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Mr. Spearing : Does the hon. Gentleman agree that the position is even worse than that ? However long the committee may sit and however many questions it may ask, constitutionally, its opinion will be only advisory and in terms of the orders of the House.

Mr. Waller : Yes, I agree with the hon. Gentleman. It has been suggested, of course, that the Government would listen carefully to the opinions of the committee and that they would be extremely unlikely to reject the committee's considered views, but that is not good enough for me. I must reject the placing of untrammelled power into the hands of Ministers, of any Government.

9 pm

I agree that the conclusions of the Donoughmore committee all those years ago were restrictive. Indeed, they were too restrictive in their application to Ministers. I support its view, however, that a clause of the sort that is proposed should be time limited. The committee concluded :

"The clause"

a Henry VIII clause

"should always contain a maximum time limit of one year after which the powers should lapse. If in the event the time limit proves too short--which is unlikely--the Government should then come back to Parliament with a one clause Bill to extend it."

That seems to be close to the provision that is encompassed in the new clause. I agree, too, that the subjectivity of tests using words such as "protection" and "burdens" is objectionable.

I wish that I were able to give my full support to the Government in this instance. I have read carefully the report of the proceedings in Committee. I was anxious, if possible, to find a way in which I could support the Government, but I read in vain. I rarely oppose the

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Government on other issues and I hope that that very fact will in itself demonstrate the depth of my concern in relation to this one. I am sorry that there are few Members in the Chamber because when I have spoken to my colleagues I have found that many of them do not fully appreciate the effect of the provisions in the first part of the Bill. I believe that tonight there has been a general consensus on the matter. With regret, I find that there is no way that I am unable to support the new clause.

Mrs. Helen Jackson : Throughout our debates, I have had the uneasy feeling that there is something almost unconstitutional about the first four clauses. Yet, here we are debating the Bill, and we are part of the constitution. The four clauses have been described as Henry VIII clauses, and we know that Henry VIII was an arbitrary dictator fond of cutting off people's heads and of ruling by decree. The clauses have caused some of us to believe that we are being asked to act unconstitutionally. It might be better to describe the first four clauses as Charles I clauses. It is almost as if the king is trying to cut off his own head.

I know that that would be rather difficult, but it seems that Parliament is trying to cut its powers to decide what is or is not best in the public interest. I do not believe that, constitutionally, a Parliament can decide to act not in the public interest but in the interests--this has been clear throughout our consideration of the Bill--of one element of the public, financial business.

Earlier today, the hon. Member for Scarborough (Mr. Sykes) referred to a small care home for the elderly. He said that it was unfair for that business man, as he tried so hard to make money, with sweat pouring down his brow, to have the burden of complying with certain staffing regulations. I could not help thinking of the residents of that care home and to whom they could go, other than to their Member of Parliament, if they felt that they were not receiving adequate care.

If the interests are balanced out, I must inevitably come down on the side of the residents of that home in respect of the legislation that we may pass on their behalf rather than on the side of the efforts, which I accept may be genuine, of the person trying to make money by running that care home and that person's ability or otherwise to make that money.

I agree with the hon. Member for Aldridge-Brownhills (Mr. Shepherd) that legislation requires a continuous process of simplification. Regulations need amending as time moves on and we must find a way to achieve that. However, the Bill is not couched in such terms. The Bill prevents regulations from being amended in such a way that they may become more onerous on business. If new research on safety or the environment means that regulations have to be amended to protect the public more securely, the Bill precludes us in Parliament, and Ministers, from doing that. Parliament can act only in a way that makes legislation less onerous to business.

My final point should be challenged in a wider debate and I believe that that will happen over the next few weeks. I do not accept, and I do not believe that most Conservative Members accept, that the key element that holds back the profitability of British industry is the minor bureaucratic regulations with which industry must comply. The manufacturing sector in Sheffield does not cite that as the main reason for its problems in stimulating British industry and manufacturing. The Government have not introduced

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the Bill to solve that problem. The Government are abrogating responsibility, which I believe has rested quite correctly with Parliament for many hundreds of years.

Dr. Wright : At the tail end of debate on such a large Bill, it is difficult, particularly for those of us who have been associated with it in Committee, to remember the anger and outrage that we felt when the Bill first appeared. However, we should remember that if we are to obtain a measure of the enormity of what is being proposed and what Parliament is being asked to approve.

My hon. Friend the Member for Sheffield, Hillsborough (Mrs. Jackson) put it very nicely just now. She said that from the very moment Bill was first suggested, when it was a gleam in ministerial eyes, it had a nasty smell about it. The Government knew that and they knew that they had to build in a procedure so that Parliament could be persuaded that it would be all right. That process has been undertaken and we have reached that moment. However, we should remember that there are two crucial issues.

The first issue is that the Government are claiming a general order-making power, and the right to make legislation by order, of a kind that no Government have hitherto claimed. That is simply a matter of fact. We speak about Henry VIII clauses and it is quite true, as Conservative Members have said, that everyone who has considered those, from the Donoughmore committee in the 1930s right through to the recent Hansard study of the legislative process, has said that those are inherently undesirable clauses which should not be in Bills ; they are only there for transitional purposes, consequential purposes and updating purposes. They should be at the margin, and they should stay there.

The Government are now saying that that is not the way in which they would like to proceed. They want to proceed by claiming for themselves a general power to legislate by order. The first question becomes, "Is Parliament willing to grant that power to Ministers ?" That is the crucial question. It is being asked now by the Labour party of the Government, but it could be being asked the other way round. It is a question for Parliament. It is a question about our political and constitutional system, and Parliament must answer it tonight.

The second issue is that of the mechanism that the Government have offered Parliament to make the process all right--the scrutiny Committees. The Procedure Committee was sent away to examine that proposal and to come forward with a device. It has done so, but Parliament ought to understand what has happened before it votes this evening. I understand that there was largely non-co-operation from Labour members of the Procedure Committee as a result of their disapproval of the entire process, so the Committee was dominated by the Government.

The Procedure Committee made a set of proposals. It essentially said, "We are not satisfied with the safeguards that the Government are offering the House in relation to this claimed power" and it listed five essential safeguards that it wanted before it was prepared to give its imprimatur to the Government's proposals. Two of those safeguards have not been met. When I mentioned it to the Chairman of the Committee, he seemed surprised. I shall never forget

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the look of surprise on his face when he asked the Leader of the House, "Can this be true ?"--and of course it is true that two of those safeguards have not been met.

One safeguard relates to the ability of the Committee, and therefore the House, to summon Ministers ; a very important power. However, the key safeguard, the fundamental safeguard, is for a Committee of the House--the suggested scrutiny Committee, remember--a Committee with a Government majority, chaired by a member of the Government party, to claim the right to say whether it is appropriate to use the order-making power in relation to the proposals that the Government are making. That is the crucial issue. Is it appropriate to proceed by using order-making powers instead of primary legislation in relation to this proposal ? That is the key issue for the Procedure Committee.

What do the Government say ? I would ask all hon. Members, before they vote tonight, to read what the Government say. They essentially say, "We are interested in what you say ; we shall take it"--the phrase is, "with the utmost seriousness"--"but we shall not accept it." There we have it. When the Procedure Committee reported, there were people around and outside who said, "This is a sensible report ; the safeguards seem sensible ; I am sure that we can go ahead on that basis." Some of us did not think so ; nevertheless, that was what was said. The reality is that the Government have not accepted those proposals.

So what will happen tonight ? This Parliament will give Ministers a general order-making power, and it will do so in a context in which the Government have not even been prepared to accept the safeguards of the House's own Procedure Committee. That is the issue. It is not for nothing that those powers are called Henry VIII powers, because if there is one golden, malevolent thread running through our constitution, it is the transfer of prerogative powers from the Crown, not to the House, not to Parliament, but to the Executive. That is the issue for us. It is revealing that a Government should have the arrogance to ask for such powers. It would be even more revealing if a Parliament--this Parliament--agreed to grant Ministers those powers.

9.15 pm

Mr. Sainsbury : The hon. Member for Leeds, Central (Mr. Fatchett) put forward his new clause as a constitutional issue. He argued in measured terms against the order-making power, saying that his argument was on principle. However, in so doing, he brushed aside the safeguards in the Bill and largely ignored the careful work of the Procedure Committee. He revealed the underlying reason for his new clause. He has no interest, and nor do his hon. Friends, in lifting burdens from business, charities or individuals.

The hon. Member for Leeds, Central asked why the order-making powers were needed. They are needed to facilitate the timely removal or reduction of burdens in primary legislation. This need will still exist in five, 10 or 15 years' time. What may not appear to be a burden now may become a substantial problem in the future. Markets, technologies--a whole range of circumstances--will change the nature of business in years to come. We need an effective mechanism to deal with those burdens, both now and in the future. For those reasons, we do not consider that any time limit is appropriate.

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The new clause would undermine our objective in seeking the powers in clause 1. We have a rolling programme which will identify many more measures which would remove or reduce bureaucratic burdens without removing necessary protection, and would therefore be suitable candidates for use of the order-making power.

Moreover, circumstances change so that legislation that is necessary now may in the future no longer be needed to provide protection. We have seen how new technology can offer ways of providing legislative protection that are less burdensome. Computers have already led to substantial changes in record-keeping requirements.

Technological developments are bound to continue. For example, the further development of smart cards may mean that all sorts of detailed legislative requirements could become outdated. We, therefore, want a power to amend existing primary legislation to be available into the future. We see no need to limit the availability of the power. It should be available for any future Government to pursue the lifting of burdens without removing necessary protection.

Mr. Richard Shepherd : My right hon. Friend has not answered the question why an annual deregulation Bill or series of deregulation Bills could not meet the point. That would enable us to amend provisions that might be contentious. No one in the House disputes his canter round technological advances and the changing nature of society. We are agreed on that. That argument is almost redundant. We want to know why it is necessary for the Government to have extraordinary powers which contradict our constitution instead of a proper approach to the matter.

Mr. Sainsbury : First, I do not think that the powers are so extraordinary. Secondly, there are substantial safeguards. Thirdly, the very thing that my hon. Friend asks for would demand more legislative time. That is the problem that we are addressing. The power in clause 1, which worries my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Keighley (Mr. Waller), applies only to Acts currently on the statute book and those passed in the current Session. It is not untrammelled. There are limits on the use of the power in the Bill. We should also bear in mind the stringent safeguards and constraints on the use of the power included in the unique arrangements for scrutiny by special Committees. That scrutiny would be followed by the affirmative resolution procedure, which requires the positive approval of each House. Therefore, it would be debated in this House and no additional purpose could be served by some annual review of all the uses to which the power was to be put in the following year, or by requiring the power to be reviewed by the affirmative resolution every year.

Amendment No. 24 gives effect to an undertaking that we gave in the Standing Committee on 24 February, at column 232. It also follows up a recommendation made by the Procedure Committee during its inquiry. It would require a Minister bringing forward a proposal under the order-making power to report back to the House following a special scrutiny period, giving details of any further representation made during that period, subject to protection for information given in confidence, as well as any report or resolution of either House or their Committees. The statement would have to give details of

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any changes made to the proposals or as a result of such representations, resolutions or reports during the scrutiny period. On amendments Nos. 97 to 100, my right hon. Friend the Lord President made clear during our debate on the Procedure Committee's helpful report that we have given very careful consideration to the views of the Procedure Committee. The Committee reached the view that, in a small minority of cases, the scrutiny period of 40 days provided by clause 4 would not be sufficient to allow the deregulation Committee to complete a proper scrutiny inquiry. The amendments give effect to the Committee's recommendations that, in such cases, the period for scrutiny should be extended to 60 days. The Procedure Committee in another place has now also undertaken an inquiry into the arrangements for scrutinising deregulation orders. The Government will, of course, take careful account of the outcome of that inquiry and will propose any further amendments to the Bill that appear necessary in the light of it.

I, therefore, commend amendments Nos. 24 and 97 to 100 to the House and urge hon. Members to reject new clause 3.

Mr. Fatchett : I fear that there has been no meeting of minds on this issue during the debate ; the same was true during the Standing Committee proceedings. The Opposition--and the hon. Members for Keighley (Mr. Waller) and for Aldridge-Brownhills (Mr. Shepherd)--see the issue as one of principle. The Minister regards it as a practical issue, and does not see beyond the means. We are concerned about the means and the ends, and also about the way in which the powers taken will subvert the role of this Chamber and of Members of Parliament, and will make the Executive less accountable.

That is the argument which we have made throughout. It has been a principled argument. It is, as the hon. Member for

Aldridge-Brownhills said, a Conservative constitutional argument. I am not embarrassed by that, as sometimes the very simple constitutional principle of making the Executive accountable is worth defending and justifying. That has been the principal difference, and the Minister has failed to understand those principles and our concern about them. I was disappointed by the nature of his reply, but I was not surprised. Throughout, he has seen the matter as being totally practical.

I repeat the commitment given earlier : no incoming Labour Government will use the powers, because I think that the powers are an abuse of the House of Commons and give too much power to the Executive. For that reason, I ask my hon. Friends to support me in the Lobby and to support new clause 3.

Question put , That the clause be read a Second time :

The House divided : Ayes 234, Noes 275.

Division No. 254] [9.22 pm

AYES

Abbott, Ms Diane

Adams, Mrs Irene

Ainger, Nick

Ainsworth, Robert (Cov'try NE)

Allen, Graham

Alton, David

Anderson, Donald (Swansea E)

Anderson, Ms Janet (Ros'dale)

Armstrong, Hilary

Ashton, Joe

Austin-Walker, John

Banks, Tony (Newham NW)

Barnes, Harry

Barron, Kevin

Battle, John

Bayley, Hugh

Beckett, Rt Hon Margaret

Beith, Rt Hon A. J.

Bell, Stuart

Benn, Rt Hon Tony

Benton, Joe

Bermingham, Gerald

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Column 115

Berry, Roger

Betts, Clive

Blair, Tony

Blunkett, David

Boateng, Paul

Boyes, Roland

Bradley, Keith

Bray, Dr Jeremy

Brown, Gordon (Dunfermline E)

Brown, N. (N'c'tle upon Tyne E)

Burden, Richard

Byers, Stephen

Caborn, Richard

Callaghan, Jim

Campbell, Mrs Anne (C'bridge)

Campbell, Menzies (Fife NE)

Campbell, Ronnie (Blyth V)

Campbell-Savours, D. N.

Canavan, Dennis

Cann, Jamie

Chisholm, Malcolm

Clapham, Michael

Clarke, Eric (Midlothian)

Clarke, Tom (Monklands W)

Clelland, David

Clwyd, Mrs Ann

Coffey, Ann

Cohen, Harry

Cook, Robin (Livingston)

Corbett, Robin

Corston, Ms Jean

Cousins, Jim

Cunliffe, Lawrence

Cunningham, Jim (Covy SE)

Cunningham, Rt Hon Dr John

Dafis, Cynog

Dalyell, Tam

Darling, Alistair

Davidson, Ian

Davies, Bryan (Oldham C'tral)

Davies, Rt Hon Denzil (Llanelli)

Davies, Ron (Caerphilly)

Davis, Terry (B'ham, H'dge H'l)

Dewar, Donald

Dixon, Don

Donohoe, Brian H.

Dowd, Jim

Dunnachie, Jimmy

Dunwoody, Mrs Gwyneth

Eagle, Ms Angela

Enright, Derek

Etherington, Bill

Evans, John (St Helens N)

Ewing, Mrs Margaret

Fatchett, Derek

Field, Frank (Birkenhead)

Fisher, Mark

Foster, Rt Hon Derek

Foster, Don (Bath)

Fyfe, Maria

Galloway, George

Gapes, Mike

Garrett, John

George, Bruce

Gerrard, Neil

Gilbert, Rt Hon Dr John

Godman, Dr Norman A.

Godsiff, Roger

Golding, Mrs Llin

Gordon, Mildred

Graham, Thomas

Grant, Bernie (Tottenham)

Griffiths, Nigel (Edinburgh S)

Griffiths, Win (Bridgend)

Gunnell, John

Hall, Mike

Hanson, David

Hardy, Peter

Harman, Ms Harriet

Harvey, Nick

Hattersley, Rt Hon Roy

Heppell, John

Hill, Keith (Streatham)

Hinchliffe, David

Home Robertson, John

Hood, Jimmy

Hoon, Geoffrey

Howarth, George (Knowsley N)

Howells, Dr. Kim (Pontypridd)

Hughes, Kevin (Doncaster N)

Hughes, Robert (Aberdeen N)

Hutton, John

Ingram, Adam

Jackson, Glenda (H'stead)

Jackson, Helen (Shef'ld, H)

Jamieson, David

Janner, Greville

Jones, Barry (Alyn and D'side)

Jones, Ieuan Wyn (Ynys Mo n)

Jones, Jon Owen (Cardiff C)

Jones, Lynne (B'ham S O)

Jones, Martyn (Clwyd, SW)

Kaufman, Rt Hon Gerald

Keen, Alan

Kennedy, Jane (Lpool Brdgn)

Khabra, Piara S.

Kilfoyle, Peter

Kinnock, Rt Hon Neil (Islwyn)

Lewis, Terry

Litherland, Robert

Livingstone, Ken

Lloyd, Tony (Stretford)

Llwyd, Elfyn

Loyden, Eddie

Lynne, Ms Liz

McAllion, John

McAvoy, Thomas

McCartney, Ian

Macdonald, Calum

McFall, John

Mackinlay, Andrew

McLeish, Henry

McMaster, Gordon

McNamara, Kevin

MacShane, Denis

McWilliam, John

Madden, Max

Maddock, Mrs Diana

Mahon, Alice

Mandelson, Peter

Marek, Dr John

Marshall, David (Shettleston)

Martin, Michael J. (Springburn)

Martlew, Eric

Maxton, John

Meacher, Michael

Michael, Alun

Michie, Bill (Sheffield Heeley)

Michie, Mrs Ray (Argyll Bute)

Milburn, Alan

Miller, Andrew

Moonie, Dr Lewis

Morgan, Rhodri

Morley, Elliot

Morris, Rt Hon J. (Aberavon)

Mowlam, Marjorie

Mudie, George

Mullin, Chris

Murphy, Paul

Oakes, Rt Hon Gordon

O'Brien, Michael (N W'kshire)

O'Brien, William (Normanton)

O'Hara, Edward

Olner, William

O'Neill, Martin

Orme, Rt Hon Stanley

Parry, Robert

Patchett, Terry

Pickthall, Colin

Pike, Peter L.

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