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Mr. Forth: Perhaps my hon. Friend will be able, as I was not because I wanted to leave time for my hon. Friends to contribute, to elaborate a little on the idea that expediency rests almost entirely on practicability, so the test would simply be, "Can it be done?", whereas reasonableness introduces more of a concept of fairness and, therefore, of judgment. That, surely, is the distinction that we are trying to make and that is so important to those who may well suffer from retrospection in its worst forms.
Mr. Chope: My right hon. Friend is absolutely right. He and I are saying to the House that if, as we will no doubt hear from the Government, they believe that the extreme circumstances justify the use of retrospection, we should ensure that those powers are exercised with moderation and reasonableness.
Stephen Hammond (Wimbledon) (Con): I am sure that my hon. Friend is aware that clause 1 allows the Treasury to adjust earnings on any liabilities to national insurance contributions that have already been determined, with the result of changing the amount of contributions that are payable or even creating a new liability. Clearly, according to my hon. Friend's definition, that can be done, but the question is whether it is fair or reasonable that it should be done.
Mr. Chope: My hon. Friend, a distinguished member of the Standing Committee that considered the Bill, is right to draw attention to that point, and I hope that he will have the chance to expand on it in his own speech in due course.
I find it hard to believe that the Minister will not accept the change proposed in amendment No. 14 so that subsection (2) would read:
That would mean that the judge of that reasonableness would ultimately be the courts; it would not be left to the Treasury to decide whether the measure was expedient. It is hard to think of any circumstances in which the Treasury would not think it expedient to legislate in favour of getting more revenue, however just or unjust that might be. That is the big problem with the wording at present; it encourages the Treasury to say, as we often hear from the Chancellor of the Exchequer, that if something will generate revenue it is expedient and must be good, irrespective of how fair or unfair it might be.
I have given the Minister a safety net. If she believes that the Treasury should continue to be the judge, it would, under my amendment No. 15, have to satisfy the test of reasonableness rather than of expediency. I hope that she will accept my amendment No. 14 but if she thinks that would cause great loopholes that the Treasury would not be able to close, as an alternative she could fall back on amendment No. 15, which would still give the Treasury the say, but on grounds of reasonableness rather than expediency.
My right hon. Friends the Members for Bromley and Chislehurst and for East Yorkshire (Mr. Knight) have been consulting the dictionary. In preparation for this short debate, I resorted to "Words and Phrases Legally Defined", a useful reference for legislators. It draws attention to decided case law in the UK and the common law jurisdictions and sets out how particular phrases have been interpreted in the courts, which enables us as legislators to decide which phrases and words we want to incorporate in our own legislation.
In a Canadian case, "Words and Phrases" refers to the "Shorter Oxford English Dictionary" definition of expedient as
"advantageous; fit, proper, or suitable to the circumstances of the case: Useful, politic, as opposed to just or right".
I realise that my right hon. Friend the Member for East Yorkshire was referring to the "Concise Oxford Dictionary", but with the greatest respect, I think that the "Shorter Oxford Dictionary", which is in fact longer, sets out the definition more clearly and precisely. In the case of Health Care Developers Inc. v. Newfoundland, in 1996, there is a reference to whether the terms of the Public Tender Act were wide. The conclusion is that, due to the use of the word "expedient", the Act is extremely widely drawn.
Similarly, a reference in the "New Zealand Law Reports" to a case in 1998 notes:
"'Expedient' is frequently used in statutes . . . While there may be shades of meaning of the word, depending on the context, reference to standard dictionaries brings out its basic meaning . . . Clearly, 'expedient' as used in the section"—
of the New Zealand Criminal Justice Act 1985—
"sets a lower threshold than 'necessary', a conclusion reinforced by the consideration that the legislature often employs the alternative standards of 'necessary or expedient' ".
That is especially material, as my right hon. Friend the Member for Bromley and Chislehurst referred to the statute that set up the Customs and Excise commissioners and the powers to deal with what was "necessary or expedient". However, we notice that the words "necessary or" have been left out of the Bill. If the very commissioners are set up under arrangements that
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enable them to do that which is necessary or expedient, why should the Treasury be given even greater power, without the inclusion of the necessity test?
Mr. Forth: That is what gives us a little ray of hope. As my hon. Friend rightly points out, in the Bill the Treasury is grabbing everything and basing it on expediency, yet the word "necessary" appears in the detailed terms for the commissioners. By including the commissioners in the process, as our amendment suggests, we are giving ourselves a little extra protection, through the word "necessary", which certainly does not exist in the Bill.
Mr. Chope: My right hon. Friend is right. That is an important point for the Minister to address when she responds to our arguments. Although we probably will not be able to have more than one vote on this group of amendments, it is open to the Minister to say that she is prepared to accept any number of our amendments, or that she will propose a collective amendment in the other place. My understanding is that as the measure is not a money Bill it will be considered in another place.
I hope that the right hon. Lady will look carefully at our proposals. Although we know that she is a reasonable lady and a reasonable Minister, that is not in itself sufficient. We need safeguards in the statute book against a future Government or Ministers who may not be quite so reasonable. That is why we should include the reasonableness test.
I shall not go through all the other legal precedents and definitions for expedient. The definition can be extremely wide, and if the Treasury is to decide whether something is expedient, it is hard to think of wider terminology. We would be legislating to say that the Treasury could do whatever it wanted if it thought it was expedient, and no one else would have the chance to challenge that. It is almost trite to refer to draconian laws, but even Draco would have been unable to achieve anything as all-embracing as the provisions that we want to amend.
By contrast with the word "expediency", the word "reasonableness" has been tested in the courts on many occasions and is much better understood in our ordinary language. The Government should be prepared to accept that any of their measures should pass that test before they introduce retrospective regulation.
Mr. Forth: I was not able to consider this point, but my hon. Friend may be able to come to a judgment: does he think that the word "reasonable" would survive in a European context? As so much of what we do in this place is subject to European scrutiny and judgment, does he think that any continental would remotely begin to understand "reasonable"?
Mr. Chope: I am only just beginning a close examination of the European convention on human rights, as I have recently had the privilege of being appointed by the Prime Minister a parliamentary representative at the Council of Europe, which oversees human rights in Europe.
Madam Deputy Speaker:
Order. I hope that the hon. Gentleman will not be led too far astray by the right hon. Member for Bromley and Chislehurst (Mr. Forth), and will restrict his remarks to the amendment.
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Mr. Chope: I shall certainly endeavour to do so, Madam Deputy Speaker, and I am sorry if my previous response suggested a certain immodesty on my part.
In considering what is reasonable, the Europeans tend to look at human rights and reflect on whether our proposals fit in with the ECHR. We shall deal with that in more detail when we debate the next group of amendments. There is a strong argument, which has almost been conceded by Ministers, that their proposals may not fully satisfy the ECHR. That is therefore the answer to the question that my right hon. Friend the Member for Bromley and Chislehurst asked about the European interpretation of "reasonable".
2.30 pm
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