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Mr. Redwood: The hon. Gentleman is clear in stating the areas in which he does not want the power to be
used, but are there any in which he would like it to be used? Does he have a list of measures that he would like to be removed?
Andrew Miller: Yes—I could list a number of items. I would like the House to consider giving my Committee or a successor body investigatory powers and the power to recommend to the Government areas in which they should act. The right hon. Gentleman has done private work in that respect on behalf of his Front Bench. Serious consideration should be given to whether, in future, my Committee or its successor should have investigatory powers, which it lacks under its current Standing Orders. In our everyday work, we all come across examples of regulation that cause us to ask why they are still on the statute book, or why they were put on to the statute book, whether by a Conservative or a Labour Administration. That matter should be examined in the context of the debate on the Standing Orders.
I congratulate the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Wolverhampton, South-East (Mr. McFadden), and his predecessor, my hon. Friend the Member for East Renfrewshire (Mr. Murphy), on the sterling job they have done of getting us away from the rather odd debate in which the House found itself as a result of the Bill that emerged from Committee. Substantial progress has been made, although a few obstacles remain in the way of getting the legislation smoothly on to the statute book. I hope that during our proceedings today and tomorrow, Ministers will listen carefully to the serious points that are made, in particular by members of the four Select Committees, with a view to ensuring that the Government’s replies do not preclude further amendments, should they be necessary. However, I congratulate my hon. Friend the Parliamentary Secretary on adopting the imaginative approach that new clause 19 and the associated amendments reflect. I hope that the new clause will have the support of the House.
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Mr. Heath: The hon. Member for Ellesmere Port and Neston (Andrew Miller) said that the Bill that left Committee engendered an odd debate. I do not think the debate was remotely odd; it was entirely proper and necessary, because the loose wording that had been adopted drove a coach and horses through our proper parliamentary scrutiny, which is why so many of us were extremely concerned.
I again welcome the Minister to his new responsibilities. I am sorry that his first parliamentary outing is on one of the most controversial Bills of the year, although at least he has the advantage of introducing amendments that improve it rather than make it worse. He tried manfully to put as good a gloss on the process as possible, although he was not aided by the Minister for the Cabinet Office who left after 12 minutes, which I found surprising given the context of the Bill—but there we are.
The Minister said that the Government had listened to what had been said by the Committees that have considered the Bill. The Government may have been listening but they certainly did not give the impression that they were prepared to budge an inch in the
Standing Committee, where the then Under-Secretary at the Cabinet Office simply replied with assertion after assertion after assertion that it was not his intention, and that if it was not his intention it could not possibly be anyone else’s intention, to abuse the terms of the legislation, so it was all right.
The only thing that made the Government think again was the message from the Government Chief Whip in another place, who told them that the Bill was as good as dead unless it was substantially amended before it went there. That is why the Government have tabled the amendments that we are discussing today—rightly so, because the Bill is important. We all wanted to support it and to develop a consensus that enabled us to do so, but we can do that only if the Government remove the wholly unsatisfactory parts of the measure. However, I can tell the Minister that I wholeheartedly agree, without demur, with one of his amendments: No. 10, which leaves out clause 1. That is an extremely good amendment.
New clause 19 makes the situation better, but it is by no means the final article. It moves some way towards providing a limiting definition, but that definition is still open to misinterpretation and abuse. The problem with the original scope of the Bill was the huge width of interpretation that it allowed Ministers, and indeed a future House. In Committee, we argued that that could be dealt with in three ways: prescription, proscription or protections. All three are valid and more than one of them will be necessary to achieve a workable Bill.
In this case, the Government have adopted prescription. They have set out the matters that are the province of the Bill. They have said, by definition, what the Bill is intended for and thus, by implication, that there are other matters for which it is not intended and that are outside its scope.
Some hon. Members would argue strongly—my hon. Friend the Member for Cambridge (David Howarth) may well be one—that it would be better to have a proscriptive list of those statutes or aspects of statute that should fall outside the Bill’s scope. Nevertheless, I welcome new clause 19 as at least a move in the right direction, but as the Minister knows, we and others have tabled amendments to new clause 19, and I ask him, rather than simply rejecting them out of hand, to look carefully at what they would do, because they would not work against the principles that he espouses. Indeed, they would support his view. Amendment (a) would introduce a single but very important word—“reasonably”—into new clause 19. That test of reasonableness would provide an objective, rather than subjective test of whether a Minister was doing what the Minister says would always be a Minister’s intention in those circumstances.
Mr. Redwood: Is there anything that the Liberal Democrats would like to deregulate under the Bill? I always think of them as being very regulatory and bossy, rather than otherwise.
Mr. Heath: I cannot deal with the right hon. Gentleman’s misconceptions about my party, but when he intervened earlier on the hon. Member for Ellesmere Port and Neston (Andrew Miller), I thought that the reply was
valuable. The Regulatory Reform Committee ought to have a wider brief than simply responding to what Ministers put to it. The hon. Gentleman suggested an investigatory role, but it could have a collating role. I should like that Committee to perform a genuinely deregulatory function in inviting suggestions for deregulation that ought to be put before the House in the form of an order.
I do not understand why such things must come from a Minister. The hon. Gentleman said that he excused Ministers from responsibility over what happens in their Department. I do not excuse them for a moment. They have the responsibility of making decisions in their Departments and, if they do not do that well enough, another Minister should be found. It is helpful to listen to the business world and the outside world generally about what deregulatory measures could properly be introduced.
I also think—this is partly an answer to the right hon. Gentleman—that the need for sunset clauses in legislation made by order is a prerequisite for good regulation. We should not have regulations that simply carry on, year after year, long after the original need has been removed but remain on the statute book, applying burdens to people in business that they could well do without. As one of the few Members who has run a small business, I know of what I speak, and I feel that that is a necessary protection for businesses.
Amendment (a) would apply the test of reasonableness to the decision that the Minister takes when determining whether he is acting in an appropriately deregulatory way. It is no good for Ministers to say, “We don’t need the term ‘reasonably’”, because they use it in another part of the Bill—not, of course, applying to Ministers, but to members of the public who may wish to make a complaint about the way in which Ministers behave. Let us not argue about whether the word “reasonably” is otiose but simply consider whether it adds to Ministers’ responsibilities, and I say that it does. I do not want to make a Minister’s decision justiciable in that sense, because I do not want decisions of parliamentary procedure to become a matter for the courts, but I want Ministers to behave appropriately in making that decision, and the insertion of the word “reasonably” would have that effect.
The hon. Member for Christchurch (Mr. Chope) will speak to his amendment (b), but, as the hon. Member for North-East Hertfordshire (Mr. Heald) said, it is self-evidently a necessary protection. I hope that the Minister will seriously consider it. He seemed to dismiss it earlier, but if he thinks about it further, he will realise that it is a sensible change that would not reduce the Bill’s effectiveness but simply define it more accurately.
I do not propose to talk about amendments (d) and (e) today, for the simple reason that they also relate to new clause 15, which leads a group of amendments tomorrow, and I can explain the purpose for which they were tabled at that point. We have a slightly confused process. Nor do I need to dwell on amendment No. 4, which relates to the definition of reforming. The reformulation of the Bill means that we will have to return to that in another place. At the time when we tabled the amendment, it was crucial, but it is less crucial in the context of the Minister’s new clauses.
Amendment No. 74 also inserts the word “reasonably”, but this time in clause 3, which covers the preconditions that a Minister must apply. Again, I hope that a Minister would behave reasonably. He would be required to do so under administrative law because otherwise he would be subject to judicial review, but I do not want to be in the business of encouraging the judicial review of Ministers’ decisions in terms of how they present matters before the House. That is not the right way of doing business. We should make it absolutely clear that we are not talking about an assertion—to use a term that I used earlier—by a Minister or a subjective view. A Minister should have to test objectively whether he is behaving reasonably when applying those preconditions and accepting whether they have been met. That seems sensible.
The last amendment that I wish to mention is amendment No. 78, which deals with something that has not been mentioned yet. It is a probing amendment on clause 34, which comes right at the end of the Bill and relates to its extent. When I asked the Minister’s predecessor in Committee, he did not appear to have a clue why the clause was written in the way that it was. I do not want to cast aspersions on the previous Minister, but I can see why he had to be promoted, because he clearly did not understand this aspect of the Bill or many others. I want to know why the Bill asserts extraterritorial jurisdiction for itself. I am struggling to find the areas in which the orders that might be amended, repealed or replaced might apply outside England and Wales, Scotland and Northern Ireland. Under what circumstances would that apply and under what circumstances would it be appropriate for the House to fast-track an amendment to legislation, which, for one reason or another, applied presumably to a Crown dependency? There are very rare occasions on which we have extraterritorial jurisdiction, for instance in relation to some sexual offences. I simply want the Minister to explain why he thinks that that has to be in the Bill. I did not get an explanation in Committee, so I hope that I will now.
I feel strongly about amendment (a), because it is the litmus test of whether Ministers are serious about rewriting the Bill. I hope to have the opportunity to test that in the House, given that the Bill has been completely rewritten. We are virtually back to the Committee stage with this part of the Bill, so I hope that we will have the opportunity to test the will of the House on that. I also hope that, unless the hon. Member for Christchurch gets a satisfactory answer, he will feel able to press amendment (b). If he does, we will support it.
I know that the hon. Member for Stone (Mr. Cash) will wish to speak on new clause 17. It is axiomatic that, if a matter is dealt with through this procedure in order for a deregulatory measure to go forward, it should not be overridden by the European Communities Act 1972 and provision elsewhere. If the principles of subsidiarity are to mean anything, they must mean that. I hope that the Minister will be able to reply that that is already the case, but I fear that he may not. If he does not, and the hon. Gentleman intends to press new clause 17, I will advise my right hon. and hon. Friends to support him.
Mark Fisher: The Government have got into a terrible mess with the Bill, so it is good to know that the new Minister in charge of it is doing his best to dig them out of it. When the Minister’s predecessor presented the Bill, he did so as if it had a different title and was called simply the “Regulatory Reform Bill”. I do not think that he mentioned the word “legislation” in his Second Reading speech. As hon. Members on both sides of the House have been frustrated by and tangled in the mess of regulation that has accumulated due to legislation over the years, the Bill was waved through on Second Reading—the House did not even divide. The Bill was totally misrepresented and thought of as uncontentious.
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Mr. Redwood: If the hon. Gentleman checks the speeches, he will find that the Conservative Front-Bench spokesmen and I made it clear that the Bill was a constitutional outrage, but that we would not divide on it until Third Reading in the hope that the Government would see the error of their ways.
Mark Fisher: The criticism was muted. My perception of the Bill’s history is that it was not until a few days after Second Reading, when the hon. Member for Cambridge (David Howarth) wrote a staunch article in The Guardian—[Hon. Members: “ The Times.”] I am so sorry . It was only when the hon. Gentleman dubbed the Bill the “Abolition of Parliament Bill” in his article that people started to recognise that it had many dangers and, indeed, the purpose suggested by its title: the Legislative and Regulatory Reform Bill. It was seen that the Bill was extremely dangerous, so I am glad that many, although by no means all, the dangers associated with the legislative aspect of the Bill are being put right by new clause 19.
Mr. Jonathan Djanogly (Huntingdon) (Con): The hon. Gentleman really must read the Hansard report of the Second Reading debate. Both my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and I made it clear that we would under no circumstances accept the Bill in the form in which it was presented to the House.
Mark Fisher: The hon. Gentleman is entitled to his interpretation of his speech, but my interpretation of the debate was that the House took its eye off the legislative ball and waved through a Bill that was not in the interests of Parliament.
Andrew Miller: Unfortunately, I was not present on Second Reading because I was attending a funeral, as is recorded in Hansard. Does my hon. Friend recognise that the criticisms that he and the hon. Member for Somerton and Frome (Mr. Heath) have made about the Bill are set out in my Committee’s report, which was published before the Second Reading debate?
Mark Fisher: I certainly do not want to fall out with my hon. Friend. However, the attention of the House was not focused on the acute dangers of the Bill. If the Bill had gone through in the form in which it was considered on Second Reading, it could, as the hon.
Member for Cambridge said, have taken away all the powers of Parliament, but the outrage that the House should have felt about that was not expressed. Hon. Members might say, with a certain amount of casuistry, “Oh, but I spotted it and gave warnings,” but those warnings were muffled. In its original form, the Bill was a parliamentary disgrace, so it is good that the Minister has recognised that and is rowing us back from that disastrous position. Sadly, his predecessor did not fully appreciate how serious the situation was.
Mark Fisher: I feel that the hon. Gentleman will be yet another person who will say, “Oh, but I understood the Bill only too well,” but I will give way to him.
Mr. Heald: The hon. Gentleman should have been here on Second Reading, because many people, especially Conservative and Liberal Democrat Members, spoke out strongly against the Bill. They made it clear that we were considering an issue of constitutional importance and that changes would have to be made to the Bill. However, we did want a Bill on deregulation, and we are still fighting for that because, my goodness, this country needs one.
Mark Fisher: There is the problem. Everyone wanted a Bill on deregulation. What they were given was a Bill that went very much wider than that, and did so in dangerous ways. Everyone is now alert to those problems. I have to confess that I did not attend the debate on Second Reading.
Andrew Miller: Guilty as charged.
Mark Fisher: Absolutely. I am ashamed of myself. As someone who believes in, and who has based most of my career in the House on, the principle of defending Parliament against the Executive and defending the scrutiny of Parliament, I am thoroughly ashamed that I did not spot the dangers. Other hon. Members seem less keen to admit that they slipped up too. One of the few people who comes out of this at all well is the hon. Member for Cambridge, but others may wish to protect their reputations.
That is not the burden of my speech. Instead, it is the extent to which the Government are rowing back from that disastrous position with new clause 19. It is a good and serious attempt, but it is not quite right. It needs to be buttoned down in a solid way. The dangers inherent in the original Bill were enormous and complacency still exists, with hon. Members in some interventions saying, “I spotted it all.” The original Bill gave powers to Ministers to subvert the process and bypass the whole of Parliament. The “abolition of Parliament” was not a loose phrase. We could have packed up and gone home with the removal of almost all our functions, yet neither the press nor the House was up in arms in the way that they should have been. I am delighted that the Government are rowing back with new clause 19, but it is not quite enough.
Pete Wishart: Does the hon. Gentleman have a view on why the Government introduced the Bill in the way that they did? Was it just a mistake by civil servants or something more sinister?
Mark Fisher: It is not for me to speculate on why and I am not sure that it is interesting now. Hon. Members, and there are plenty on both sides of the Chamber today, have been concerned about how the shift of power in politics has moved from Parliament to the Executive over recent years. Indeed, the former right hon. Member for Bexley and Old Sidcup, in his last speech on the Conservative Benches, said that it had been moving inexorably during the 50 years that he had been a Member of the House. Those of us in the group Parliament First, who are interested in such matters, recognise that the balance of power has shifted enormously. The Bill seemed to be the most dramatic and horrific example of that. Had it gone through unamended, it would have totally changed the balance and nature of our parliamentary system. Indeed, it would have neutered large parts of it.
New clause 19 is important because it is the one hand against that trend. I congratulate the Minister on introducing it and ensuring that the Bill has some constraint. In the light of the generous number of interventions that he took, I hope that he will go back and think about some of them, and see that there are still weaknesses. I do not feel that he responded fully to the point that the right hon. and learned Member for Rushcliffe (Mr. Clarke) made on the climate change levy. He deflected it by saying, “Ah, but legislation is covered by clause 5.” However, it is only covered in one direction—to “impose or increase taxation.” The right hon. and learned Gentleman suggested the possibility that orders could reduce or delete taxation. The Bill, with the current wording, does nothing to stop an order being made. It would have to go to a Select Committee, but a Select Committee of a different House, with a different Chair and a different balance could well wave it through. It could be persuaded that a climate change levy was a thoroughly malign thing. That would not be good for Parliament. It would be extremely bad for the way in which we conduct our business.
I suspect that the same is true of a future Government deleting the top rate of tax. That could happen and it could bypass the scrutiny of a Finance Bill. It is certainly true of the rather less important and frivolous example of fox hunting. I deplore the fact that the House has wasted 700 hours debating fox hunting. Anything more pointless and more to the shame of this House could hardly be imagined. Under this Bill, an order to delete all that legislation—if the order got through a Select Committee—would not need to go before the House; it could be a ministerial order. As a member of the middle way group who voted against the legislation, I would be happy and relaxed about that, but that is not the intention behind the Bill or the way in which we should conduct parliamentary business. I do not see anything in new clause 19(3), which defines the burdens, to prevent such things from happening. I know that the Minister intends that subsection (3) will preclude all those things, but that is not apparent from the wording. It would be very much simpler if the Bill were confined solely to regulation. Does the Minister want to intervene?
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