It was also more difficult and more expensive to have a comprehensive risk assessment system if data were split across several regulators with similar areas of responsibility. Aside from those policy disadvantages, smaller regulators suffered from diseconomies of scale. The data gathered in the Hampton report show that regulators with fewer than 200 staff are on average more than £8,000 per staff member more expensive than regulators with more than 200 staff members. The Hampton mergers—the efficient delivery of which depends on the existence of this provision—will also be beneficial in reducing the number of interfaces between businesses and regulators. The mergers have widespread support from business and regulators. Mr. Heald: I support the idea of merging the regulators. Will the Minister explain what will happen and provide a practical example—let us say the DEFRA example? What are the current functions, and how would they be merged? He does not have to use DEFRA as an example; if he wants he can use the Department of Trade and Industry to explain it. Will he explain any specific plans so that we know what he means? 2.15 pmMr. Murphy: The specific suggestions in Philip Hampton’s report are about having thematic regulators. The idea is that through the orders enabled by the Bill, the smaller regulators and non-contentious mergers would be delivered. I hope that that reassures the hon. Gentleman—if that is what he is seeking. Column Number: 124 The Government, however, made it clear before consideration of the Bill that the more contentious larger mergers of more substantial regulators would have to be done by primary legislation. Those larger mergers would be done in an entirely different way. With regard to enablement in the Bill, we are talking about non-contentious mergers that command the support of business and those consulted. To reassure the hon. Gentleman—I think that he is looking for that—the substantial mergers of the larger organisations in the thematic areas spoken about by Philip Hampton would still require primary legislation. Mr. Chope: Will the hon. Gentleman give way? Mr. Murphy: I will make some progress first. Amendment No. 34 removes the ability of orders to make
Clause 2(4) reflects the situation under the 2001 Act, which enables, for example, an order that repeals a particular provision to make the necessary consequential changes to any other provisions that refer to it, so that out-of-date references to provisions that no longer exist are not left littering the statute book. Amendment No. 34 would remove the ability of orders to tidy up the law and make the necessary additional changes. Amendment No. 35 would mean that the Bill would not explicitly provide for orders to bind the Crown. Not unreasonably, there were some questions about that, which I will, of course, seek to answer. In the absence of that explicit provision, Crown servants on Crown business could argue that, while they can take advantage of favourable provisions in orders made under clause 1, onerous provisions do not apply to them. For example, they could argue that the provision of orders that impose criminal offences or restate provisions relating to criminal offences did not apply to them. The reform of the regulatory regimes will often remove or lessen the burdens that they impose. If the amendment were made, however, it would cast into doubt the ability of orders to impose onerous requirements upon the Crown and its servants. I will give a concrete example of how the amendment would cast into doubt the ability to make desirable orders. The delivery of the Hampton mergers, by way of order, is likely to require, in some cases, provisions that bind the Crown, such as in the transfer of assets from the current regulator to the new merged regulator. I would like to reassure opposition Members. The definition of the Crown, in paragraph 1,321 to Halsbury’s guide to English law on the extent and applications of Acts is as follows:
Column Number: 125 members of the armed forces and other public bodies or persons. Where it is intended that the Crown shall be subject to the provisions of an Act, the usual practice” which we are following
That is an important clarification in order to reassure Opposition Members. Perhaps fairly, they sought reassurance that the issue did not relate to Her Majesty or any member of the Royal Household. Mr. Chope: The Minister says that the justification for the measure is that it can be used to merge regulators, but that it will not be used to merge substantial regulators. Where does it say that in clause 2? Is clause 2 specifically restricted to the merger of regulators? Mr. Murphy: If the hon. Gentleman will allow, I will respond to those comments a little later. Amendment No. 46 provides that orders could not reform legislation for a purpose substantially different from that of the original legislation. Although it is obviously unclear on the issue raised by the hon. Gentleman—that of substantially different purposes—putting that phrase in the Bill would not add to the merit of the Bill. The Government’s approach is different. We seek to provide general safeguards and protections, which we will debate as the Bill is subject to further Standing Committee consideration. What would be considered as substantially different purposes is open to debate and legal interpretation. As a Government, we have committed ourselves to one of the most radical regulatory reform packages anywhere in the world, which has been welcomed by business and others. Of course, we intend to deliver on that agenda, and I am concerned that the specific point in amendment No. 46 would prevent us from doing so. I have alluded to how it would affect our ability to bring about mergers of different organisations that were formed for different purposes in legislation. Amendment No. 45 relates to the conferring by order of powers to make subordinate legislation. The amendment is designed to prevent orders from conferring powers to legislate on any person. It would therefore impose one of the same restrictions on the order-making power as exist under the 2001 Act. Consultation responses revealed that the inability of orders to confer powers to legislate has caused problems for Departments and impeded the delivery of both small and large-scale reforms. David Howarth: Could the Minister give us examples of such reforms? That might enable us to table an amendment that would deal with those problems and yet avoid the problem with this measure, which is that it is far too wide; it transfers legislative power potentially to any person in the world. Mr. Murphy: I can give specific examples of the problems experienced as a result of the 2001 Act. A proposal to devolve fee-setting powers for local land charge services from the Lord Chancellor to local authorities in England and Wales was impeded. It was
The decision to include in the Bill the provision for legislative sub-delegation by order was directly informed by the views of consultation respondents, most of whom supported the measure. The Institute of Directors, for instance, commented that
As I said, one example of measures impeded by the restriction on conferring extended legislative powers by order involves additional aspects of the fire safety RRO, which was a substantial reform brought about as a result of the 2001 Act. It involved merging different pieces of existing legislation. However, we could have gone further with the power to sub-delegate. Mr. Heald: It is important that mergers can take place and it may be appropriate to do some of them by order, but why would it not be possible to amend clause 2(2)(a) so that it says, “confer functions on any person exercising a regulatory function”, which is how regulators are described later in the Bill? One understands that conferring functions on a regulator in a particular way to get mergers through might be a good idea, but why does the Bill not just say what I have suggested? Mr. Murphy: The Bill does not say that partly because our ambitions are wider than the specific point that the hon. Gentleman makes. The hon. Member for Forest of Dean (Mr. Harper) asked for examples of “any person”, and we heard debating points about Berlusconi, Bush and various other people all over the world. I am sorry to disappoint Opposition Members, but that is not what is commonly considered to be “any person” in UK legislation. Examples of any person would be local authorities, traffic authorities and railway operators. Local authorities have powers delegated to them by primary legislation so that they can make byelaws affecting local areas and issues. Traffic authorities, including county councils and Transport for London, have powers under the Railways Act 2005 to make byelaws. Mr. Heath: Is the hon. Gentleman seriously saying that the definition in English law of the word “person” is restricted to the categories that he has just described? Is that really what he is saying? Mr. Murphy: No, that is not what I am saying. What I am saying is that “any person” is a commonly used phrased. I was highlighting some examples of these powers being sub-delegated in the past to local authorities and relevant public bodies. That is the appropriate way to progress with this matter. Any proposal to sub-delegate to any person would have to be subject to the similar protections and guarantees
Mr. Chope: Will the hon. Gentleman give way? Mr. Murphy: No, I will make some progress. The relevant Select Committees themselves would say that what the hon. Member for North-East Hertfordshire sought was inappropriate sub-delegation, but I understand it to be a parody of a debating point to talk about Berlusconi, Bush or others. It is not the intention of the Bill. Mr. Chope: The Minister referred to the expression “guaranteed”. Most people purchasing goods would not accept an oral guarantee; they would want a written guarantee. Why will not the Minister give us a written guarantee? Mr. Murphy: As I have already said, when the 2001 Act was considered the Government offered a ministerial assurance on these matters, which operated effectively. There has been no contention on these matters since 2001 in terms of the ministerial assurance; I have given a commitment that we should not rely on ministerial assurance. As I have said on a number of occasions, we will seek ways to provide further reassurance so that there is a power of veto to the relevant Select Committees. The powers within this Bill are extended in a way that those in the 2001 Act were not in order to protect Parliament’s ability to scrutinise these proposals properly, which is part of our more ambitious regulatory reform agenda. So more than simply putting that in writing to the hon. Member for Christchurch, at the relevant point we will be offering reassurance by placing it in the Bill and seeking opportunities to do so. Mr. Chope: Ah! Mr. Murphy: The hon. Gentleman says “ah”. I made that point on Second Reading and referred to it in my evidence to the relevant Select Committees. I am happy to do so again. However, a blanket restriction on conferring powers to legislate by order would, as I said, also have a significant impact, as I mentioned, on the mergers recommended in the Hampton report. When merging a regulator an order would have to address issues such as transfer of staff, as I have already mentioned. I have reiterated the Government’s commitment not to deliver highly controversial measures by order and not to force orders through in the face of Committee opposition. The Committees will be provided with information necessary to enable them to consider
Amendment No. 69 would remove the ability of orders to codify the common law. In relation to the common law, or rules of law as described in clause 2(3), codification can take place only if it has been recommended by the Law Commission, about whose expertise in codifying the law I am sure we are all confident. 2.30 pmThe Government believe that such a beneficial Law Commission recommendation should be implemented by order and for that reason we cannot support amendment No. 69. On new clauses 7 to 16, we have already debated the merits and drawbacks of listing specific subject areas that should not be amended by order. Similar issues are at stake when we consider enactments. Despite the invitation of the hon. Member for Christchurch, I do not intend to discuss for the Committee’s benefit each of the 40 or so Acts that he listed in his new schedule, but it is clear that in clause 3 on preconditions, which we will discuss, many if not all the points that he made would be covered by paragraph 3(2)(d) respecting necessary protections and 3(2)(e) respecting
I am sure that he is aware of that, but I understand why he made that debating point. The conditions in the Bill guarantee those freedoms and protections, which could not be overturned in the way to which he alluded. In addition to the preconditions in clause 3, the Government have given an assurance that they will not come forward with highly controversial proposals and that they will empower the relevant Select Committees. The lists of reserved areas of competence and Acts of Parliament excepted from the order-making powers in part 1 of the Bill are not the right way forward and might even obstruct the aim of removing unnecessary burdens on business. Even the hon. Member for Christchurch acknowledged that his list might not be exhaustive, and my hon. Friend the Member for Edmonton (Mr. Love) referred as well to whether it was exhaustive. Although protections are guaranteed by clause 3 and by the powers of Select Committees, because of the need— David Howarth: Based on what the Minister says, the crucial point is the question of the application of the Bill to itself. He refers constantly to the protections in clause 3. We shall come to them in a while; they are not as adequate as he claims they are. Surely he must
Mr. Murphy: I do not accept that the Bill could be used to reform itself, for all sorts of reasons. Not least of those are the Government’s assurance in 2001, which has been generally accepted, that they should not introduce highly controversial proposals, and the Select Committees’ power to reject any proposals by order. Those are important powers that would protect Parliament from such a suggestion. Additionally, statutory public consultation would echo that point. The specific listing of enactments would undermine our ability to reduce the burden of the bureaucracy that might follow from some of the enactments. As I said earlier, the Departments are working on simplification proposals about ways to reduce bureaucracy. I suspect that we would not seek to change most if not all the Acts listed in the hon. Gentleman’s new schedule—or indeed those mentioned by my hon. Friend the Member for Edmonton and others that we could list—because they would be highly controversial, the Select Committees would rightly reject them and the Minister would not make such a proposal. However, we wish to cut the bureaucracy and the burdens arising from many Acts of Parliament, and to have such a prescriptive list—one that, in my interpretation, restricts the ability to reduce bureaucracy, form-filling and information sharing—would undermine entirely a large aspect of our better regulation agenda. We must reduce bureaucracy, and an ability to do that to all sorts of different Acts which themselves are highly controversial—the Government do not propose to introduce amendments to the policy but to amend the bureaucracy attached to them—is the right way to progress. I recognise that some administrative burdens are necessary, but if we can reduce the burden on business where appropriate, we should. I am sure that Opposition Members agree with me on that. I appreciate why such amendments have been suggested but, for the reasons that I have outlined, I cannot support them. I therefore urge my hon. Friends to oppose them. With the safeguards that I have mentioned, the clause should stand part of the Bill. Mr. Chope: That was another extraordinary performance by the Minister. At least we have, at last, got the concession that he is thinking of tabling some amendments on Report. When are we going to see those amendments? Will they be produced at such a late stage that it will not be possible for them to be considered by the House other than as a fait accompli? Will we be faced on Report with a timetable that allows the Government to dominate the agenda with their new clauses and amendments, which always take priority, so that there will not be time to reach everybody else’s amendments? If the Government produce lots of extra amendments on Report, will the Minister reconsider the amount of time that is available for consideration at that stage? Column Number: 130 The Minister keeps talking about debating points. Surely this is a debating Chamber. Our amendments seek to preserve debate in Parliament, rather than allowing legislation by Government fiat with no public or parliamentary debate. The Minister seems to find that rather awkward. He keeps going on about “highly controversial” and guarantees, but when we challenge him he uses an expression that we should note carefully: “Our ambitions are wider”. He gives us lots of innocent-sounding examples, but when we try to tie him down and ask him to limit the Bill to its ostensible purpose he says that that will not do; he has wider ambitions—but he will not tell us what they are. Perhaps he will let us know during a later debate. Then the Minister talks blandly about bureaucracy—if there is too much bureaucracy, that can be a justification for removing a host of civil liberties. One of the new clauses set out by the hon. Member for Cambridge is about judicial tenure. Obviously, in that case we could reduce bureaucracy by changing the rules—we could abolish jury trial, with all those letters that have to be sent out to potential jurors asking them whether they will attend the Crown court on a particular day. It is not adequate to cite the need to reduce bureaucracy as a justification for removing civil liberties and freedoms from the people under this process. The Minister has not given us the sort of assurances that we need, and I hope that we will be able to put one of the amendments to the vote—I shall beg to ask leave to withdraw amendment No. 32 so that we can vote on amendment No. 33, which is much deeper. If it were adopted, that would remove a lot of our concern about the Bill. The Minister has not assured us, for example, that it will not be possible under these provisions for the Government to legislate to extend the scope of existing Acts of Parliament. An expert in the Room has rightly drawn to my attention the fact that I was wrong in saying, in my intervention on the hon. Member for Cambridge, that that is governed by the long title. It is the scope of the legislation, not the long title that is at issue. What guarantee have we that the scope of existing Acts of Parliament will not be extended by subordinate legislation without Parliament’s having the chance to exercise proper scrutiny? The story goes on. I asked the Minister what guarantee there was that the powers would not be used for major mergers. If I remember correctly, he said that he would answer that point later. He has not answered it. He asserts that the powers will not be used to govern major mergers, which would have to be done through primary legislation. What is the definition of a “major” merger of regulators, compared with a minor merger? If one is working for an existing regulator and one faces the prospect of losing one’s job as a result of a merger, or if one feels that a conflict of interest would be created by a merger, surely that is something that one should be able to take up with one’s Member of Parliament, who would expect it to be the subject of primary legislation and therefore subject to proper scrutiny. Column Number: 131 |
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