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Mr. Heath:
My hon. Friend says that it is not, but it is. It is a genuine pleasure. He described the Bill in its earlier stages as the abolition of Parliament Bill,but now it is not. It has been filleted, dissected, deconstructed and reconstructed. It is now a better Bill because some of the lame-brained arguments that we had to sit through in Committee—and, to a lesser extent, on Report—have been abandoned by the Government, who have accepted what we have been saying all along, namely, that the Bill was capable of redemption, but not in its original form. At that time, it
was a thoroughly bad Bill that did things that were way beyond its stated scope. Now, it has been brought back under control.
Lords amendment No. 1 may be viewed in that context. One of the points that we made earlier is that it should be no part of a deregulation Bill to allow by order the removal of criminal sanction. That should be a matter for primary legislation. We said that in Committee, but the Minister did not accept it. We said it again on Report, but the Minister still did not accept it. Now, however, it appears that wiser heads have prevailed. Someone has taken a grip on the Bill while it has been in the other place. It is a significant improvement that it now states what we knew it should have stated in the first place. I welcome the Lords amendment and I hope that the House will welcomeit too.
Mr. John Redwood (Wokingham) (Con): I welcome the Lords amendment. The Bill began as a sledgehammer to miss the nuts of over-regulation. That sledgehammer has now had some of its power removed by the Lords amendment. The problem is that, throughout the process, Ministers have refused to give us examples of how the very real powers under clause 1 would be used. They still seem to have no idea what they wish to deregulate. If they had spent the time that we have spent trying to water down the Bill’s less desirable facets by putting through a proper deregulation Bill, we could have spent all that debating time repealing a whole lot of unnecessary regulation. That would have been much more productive and encouraging to people outside the House.
In the spirit of amity on this particular proposal, however, I am happy that we shall not be able to use this mechanism for repealing criminal law. It is still proper that criminal law should be repealed by proper and open debate and the normal legislative scrutiny of the House. I hope that the Minister will be able to explain which of the sanctions he would like to remove under the power that remains, as that is surely the whole purpose of the legislation.
Mr. McFadden: With the leave of the House, Madam Deputy Speaker, I do not want to detain the House on a Lords amendment that appears to have the agreement of the Opposition parties. It makes explicit what was previously implicit in the Bill, and that will be true of a number of the Lords amendments before us today. The right hon. Member for Wokingham (Mr. Redwood) asked me to provide examples. The Bill is not the sole means of achieving our better regulation effort. He will know that, alongside it, intensive efforts have been made by the Departments to look at their burdens and to come up with simplification plans. Those plans will be published shortly.
Mr. McFadden: I beg to move, That this House agrees with the Lords in the said amendment.
Madam Deputy Speaker: With this it will be convenient to consider Lords amendments Nos. 3 to 6, 14 to 17, 26, 27 and 29.
Mr. McFadden: This group of amendments concerns the type of provision that can be made by orders under clauses 1 and 2, and particularly the extent to which functions can be conferred by order. The amendments have several effects.
Amendments Nos. 14 to 17 concern the power to confer legislative functions by orders. Specifically, they restrict the categories of persons to whom legislative functions can be conferred. They respond to concerns that functions of legislating should be conferred only on appropriate bodies or persons. Amendments Nos. 2, 4, 5 and 6 clarify the purposes for which functions can be conferred and make drafting changes to relevant parts of clauses 1 and 2 to do so. Amendments Nos. 3, 16, 17, 26, 27 and 29 are similarly technical or consequential.
In earlier parliamentary stages there was some discussion of this area of the Bill. I hope that the amendments will clarify the situation. We have also sought to listen and respond to the conclusions of the Delegated Powers and Regulatory Reform Committee in another place. That Committee stated that including a power to confer legislative functions by order in the Bill, while not inappropriate, should be limited. In the light of the Committee’s concerns and wider discussions on the issue, the amendments restrict the persons or bodies eligible to be given such powers to three categories.
The first category of persons who are most likely to be given powers to legislate as part of future orders is Ministers. The second category is persons or bodies who have had functions conferred on them or transferred to them by an enactment. That will ensure that powers to legislate can only be conferred on persons or bodies already recognised by Parliament as suitable. The third category is the body or holder of an office created by the order itself. That power will be useful, for example, in the case of a merger, where a successful transfer of functions might necessitate the creation of a new body, when that is for the purposes set out in either clause 1 or clause 2. The Government consider that ability essential if the Bill is to provide a workable and effective vehicle for delivering reforms, such as the types of merger proposed by Philip Hampton.
I hope that the amendment will deal with someof the off-stage characters who have occasionally appeared in our deliberations. There were accusations that it was possible that President Bush, former Prime Minister Berlusconi or various other characters might end up legislating through the Bill. As discussed previously, while I do not believe that that was ever the case, the amendments now make it pretty clear whom we are talking about in relation to delegation.
The Government have also sought to respond to concerns surrounding the ability of bodies or holders of offices, who have been given legislative powers by an order, further to delegate those powers to others. I remember an exchange on that issue in earlier Commons stages. Reference was made to “Halsbury’s Laws”, which I am happy to quote again:
“In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer on whom it has been conferred, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative power as impliedly authorising sub-delegation”.
There was some disagreement about that during our earlier deliberations.
The report from the Delegated Powers and Regulatory Reform Committee stated:
“We agree with the conclusion...of the memorandum”
“that a person to whom power to legislate was given by the order could not delegate that function to someone else and that the order could not enable that to be done.”
My briefing uses the phrase “the better legal view”. It may be contested, but the “better legal view” was that such passing on of delegated legislative powers could not happen. The amendments, however, remove the necessity to go over the ground again in arguing about who has the better legal view by making clear precisely to whom legislative powers could be delegated and on what basis that would happen. They also deal withthe passing on of such powers. I hope that that clarifies the position and that the House will feel able to accept the amendments.
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Mr. Andrew Turner (Isle of Wight) (Con): Coming to the Bill at this stage is rather like entering a convention of people who have watched all the previous episodes of “EastEnders”.
David Howarth: Or “The West Wing”.
Mr. Turner: Or, indeed, “The West Wing”.
As an outsider, I feel that I should first welcome the amendments introduced by the Minister—and, indeed, other amendments which he proposes to introduce later. The Bill is designed to make tackling regulation easier and to help establish a more risk-based approach to it. I hope that the amendments will contribute to that, but the Bill has not been dealt with as clearly as it should have been. There has been a great deal of debate in the House, but it would appear that the Government started with what was, as the hon. Member for Somerton and Frome (Mr. Heath) observed, a thoroughly bad Bill. It has been described, not least by my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Huntingdon (Mr. Djanogly), as a Bill to abolish Parliament. It has undergone considerable metamorphoses, particularly in the other place, but the Government’s habit of introducing late amendments in this place has not made scrutiny of it any more effective.
Mr. Redwood: Could it be that because we rarely receive an answer to a question and we are not allowed to meet very often, the Government feel that they have achieved their objective of abolishing Parliament without any need for the Bill?
Mr. Turner: My right hon. Friend’s experience of these matters is much greater than mine, but I feel that what we have is a Bill that attempts to solve the problems that the Government identified in the Regulatory Reform Act 2001.
Mr. Greg Knight (East Yorkshire) (Con): While my hon. Friend’s point about the big changes that have been made to the Bill is accurate, should not the fact that the Minister has been willing to make those changes be a matter for praise rather than criticism? Might it not help us all if he circulated a paper to his ministerial colleagues explaining that they should listen to Parliament in future?
Mr. Turner: I am sure that it would. The Minister did say that other Departments were drawing up lists of amendments and deregulatory measures that they intended to introduce, and I look forward to hearing about those in more detail in the forthcoming Session.
The Bill was designed to solve what the Government saw as a problem with the Regulatory ReformAct 2001, namely, that it was not deregulating enough. Only 27 regulations were scrapped under the 2001 Act. That is a poor performance by any measure, but I am sorry to say that I think that it is a sign more of the Government’s failure than of the failure of the Act. The Government were good on rhetoric and poor on delivery. Now, it appears that the Minister is belatedly becoming slightly better at delivery and is hoping that his ministerial colleagues in other Departments will become better at it as well.
In their impatience, the Government decided thatthe best way to get rid of red tape was to abolish parliamentary scrutiny. I do not think that that was right, and I warmly welcome the amendments made to the Bill in another place.
Rob Marris (Wolverhampton, South-West) (Lab): I welcome the clarification in the amendments. The extract from “Halsbury’s Laws” and the maxim that my hon. Friend the Minister read out today, as he did on Report, were entirely clear. However, Lords amendment No. 29 says:
“In subsection (2)(e) ‘function of legislating’ has the same meaning as in section 5.”
Clause 5—it will become section 5 on enactment—has no definition of “function of legislating.” However, clause 5 places conditions upon “function of legislating.” Will my hon. Friend explain why Lords amendment No. 29—not that he can speak for the Lords—does not talk about the “function of legislating” being subject to the same conditions as in section 5? That is the direction that the other place wishes to go and the direction in which we should be going. There is a risk that the Bill as amended would be unclear, and I do not think that a Minister, or anyone with delegated power under the Bill, could change the working of clause 5.
Mr. David Heath: The notion that the Minister cannot speak to amendments in the Lords that were tabled by a Minister in another place is a curious one; presumably they will have had some communication before this stage in the Bill.
I welcome the hon. Member for Isle of Wight (Mr. Turner) to the Bill. It was immediately obvious that he had not taken part in previous exchanges on the Bill because he does not have the pachycephalus look that so many of us have; the thickening of the brow caused by banging our heads against the brick wall of the previous Minister’s inscrutability. This Minister, I
hasten to add, has been a breath of fresh air in our proceedings. We were quite incapable of getting over the simplest point in Committee but, following more careful consideration, this Minister and his colleague in another place have tabled amendments that are almost identical to those we requested. Let us not look a gift horse in the mouth; let us accept that the Minister has been persuaded.
The Minister said that the view expressed previously was the “better legal view.” I have to say that the “better legal view” is one that has been tested in the courts and found to be the correct legal view, other than which it is simply an alternative legal view. I am glad that the Minister has now accepted our view that there was an obvious ambiguity in the previous wording of the clause. It was wrong even to give the impression that it was possible to allow secondary delegation of legislative powers. That was our concern.
As the Minister has said, we have now removed the off-stage hordes and characters such as President Bush and ex-Prime Minister Berlusconi. Would that it were that simple to remove them in real life; at least they are no longer in consideration under the Bill. I thank the Minister for agreeing to the change. It was important to specify how the delegated legislation-making powers were to be affected, to whom those powers could be delegated and, more importantly, to whom they could not be delegated. I simply wish that when we raised the issue before, we did not have to strike our foreheads against a brick wall so often. At least now it has been demolished.
Mr. Redwood: What worries me about the amendment is that it requires us to trust Ministers. I suspect that we can do nothing but trust Ministers, given the structure of the legislation, but I feel as though I am being offered a lucky dip present, of the sort one gets during the season of goodwill. The packaging looks very nice, and I am told that it will really thrill me, but I have the awful feeling that when I get it home I will discover something completely inappropriate and not commensurate with the investment made in it.
My confidence in Ministers has not been increased by the deliberations on the Bill that I have witnessed. We will legislate, in all probability, with no knowledge of what Departments will propose by way of deregulation. When the Minister replies, I hope that he will tell us a little more about how Ministers will use the powers in the amendment, which makes it clear that it is Ministers and their creatures who will have the power. Why should we trust Ministers to deregulate under this power, when this team of Ministers has introduced 4,000 new statutory instruments every year? Why should we trust Ministers when they have given in in countless negotiations in the European Union and then brought the results before this House? How can Ministers use their powers to abate that flow if they are not dealing with the prime source—the legislative machines in Brussels and Whitehall?
I am sure that the Queen’s Speech will be full of Bills, which will lead to many more statutory instruments and regulations. Will the Minister have any chance to use the powers in the amendment to arrest that tide or
will we see more of the same? We heard that 27 items were removed under the previous legislation. Over a five-year period, that is a small fraction of 1 per cent. of the 4,000 new SIs every year. That shows that the Government are not serious about deregulation.
Rob Marris: Perhaps the right hon. Gentleman could give the House some examples of which regulations the powers in the Bill could be used on.
Mr. Redwood: I think that that would stray rather far from the amendment. However, my party advanced a policy package, including 63 items for deregulation, before the last general election. It is in the Minister’s office and we would be happy to provide support to deregulate any or all of those items, some of which could be done under this legislation.
Mr. McFadden: With the leave of the House, Madam Deputy Speaker, many facts and figures are cited in this area, some of which shed light on the debate and some of which do not. It is alleged that there are 4,000 new regulations a year. The number of Acts of Parliament passed each parliamentary Session are broadly of the same order of magnitude under this Administration as under the last, as is the number of SIs introduced each year. The latter number has remained between 3,200 and 3,500 for the last decade and more.
Let us not pretend either that every SI is a burden on business. More than 95 per cent. of SIs have no impact on business. Many of those have only a local or temporary effect, such as road traffic orders. It does not shed light on our debates to pretend that 4,000 new regulations on business are passed each year.
As for those regulations that may be removed, reference has been made to the regulatory reform orders passed under the Regulatory Reform Act 2001. Some 30 RROs have been passed, but we should not make the mistake that that means that only 30 items have been deregulated. For example, the fire RRO replaced about 50 pieces of legislation with one new, risk-based regime. That shows that one RRO can have a wide impact.
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My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) asked about Lords amendment No. 29, which moves the definition of the phrase “function of legislating”. However, that does not imply that the restrictions in clause 5 on conferring that function always apply. I hope that that clarifies matters for my hon. Friend.
Lords amendments Nos. 3 to 6 agreed to.
Mr. McFadden: I beg to move, That this House agrees with the Lords in the said amendment.
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