Legislative and Regulatory Reform Bill |
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Mr. Harper: On the point about regulators, the Minister was challenged several times, and he drew attention to one specific example—implementing the Hampton report. Given the weight that he puts on the report, it seems extraordinary that the Government do not find time, using primary legislation, to implement it. It seems to me that implementing the report is the primary justification for the Bill. Mr. Chope: My hon. Friend makes an excellent point. If it is necessary to use primary legislation for major mergers, why cannot minor mergers be included? It would take only one big Bill to rationalise the regulatory authorities. It might or might not be controversial, but it could at least be scrutinised by Parliament. The Minister’s justifications for the Bill strike me as spurious. He is disregarding the safeguards that we have been trying to write in. Mr. Heald: Was my hon. Friend happy with the Minister’s response to my earlier intervention? I suggested that we could reword subsection (2) so that it referred to regulators being merged. One could easily take the language from later in the Bill, where it describes regulators as “persons exercising a regulatory function”, and include it in subsection (2). The Minister would thus have everything that, up to that point, he had said he wanted; but he then said, “Ah, no; it would not go far enough, because we have further ambitions.” Does my hon. Friend have a better idea than I do about what those further ambitions are? Is that not the worry? Mr. Chope: It is indeed the worry. That is why we are contesting the Bill so hotly. My hon. Friend and other members of the Committee are trying to constrain the Government. I used to sit as a Minister in Committee. In those days, if someone came forward with a sensible suggestion, as my hon. Friend did today, the Minister would say, “That is a very sensible suggestion. I cannot guarantee to follow it up, but I shall take it away and think about it.” We have not had a single instance so far of the Minister saying, “I agree; it may be going too far”—or perhaps a little wide or rather ambiguous—“but I shall take it away and think about it.” Not once has the Minister said, “I will come forward with a specific amendment or new clause on Report.” That is a highly unsatisfactory way of proceeding. I do not know whether the Minister lacks the authority to exercise discretion or show flexibility but, for whatever reason, he is being intransigent and not responding to the spirit of co-operation and helpfulness that we are trying to promote. We are indeed having a debate. I do not regard debate as a dirty word. Debate is fundamental to the whole of the British constitution and the freedom of our people. I hope that hon. Members will join me in supporting amendment No. 33. David Howarth: I do not want to add much to what the hon. Member for Christchurch said, all of which I agree with. I should like to take up the Minister’s point
2.45 pmThe problem with the Minister’s position is that we do not know what he is proposing. There is no specificity to his proposals. The Committee will debate later whether Committee procedures are the best way to provide protection. Committee majorities are automatically in favour of the Government, and the Government whips have ways of changing Committee membership. We do not know precisely what the Government are proposing, so the Minister cannot be surprised that those on this side are not satisfied with the assurances that we have been given, especially considering how long it took to drag out of him the commitment to put some reassurance in the Bill rather than simply give verbal reassurance. I therefore suggest that the Committee should take some votes at this point. I am happy to withdraw any suggesting of voting on amendment no. 45, because its substantive point is fully covered by amendment no. 33. However, I urge the Committee to consider what it is doing by leaving the words “any person” in the Bill. I suggest that we vote on amendment no. 46, because although the Minister says that he does not intend to use the Bill to go beyond the original purposes of the legislation, for some reason that we cannot ascertain he is not prepared to put that assurance in the Bill itself. If possible I will also insist on a vote on new clause 7. We come back to the fundamental point that the protections in the Bill are vulnerable to the procedure of the Bill itself. New clause 7 would cover that point. I cannot understand why the Minister refuses to accept that point, when his view seems to be based on the constant repetition of the remark that there are safeguards in the Bill. Finally, I think that we should have a vote on one of the proposed new clauses; I suggest that we vote on new clause 8, on judicial tenure, to see whether the Government are at least prepared to accept that the procedures in the Bill should not be used to undermine the rule of law. Mr. Chope: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Amendment proposed: No 33, in clause 2, page 2, line 8, leave out subsection (2).—[Mr. Chope.] Question put, That the amendment be made:— The Committee divided: Ayes 6, Noes 8. [Division No. 6] AYES Carswell, Mr. DouglasChope, Mr. Christopher Harper, Mr. Mark Heald, Mr. Oliver Heath, Mr. David Howarth, David
NOES Column Number: 133 Austin, Mr. Ian Banks, Gordon Cooper, Rosie Dhanda, Mr. Parmjit Hillier, Meg Hodgson, Mrs. Sharon Murphy, Mr. Jim Seabeck, Alison Question accordingly negatived. Amendment proposed: No. 46, in clause 2, page 2, line 25, at end add—
The Committee divided: Ayes 6, Noes 8. [Division No. 7] AYES Carswell, Mr. DouglasChope, Mr. Christopher Harper, Mr. Mark Heald, Mr. Oliver Heath, Mr. David Howarth, David
NOES Austin, Mr. IanBanks, Gordon Cooper, Rosie Dhanda, Mr. Parmjit Hillier, Meg Hodgson, Mrs. Sharon Murphy, Mr. Jim Seabeck, Alison Question accordingly negatived. Mr. Heald: On a point of order, Mr. Caton. Earlier, the Minister kindly indicated that he would provide members of the Committee with information about the meaning of the phrase “local Acts”. We have not heard when we are to receive it, but it would be convenient to have it soon because if we are not happy we might want to table amendments to later provisions. The Chairman: That is not really a point of order for me. However, it is a point well made, and I am sure that the Minister heard what was said. Question proposed, That clause 2 stand part of the Bill. The Committee divided: Ayes 8, Noes 6. [Division No. 8] AYES Austin, Mr. IanBanks, Gordon Cooper, Rosie Dhanda, Mr. Parmjit Hillier, Meg Hodgson, Mrs. Sharon Murphy, Mr. Jim Seabeck, Alison
NOES Carswell, Mr. DouglasChope, Mr. Christopher Harper, Mr. Mark Heald, Mr. Oliver Heath, Mr. David Howarth, David Question accordingly agreed to. Clause 3 Preconditions Mr. Chope: I beg to move amendment No. 36, in clause 3, page 2, line 31, leave out ‘he considers that’. Column Number: 134 The Chairman: 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—
No. 39, in clause 3, page 2, line 42, at end insert—
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). Mr. Chope: 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. Column Number: 135 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
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:
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:
Why not just leave it there rather than add
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)? 3 pmAmendment 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:
The Minister replied: Column Number: 136
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
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— Mr. Heald: 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? Mr. Chope: 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. Mr. Heath: We think that, too. [Laughter.] Mr. Chope: 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. Column Number: 137 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. Mr. Heath: 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
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
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. 3.15 pmThat 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. Mr. Harper: 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
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
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:
I shall touch on that matter when I speak to some of the other amendments in my name—and that
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,
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),
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. |
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