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Mr. Cash: I apologise for not being in the Chamber for as long as you may have wished, Mr. Deputy Speaker, but I have watched the debate with great interest from other parts of the precincts of the House of Commons.
Mr. Deputy Speaker: Order. The hon. Gentleman should not refer to such a fact. The only debate that he can possibly know about is the one that takes place in the Chamber.
Mr. Cash: I was of course blind while I was watching it.
I have a real problem with new clause 1, even though I support its objective. I wish to deal with the procedural questions that lie at the heart of the provisions. As you,
Mr. Deputy Speaker, have often pointed out, the new clause covers orders made under clause 1. It states:
- "Every order made under section 1 shall include a provision"--
- "for the Minister to present a report on the operation of the order in the fifth year after it has come into effect".
I mention that fact because I was on the Joint Committee on Statutory Instruments for far too long. I proposed to the Speaker's Counsel and to the Committee some years ago that, when legislation was being introduced by statutory instrument--whether it was subject to annulment or approval--the letter "E" should be used to designate some of the instruments in the exceedingly long and ever-growing list of statutory instruments. My intention was to demonstrate to the Committee that, no matter what disposition it might make or what it might recommend to the House after discussing those statutory instruments, we cannot revoke or repeal, pass or not pass them because of the 1972 Act.
Mr. Bercow: I learned much at my hon. Friend's knee, so far be it from me to argue against him or query his superior knowledge. However, will he confirm that we cannot do what we want because new clause 1 would be incompatible with, and overridden by, the protocol on proportionality in the treaty of Amsterdam, against which we were co-conspirators in January 1998?
Mr. Cash: Some overriding problems will prevail because the 1972 Act was passed in its present form. If it does not change, it will be impossible to breach the acquis communautaire. I shall go no further down that route, but my point is important. I am not trying to string out the debate.
Mr. Lansley: My hon. Friend makes an important point, but the case that he makes does not frustrate the purpose of new clause 1. It would allow for a review and possibly a disapplication of a regulatory reform order, which can be made only if secondary legislation allows for such a reform. To disapply such a reform order by using new clause 1 cannot infringe restrictions on the use of secondary legislation under the 1972 Act.
Mr. Cash: I do not want to get into a dispute with my hon. Friend, so perhaps we could discuss that later. It is a different story when the new clause applies to provisions that are not derived from European legislation. There is a tremendous advantage in having such a measure on the statute book in so far as it does not contradict the principle that I have just mentioned with respect to the 1972 Act.
I am worried about the five-year provision, which my hon. Friend the Member for North Shropshire (Mr. Paterson) mentioned. In an intervention on him, it was suggested that it would be better to hold a review every year, but there are difficulties with doing that too frequently. It is too generous simply to assume that we
can judge whether an order has outlived its usefulness or become obstructive to small or other businesses on the arbitrary basis of a five-year term. If orders are to be made under clause 1, it should be possible to make them at any time. It should not be necessary to refer to an arbitrary period of five years.
Mr. Paterson: I mentioned the Pollution Prevention Control Bill, of which Lord Peyton said in another place:
- "I do not believe that I have ever seen a Bill which shows more manifestly a deep and profound contempt for Parliament."--[Official Report, House of Lords, 15 February 1999; Vol. 597, c. 471.]
5.30 pm
Mr. Cash: That is why I should have preferred the new clause to say that the Minister should "present a report on the operation of the order within five years of its coming into effect", or something along those lines.
I take account of the fact that the object of the Bill, and clause 1 in particular, which is to try to knock sense into legislation, should be encouraged. I was the chairman of the Centre for Policy Studies reduction of legislation committee in the 1970s, so I have taken a significant interest in the subject. As I said earlier, I also introduced the Small Business Bill within four months of entering the House. That Bill specifically included as one of its objectives the reduction of legislation. I regret to say that very little was done for far too long. I am glad to note that the previous Government sought to tackle the problem. I have some sympathy with the Bill in that it seeks to achieve the objectives that many hon. Members share.
As I pointed out in a document that I wrote several years ago, there is a system that should be followed for reports such as those mentioned in new clause 1. The new clause says:
- "Every order made under section 1 shall include a provision for the Minister to present a report on the operation of the order in the fifth year".
I have always believed that there is a mechanism for achieving the objective of removing the burden of legislation. In preparing the report, the Minister responsible should ask the Law Commission to make a recommendation on the nature of the reforms that are needed. The Law Commission is an independent body, so it could be seen to be doing that objectively, and not in a purely internal, political manner. Once the report had been received, the Minister, having drawn together a team of specialist lawyers, could invite them to make the necessary reforms to the entire statute book.
That was done by no less an authority on the reduction of legislation than Justinian himself. In the second or third century AD, he was faced with a monumental volume of legislation that had built up in the Roman empire. He simply drew together all the lawyers he could lay his
hands on and instructed them to go through the statute book and reduce it. They did so most effectively within a couple of years. Reports such as those that would be required by new clause 1 should address the fact that there is today a vast amount of obsolete and unnecessary legislation. That can be effectively addressed only by an objective analysis such as the one that I have described.Let me tell the House why. My following remarks are made without disrespect to the civil service. Ministers are Ministers of Departments; they get their advice from within those Departments. Every single piece of legislation creates a conflict of interest for the civil servants engaged in the repeal or reduction of that legislation, because legislation has to be administered by them. The bottom line is that an order would require those civil servants to be given the objective advice that I have described by the Law Commission, because they would otherwise have a disincentive to reduce legislation, which is, in effect, the source of their pay cheques. Therefore, new clause 1 is extremely important.
Leaving aside my point about European legislation--it is insuperable and will remain so until proposals of the sort that I have in mind, such as renegotiation on a proper scale, are implemented--there is an important question about, for example, the volume of public expenditure connected with the sort of report that a Minister would be expected to introduce. Legislation necessitates the employment of a number of departmental civil servants who are required to monitor it, which gives rise to public expenditure. One cannot overestimate the need for arrangements to reduce the volume of legislation by the means set out in the Bill. It is essential to reduce the volume of legislation and thereby to reduce administration and the number of administrators. There is a tremendous amount to be said in favour of the new clause.
Clause 1(2) refers to the "legislative competence" of the Scottish Parliament. There is a serious problem in that respect, but I do not need to spend much time on it. The relationship between the Scottish Parliament and the United Kingdom central Government throws up important questions relating to the sort of orders that can be made to achieve the objectives set out in clause 1 and, by implication, new clause 1. I remember debating this very subject with the late lamented former Secretary of State for Scotland during the passage of the Scotland Act 1998. If a provision passed by the Scottish Parliament is ultra vires the arrangements under the Act, the Secretary of State can make an order; however, he cannot make an order that is itself ultra vires arrangements prescribed by the European Union--at whose table the UK sits in the Council of Ministers. Therefore, there is a serious problem with Scottish statutory instruments under new clause 1, just as there is within the new clause itself.
There are many reasons to be enthusiastic about any provision that reforms laws, but the most important is that it is effective. Such provisions must reduce the amount of legislation. The Confederation of British Industry, the Institute of Directors, the Federation of Small Businesses, farmers--all are crying out for a reduction in legislation. We are living in a madhouse of legislation; it is far too complicated. Now, even accountants are saying that legislation has got out of hand. Some years ago, I sat on the Committee dealing with the consolidation of the Income Taxes Acts. I felt that the most useful thing I could say was that it was pointless of the Committee to try to reduce the volume of legislation, as clause 1 and
new clause 1 would achieve, if within a matter of years of their reform, the Income Taxes Acts redoubled in number. That is exactly what happened.The task is impossible unless people have the political will to undertake it. That political will involves a procedural arrangement within the arrangements prescribed under the report specified in new clause 1, which will permit people to know that the task will be achieved. It is one thing to say that we shall seek to achieve that task; it is another to do it.
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