Mr. Christopher Chope (Christchurch) (Con):
Can the Minister explain why the necessary safeguard in the 2001 Act which ensures that a reform proposal that
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would only benefit a Minister or Department cannot be put forward under the procedure, has been removed from the Bill?
Mr. Murphy: The narrow definition did not allow us to implement specific regulatory reform orders, because of the narrow way in which a legal burden was defined and the way in which a proposal or regulatory reform order, if it only affected a Department, could not be progressed with. There have been specific examples, which I will bring to the hon. Gentleman's attention in writing if he wishes, in which the Government wished to make common-sense, non-contentious simplification proposals, but because of the tight legal definition in the 2001 Act, we were not able to make the type of progress that we would all have wished to see.
Mr. Redwood: The Minister kindly said that he would give way again in pursuit of my original question, and I think that this is the right moment. Can he tell the House how much cost has been removed under the existing legislation, and how much extra he thinks will be possible if he is granted the new powers, with one or two examples so that we can understand why he wants those powers?
Mr. Murphy: In total, I think that 27 RROs were delivered under the 2001 Act. At the time of the Second and Third Reading of the 2001 Act, it was anticipated across the House that there would be many more substantial reforms as a consequence of it. The right hon. Gentleman asks a reasonable question, and there is a reasonable answer. More than 200,000 businesses across the UK have been contacted in the admin burdens project on which the Government are working. They have identified a stock of administrative burdens, which the Bill will be able to reduce and simplify. The last Government and, indeed, the present Government would probably not have been able to find time to legislate in that way before, and businesses and others welcome the new measures.
Many of the non-contentious aspects of the simplification proposalsplans for their implementation must be produced by every Department before this year's pre-Budget reportwill find a path through Parliament as a consequence of the Bill. An avenue may also be found for the mergers envisaged in the Hampton report and the penalties review that Professor Macrory is undertaking on the Government's behalf. I believe that 29 of the Law Commission's proposals have not yet been implemented, and that the Government consider about 16 of them to be non-contentious, at least in part.
As I have said, the Bill removes technical limitations such as the legal burdens concept, and makes the RRO power simpler to use. That power is expected to deliver a better regulation outcome than the removal or imposition of a legal burden. The order-making power will also be able to confer legislative functions, or sub-delegation. It can confer a new power on a Minister to lay statutory instruments subject to the negative or affirmative resolution procedure. That is an important restriction, which will ensure proper parliamentary scrutiny of the exercise of that function by Ministers. In addition, a Minister proposing to make an order
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conferring legislative functions on a Minister will have to lay an explanatory document before Parliament giving reasons for the power to legislate and the procedural safeguards attached to it. Where possible, Ministers will be expected to lay regulations in draft to illustrate exactly how such functions will be used.
While the proposed new power is much more straightforward and more able to deliver better regulation outcomes, the preconditions in the Bill are stronger than those in the 2001 Act. They have a wider application, applying to all types of provision made by order, not just to those affecting burdens. A Minister wishing to make an order under the new power must ensure that those stringent safeguards are observed.
The Bill specifies five conditions. A Minister must be satisfied that they have been met before embarking on the order-making process. I think that this deals with the point raised by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris). There must be no non-legislative alternatives to the order; the effect of the proposal must be proportionate to its policy objectives; the proposal must strike a fair balance between the public interest in its implementation and the interests of any individuals who would be adversely affected by it; the order must not remove any necessary protections; and the order must not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.
An additional condition applies when an order is intended to restate legislation or codify the common law. A Minister must be satisfied that the order will make the law more accessible or more easily understood.
David Howarth: Is there not a problem here? All the alleged restrictions are worded so subjectively that none of them, even the ones containing words such as "reasonable", will turn out to be justiciable. Will the Minister consider changing them so that individuals will at least have the right to go to court if the powers are abused?
Mr. Murphy: The Government will be happy to be reasonable and listen to sensible suggestions during the Bill's passage, but the conditions are not "alleged"; they are in the Bill. The Bill contains more preconditions than the 2001 Act. I believe that only two out of five conditions apply fully in the Act. All six conditions in the Bill apply fully to all aspects of the order.
I am delighted that the hon. Gentleman is still with us and trust that he will be present for the end of the debate. I know of his interest in the issue. If he has any specific suggestions, I shall be happy to enter into dialogue or correspondence with him, and I look forward to seeing him, along with the hon. Member for Forest of Dean (Mr. Harper), on the Standing Committee.
There are additional restrictions on the order-making power, which are essential to ensuring that it is used appropriately. An order cannot create or increase criminal penalties beyond a specified limit; it cannot create new powers for forcible entry, search or seizure; it cannot compel the giving of evidence; and it cannot impose or increase taxation. Once a Minister is satisfied that the Bill's conditions have been met, he or she will
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have to submit the order proposals to an exacting process of scrutiny. An effective statutory consultation on the proposals must then be carried out according to the criteria in the Bill before the order-making process can begin.
Dr. Tony Wright (Cannock Chase) (Lab): The Minister is now dealing with a crucial point. Whatever Ministers say about the conditions, at some point Members will have to decideor will want to decidewhether what is being proposed should be dealt with by primary legislation or by order. What mechanism will allow the House to determine whether that distinction is being observed?
Not only will there be that statutory consultation; the House, or the relevant Select Committees empowered by the House, must be certain that every suggestion can appropriately be dealt with by the order-making power. The Regulatory Reform Committee, to which I gave evidence towards the end of last year, produced an excellent report this week. It contains 17 recommendations. As I said, we are prepared to listen in a reasonable way to those important recommendations and I gave a commitment to the Procedure Committee when I appeared before it earlier this week that we would respond to them before the Bill's Committee stage.
Mr. Gauke: As a member of the Procedure Committee, I discussed the recommendations with the Minister earlier in the week. One of them would give the relevant Committee the right to veto the procedure employed, as opposed to the ability conferred by the Bill to change the procedure to super-affirmative, affirmative or negative. What does the Minister think after seeing the report that was published on Monday? Is he minded to amend the Bill?
Mr. Murphy: I know that it is voguish to change policies and positions in a couple of hours, but I am not tempted to follow the fashion. I have nothing to add to what I thought was a good exchange of views at the Procedure Committee hearing, but we will stick to the commitment that I gave to respond specifically to the Regulatory Reform Committee's 17 recommendations.
Dr. Tony Wright: Following on from the previous intervention, will the Minister confirm that the Bill as drafted does not contain the provision that we are discussing, and that he is mindful that it should acquire one?