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Mr. Swayne: I find new clause 2 absolutely outrageous. We are at the end of the Committee stage, having discussed the ins and outs of the Bill, and we discover that notwithstanding all that we have said, the Secretary of State can do as he pleases and make up the rules as he goes along. The Minister says that the new clause is benign. Has it occurred to him that the Secretaries of State who follow may not be benign?
We are dealing here with the conduct of referendums. Has the Minister studied the conduct of the referendums as used by dictators in the 1930s? Referendums are tools of tyranny in the wrong hands. What self-respecting Parliament hands such wide-ranging order-making powers to Ministers, however benign they might be--like a benign tumour perhaps?
Subsection (2)(a) says that the Secretary of State may make an order to
What sort of Parliament would pass this new clause? My hon. Friend the Member for South Staffordshire (Sir P. Cormack) said that it is a Henry VIII clause; it is in fact an Attila the Hun clause.
Mr. Hogg:
I support the remarks of my hon. Friend the Member for New Forest, West (Mr. Swayne). New clause 2 is indeed far reaching. It does not matter much to me whether it is an Attila the Hun clause or a Henry VIII clause, but it is certainly not a clause that the House should support.
We need to analyse the new clause, bearing in mind the fact that it must be read in the context of clause 142. The new clause enables the Secretary of State to do at least three things. First, in the context of referendums, it enables him to create offences that, by definition, have a penalty attached, which will be either a fine, a term of imprisonment or a period of disqualification and may incur more than one of those penalties. The new clause enables the Secretary of State to create offences without seeking the consent of the House.
Dr. Julian Lewis:
Is my right hon. and learned Friend suggesting that the Government are pretending not only to be tough on crime and tough on the causes of crime, but tough in the creation of new crimes?
Mr. Hogg:
Indeed; the Government do not intend to consult the House.
Secondly, the new clause enables the Secretary of State not only to create new offences, but to apply to the referendum law any other enactment that he chooses. He can fish a provision from another statute and apply it to the law on referendums without coming to the House. That is a bizarre proposition.
Thirdly--this is even more bizarre, especially in a time of devolution--the new clause enables the Secretary of State by order to apply or disapply the law as it is contained in the Bill differentially as between the various parts of the United Kingdom. We can therefore have
different systems of law applying to different parts of the UK that are promulgated by law at the behest of the Secretary of State. All that is done by order--and by the negative procedure, as clause 142 states. In other words, none of the things that I have described has to come before the House.
Mr. Stephen O'Brien:
My hon. Friend the Member for South Staffordshire (Sir P. Cormack) mentioned Henry VIII, who famously said to his wives, "I shan't be keeping you long." I shall not be keeping you long, Mr. Lord.
The Minister was generous enough about my speech on clause 111 and schedule 13 to accept that, in certain respects, my arguments had validity and to say that he would be looking into them and would write to me. I hope that he will be equally open minded on this matter. He will recall that the basis of those arguments was ensuring the democratic legitimacy of provisions, particularly those on referendums. If referendums are for anything, they are to confer the democratic legitimacy of the populace on measures that affect the whole country. Therefore, new clause 2 must go to the very heart of democratic legitimacy, especially in relation to referendums.
Under new clause 2, the Secretary of State is allowed to reserve for himself the powers to set rules. As a Minister of the Crown, he is bound to have an interest in the outcome of a referendum. Therefore, he would be setting the rules for a game in which he had an interest whether he won or lost, and whatever side of the argument he took. That is why it was fair of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) to say that, although most Governments have habitually used Henry VIII clauses, there is a very real reason why it is not appropriate to do so in this case. The new clause should not be agreed.
Mr. Nicholas Winterton:
The Minister described new clause 2 as benign. I rise to speak briefly because I want to know how he can describe it so. It has been said from the Opposition Benches that the new clause is a Henry VIII provision, and the one thing that one cannot say about Henry VIII is that he was benign.
Bearing in mind what my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and other hon. Friends have said, I am sure that, in seeking to give me his definition of "benign" in his winding-up speech, the Minister will accept that the new clause is draconian. It gives the Secretary of State very wide powers.
Mr. Hayes:
Perhaps the Minister confuses benign with vague. It is probably true that the more specific the clauses, the more benign they are; the more vague they
Mr. Winterton:
I am not sure that I can answer that point. I am hoping that the Minister will deal with my hon. Friend's intervention in his winding-up speech. I agree with the views expressed by my hon. Friend, as I do with those expressed by my fellow Cheshire Member of Parliament, my hon. Friend the Member for Eddisbury (Mr. O'Brien), who in a brief speech made some important points.
New clause 2 is surely a draconian, all-enveloping provision, which gives substantial powers to the Secretary of State. Can the Minister justify his remarks that the clause is not that important and is benign? This matter is important, and the House deserves a proper and full explanation.
The Second Deputy Chairman:
The Question is, That the clause be read a Second time--
Sir Patrick Cormack:
Are we to take it, Mr. Lord, that the Minister, having heard the strong objections from the Opposition--
The Second Deputy Chairman:
Order. The Minister gave no indication that he wished to address the House.
Sir Patrick Cormack:
In that case, Mr. Lord, I shall say a few words. That is contemptuous treatment of the House of Commons. Several extremely powerful points were made by the Opposition.
The new clause is utterly unacceptable. The Secretary of State would take to himself wide-ranging powers when, as we have heard, in a referendum all the dice are loaded in favour of the Government of the day.
In a genuine fit of repentance, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) explained how wrong such Henry VIII clauses are. There is nothing worse than for the Government to take the powers of a Henry VIII clause when dealing with a referendum. We are utterly opposed to the new clause, and we are, frankly, disgusted that the Minister is not prepared to answer the debate. We want to press the motion to a Division.
Mr. Hogg:
I support my hon. Friend. On any view of the matter, the new clause gives the Secretary of State the power to create new offences and to apply the law differentially throughout the United Kingdom. Whether that should be done by affirmative resolution or negative resolution or be written into the Bill is a matter for legitimate debate. The Opposition have urged a certain point of view. It is a disgrace that those on the Government Front Bench have not sought to respond to those points. It is a contempt of Parliament.
Mr. Mike O'Brien:
It is inappropriate that I have failed to address the important point raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I understand that the usual channels have had their discussions about the length of
"make provision for the creation of offences".
Perhaps one of the most awe-inspiring things that we do in this place is to create offences that may result in the imprisonment of some of our constituents. A Parliament should think long and carefully about that, but we are not prepared to think about it at all; we are prepared to hand the powers to a Minister.
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