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15 May 2006 : Column 741

Mr. McFadden indicated dissent.

Mark Fisher: There was an air of expectancy that my hon. Friend was about to rise to his feet.

We still have a way to go to pin down and limit the effect of the Bill simply to tidying up and cleaning up the mess of regulation in our legislative system. We must by all means, either in this House or in another place, ensure that the Bill can in no way touch primary legislation, because that way lies perdition.

Mr. Kenneth Clarke: May I begin as everybody else will begin by praising the policy intention behind the Bill? I very much doubt whether there is any right hon. or hon. Member, either present or elected to this House, who does not support the principle of deregulation. We all acknowledge the tremendous pressure that we are under to reverse the inexorable growth of regulation in recent years and the constant reminder we are given by British business about its damaging effects on our competitiveness, so this ought to be a non-controversial Bill. It is a minor miracle that the Government have succeeded in turning it into an extremely controversial piece of legislation. I agree with the hon. Member for Stoke-on-Trent, Central (Mark Fisher) that there is no point in going back now, but I cannot understand why the Government thought that they could carry general support for deregulation into support for a Bill of the kind that they first drafted.

New clause 19 is indeed extremely welcome. It is the first time that the Government have moved substantially from where they started. The original Bill was drafted in an extraordinary fashion; parliamentary procedure would have been bypassed on every kind of occasion if a Government were minded to do so. New clause 19 has sought to narrow that, but it still has not gone far enough. The Government are still not inclined to restrict their scope sufficiently to reassure me that there is not the danger, perhaps a few years hence, that the provision will be misused and in a way that would further erode the power of this Parliament to check the activities of the Executive. In the light of recent history, that is something of which we in this House should always be conscious.

The best point made by the new Minister, whom I welcome to his post and who did his best to get back to common sense on deregulation, was that there is a danger that we will all be so sensitive about parliamentary procedure that we will become extremely pedantic and Governments will again find that their deregulatory legislation is quite inadequate for anything except making such minor changes as to be of no consequence to anyone. I tell myself—and I hope that everybody else will in this debate—that one must guard against that before looking at new clause 19 and saying that it is not adequate. However, I have done that and I still think that whoever produced the new clause has been too cautious.

Proposed subsection (3) leaves open the possibility of the repeal of any kind of taxation in response to demands from pressure groups and commercial lobbies. Procedures made illegal by the criminal law could be legalised, and debate prevented by the fast-track procedure. I cited the example of the repeal
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of the climate change levy, because I thought that the proposal might attract the Minister’s interest. Conservative Members support that repeal— presumably, he is not favour of that—and there is nothing in the Bill to prevent the Government from introducing it. The Bill could be used to provide an exemption to value added tax on goods or services in response to a well publicised and financed commercial lobby. VAT has become nonsense because so many exemptions have been allowed over the years for political purposes. Plenty of people would argue that their goods or services are so desirable that an exemption is the obvious thing to provide. It would be easier to give way to them, if any Government are so minded, by using the legislation. Airport passenger tax, insurance duty and all kinds of unpopular measures could be repealed under the legislation, subject only to the consultation and the veto of the Select Committee on which the Minister relies as protections.

5.30 pm

Mr. Cash: I am not sure that I intend to make an offer to my right hon. and learned Friend, but the very fact that VAT and other measures that he cited derive from European legislation means that they cannot be touched by the Bill. I may be able to elaborate more when I speak to new clause 17.

Mr. Clarke: Our debate has touched on new clause 17, but I cannot begin to understand it. Having heard reference to it, I look forward to my hon. Friend’s explanation of what it is supposed to do. If it merely restates the existing or original law, I shall not be upset, but I do not think that it intends to do so. I believe that my hon. Friend is trying to insert a subtle provision to allow all our treaty obligations to be ignored, provided that procedures under the Bill are followed. That would encourage any Government of whom he wholly approved to make frequent use of the measure if they ever assumed office. However, let us wait for his explanation.

Turning to the criminal law, I have suggested that the procedure could be used to end the illegality of fox hunting. Most of the great liberal reforms abolishing criminal penalties have been introduced by the House, but some people advocate the introduction of things that they regard as liberal reforms. I do not approve of euthanasia or assisted suicide, but the criminal penalty on that act could be lifted under the Bill, subject only to the safeguards on which the Minister relies. He disappoints me by repeating the arguments deployed by his predecessor in response to such examples. He accepts that the Bill as drafted would allow anyone to repeal such penalties, but he says that the Government do not envisage doing so. He says that it is not realistic to expect anyone to do so in future.

Mr. McFadden rose—

Mr. Clarke: I shall give way to the Minister, as I do not think that that can be accepted as an adequate argument on the plain legal effects of a piece of the legislation that the Government have passed and which would give future Governments explicit powers.

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Mr. McFadden: I am not asking the right hon. and learned Gentleman or any other Member to rely purely on my personal assurance in the case of the emotive examples that he has just cited. May I direct him to clause 3, which deals with the protections, rights and freedoms that would clearly be infringed by those examples? It is not my personal assurance that provides a guarantee against such measures being taken by a future Government—it is the Bill.

Mr. Clarke: I do not see—perhaps in the reply an attempt will be made to persuade me to see—that clause 3 answers my arguments on taxation or the criminal law in the slightest. Of course they could be put forward, and they would have the effect of lifting the criminal penalty from a particular category of people, or lifting the financial burden from another category of people, but it would be difficult to say that that automatically restricted the freedoms of others. It might deeply offend the sensibilities or the interests of others, but not their freedoms, so clause 3 is not an answer.

If the Minister wants to give a specific answer, let him deal with my example of taxation. I have not heard him yet explain why clause 5, which could deal with the point, could not be amended to include any reduction in taxation. If my point about changing taxation is so preposterous, why does the wording of the Bill leave it open to allow the change in the burden of taxation? Why does clause 5 not include reductions in taxation, so that lobbies cannot try and persuade a Government to use the power?

That goes back to a point that I made not on the Floor of the House, but in a private debate with the Minister’s predecessor in the precincts of the Palace organised by the Hansard Society. There would never have been any difficulty with the Bill if all the things that Ministers have been prepared to say as assertions, promises and beliefs in principle had been incorporated into the text. If Governments are accepting various scenarios, why do they not bring them fully into the text?

I move on to the safeguards to which the Minister keeps coming back: all these things require consultation, and all would fail if the two Select Committees, or the relevant Select Committee, were prepared to exercise a veto. That is not good enough. That could be used to take away the powers of Parliament on practically every subject. If we could all be reassured by that, why on earth are we spending our time debating anything on the Floor of the House?

There are occasions when debate on the Floor of the House is needed, not always because the majority is opposed to some prospect, but to protect the rights of minorities as well. I have taken part in protracted debates on the Floor of the House where I have been in the large majority in the House. We have known that we would get our legislation and I have known that I would be voting on the winning side, but that does not mean that I thought it was an irritating waste of time to allow a powerful section of public opinion to voice its objections, to test the detail and to go through the arguments. That is the whole point of Parliament. It must never be regarded as just a nuisance that stands in the way of the parliamentary majority for the time being getting its way.

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What about the protections about which we are told? I regret to say that I do not think that the veto by a Select Committee is good enough. The two Select Committees that have studied the Bill have done a very good job. Select Committees do a very good job in the House, but I would not rely upon them as the last defenders of parliamentary privilege and parliamentary process in every case. It is a fact that the Government determine the majority of every Select Committee. A Government determined to get their way, who are irritated by what they see as time-wasting and filibustering opposition, will ensure that Select Committees do not veto their legislation and get it back on to the Floor of the House.

Mr. Heald: Does my right hon. and learned Friend agree that to strengthen the Select Committees, an absolute veto is required, so that they can say, “We don’t like the look of this order for this process”? A veto such as the one suggested, which we shall debate later and which is so hedged round with restrictions, does not give much confidence in the process.

Mr. Clarke: I agree entirely. I am glad to know that when we return to the matter, my hon. Friend will press those points strongly, because he is right.

In expressing my reservations still, in spite of the need for as flexible a deregulatory measure as possible, let me make it clear to the Minister that I do not fear that we will suddenly go to extreme government. I realise that some of the examples that have been cited by opponents, including the hon. Member for Cambridge (David Howarth) in his article, were fairly preposterous in the context of today’s politicians. Those examples would never happen. We no longer need to argue whether the right to jury trial would be taken away. There are those in the Government who would like to take it away in a wide range of cases, but in the modern state that is today’s Britain, they would never have dared to suggest that that should be done without any proper parliamentary process.

As I have said, I do not think that we are going straight away to extreme government. However, over 50 years we have seen a steady nibbling at the edges of the parliamentary process. Those of us who have been in this place for any length of time have seen a considerable nibble, almost always for the best of intentions in the mind of the Government of the time. I fear that for this Government, and perhaps for future Administrations for all I know, the pressure on the parliamentary timetable leads them to look for short cuts. I am not reassured by the Minister for the Cabinet Office—recently the Government Chief Whip—who is now in charge of the Bill. To get vast amounts of legislation through the House, the time made available for debate on any particular measure has been confined as never before.

We can hear the arguments already when the first of the proposed changes in legislation or in the criminal law comes up. We shall hear: “We have a mandate. We have just fought the election. The opinion polls are wholly in favour of what we propose. The people who are obstructing the process are unrepresentative. They are an irritating minority.” Already, time and again, the Government keep making proposals, at present about the procedures of the upper House. Those proposals
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are designed to stop the time-wasting, the day-by-day discussion, which irritates the Government because it delays their ability to get their way. Secondly, it reduces the amount of legislation that they can introduce, and holds up other measures on Report.

Mr. Shepherd: Will my right hon. and learned Friend give way?

Mr. Clarke: I was about to resume my place. I shall give way briefly.

Mr. Shepherd: I am extremely grateful.

I think that my right hon. and learned Friend is being a little too sanguine about the nature of the House. We have experienced landslide Governments in recent years. The optimism and enthusiasm of an incoming Government with a large majority does not weigh with the proposition that my right hon. and learned Friend is raising. They are enthusiastic and determined.

Mr. Clarke: I agree.

The newly elected Member of the victorious party cannot understand why the entire process has to be gone through to deliver the brave new world that he or she has just been elected upon. It requires a few years in Opposition to have a civilising effect on any Member of this place.

John Bercow: I am grateful to my right hon. and learned Friend for giving way, and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is absolutely right. I hope that my right hon. and learned Friend will accept that the Government are not justified in seeking to argue for new clause 19, at least in part, on the basis of what he describes as the pressures of the parliamentary timetable, as though they were some independent variable with which Ministers have to reckon. Does he accept that the pressures of the parliamentary timetable are substantially the result of the insatiable legislative appetite of the Government of the day?

Mr. Clarke: Yes. This place has turned into a legislative sausage machine, and the quality of legislation has declined as a result. That is partly because there is no proper time for parliamentary discussion.

Sir Robert Smith: Is there not an important lesson in a debate about deregulation and a debate about the effect of legislation on business? A failure to scrutinise legislation effectively in this place and an ability to rush legislation through are why business is facing such a burden of regulation.

Mr. Clarke: Yes. I agree entirely. That is plainly the case.

Mr. Heath: Will the right hon. and learned Gentleman give way?

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Mr. Clarke: I will give way for one last time.

Mr. Heath: The right hon. and learned Gentleman is being very generous. I, too, must accuse him of being a little too sanguine. He said that the Government would never use a procedure for nibbling away at jury trials. They have used Order in Council procedure to do just that in the context of the Criminal Justice Act 2003. They have used Orders in Council to remove the requirement for prima facie evidence for extradition to the United States. That is precisely the way in which the Government work. That is usually on the pretext of fighting terrorism or rebalancing, whatever that might mean.

Mr. Clarke: I accept the rebuke. I was going to end by saying that although I do not think that we are going for extreme government—I do not think that we are likely rapidly to see unlikely things happen—we have seen some unlikely things happen. During the past three or four years I have seen processes on the Floor of the House that I would not have believed could take place had I been challenged 10 years ago to say that such things might happen. The Minister dealing with the Bill on anti-terrorist measures calmly announced on Report that he was abandoning its previous wording—that he was going to alter it all in the House of Lords. We spent the timetabled three hours—the entire Report stage—discussing the text of a letter that had accidentally been leaked, and which had given the House some inkling of what that Bill was eventually going to be like. That was, so far, the occasion on which the Government have most clearly demonstrated their extreme contempt for the processes of this House when political pressures are upon them.

Although such dangers might not be imminent on all fronts, they are very real. That is why, although what has been achieved so far is very welcome, it is most definitely not enough. I hope that the Government will accept some of the amendments being pressed on them today, and that this House and the other place will continue in their efforts to ensure that the wording eventually reflects the intention behind the Bill, and that it ties this Government down to that intention only.

5.45 pm

Mr. Redwood: It is a great pity that so far in this debate on this important new clause, we have had from Government Members and the Liberal Democrats not a single example of a deregulatory measure that could be deployed under this power, with the single exception of game licences. Although I am very happy to welcome that one, it is not going to change the world a great deal. One would have expected the Government, when constructing this legislation over many months, to have in mind many examples of how they wished to use this power—to be limited a bit under new clause 19—and why it was reasonable in the light of what they wish to do.

I want the Government to succeed at deregulation. It is a bit like suggesting that a tiger should become a vegetarian, but one lives in hope that the Government believe that deregulation is necessary and wish to do it. However, it would have been so much easier to have
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done it in the way that we proposed in a debate before the last election in this very House. We gave the Government 63 items for deregulation, including some very big ones, which were also given in writing to the Minister’s predecessor. The Government said that a parliamentary debate somehow did not count as a way of expressing our views on this matter, so I followed it up with a letter to the Department, thereby enabling officials to see that list of items for themselves. We said that that list should form the content of a deregulation Bill.

The fact that we are yet again having a longish debate about the constitutional implications of this Bill, just as we did on Second Reading and in Committee, shows that it is not a very good way of achieving the desired objective. Given that the leading Opposition party is more in favour of deregulation than are the Government, if they had introduced a proper deregulation Bill full of good ideas, it would probably have gone through much more quickly than the constitutional outrage before us on Second Reading, or the rather more limited constitutional outrage before us today.

The hon. Member for Stoke-on-Trent, Central (Mark Fisher) is a Member whom I normally respect and praise. He is very good at defending the virtues of this House and its liberties, but he should have taken the precaution of attending Second Reading or reading the Hansard report of it. Had he done so, he would have realised that I and my hon. Friends the Members for Huntingdon (Mr. Djanogly) and for South-West Hertfordshire (Mr. Gauke) made it very clear that the substantial and wide-ranging powers taken in the first draft of the Bill presented to this House were unacceptable. They allowed Ministers to regulate and legislate without going through the normal parliamentary processes. They enabled a major bypass of constitutional practice by effectively allowing primary legislation to be made by Ministers with very little reference to the House of Commons, in a regulatory, as well as deregulatory, direction.

We are now told that new clause 19 will limit these wide-ranging powers to legislating in a deregulatory direction. As someone who desperately wants more deregulation, I say one cheer for that. But as someone who strongly believes that Parliament has a right to debate all such matters properly, I share the concern of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) and others that there are still too many powers inherent in new clause 19. It would still give Ministers wide-ranging powers to do things that would be better done in the open.

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