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4.43 pm

Mr. Mark Harper (Forest of Dean) (Con): I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following:

New clause 7— Expiry—

‘Part 1 of this Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force.'.

New clause 24— Renewal by Parliament of part 1—

‘(1) Before the end of each subsequent period of two years following Royal Assent of the Act Ministers must bring Part 1 before Parliament to be re-approved or rejected by resolution.

(2) If, within each two-year period, Ministers do not bring Part 1 before Parliament, pursuant to subsection (1), it will cease to have effect.

(3) If Parliament re-approves Part 1 by resolution, pursuant to subsection (1), it will have effect for the subsequent two-year period.

(4) If Parliament rejects Part 1 by resolution, pursuant to subsection (1), it will cease to have effect.'.

Mr. Harper: New clause 2 aims to inject a shot of transparency into the Bill. It provides for a report on the operation of the Act. It follows recommendation 2 of the Regulatory Reform Committee’s report on the Bill, which stated

Transparency is something on which we all agree. Allowing the greatest possible visibility for a process encourages good government and sound decision making; allowing decisions to be made behind closed doors in Whitehall has the potential, as we all know, to have the opposite effect. Deregulation and better regulation are such important agendas that we must shine the light of scrutiny into the dark recesses of departmental decision making.

In the Committee debates, in which I participated, the Minister was very proud of the Government’s agenda. He said on 2 March:

and he specifically talked about the culture change that he wished to inculcate in Whitehall. It seems to me that the best way of doing that is to ensure that as much
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light as possible is shone on the measures in the Act in respect of reducing regulations and burdens on business.

The Regulatory Reform Committee suggested that one of the key reasons why the regulatory reform orders introduced under the Regulatory Reform Act 2001 had been far from successful was the lack of political will within Whitehall. The Committee claimed that low political importance was attached by Ministers and civil servants to propose areas ripe for regulatory reform as compared with bringing new legislation before the House. As the Minister acknowledged in Committee, a culture change in Whitehall is necessary and it should not be viewed as preferable for civil servants and Ministers to pin their careers on creating regulations and legislation rather than tidying up existing rules and scrapping obsolete or disproportionate burdens. Indeed, the latter is of far greater benefit to business than the former.

The new clause would help to bring about the necessary culture change. It would require the Secretary of State to publish an annual report and lay it before Parliament, which would provide the opportunity for the House to debate what Ministers would view as the Government’s success in reducing burdens. The report would detail what orders had been made and to what effect; what burdens had been removed, what simplified and what other progress had been made. The Government would therefore have to set out in stark detail exactly how deregulatory or regulatory they have been. That should provide a strong incentive for Ministers to encourage and prioritise measures that deregulate and reduce burdens on business, rather than the opposite, which seems the case at the moment.

I shall deal now with new clauses 7 and 24. New clause 7 is effectively a sunset clause, which suggests sunsetting the Bill after five years. We make too little use of post-legislative scrutiny in the House and in this country, although we are getting better at employing pre-legislative scrutiny. The new clause would represent an important step forward in allowing Parliament and interest groups to input into legislation before it is finalised. We do not do enough to monitor the effectiveness of laws after they are on the statute book. A sunset clause is one form of post-legislative scrutiny; it is clearly not desirable for all legislation to include it because the increased work load on Parliament would be prohibitive. In certain cases, however, there is a clear argument for having sunset clauses, particularly for important and controversial legislation. Control orders immediately spring to mind. Sunset clauses can allow Parliament to look again at legislation and see if it wants to bring it back into force.

As an alternative, new clause 24 is not a sunset clause, but a renewal clause, providing a separate option for increasing post-legislative scrutiny of the Bill and the Government may find it more amenable. Under the new clause, part 1 of the Bill, the most important part, must be brought before Parliament for reapproval or rejection at least every two years.

David Howarth (Cambridge) (LD): I welcome the hon. Gentleman back to our consideration of the Bill, as we missed him yesterday. Will he confirm that neither of his new clauses will have the effect of
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sunsetting any of its legislative provisions? All they would do is to sunset the power to make the orders. One would have to go a little further to achieve the end, which I believe both his party and mine share, of sunsetting the majority of new regulations.

Mr. Harper: I thank the hon. Gentleman for his intervention, and for what I think was a compliment. Unfortunately, I was unable to take part in yesterday’s debate on the Bill because I had already organised a full day’s meeting of a number of veterans’ organisations, at which we discussed very important policy matters. The hon. Gentleman is quite right: the new clauses would affect simply part 1 of the Bill and would not cause any measures passed under the Bill to fall. If Members want to achieve that objective, they will need to make further changes.

The advantage of new clause 24 is that it would allow Parliament regularly to reassess the effectiveness and proportionality of the part 1 order-making powers without creating an insurmountable hurdle to the Government’s better regulation agenda. It would also provide an excellent opportunity to reassess just how successful the Government have been. In Committee, Members and the Minister referred many times to the 2001 Act being something of a disappointment in practice, saying that it had not been as successful in allowing deregulation as they had hoped. It would therefore be sensible to use this Bill to put on the statute book provisions compelling Ministers to come to the House more regularly, so that we do not have to come here yet again in four or five years’ time—under a different Administration, hopefully—to discuss another Bill to reduce the burdens on business.

Mr. David Heath (Somerton and Frome) (LD): May I set at rest the mind of the hon. Member for Forest of Dean (Mr. Harper)? I am quite sure that I speak for my hon. Friend the Member for Cambridge (David Howarth) when I say that his earlier comment was a compliment, rather than an attempt to deprecate the hon. Gentleman’s absence. We genuinely missed the hon. Gentleman, who made a valuable contribution in Committee and has made another one today in introducing these new clauses, dealing as they do with transparency and openness. They also make an at least crude attempt to apply a degree of post-legislative scrutiny to this part of the Bill.

In the spirit of openness and transparency, I would have liked to have had a letter in similar terms to that referred to earlier by the hon. Member for Christchurch (Mr. Chope). I am little surprised to learn that Liberal Democrat Front Benchers were not accorded that courtesy on this occasion; perhaps the letter is somewhere in transmission at this very moment. One would usually expect to be copied into correspondence dealing with the substance of a Bill.

As the hon. Member for Forest of Dean correctly said, new clause 2 requires that a report be made by the Secretary of State on the Bill’s operation. Previous deregulatory legislation—indeed, all sorts of legislation—has not lived up to its expectations. For instance, one of my continuing criticisms is the raft of Home Office legislation, to which I referred in yesterday’s debate. Large parts of it were described as urgent matters that needed the House’s attention and
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which were absolutely crucial to the well-being and safety of the population—however, years later they still have not been implemented. If such provisions are urgently needed and vital to public safety, one has to ask why they have not been implemented.

Similarly, in dealing with this legislation, we are entitled to ask, after a period, what the Government have done with this power. Have they used it effectively? Do we have a programme of deregulation, or is the power being used in abeyance as a reserve power—as with the change to Standing Orders in order to implement Law Commission reports, to which reference was made yesterday—rather than to achieve the objectives that we and the Government share? I therefore think that new clause 2 has a great deal to commend it.

I come now to the issue of sunset clauses. In his intervention, my hon. Friend the Member for Cambridge was right to distinguish between the powers that lapse as a result of a sunset clause and the orders introduced under those powers. If the Bill becomes an Act, Ministers may be tempted to argue against its renewal on the ground that we would thus be left defenceless against overburdensome legislation and regulation. However, that argument would be spurious, as there is nothing in this and other new clauses in the group that would cause the regulations or the deregulation made under the powers contained in the Bill to be annulled. They would merely enable the House to consider whether assurances given by the Government during the Bill’s passage had been implemented in practice. They would allow us to determine whether promises had been kept and the Bill’s purposes adhered to, and to ascertain whether we had the sort of deregulatory programme and the lack of excess that the Government have assured us all along was their intention.

That is a modest ambition. In one way, it might be a desirable concept to sunset all regulations from their origin, but that might run the risk of causing administrative chaos. We understand the complexity of the drafting required to produce a satisfactory response, but the lapsing of a power would not create immediate difficulties. The new clause means that the Government would be required to come back to the House and say to hon. Members, “This is how we have used this power. You have seen it in action, and will understand that it was used entirely properly and for its intended purpose. It has worked well, and we ask the House to renew it.” Alternatively, the House could say to the Government, “You told us that you would use the power for one purpose, but in fact you have used it for quite another” or, “You told us this power was needed urgently, yet you have not used it at all.” The new clause would enable the House to have control of what the Executive want to do.

I would always argue that the legislature should have control of what the Executive do, especially in respect of the procedures of this House. More than anything else, the Bill is about those procedures. It is therefore entirely appropriate for Parliament to decide whether a power is working satisfactorily, and I am happy to lend my support to the suggestions made by the hon. Member for Forest of Dean.

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Andrew Miller (Ellesmere Port and Neston) (Lab): I have some sympathy with what the hon. Member for Forest of Dean (Mr. Harper) said, given that he rightly referred to recommendations in the Select Committee report, but I should like to propose a better way than new clause 2 to achieve the sort of reporting that he described.

The Select Committee looked at this matter long and hard. Yesterday, I referred to the table in the report showing how long orders float around some Departments. We are not at present competent to deal with that or to instigate investigations to determine why it happens. The existing Standing Orders do not allow us to summons a Secretary of State and ask why an order has been floating around for weeks and months. The hon. Gentleman’s objective would probably be better achieved by building a more robust approach into the Standing Orders of the Regulatory Reform Committee or its successor body so that we can investigate why such failures have occurred, rather than by introducing a reporting function, which would result in the type of report that is normal in such circumstances. I am being gentle because I have read reports from Administrations of both my colour and his.

5 pm

Mr. Jonathan Djanogly (Huntingdon) (Con): I admired the section of the Select Committee’s report on that issue and I support the excellent point made by my hon. Friend the Member for Forest of Dean (Mr. Harper). In discussing the review in your Committee, did you address the question—

Mr. Deputy Speaker: Order. I am not sure whether the hon. Gentleman is referring to the Committee or to the hon. Member for Ellesmere Port and Neston (Andrew Miller), but he must get his parliamentary terminology correct.

Mr. Djanogly: Thank you, Mr. Deputy Speaker. I was referring to the Committee.

Was there any discussion in the Committee of the proportion of time spent by Departments on deregulation or regulation, and should that be a matter for review?

Andrew Miller: We looked specifically at the history of the then 27 orders that had been dealt with and, with the limited information we had, tried to ascertain why delays occurred in some Departments. We found that we could report on the facts of a delay, but that we could not investigate the reasons, so if it is the will of the House I should like the opportunity for my Committee to act like a normal Select Committee and inquire into the workings of a Department by, for example, periodically inviting its Secretary of State to answer questions.

The sunset clause proposed by the hon. Member for Forest of Dean would take us back a long way. The Better Regulation Executive produced a paper, “A Bill for Better regulation: Consultation Document”, which acknowledged that the powers in the Regulatory Reform Act 2001 are “constitutionally ground-breaking”, noted that the review had “identified many
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positive aspects” in the process and described where further improvements could be made. The danger of introducing a sunset clause is that we could throw the baby out with the bathwater. I have some sympathy with the hon. Gentleman’s suggestion that there should be a review of the process—indeed, of all legislation.

Mr. Harper: I thank the hon. Gentleman for that remark. New clauses 7 and 24 are very much either/or provisions. New clause 7—the sunset clause—may go a little too far, but new clause 24, which provides an opportunity for renewal after two years and would not automatically put an end to the whole Bill, might be more to his liking.

Andrew Miller: I realise that the hon. Gentleman could not be in the Chamber yesterday, but I expressed then my fear that the existence of the process he describes in new clause 24 would create inertia in some Departments that would worsen the chances of advancing the regulation process. I think that he and I—and, indeed, the hon. Member for Somerton and Frome (Mr. Heath)—share the desire to deregulate constructively wherever possible, but I want to find solutions that will not create that inertia in Departments. I therefore urge the hon. Member for Forest of Dean to move away from either of those concepts.

My hon. Friend the Minister and I have not spoken about this subject—he has had to absorb rather a lot from me in a very few days—but I will throw another googly at him and suggest that perhaps it might be sensible for the Government to give a commitment to allow an opportunity, either on the Floor of the House or through my Committee or the other relevant Committees, to hold periodic discussions on the active working of such legislation. If we are to get it right and make it work in all our interests, we need such a mechanism. On the one hand, I do not want to create a situation that allows any excuse inside any part of the Administration to slow down the process, but on the other, I do not want a process that over-complicates the situation for those outside the House who are trying to understand what is necessarily a pretty complex process.

Mr. Harper: The hon. Gentleman was present at most of the deliberations in Committee, so he will be aware that the then Minister gave an undertaking that

The then Minister conceded that reporting back to the House after a certain period was reasonable, but five years seems far too long—hence new clause 2, which requires an annual report to the House. It would probably be helpful when the Minister speaks to the new clause if he could confirm the commitment given by his predecessor and make that clear.

On the time that we are talking about, the previous approach—the 2001 Act did not contain a sunset clause—does not seem to have spurred a culture change in the civil service and the Government for urgency. If the legislation was in force for a fixed period, it would
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give the Minister the opportunity to say to civil servants, “We’ve got a limited period to act and I want to see firm proposals”—

Mr. Deputy Speaker: Order. I think that the point has been made.

Andrew Miller: I have sort of got the point, Mr. Deputy Speaker.

If the hon. Gentleman is seeking to run an auction between him and me about the length of time after which my hon. Friend the Minister ought to report to the House, perhaps we ought to start now. I agree that five years is a long time. Certainly, a serious review of such mechanisms ought to be conducted within the lifetime of a Parliament because this is an important issue—and leaving aside all the bluster of yesterday, there is an earnest desire on both sides of the House to make some progress.

Mr. Charles Walker (Broxbourne) (Con): How would a periodic review be timetabled? Would not a sunset clause create an imperative for a review that could not be fudged?

Andrew Miller: I take the hon. Gentleman’s point about the relationship between my hon. Friend the Minister and other hon. Members, but that is not the only relationship that matters—what matters is what happens daily in Departments in the quest for sensible deregulatory mechanisms. We want to raise that profile higher. We do not want to create any excuse for people to say, “Ah, well, we ought to put that one on ice because the sunset clause is triggering a review process in a few weeks’ time.” That is my concern. With those few remarks, I hope that my hon. Friend the Minister can make the kind of comments that I have suggested, with a view to ensuring that the spirit of the two points that we have addressed can be dealt with sensibly and constructively.

The Parliamentary Secretary, Cabinet Office (Mr. Pat McFadden): I do not feel that there will be a great difference between us on this subject. There is a lot of sense in what was said by the hon. Members for Forest of Dean (Mr. Harper) and for Somerton and Frome (Mr. Heath) and by my hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller). We agree about the need for review and the need to examine how the measures in the Bill will operate. The hon. Member for Forest of Dean asked me about previous assurances. With regard to new clause 2, I am happy to repeat the Government undertaking made in Committee that a Minister of the Crown will report to the House on the operation of the Bill no less than five years after enactment.

Of course I support the notion that the Government should constantly be looking to see how well their reforms are working. We are already taking action in that regard. The Government have proposed an amendment requiring that explanatory documents for all orders made under new clause 19 should include an assessment of the extent to which the order removes or reduces burdens.

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