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Mr. McFadden: I do not believe that the Bill in any of its guises would allow the removal of the right to trial by jury, nor could it be used, if amended today, in the way that the hon. Gentleman suggests.

John Bercow (Buckingham) (Con): I warmly congratulate the hon. Gentleman on his well-deserved promotion, together with the Parliamentary Secretary, Cabinet Office, the hon. Member for Doncaster, North (Edward Miliband) and the Minister for the Cabinet Office, the right hon. Member for North-West Durham (Hilary Armstrong) whom I wish well in her responsibilities.

Although this new clause allowing for the unscrambling of eggs that were wrongly scrambled might be an improvement, it does not remove the onus of responsibility on the Government in this field to consider moving towards sunset regulation, which would change the whole culture and ensure that bad regulation would have to come back to the House if it were to be renewed.

Mr. McFadden: We shall come to an amendment dealing with sunset clauses later in the debate. Perhaps it would be better to deal with the hon. Gentleman’s point then, so at this stage I will say only that it would seem odd to legislate for a new regime of deregulatory powers to give people certainty and then to say that they were only temporary. We owe those who operate the orders a degree of certainty.

Mr. David Heath (Somerton and Frome) (LD): I am most grateful to the hon. Gentleman. This is very early in the debate and in his ministerial career, but I urge him not to fall into the trap that his predecessor fell into when discussing the Bill, which is simply to assert that something will not happen or that he could not conceive of it happening or that it is not the Government’s intention for it to happen, rather than actually expressing in statutory form that it cannot happen. That is exactly the difficulty that the hon. Member for Stoke-on-Trent, Central (Mark Fisher) pointed out; although the Minister may be absolutely convinced that he has no intention of using the Bill for an inappropriate cause, a future Government may, and that is why so many Members are concerned about it.

Mr. McFadden: I thank the hon. Gentleman for that intervention, but it is precisely because those fears were raised and those concerns were expressed that we have tabled the amendments.

Mr. Edward Garnier (Harborough) (Con): Will the hon. Gentleman give way?

Mr. McFadden: I should like to make a little progress.

New clause 19 makes it clear beyond doubt what the purpose of the Bill is and what the regulatory reform orders will be used for and, importantly, how they will affect Departments. Together with new clauses 20 and 21, those provisions make up the new order-making powers of part 1. New clause 19 provides a power to remove or reduce burdens that result from legislation, and it defines what is meant by burden.

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Mr. Garnier: New clause 19(2) states what the purpose of the new clause is, and subsection (5) states:

Which Acts of Parliament passed since 1997 would come into that category?

Mr. McFadden: The hon. and learned Gentleman’s intervention was worth waiting for. What is meant by that is that there are processes whereby legislation is consolidated into an understandable form or a more accessible form, as I think he is aware.

John Bercow: Whatever the merits of the new clause, it does not appear to be comprehensive. May I therefore ask the hon. Gentleman a simple question? Will the provision of the new clause be subject to the negative procedure or to its affirmative counterpart?

Mr. McFadden: Orders issued under the new clause are dealt with later in the Bill, but the Minister would make a recommendation to the relevant Select Committee, which would be free to question whether the negative, affirmative or super-affirmative procedure should be used.

Mr. Richard Shepherd (Aldridge-Brownhills) (Con): Will the Minister return to the question that was asked of him about whether new clause 19(3) includes the abolition of juries, for instance? One could argue that they present “a financial cost”, “an administrative inconvenience” and “an obstacle to efficiency”. What protects us from that?

Mr. McFadden: Clause 3 contains preconditions that stop the making of an order that would remove necessary protections or prevents anyone from continuing to exercise any right or freedom. That would be the response to the suggestion to do something as radical as removing trial by jury, which has been mentioned.

David Howarth: I thank the Minister for giving way again; he has been very generous with his time. The problem all along with clause 3 is that it is drafted in subjective form—what matters is what the Minister considers to be necessary, and the Minister might consider the abolition of jury trial to be necessary to achieve a ministerial objective. Will he give way on amendment No. 74, which would insert the word “reasonably” into clause 3, and therefore might go some way towards solving the problem?

Mr. McFadden: We will come to that amendment, but the Minister’s initial judgment is not the beginning and end of the process. There are a series of safeguards, including the verdicts of Select Committees, the consultation that must take place and the other safeguards in the Bill, so no order will be based purely on the Minister’s opinion, reasonable or otherwise.

Mr. Kenneth Clarke (Rushcliffe) (Con): Will the Minister give way?

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Mr. McFadden: I should like to make some progress; I have been generous in giving way.

Government new clause 22, Government amendments Nos. 10 to 12, 13 to 22, 24 to 26, 28, 29 to 32, 35 to 37,38, 39, 56 to 58, 60 to 63, 64 and 65 are consequential on the new order-making power under new clause 19.

Mr. Clarke: If, as I gather, the Minister is moving on from new clause 19, which is the hub of the whole thing, I am very grateful to him for giving way. I have listened to him give way repeatedly. Although the new clause is well-intended, its terms are still amazingly broad. Am I right in believing, looking at subsection (3), that these powers could be used to abolish a tax, to relieve an interest group or trade from a burden of taxation, or to abolish a crime, to make something lawful that was previously unlawful under the criminal law? Those may be very desirable things, but they are subject to more safeguards than consultation and Select Committees. They should be subject to parliamentary debate before any such step is contemplated.

Mr. McFadden: The right hon. and learned Gentleman raised a number of issues. On tax, the Bill makes it clear that orders affecting taxation could not be raised in that way.

Mr. Jim Devine (Livingston) (Lab): I offer my congratulations to my hon. Friend; it has been quite a season. I wonder whether he is aware that the right hon. and learned Member for Rushcliffe (Mr. Clarke) said on deregulation, in The Daily Telegraph in July 1999 that we kept trying, but we never succeeded.

Mr. McFadden: I was not aware of that, but I will let the statement speak for itself.

I will deal with new clauses 20 and 21 in more detail in due course, but let us explore new clause 19 further, because it provides a power to make provision in an order for the purpose of removing or reducing burdens—direct or indirect—that result from legislation. The definition of “burden” in new clause 19 would allow a Minister, by order, to remove or reduce burdens that take the form of a financial cost; an administrative inconvenience; an obstacle to efficiency, productivity or profitability; or a sanction, including criminal sanctions, for doing something or failing to do something in the course of an activity. That means that a Minister may propose by order to decriminalise offences or reduce or remove sanctions if they are no longer considered appropriate.

That definition of “burden” is deliberately broader than that in the Regulatory Reform Act 2001. That is because the definition of “burden” in the 2001 Act has proved too narrow in that it allows the removal of only a requirement, condition or restriction. As a result, the concept of “burden” in the 2001 Act is complex and difficult to apply. It puts a heavy and sometimes disproportionate burden of legal analysis on Departments. For instance, the regulatory reform orders under the 2001 Act cannot clarify or simplify legislation unless in so doing a narrowly defined legal burden is removed, reduced, re-enacted or imposed.

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Mark Fisher (Stoke-on-Trent, Central) (Lab): Does the Minister accept that a burden on one group in society may well be a freedom for another group? I do not understand how the interpretation of subsection (3) of the new clause would relate to, for instance, employment rights. From the point of view of the employer, which may be the state or a private company, employment rights are undoubtedly a burden on efficiency and productivity. According to my reading of the new clause, it would appear that employment rights could be removed by order of a Minister.

Mr. McFadden: There is, of course, the protection of necessary rights and freedoms, which is set out in the Bill. That would protect against the situation that my hon. Friend outlines. The new definition of “burden” will also allow us to target more effectively the order-making power on removing or reducing the burdens that businesses, charities and voluntary organisations wish to see removed.

Mr. Garnier: I listened carefully to the answer that the Minister gave to my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) on taxation. Clauses 5 and 6 offer us some comfort. However, it is quite clear that, under clause 6, the Minister is not prevented from adding to the criminal statute book offences that attract a penalty of up to two years. There are plenty of offences that the criminal courts deal with now that carry a maximum penalty of up to two years. Is he telling us that the word “burden” does not encompass new criminal offences that a Minister might dream up that do not attract a penalty of more than two years?

Mr. McFadden: If the Select Committees thought that a Minister was proposing something that unnecessarily dealt with imprisonment of up two years, they could use their power of veto as protection against that.

Mr. Garnier: The great thing about Report is that one can have these to-ing and fro-ing debates. That is important and I am grateful to the Minister for entering into the debate in that spirit. This point is most important. We are dealing with primary legislation that gives a Minister huge powers to make legislation. If the Minister is telling me that I, as a representative of my constituents, will have to rely on some as yet unformed Select Committee to exercise its judgment in a way that would be helpful to me and my constituents, that is extremely worrying. He must surely be able to understand that the making of criminal law should be dealt with here, right the way through every stage.

Mr. McFadden: There are penalties in the 2001 Act, which, in some ways, reflect those in the proposals before us. Under the 20-odd regulatory reform orders that have been produced under that Act, I do not think that the kind of problems that the hon. and learned Gentleman is setting out have transpired.

Mr. Redwood: Will the Minister give way?

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Mr. McFadden: Not at the moment.

The types of better regulation initiatives that the order-making power will allow us to deliver include reducing the administrative burdens of regulation, consolidating and simplifying legislation to make it easier to understand and work with, and deregulation. It will also allow us to reduce administrative burdens, such as by simplifying administrative requirements for business when setting up a business or hiring staff, by ensuring that inspection is risk-based to reduce the burden on those who comply with regulation, thus concentrating inspection on those who do not, by simplifying and making more transparent and less onerous the way in which people and businesses need to apply for consent from public authorities, and by allowing, in certain key instances, the complete exemption of small businesses, charities and others from burdensome regulation to allow them to concentrate their effort where it is most needed.

Mr. William Cash (Stone) (Con): The Minister probably knows what I have in mind already. The omission from, or black hole in, the Bill—and, indeed, his speech—is the lack of any attempt whatsoever to deal with the problem of the burdens on business that come from European legislation.

Mr. McFadden: The hon. Gentleman knows that the Bill deals with us having a much clearer and more simple process of translating into British law some of our obligations from the EU. It does not somehow change our relationship with the EU on a policy basis so that we do not have such obligations, although I suspect that he wishes that it did. I am afraid that whatever I can offer the House today, I cannot offer the hon. Gentleman satisfaction on that point.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): Of course, I do not have the advantage of being a lawyer, but I am rather worried about what the Minister has just said. Is he suggesting that if the Government of the day decide, those who run small businesses may be exempted from safety legislation that is available to those who work in larger companies?

Mr. McFadden: No, I am not suggesting that at all. If a measure that would do away with a necessary right or freedom was proposed, it would not be in line with clause 3 of the Bill, so I do not believe that such a thing could happen.

If I can move on to deal with the four definitions, it may help the House. On financial cost, an order may change legislation if its effect would be to remove or reduce a financial cost on an individual, business, voluntary organisation or charity. A Minister may thus propose an order that reduces or removes any unnecessary costs that result from legislation. That definition includes both direct and indirect costs, so an order may reduce both the costs incurred by a regulated business, charity or voluntary organisation and the costs that they pass on to their customers. For
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instance, the power could be used to deliver exemptions for small businesses from some disproportionately stringent audit requirements, which could have a marked effect on reducing their costs. It could also be used to deliver a proposal in the Charity Commission’s simplification plan that would exempt small charities from certain audit and registration requirements altogether so that they could focus their resources on providing help to those whom they were set up to support.

Mr. Kenneth Clarke: Let me return to my previous point. The hon. Gentleman is giving a narrow illustration of what lifting a financial cost means, but I still cannot understand why the Bill would not allow a Minister to seek to repeal a tax by using the process. Let me be helpful to him. If, for example, a future Government wished to repeal the climate change levy, it seems to me that that could be done by statutory instrument so long as the Government ensured that they had a majority on the relevant Select Committees. I would hope that no Government would want to do that, but we do not want to legislate to enable a Government to do so. It is no good for the Minister to say that such a thing will not happen because that is what his predecessor kept saying. Will he point out the provisions in the Bill that would rule out any abolition of a tax by use of statutory instrument?

Mr. McFadden: Clause 5 states:

[Interruption.] Bear with me. It is not possible to use the powers to create a new tax, but it will be possible to reduce a tax if it meets the procedures and safeguards. In practice, however, tax reform would be dealt with in either a Finance Bill or a tax law rewrite project, as the right hon. and learned Gentleman knows.

I wonder whether I can move on to administrative inconvenience.

John Bercow: No. I am terribly sorry to interrupt the hon. Gentleman again, but his answer to my right hon. and learned Friend will not do. The hon. Gentleman has just offered a normative statement; that this is the way it ought to be done, courtesy of a Finance Bill. I ask him again; what guarantee can he offer that that would not happen in the future and that the clause would never be used for the purpose to which my right hon. and learned Friend referred?

Mr. McFadden: If any Minister proposed to abolish taxes in the order-making power, he would have to consult the relevant stakeholders, and the Select Committees would have a say and a veto if necessary.

Mr. Redwood: The hon. Gentleman illustrates why the Conservatives propose a deregulation Bill, which would put on the face of a Bill all the things that we wish to amend or deregulate, so that the House has the benefit of a proper debate. Those of us who want to deregulate also have worries of a constitutional nature. Why does not the Minister put on the face of this Bill all the things that we want to deregulate so that it is done properly?

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