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15 May 2006 : Column 761

It is important to recognise the weakness of the subjective test under the new clause. Our amendment (a) would strengthen that test by inserting the word “reasonably”, the effect of which would be to heighten the bar over which the Minister must leap to entitle him to use the Bill. In the longer term, the provision would give the courts clearer guidance when considering new orders under judicial review.

Mr. Heald: Does the hon. Gentleman agree that the provision would add an element of objectivity to the test? It would be necessary for a Minister, if pressed, or in judicial review proceedings, to show that there were reasonable grounds on which the reasonableness could be based. There would need to be substantial evidence to support it.

David Howarth: That is an important point. If there were a challenge to ministerial action, it is possible that there would be an attempt at judicial review, but what would be the test applied by the court? Without the word “reasonably”, the only test that the court could apply would simply be whether it was true that the Minister indeed considered that the measure was lifting a burden. It would be difficult for a court to get behind a ministerial statement to that effect unless there was clear evidence that what the Minister was saying was not true, or was unbelievable. It is all too believable that a Minister might believe that trial by jury imposed an administrative or financial burden and should be abolished.

The same point applies to the insertion of the word “reasonably” in clause 3. Throughout the debates on the Bill, Ministers have pointed to the protections in clause 3 as a way of deflecting criticism about the removal of necessary rights and freedoms. There has been a debate, or perhaps a lack of understanding, between opposite sides of the House about what those rights are and which of them are necessary. Labour Members were concerned lest Ministers remove rights such as those relating to the minimum wage under the Bill, but Ministers have told them that under clause 3 those rights are “necessary protection”. The problem with that is: who says that they are necessary protection? The answer: the Minister—subjectively. Were the right hon. Member for Wokingham (Mr. Redwood) the Minister, he might have a different view and consider the matter differently from the present Minister.

Conservative Members were keen to emphasise that a different sort of right was necessary and the Minister tried to reassure them in the opposite direction. The Minister’s defence of the Bill has run the risk of contradiction on a number of occasions.

Mr. Greg Knight: The hon. Gentleman is on to a very good point. Could not a Government of one complexion use clause 3, for example, to remove administrative burdens and financial penalties from company directors, whereas a Government of a different persuasion could use the same provision to remove administrative burdens and financial penalties from trade unions? He is therefore absolutely right to say that there is not adequate protection in clause 3.

David Howarth: Yes, I believe that to be the case. In fact, Ministers from different parties could make opposite
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decisions on the same matter but still be within the terms of the Bill, because all that it requires is that Ministers consider that certain things are the case.

The Minister has followed his predecessor in asserting that none of this matters because tomorrow we will pass the Committee veto and all our concerns should fall in at that point. All I say in response is that the Committee veto is not a veto, because the Government retain the right to overturn it in the House as a whole. If it were a Committee veto and there were no appeal against what the Committee decided, the situation might be more interesting, but even then there is the problem to which a number of hon. Members have referred that the Government’s in-built majority on all Committees—indeed, their ability to change the membership of Committees in advance, as the Chancellor of the Duchy of Lancaster no doubt knows from her previous job—is enough at least to throw into doubt whether that aspect of the so-called Committee veto is an adequate protection.

I find another aspect of new clause 19 particularly disturbing, but I will not refer to it at great length tonight because the best time for that discussion will be tomorrow in a debate on a new clause. However, two amendments in this group deal with the point, and I should explain to the House what they are about. New clause 19, like the old clause 2, contains a provision that allows, by order, legislative power to be transferred to any person. It strikes me as an extraordinary power to grant the Government, and the extent to which the person to whom that power is transferred will be subject to the restrictions in the Bill is not clear. It is that matter to which we will return tomorrow, but it is a major weakness of the Bill that the purpose for which that provision was proposed—it has been proposed again tonight—has never been made properly clear. New clause 19 is an advance on the old clause 1, but it is still deeply defective in many ways. Unless further amendments and further concessions are made, I fear that the Bill is still unacceptable.

Mr. Heathcoat-Amory: I rise in support of new clause 17, and I wish to speak to it quite briefly, but by way of preface I should say that I have an interest to declare in that I have a number of business interests that might conceivably might be beneficiaries of the Bill if it passes into law. From that perspective, I can confirm to the House that over-regulation is the modern scourge. As a population, we are dividing into those who do things and those who stop people doing things. That is having very severe consequences for business activity and, indeed, international competitiveness.

My other credential for speaking in the debate is that I am a member of the European Scrutiny Committee and therefore am able to see that the regulatory itch has not abated in the European Union. Every now and then, the European Commission declares war on over-regulation—it did so again last year—but, again, I can report from my perspective on that Committee that, so far, over-regulation is winning that war. It has shifted into new policies, but the overall volume of legislation has not decreased. That is where new clause 17 becomes relevant.

I wish to remind the House of an example of over-regulation that could become the subject of the
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Bill. There have been many calls in the debate for hon. Members to give specific examples of regulatory overreach that could engage the House’s attention if the Bill is passed. I wish to remind the House that, earlier this year, we passed regulations implementing the artist’s resale right, or to give it its French title, the droite de suite regulations, which give living artists, and will eventually give to dead artists as well, a right to a percentage of revenue when their works are resold. The British Government opposed that EU directive, but it was imposed on this country and the House by majority voting. The implementing regulations were debated earlier this year.

Unfortunately, those regulations got into the hands of the Department of Trade and Industry and, specifically, a weak Minister in another place who spectacularly over-regulated. Instead of implementing that directive to the letter and sticking to what was strictly required by the artist’s resale right directive, he ensured that the threshold was not €3,000, but €1,000 for a work of art, thus drawing into the net huge numbers of extra businesses and items and completely contradicting the Prime Minister’s and the Government’s earlier campaign in Brussels to try to get the directive rejected.

The Government understood that the directive would be intensely bureaucratic. Very small sums would be collected and possibly redistributed to artists if they could be found. If a work of art was valuable, it would simply not be sold in London; the business would go to New York. That was demonstrated beyond doubt. All those arguments were forgotten by the DTI. I hope that those regulations will be reconsidered in the course of experience, because they will undoubtedly damage London’s position as a leading art market, as well as not in any real way enriching poorer artists.

In a year or two, the Government might wish to amend those regulations, and I hope that they will do so. Given that they are both EU regulations and domestically gold-plated, new clause 17 will be relevant. The House may decide simply to take the regulations back to what is strictly required by the directive; or the House may wish to go further and trespass on the terms of the directive in recognition of the campaign fought, as I have explained, right across the party divide against the directive in the first place. Therefore, it is important that Parliament is aware that those regulations could be amended even though certain requirements are entrenched in a directive. The political judgment at the time might well argue against that, and we might decide not to contradict any provision in the artist’s resale right directive, but we do not know. That is a judgment, and it is important that Parliament understands and has it written into the Bill that it has powers to legislate notwithstanding the provisions of the European Communities Act 1972.

New clause 17 is entirely unexceptional; it would not direct the House in any way to touch the 1972 Act. Indeed, it does not mention the 1972 Act as an Act of Parliament; it simply makes it clear that, in future, Parliament could legislate notwithstanding the provisions of that Act. We are not repealing the 1972 Act; we are simply reminding the House and putting into primary legislation the doctrine of parliamentary sovereignty under which we all operate and have done ever since parliamentary powers were first discussed.

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It is sometimes argued that the 1972 Act is entrenched in some way. Other countries in Europe and around the world have written constitutions that make it impossible for Parliament to legislate in conflict with an entrenched constitution. We do not have that doctrine in this country and if any hon. Member believes that we do, they need to say so now, because otherwise we are proceeding on a false assumption. As long as that doctrine of parliamentary sovereignty endures, I do not find it objectionable to amend the Bill to make it clear that if Parliament explicitly and expressly legislates accordingly, it could override directives that are in pursuance of the 1972 Act.

That is not a constitutional revolution—rather the opposite. The measure is very modest. I hope that the Government—the Minister has given some fairly unconvincing answers to interventions so far—will address the issue of parliamentary powers. We are not saying that a future House will wish to contradict treaty provisions, although the Government are contemplating doing so at the moment. The Human Rights Act 1998 is now under question. Following a suggestion from the leader of my party, the Government are apparently looking seriously at repealing, amending or replacing certain international provisions of the European convention on human rights. That is a specific example of where we may wish to legislate in contradiction to treaty obligations.

Mr. Cash: My right hon. Friend may care to know that one of the most important tomes on constitutional law unequivocally states:

Mr. Heathcoat-Amory: My hon. Friend knows his constitutional law. It is established beyond doubt in all parts of the House that the Dicey doctrine, as I have heard it expressed, endures and that no Parliament can bind a successor. Although the Parliament at the time passed the 1972 Act, that is not entrenched and cannot bind a future Parliament. Also, treaty law is not ipso facto binding in domestic law. Some countries, such as France, have a unitary system. When they sign international treaties, by that act, the treaties are binding in French law. We do not have that system.

In conclusion, new clause 17 is unexceptional. It clarifies the legal powers of the House and makes explicit the possibility of overriding international treaties and EU provisions. I therefore urge the House to accept it and I hope that we divide on the issue.

Pete Wishart (Perth and North Perthshire) (SNP): We come to the House today to watch a rare and wondrous thing; the Government eating a large and probably unpalatable portion of humble pie. The disappointment for all of us involved in the debate is that the hon. Member for East Renfrewshire (Mr. Murphy) is not here to share in that, because he would have got a healthy portion of that humble pie. For months, he suggested that the amendments were not necessary, but today we are considering about 50 Government amendments and new clauses. After telling us that we
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were simply misunderstanding him and that he had no intention of using the powers, the Government are now spelling out how the changes should be taken forward.

Andrew Miller: It is not fair to criticise someone who is not in the Chamber. My hon. Friend the Member for East Renfrewshire (Mr. Murphy) came to my Committee and spoke to all four relevant Chairs and has done a darn good job in providing the House with an opportunity to discuss an amended version of the Bill that I hope we can all accept.

Pete Wishart: I think that I am grateful for the hon. Gentleman’s intervention. I will come to his Committee’s report—I hope that he will be patient for that. The hon. Member for East Renfrewshire was almost responsible for galvanising the sheer opposition to the measures that were being suggested. The way in which he continued to say that there was no problem or issue was totally disingenuous and we now see the Government scurrying to the Chamber to suggest these amendments and new clauses.

Mr. John Gummer (Suffolk, Coastal) (Con): The hon. Gentleman should not allow the Government to get away with the fact that this is not the first time that this has happened. Bill after Bill, we have been told that the particular proposals are innocuous and do not mean what they seem to mean and that we are getting worried about things unnecessarily; Bill after Bill, the Government have to come to the House and taken the stuff out again.

Pete Wishart: I am grateful to the right hon. Gentleman, who has great experience in these matters. His words will be listened to carefully by the Government. He is entirely right that, when we start to scrutinise Bills—I credit the Select Committee chaired by the hon. Member for Ellesmere Port and Neston (Andrew Miller) for providing that function—we see some of the sinister applications of some of that legislation. That is exactly the case here, with what we first presumed was an innocuous Bill. The Government proposed to give themselves almost unprecedented powers to change almost any law by order, rather than having it debated on the Floor of the House. While the Bill was in Committee, the then Minister in charge told us to trust him and that he would never consider highly controversial legislation, without even telling us what “controversial” was. When we asked him to include that in the Bill, he refused. Not having that in the Bill means that the statement is not worth the paper that it is not written on.

The Public Administration Committee weighed in with its concern. I applaud it for saying that the Bill

The Committee also wanted to place things beyond the Bill’s reach and warned diplomatically that the Government’s undertakings that they would limit the use of the powers were meaningless unless they were written in the law. I congratulate the Committee on those remarks.

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A week ago, there was an announcement that there would be further amendments. That was the same night that the Government faced a humiliating gubbing at the hands of the local English electorate. The amendments mean that it is almost like we are considering the Second Reading of the Bill. The debate does not feel like the remaining stages; it feels like a Second Reading.

Mr. Heath: It is a Second Reading of this new first clause; the most important operative clause. That is why it is so important that we have the opportunity to press amendments to it.

Pete Wishart: The hon. Gentleman is entirely right. The fact that it feels so much like a Second Reading means that the Bill is almost calling out for further scrutiny. We have seen a number of the amendments for the first time in the course of the past week. They need further debate and consideration and it is unfortunate that this House will not consider the important new changes; it will be the other place. We will not have an opportunity to influence that debate, because we do not have seats in the other place. I hope that when the Bill returns to this House, we will get a further opportunity to look at some of the measures. I hope that, when it returns to us, it will be a better Bill for us to consider.

We have a whole new raft of amendments and new clauses to address. In the main, I concede that most of the concerns have been addressed, but there are still issues and outstanding points that have to be looked at. That is why today’s debate has been so important. There is no doubt whatsoever that new clause 19 is an improvement on the former clause 1, but there are still concerns and ambiguities. There are still lots of questions for the Minister to answer.

For instance, in the case of new clause 19, what constitutes a reduction in burdens remains totally ambiguous. I know that the Government give a list in subsection (3), but when we start to unravel it, as we have done today, we can see that there are issues and problems. We have to address what we should call the Rushcliffe question—after the question that the right hon. and learned Member for Rushcliffe (Mr. Clarke) put to the Minister today. We could be talking about something that applies to the climate change levy. We have had no satisfactory response from the Government about controversial legislation being addressed through orders under the Bill. The Rushcliffe question deserves an adequate response from the Minister.

David Howarth: Does the hon. Gentleman agree that the problem of vagueness and ambiguity in the Bill would be at least partly resolved if amendment (a) to new clause 19 were agreed to? If the word “reasonably” was inserted into new clause 19, the question of judicial review would be opened up in a way that would not be possible as the measure stands.

Pete Wishart: I am grateful to the hon. Gentleman for drawing my attention to amendment (a). He is entirely right. Amendments (a) to (e) would improve new clause 19, so I assure him that we will support them. I hope that amendment (a) is pressed to a Division.

There has been no debate whatsoever about some of the outstanding definitions in the Bill.

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Alison Seabeck (Plymouth, Devonport) (Lab): If the hon. Gentleman had volunteered to serve on the Committee, he would have been aware that we have had such debates. Perhaps he could have been here on Second Reading, too.

Pete Wishart: We in the minority parties have great difficulty securing places on Committees, so I look forward to the support of the hon. Lady when we try to do so.

Andrew Miller: When the hon. Gentleman is making a bid for membership of the Regulatory Reform Committee, he can tell the usual channels that the Tories never turn up.

Pete Wishart: I am grateful to the hon. Gentleman, but I think that I had best move on.

We have not heard about the definition of “legislation”. There is an attempt to define it in subsection (6) of new clause 19, which states that it includes

That would include many Acts of Parliament of constitutional import, including the Scotland Act 1998. Will the Minister tell me whether the Scotland Act would be covered by that definition?

Hywel Williams (Caernarfon) (PC): And the Government of Wales Act 1998.

Pete Wishart: Could changes be made to the provisions of the Scotland Act and, as my hon. Friend says, the Government of Wales Act without recourse to debate on the Floor of the House?

We must also consider subsection 7(c) of new clause 19 because although the measure includes an attempt to define “legislation”, there is no definition of “enactment”. Under the subsection, a ministerial order may provide for the transfer or delegation of

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