Skip to main content

Legislative and Regulatory Reform Bill

Volume 451: debated on Tuesday 7 November 2006

Lords amendments considered.

I inform the House that privilege is involved in Lords amendment No. 19. If the House agrees to the amendment, I shall arrange for the necessary entry to be made in the Journal.

Clause 1

Power to remove or reduce burdens

Lords amendment: No. 1.

I beg to move, That this House agrees with the Lords in the said amendment.

The amendment makes explicit what was implicit in the draft of the Bill that left this House. The ability to remove sanctions for doing or not doing something in the course of an activity does not permit the removal of sanctions from unlawful and criminal activities such as drug dealing or people trafficking. In other words, the amendment makes it clear that only lawful activities would be affected by orders carried through for better regulation purposes. It is therefore a safeguard against inappropriate use of the order-making power. It would ensure that any change to sanctions for unlawful activity could not be delivered by an order under the Bill, but must be made through an alternative route.

It is possible by order to repeal offences, or to reduce or remove sanctions for offences, which affect the carrying on of any lawful activity. This is not new; it was possible under the Regulatory Reform Act 2001 as well. It has been shown to be a useful power in delivering better regulation and the provision will ensure that offences can be repealed and that sanctions can be reduced or removed when they are considered no longer to be targeted or appropriate. The Bill also carries over the ability under the present Act by order to replace sanctions with new sanctions, or to create a new offence that is punishable on indictment up to a limit of two years’ imprisonment.

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.

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.

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.

Lords amendment agreed to.

Lords amendment: No. 2

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”

—from the Cabinet Office—

“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.

Coming to the Bill at this stage is rather like entering a convention of people who have watched all the previous episodes of “EastEnders”.

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.

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?

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.

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?

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.

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.

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.

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.

Perhaps the right hon. Gentleman could give the House some examples of which regulations the powers in the Bill could be used on.

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.

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.

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 amendment agreed to.

Lords amendments Nos. 3 to 6 agreed to.

Clause 3

Power to implement Law Commission recommendations

Lords amendment: No. 7.

This matter was the subject of considerable discussion both here and in the other place. The Delegated Powers and Regulatory Reform Committee and the Constitution Committee in the House of Lords also commented on it. After careful consideration, the Government proposed that clause 3 should be removed from the Bill, and the other place agreed. However, it is clear that the problem that clause 3 sought to address will require action. The various Committees that have reviewed the matter seem to have reached consensus about that, and Members of both Houses have spoken about the chronic backlog and delay that have been caused. Many have said that something must be done about the problem. As the House will know, discussions are still going on as the Government continue to seek a better mechanism to allow suitable Law Commission recommendations to be enacted more quickly.

The other amendments are all consequential on the removal of clause 3.

I shall be brief. The Government’s acceptance of the Lords amendments—and especially of amendment No. 7, which relates to clause 3—is welcome. There may be a need for more rapid implementation of Law Commission proposals, but the power originally included in the Bill was not appropriate, as such proposals deserve far greater parliamentary scrutiny. We welcome the Government’s acceptance of these amendments.

The hon. Member for Somerton and Frome (Mr. Heath) said that my hon. Friend the Minister was a breath of fresh air. I am not going to disagree with him, but I raise a serious query about how we are to deal with these matters. It is unacceptable for this House—not just this Government—to leave the matters unattended. The Law Commission has dealt with some important items over many years. A huge amount of work has been undertaken, and the House has yet to find a way to create an adequate mechanism. The arguments about whether the Bill was the correct way are in a sense done and dusted now that the Government have withdrawn clause 3. However, I plead with hon. Members, especially the Chairman of the Procedure Committee and other senior Members, to reflect on the matter. We need to find a way through this very difficult problem.

I agree with the hon. Member for Ellesmere Port and Neston (Andrew Miller) that there is a need to return to this issue. Our criticism of the original proposal was not that there should not be an accelerated way of dealing with non-controversial Law Commission proposals; it is clear that there should be. We had three objections to what was proposed. The first was that there was an unrestricted power to amend, abolish or codify common law, which frankly is not something that can be done in a Committee.

The second objection—this was the most important stumbling block for many hon. Friends—was the ability that the Bill gave to Ministers to amend Law Commission proposals and put them through the accelerated procedure without the House having the opportunity to debate what essentially would be new law that did not have the approval of the Law Commission in place. Thirdly, the absence of any ability for parliamentary amendment of Law Commission Bills was important. As we know, sometimes there is a necessity for amendment.

All those objections have been swept away by the removal of clause 3 and of the references to the Law Commission from the title of the Bill, but the fact remains that we need to find a better way of dealing with this matter. The Minister knows that Baroness Ashton of Upholland has been speaking to Lord Goodhart and Lord Kingsland in another place to find a way through this impasse. They have brought into those discussions Mr. Justice Toulson, the former chairman of the Law Commission. It seems to me that something will emerge from that.

May I urge the Minister to use his best endeavours to ensure that we have a similar discussion in this House? It is not purely a matter for the legal brains in the Lords. I would have expected the Leader of the House to talk to us corporately—both to Front-Bench Members and to colleagues on the Back Benches who take an interest— about the appropriate way forward so that we can make real progress and so that changes in Standing Orders can be introduced, if that is required, to enable us to do a better job of dealing with Law Commission proposals.

I am delighted that the Government have realised that what they proposed was not acceptable. I urge my hon. Friends to support the amendment.

On this issue, I find myself nearer to Somerton and Frome than to Ellesmere Port. I have always taken the view that clause 3 was not acceptable. Worthy though the Law Commission is—as is the Scottish Law Commission and the Northern Ireland Law Commission—clause 3 would have allowed, under the fast-track process, laws to be abolished, common law to be codified, bodies or offices to be abolished and any previous enactment to be amended or repealed. I am pleased that at last the Minister has agreed to take it out of the Bill.

I agree that we ought to look at ways of dealing with suitable Law Commission proposals, but I emphasise, as the Minister did—I hope that it was not a slip of the tongue—the word “suitable”. He did not say thathe would look at ways of fast-tracking all Law Commission proposals; he used the word “suitable”, so will he confirm that that is indeed his view and that he accepts the argument that the Law Commission could propose certain provisions that are not suitable for a fast-track process and that should be subjected to the full rigour of scrutiny? Some of the proposals examined by the Law Commission are highly controversial and are not settled issues across the political divide. When an issue is controversial, our normal processes should apply.

I welcome the Minister’s decision and the other changes that he now supports. I do not regard it as a matter for criticism that he has been prepared to make those changes: quite the reverse—he deserves praise for accepting the majority of the opinion of both Houses on the issue. I hope that other Ministers will follow his excellent example.

When the Bill hits the statute book, I understand that the Minister may be hoping to bring forward measures as early as March. If that is the case, will he put my right hon. Friend the Member for Wokingham (Mr. Redwood) out of his misery and give one or two examples of the issues to which he will give priority?

I have sympathy with the points made by the hon. Members for Ellesmere Port and Neston (Andrew Miller) and for Somerton and Frome (Mr. Heath). Although it was wise of the Minister to accept the Lords amendment and to recommend to the House that we share that acceptance, there is a big problem, which is not confined to Law Commission recommendations. The problem is over what the Government choose to do by statutory instrument and what they choose to do by primary legislation.

Sometimes, a Committee of the House is faced with a 50 or 100-page wide-ranging statutory instrument of great complexity and considerable importance. A limited number of colleagues hold a short debate and they have to vote on a take-it-or-leave-it basis; nothing can be amended. When constituents write to us some time later to ask how a measure could become law with no fuss, no argument and no debate, we have to reply that it was easy, because it had been decided that the matter was a statutory instrument, under a general framework from a piece of primary legislation—such as the European Communities Act 1972, to name but one such piece. Wide-ranging provisions can go through as an SI under an Act with no proper scrutiny or debate, and certainly without the opportunity to amend, which is crucial to the proper examination of legislation.

Although it is prudent of the Government to recommend withdrawing from the Bill such a comprehensive power over law reform, the House really needs proposals from them to enable us to decide that something is contentious and thus needs proper scrutiny and debate. Even if it is contentious only for a minority of Members they should have a right to decent time and a procedure that can explore the possibilities and the options. If there are many other less contentious, or completely uncontentious issues, under the Law Commission, perhaps we need a much easier form than the full panoply of primary legislation procedure.

I believe that I am right in saying that one of the areas being explored by colleagues with Ministers is precisely how that sort of parliamentary trigger for debate could be occasioned.

I encourage all those who are making such deliberations. That is extremely good news, but I hope that when the Minister thinks further about the matter he will take on board the problem that the traditional balance between primary legislation and statutory instruments is being eroded, and that more and more weight is being put on the statutory instrument. Often, nowadays, there are truncated guillotine debates—albeit rather longer debates, with the opportunity to amend and probe—on primary legislation, in which we are told that all the interesting things about which we want an answer will become apparent only under the secondary legislation that will follow. That means that debate is not only truncated but hollowed out, because we do not know in principle whether we would like to adopt the measure, as all the interesting detail is left out.

There is a real muddle; we should allow the House to do its job, but we should accept that there are time pressures. We should make sure that the job is done really thoroughly only when we are dealing with matters of great significance or controversy—but on those occasions, we would appreciate the right to be thorough. It is the duty of the Leader of the House to speak for the whole House on such matters, and to protect the rights of the minority, so that when that minority has a legitimate reason to disagree, the House can at least have it out in proper debate, before the Government use their majority to get their way, if they see fit. I am happy with the recommendation to remove clause 3, but I hope that something much more substantial and comprehensive will result from the rethink, so that we can legislate better across the piece.

Lords amendment No. 13 refers tosome of the Bill’s powers being used for legislationthat merely consolidates other legislation. My understanding is that, on occasion, the Law Commission makes recommendations on the consolidation of legislation—for example, it might recommend pulling together several disparate Acts that have built up over the years into one, comprehensive Act that does not change the law, but merely puts it together in one recorded place. Do the Government intend to use Lords amendment No. 13 to implement Law Commission reports that deal merely with the consolidation, and not the changing, of legislation?

With leave of the House, I shall respond to the points raised. To some extent, this debate illustrates a problem for Government in general. On one hand, if we introduce a Bill and resist all amendment to it, we are criticised for not listening to debate, for being inflexible and for ramming things through using the will of the parliamentary majority—or at least a House of Commons majority. On the other hand, if we amend a Bill, we are accused of admitting that the original version was flawed. I am grateful to the right hon. Member for East Yorkshire (Mr. Knight) for his comments on that point.

It strikes me that I have been remiss in not thanking the Opposition Front-Bench spokesman, the hon. Member for Isle of Wight (Mr. Turner), and in not welcoming him to our deliberations. I can only say that he has missed a great deal of fun.

To return to the dilemma that amendment poses for a Government, we added the measure to the Bill because the Government recognised—as did hon. Members on both sides of the House, as has been mentioned—that there is a problem: Law Commission recommendations have been piling up, but parliamentary process being what it is, they often do not make the final cut when the Government decide what should be included in the Queen’s Speech.

I understand that argument entirely, but most Law Commission recommendations—although not all of them—propose changes to matters that fall within the remit of the Home Office, which has Bill after Bill. It has had more Bills in the lifetime of this Government than it did in the entire previous century. Why on earth could the Law Commission proposals not be tacked on, as everything else is, to the Home Office Bills that we are asked to consider almost continuously?

I will relay the hon. Gentleman’s request for more and longer Home Office legislation to the Home Secretary. I am sure that if my right hon. Friend can squeeze anything in between now and next week he will do so.

Many hon. Members, including myself, are pleased that the Government have listened both to the other place and to the views of many hon. Members, and have backed amendments to improve the Bill and remove problems. There is still an underlying problem that needs to be solved, but that does not mean that the original version was the right way of proceeding.

I accept that. As I said, hon. Members on both sides of the House have acknowledged that there is a problem. The hon. Member for Somerton and Frome (Mr. Heath) referred to discussions outside the Chamber, and I agree that they are a matter for the House, too. I hope, however, that he will understand if I do not go into too much detail about the way in which we will deal with those matters. The original proposition was whether they should be dealt with in the Bill, but that is no longer the case. I hope that, for the purposes of today’s debate, we can leave it there. In answer to the right hon. Member for East Yorkshire, my understanding is that those discussions would consider suitability and proportionality. Some of the proposals are controversial and rest on issues of proportionality and extent, which must be taken into account.

I hope that this clarifies matters for my hon. Friend and neighbour, the Member for Wolverhampton, South-West (Rob Marris). Lords amendment No. 13 provides a definition of “restate”, which is used in clauses 5 to 8. It does not replace consolidation Bills with orders, which will continue to be used in the usual way. On that note, I urge the House to agree the amendments made in the other place.

Lords amendment agreed to.

Lords amendment No. 8 agreed to.

Clause 4


Lords amendment: No. 9.

One of our principal concerns about the Bill centres on the absence of prescription, either by direct statement or by negation, of measures that can be amended by virtue of the fast-track proposals. From the outset, we made it quite clear that it would be entirely inappropriate for the Bill, if enacted, to be used to effect constitutional change. We made it plain in amendments that we tabled in Committee and on Report, and in speeches on Second and Third Readings, that matters of constitutional significance should be excluded from the scope of the Bill. That proposition was rejected in Commons proceedings on the Bill, but it has been accepted in another place. We strongly support Lords amendment No. 9, which adds an extra condition that Ministers must take into account when determining whether a matter is suitable for the fast-track procedure. It states that a provision can be considered if it

“is not of constitutional significance.”

So much, so good, although that does raise some questions about what is, and what is not, of constitutional significance.

I notice that among the Members present is the Under-Secretary of State for Scotland—and possibly for Constitutional Affairs, too, as I am never sure nowadays exactly what his title is. However, whichever Department or Departments he belongs to, he is an ornament to it or to both of them. He knows what I am about to say, because we have discussed this matter elsewhere. I would like to hear a clear statement from the Government that there are no circumstances in which this procedure could be used to amend the Scotland Act 1998. I think that it is his view that he cannot envisage any circumstances in which it could be used for that purpose. But, for some reason that I am not entirely clear about, it is not appropriate for the Government either to put that into statute or to say it out loud. It would be extremely helpful if he, or the Minister, were to stand up at the Dispatch Box today and explicitly say, “This procedure will not be used to amend the Scotland Act 1998.” This matter is of some concern north of the border, and a clear statement would be helpful both to Members and to those watching our proceedings.

Does the hon. Gentleman agree that it is the view of the Scottish Parliament that all of the Scotland Act is to be considered constitutionally important? This Government gave that assurance to the Scottish Parliament in the course of the Sewell motion’s passage through the Scottish Parliament.

The hon. Gentleman is absolutely right. That is why it is so perverse of the Government here and now not to say that and restate that this procedure will not be used to amend the Scotland Act. However, I am sure that they will say that, when the Minister responds to this debate.

I want to make it very plain that if the Government do not agree to amendment (a), it will be our intention to press it to a Division, should Lords Amendment No. 9 be accepted by the House. It is clear to us that what comprises a constitutional matter—a provision “of constitutional significance”, as the Bill will say—is a matter that is objective; it is not a matter for the decision or opinion of a Minister. Because of the arrangement of the terms of the clause in which the provision is inserted, it is made to be subsequent to the decision of the Minister as to whether he “considers” a matter to be of constitutional significance.

Our amendment would remove that subjective test, and replace it with an objective test. What is the practical significance of that? First, it would give reassurance to many people in this country that their constitution will not be tinkered with by means of a fast-track procedure, beyond the scope of this Chamber. Secondly, it means that the action of a Minister in deciding to use the mechanism would be justiciable. It could be argued that it is already, as it is open to judicial review, but the difficulty with saying that the Minister’s decision will be open to judicial review is that what is open to judicial review is the means by which the Minister reaches his decision; what is open to such review is whether that decision is a reasoned opinion of a reasonable man or woman. That is not what we are saying. We are saying: is it the right decision? That is an objective test, and one that the court can quite properly adjudicate on. It is quite possible for a Minister to come to a mistaken decision by proper means—by proper reasoning. That would still allow for faulty procedure.

In practical terms, our proposal would not have a huge effect, which is why I very much hope that the Minister will be able to accept it. It is a perfectly sensible amendment. It provides for an objective test. He says—in good faith, I hope—that there are no circumstances in which a Minister would deviate from that objective test in any case. Therefore, in practical terms, it would make no difference to the operation of the Bill. However, it would provide the reassurance that future Ministers—I am not thinking of Ministers of this Government, or of this Administration in any way—who might be tempted to use the mechanism in an improper way, cannot do so. That is our precise intent in tabling this amendment, and I commend it to the House. It would improve the Bill, and I very much hope that the Minister will now do two things: state in terms that the Bill will never be used to amend the Scotland Act 1998, and accept our amendment.

I ask the House to agree with the Lords in their amendment No. 9 but to reject the Liberal Democrats’ amendment (a). As was said, amendment No. 9 creates a new precondition. We thought carefully about how to deal with the issue that was raised. As Members know, a list of enactments and a list of areas were suggested, and for various reasons neither suggestion is a particularly helpful way to proceed. One of those reasons is that defining what is constitutionally significant in a system such as ours is not an exact science. Indeed, trying to agree a list of enactments that could be uniformly accepted as constitutional illustrated part of that difficulty.

Amendment No. 9 creates instead a new precondition that prevents a Minister from making provision in an order that he considers constitutionally significant. The only exception is that orders may restate constitutionally significant provisions, but only where doing so would make the law more accessible or more easily understood.

Despite the substantial safeguards already in the Bill—the preconditions in clause 4, the public consultation requirement and the veto in respect of Committees—concerns persisted that the order-making powers could be used to bring about significant constitutional change. The Government were clear from the start that those concerns were misplaced, but we proposed amendment No. 9 to put the issue beyond possible doubt. We consider the new precondition to be the most effective mechanism in meeting any concerns about the Bill’s constitutional impact, while retaining the supremacy of Parliament as the law-making body in the UK. It provides robust protection by preventing orders from delivering constitutionally significant amendments to legislation, but it will not inhibit the delivery of better regulation.

The main effect of amendment (a), however, would be to alter the balance between the judgment of Ministers and Parliament on the one hand, and the power of the courts on the other. If it were accepted, in undertaking a judicial review of an order a court would not only examine whether a Minister acted reasonably in reaching his judgment; it would be able to decide whether the provision of the order was in fact of constitutional significance. In other words, a court could substitute the Minister’s and Parliament’s opinion with its own.

I want to make some progress.

These are not matters of certainty; in our system, which is without a written, codified constitution, they are inevitably to some degree matters of judgment.

I thank the Minister for giving way. He says that it would be a question of a court passing judgment on the Minister’s and Parliament’s view of the constitution, but that is not quite right; a court would pass judgment on the Minister’s view of the constitution, and if it found that the Minister had got it wrong, the matter would come back to Parliament. Does the Minister not accept that the amendment would therefore protect Parliament against Ministers? He should not mix Ministers and Parliament together in his comments.

Of course, the Minister’s judgment is debated by Parliament as part of the process in the Bill. His judgment is not the end of the process. The Government are firmly of the opinion that the right balance is the one that the UK has adopted in the past: it is for Ministers and Parliament to judge whether an order makes provision of constitutional significance. If amendment (a) were included in the Bill, on the other hand, judges could override both Ministers and Parliament about whether an order is of constitutional importance. As someone in the other place put it, that would

“elevate judicial accountability over political accountability.”—[Official Report, House of Lords, 3 July 2006; Vol. 684, c. 21.]

We do not want to go down that road.

When I first came into the House, there was a doctrine that not only did any item of constitutional significance go through a full legislative process, but all stages took place on the Floor of the House. I do not think that what constituted such an item was ever codified or written down. It was rather like an elephant: it was difficult to define, but we would recognise one when we saw it. People in those days handled constitutional significance in that way. As a compromise, would it not be possible for the Minister to accept that perhaps the Speaker, on the advice of the House authorities, should decide whether an item is of constitutional significance? Then it would be treated appropriately.

The right hon. Gentleman touches on something important: these things are not codified and they are matters of judgment. We believe that the Bill and the safeguards in it provide the best way of proceeding by making it a matter of whether the Minister considers, in the first instance, that the issues are of constitutional significance. There is no agreement about what would be in any written constitution should we wish to try to change the system that we have had for some time. For example, what the Constitution Committee in another place would want to be part of any constitution is unlikely to be the same as what this House, or even perhaps the judges, would want. A decision on whether provisions are of constitutional significance is therefore inherently a matter of judgment. Our belief is that that judgment should be exercised by Ministers, subject to parliamentary views.

In the context of the Bill, the Minister is required to set out his reasons in the explanatory document that must be laid alongside any order. It is then for Parliament to scrutinise rigorously both the content of the order and the Minister’s decisions, along with the reasons that he has given for them. On the basis of its own judgment after considering that evidence, Parliament must decide whether it agrees or disagrees with the Minister’s opinion. If the relevant parliamentary Committees in either House of Parliament do not agree with the Minister that the order meets the preconditions in clause 4, including the constitutional precondition, they have a statutory power of veto. The Government have also given an undertaking that they will not force through orders in the face of opposition from Parliament. That process is in keeping with the tradition of the primacy of Parliament. We believe that the Bill should not be used to alter that balance of power.

In summary, as hon. Members know only too well, this amendment goes to the heart of a much wider debate of fundamental importance. We believe that, for the purposes of the Bill, the precondition as set out in amendment No. 9, but not amendment (a), is the way to proceed.

The Bill has been like a time bomb ticking away in both Chambers of Parliament. Slowly, mainly in the other place, various wires that connect the timer to the explosive device have been snipped away. We are facing the last small wire, which, if cut, would finally make the entire Bill safe. It is a much better Bill than it was. It can no longer apply to itself or to the Human Rights Act 1998.

However, as has been made clear during the debate, we are not entirely sure whether the Bill can affect the Scotland Act 1998, trial by jury, the structure of local government, electoral law, the dismissal of judges and a whole host of other aspects of the law that might be reasonably considered to be constitutional. The central question is whether the judgment of whether a proposed change represents a matter of constitutional significance should be a matter principally for Ministers, or the courts and then Parliament.

We have discussed whether there would be a difference between a subjective and an objective test. It has been said that there could be judicial review of even a subjective test, although it seems rather odd that if a Minister objected to judicial interference, such interference would not be ruled out on the basis of the subjective test in the Bill. The difference would be the kind of test that the courts would apply. There would be a difference between saying what a Minister considered—or perhaps, in certain circumstances, what a Minister reasonably considered—and deciding what actually is the law and a matter of constitutional significance. The question is not whether judges have a place in the system, but the test that they use when exercising their powers.

A further question has been raised about whether this would make any difference in practice. My view differs slightly from that of my hon. Friend the Member for Somerton and Frome (Mr. Heath) because I think that it will. If Ministers were to face judicial review on the basis of what is really, in law, a matter of constitutional significance, they would be more risk adverse. They would not want to waste everyone’s time by bringing forward a regulatory order that would not get through the courts. As a matter of constitutional propriety, that is right, because there should be a bias in favour of full parliamentary procedure when dealing with matters affecting the political process. This is not a question of Parliament versus the courts—the opposite is the case. If a court found that a regulation concerned a matter of constitutional significance, the matter would have to be brought back to the House and dealt with by way of a full Bill. The main point of contention throughout our debates on this Bill has been what can be pushed through by statutory instrument and what should be dealt with through primary legislation.

As part of the constitutional conversation that goes on among the Government, the courts and Parliament, it is appropriate that the courts should have the right to determine the extent of scrutiny that we should give such matters. The question for a court is not what the Government’s policy should be, or what constitutional changes should be made, but the procedure that should be used to decide the matter. Amendment (a) would ensure that if a court decided that a matter was one of constitutional significance, it would have to be dealt with by way of a full Bill—the full parliamentary procedure.

The idea that Ministers should have a privileged right to decide what is a matter of constitutional significance is a constitutional monstrosity. It might well be that Ministers are well placed to make judgments on policy—the Minister referred to matters of policy—such as whether an end could be better attained without legislation, as is set out in the Bill. However, the question of constitutional significance should not be for them to judge. Ministers are interested parties. Much of our constitution is about precisely the power of Ministers and their relationship with Parliament and the law.

Some 750 years ago, the jurist, Henry Bracton, said that the king is under no man, but under God and the law, for the law makes the king. The point is that Ministers’ powers result from the law, especially constitutional law, so they should not be given special privileges when determining what those powers are, otherwise the rule of law itself breaks down.

I agree up to a point with the hon. Gentleman. Although it is obviously imperative that all Ministers are under the law, Ministers have one important power that others do not have. By virtue of democratic accountability and being elected, they can command a majority in the House. All the time the Minister commands the good will of his colleagues, surely he has some right to change the law when he wishes. One must be careful how one prescribes.

It is an important question whether Ministers should have the power to change the law, as opposed to Parliament having the power to change the law. That is what we are insisting on. When matters are of constitutional significance, Parliament, through the full procedure of passing a Bill, should decide it, not Ministers. In the end it comes down not to a contest between the courts and Parliament, but to the age-old contest between the Crown and Parliament.

I hesitate to cross swords with such an eminent legal lecturer, professor or whatever as the hon. Member for Cambridge (David Howarth) wasbut probably no longer is—I do not think he is moonlighting—but I shall charge in none the less, and no doubt he will intervene on me if I get it wrong.

I start by pointing out that when moving the amendment, the hon. Member for Somerton and Frome (Mr. Heath) elided constitutional matter and constitutional significance. As so often in our constitution, it is difficult to define these things, which is a weakness. Without readily being able to come up with an example, I suggest that not all constitutional matters are constitutionally significant. One has to be careful about eliding those two, as I think the hon. Gentleman did.

The hon. Member for Cambridge, while putting forward what may appear to him, though not to me, a sound academic argument and quoting jurists from centuries ago, rather overlooked the locks elsewhere in the Bill which have been the subject of much debate—the multi-stage process that we debated at length on Second Reading. I stand, not surprisingly, with my hon. Friend and neighbour the Minister in wishing to assert ministerial accountability over judicial accountability, to use the kind of phrase that has been used. I shall expand on that a little.

This brings us to the beloved case, which is well known to the Minister and me because it is a west midlands case, of Associated Provincial Picture Houses v. Wednesbury Corporation, which was decided in 1932, I think—

Indeed. It is a venerable case, and it is the starting point for administrative accountability and judicial review in our legal system.

With reference to the amendment and where the hon. Member for Cambridge and his colleagues seek to insert it in the Bill, I think he misreads the Bill, even with the amendment. The Bill does not say, and would not say with amendment (a), what the Minister considers relevant. That is the straw man to which the hon. Member for Cambridge addressed his remarks. The Bill does not say in clause 4(1) line 2 what the Minister considers relevant. Were it to say that, there might be a little more weight to the arguments that have been advanced in favour of the amendment.

What the argument boils down to is that if the Government’s wording is accepted, matters could still go to court. If amendment (a) were accepted tonight, matters could go to court, but with greater powers for the court. That seems a somewhat ironic proposition for the Liberal Democrats to put forward. I do not know whether the Conservatives are supporting them, but we shall find out shortly, no doubt. When we opened the debate on the Bill tonight, some Opposition Members described it as a Bill which, when it started its passage, particularly on Second Reading, for which I was present, was an attempt to abolish Parliament. They seemed to be standing up for Parliament, as all hon. Members would wish to, but amendment (a) suggests that they do not wish to stand up for Parliament but for the judiciary.

Does not the hon. Gentleman understand that when the only protection that Parliament has from the Executive is the judiciary, we will take the judiciary every time?

That would be the case were I to accept the term, “only protection”, but in this context Ido not.

To approach the same point from a different angle, does the hon. Gentleman accept that the purpose of amendment (a) is to protect Parliament against erroneous ministerial determinations about what is of constitutional significance, and that the effect of such a judicial decision would be to bring the matter back here to us in this House?

Again, I am afraid that I do not accept the hon. Gentleman’s proposition that his amendment would, even via the device of the courts, offer greater protection to Parliament than that which is in the Bill.

I rise to express my deep concern and disappointment about amendment No. 9. I want to ask the Minister directly why the Scottish Parliament was led to believe that all matters in the Scotland Act 1998 would be constitutionally significant and exempt from orders under the Bill. As it stands, we find that the1998 Act is treated no differently from any other Act or statute, in that it is given no special treatment or accorded any other protection from such orders. I saw the Minister shaking his head when I mentioned the Scottish Parliament. However, during the progress of the Sewel consent motion in the Scottish Parliament earlier this year, the Scottish Minister in charge of securing its passage went as far as to say that the Executive are of the view that no part of the 1998 Act could be said not to be of constitutional significance, and that amending it by an order would be a practical impossibility. Yet it is not a practical impossibility but impending reality. Clearly, his understanding was that the 1998 Act would be exempt. Before saying something as bold and as stark to the Scottish Parliament, he must have been given some sort of assurance from this House. Will the Minister clarify that?

A coach and horses is being driven through the whole Sewel convention. That will further undermine any future assurances given to this House about legislating on behalf of the Scottish Parliament. After seeing the debate in the Scottish Parliament and looking at the minutes of the Committee that dealt with the matter, I fully expected an amendment that would exempt the 1998 Act, along with the Human Rights Act 1998, as being beyond the scope of the Bill. Yet the Lords amendment, while it exempts many measures that are considered to be of constitutional significance, could still alter matters that are “minor or consequential”.

One person’s “minor or consequential” is another person’s “important and highly significant”. I share the Liberal Democrats’ concern that the Minister will make the choice as to whether matters are constitutionally significant or minor and inconsequential. I concede that some matters in the 1998 Act that need amendment are of no constitutional importance, but why can they not be considered by the Scottish Parliament? Why should it be left to this House to consider such measures?

I am personally disappointed that Lord Goodhart did not pursue the amendment that would have taken the 1998 Act out of all this. He correctly said that the Act is the possession of the Scottish Parliament, and a conduit between it and this House. It was said in another place that the 1998 Act is a responsibility of this House constitutionally. However, in the real world of Scottish politics we are all moving on. In the Scottish Parliament, this debate is changing dramatically, as is the whole culture. It is increasingly likely that next year my hon. Friend the Memberfor Banff and Buchan (Mr. Salmond) will be theFirst Minister of a Scottish National party-led Administration, and we will look carefully at the whole Sewel arrangement and all the powers that are reserved to this House. After this episode, we will be entirely justified in doing so. The Scottish Parliament is a grown-up institution that can properly look after itself and does not need the benevolence of this House to look after its affairs. The Government have shown nothing but contempt to the Scottish Parliament, the Scottish Executive and the whole Sewel process.

I have some sympathy with both sides in this debate. It is absolutely right that items of constitutional significance should not go through the accelerated procedure envisaged in the Bill, and I see that the Government have recognised that to some extent and tried to find a solution. On the other hand, the Liberal Democrats have a perfectly good point in that it leaves a lot of discretion in the hands of Ministers, who could be casual about it, and it might not be easy for the House to assert itself given that most Ministers, for most of the time, speak for the majority in the House and would expect it to agree with an idea and see it through. Such items would come to light only if there were a great movement of popular opinion and the Opposition party or parties were able to articulate it well.

My worry about willingly and readily accepting amendment (a) is that the hon. Member for Somerton and Frome (Mr. Heath) seemed to take great delight in the notion of making judges make difficult decisions that should properly be taken in the House of Commons.

Does my right hon. Friend agree that under amendment (a) the only involvement of the courts would be to the extent of saying to the Minister, “You’ve used the wrong procedure; this is of significance and should therefore be referred back to Parliament”?

That is right, and it may well bring me down on the side of supporting amendment (a). However, it remains the case that a very important decision that should properly be taken by Parliament would be taken by a court of law in certain extreme cases, which is a bit of a pity.

Does the right hon. Gentleman agree that an appropriate check on ministerial abuse should be established within the Standing Orders of the Regulatory Reform Committee, to the effect that it should have a clear and unambiguous duty to determine whether something is an inappropriate use of delegated legislation? Is not that the solution?

The hon. Gentleman has come up with a very good idea. My idea was that the House authorities might like to advise the Chair of the Committee. The Minister might be able to consider a proposition that falls between the two. If we are not to be offered anything like that from the Treasury Bench—and it appears that we are not—I may find myself agreeing with my Front-Bench colleagues, who are minded to support amendment (a) to put a bit of pressure on the Government. However, it would be much better if the Government and the House authorities—perhaps the Leader of the House could bring them together—came up with a solution that gave us more confidence than amendment No. 9 but fell short of the court-driven system proposed by the Liberal Democrats. Ultimately, I would probably prefer to have another check against the Executive, because it is imperative that the accelerated procedure should not be used on constitutional matters.

I have listened with great care to the arguments that have been advanced. Amendment No. 9 is of course welcome, but we must examine whether it is adequate. On amendment (a), rhetoric has been used on both sides of the argument. The Government and their supporters allege that this is a battle between Parliament and the judges, while the hon. Member for Somerton and Frome (Mr. Heath), ably supported by the hon. Member for Cambridge (David Howarth), allege that it is a battle between Parliament and the Executive. Conservative Members must come down on one side or the other, or sit on our hands. I very much agree that where we can delay a decision that is wrongly taken by a Minister, it is appropriate to provide Parliament with that additional weapon. That is how, in a minimalist way, I would describe amendment (a). I would not go so far as the hon. Member for Somerton and Frome in putting all my trust in judges, which is certainly not the policy of Conservative Front Benchers. Unless I hear something better from the Treasury Bench than we have heard so far, I propose to support the amendment.

I will endeavour to be brief in summing up the debate on a couple of key issues. First, as the hon. Members for Somerton and Frome (Mr. Heath) and for Cambridge (David Howarth) said, the courts can be involved even without the amendment. I acknowledged that in my opening remarks, but the difference between us is about the grounds. That remains a difference that we cannot accommodate, so we cannot agree to the amendment tonight. One reason was touched on by my hon. Friend the Member for Wolverhampton, South-West (Rob Marris), who pointed out that the amendment’s proponents tended to ignore the protections already in the Bill—trial by jury, for example, which could not be abolished because of the necessary protections of rights and freedoms in the Bill.

I really must continue. I believe that in respect of the presentation of the amendment, we have seen a downplaying, if not an ignorance, of the protections in the Bill.

Let me deal with the matter of the ScotlandAct 1998. It was not exempt from the 2001 Act and it has remained for a further five years without any of the constitutional consequences that were mentioned taking place. The UK Government did not say to the Scottish Executive that the Scotland Act 1998 would be exempt—and let me also say that Government Members care deeply about the devolution settlement. We legislated to bring about the devolution settlement—[Interruption.] The hon. Member for Perth and North Perthshire (Pete Wishart), who suggests that we are imperilling the devolution settlement, is wrong. As I said, we believe in and care about that settlement. It is the hon. Gentleman’s party that puts the devolution settlement and the Scotland Act 1998 under far greater peril than any regulatory reform order ever could. He will stand in an election next year, committed to ripping up the ScotlandAct 1998 and ripping up the United Kingdom. That is one reason why I cannot accept the idea of him as a guardian of the devolution settlement. Government Members, as I said, legislated for it and believe in it, so we will not imperil it through this legislation.

Lords amendment agreed to.

Motion made, and Question put, That consequential amendment (a) be made—[Mr. Heath].

Lords amendments Nos. 10 to 17 agreed to.

Clause 6


Lords amendment: No. 18.

We mentioned the matters covered by the amendments earlier, so I shall be brief. Clause 6 restricts the powers in clauses 1 and 2. It prevents an order from imposing or increasing taxation. Concerns were raised on Report in the Commons and in Committee in the other place that, unamended, the Bill would leave it open for a Minister, by order, to reduce or remove taxation. As with several other matters that we have discussed, it was not the intention that orders should be used to reduce or remove taxation. Other parliamentary mechanisms have always been in place for dealing with taxation, but amendment No. 18 makes it clear that an order under part 1 cannot be used to impose, abolish or vary any tax.

The second amendment concerns potential tax liabilities that could arise from the merger of regulators. When transferring regulatory functions from one regulator to another, it may be necessary also to make provision in an order to transfer assets and liabilities from the old to the new regulator. In certain circumstances, without further provision, a transfer could result in inappropriate tax consequences for the transferor or transferee body which would arise solely because of the transfer.

If the amendment were carried, would it still be possible under this accelerated procedure to abolish a regulator or a regulatory requirement that might include a fee or licence charge?

I will come back to the right hon. Gentleman on that matter.

The amendment addresses the unwanted consequences that might arise from the transfers that I have just described. It will allow the Treasury to make tax provision by regulations in relation to a transfer of property, rights and liabilities under an order under part 1. This power will enable the Treasury to make appropriate tax provision at the appropriate time to ensure that a transfer does not give rise to a tax charge, or confer a tax advantage, on either party. It is unlikely that the powers will be used often; they will be used only in the unusual instance that a merger is being pursued by order which involves the transfer of such property, right and liabilities. I hope that the House will agree to the Lords amendment.

I welcome Lords amendment No. 18. It makes precisely the point that we made in Committee. I apologise to the House for the repetitive nature of these exchanges, but we have to keep saying to the Government, “We told you so.” We did make a point about this matter in Committee. It was also made very forcefully on Report by the right hon. and learned Member for Rushcliffe (Mr. Clarke), when he said that taxes could go down as well as up—although that does not happen often—and that this provision was therefore necessary.

However, the Minister has coupled the provision with Lords amendment No. 19, which deals with tax variation in respect of any changes in function. Presumably that relates to clause 2, which provides for amending the constitution of regulatory bodies. The Minister simply cannot get away with saying that this is a consequence of Lords amendment No. 18, or that the provision should not have been there in the first place in order to deal with the tax variation that should have been present in respect of changes of function for bodies and for transfers of liabilities. There was clearly an omission. That is why we had to have the Ways and Means resolution earlier. This is indicative of the way in which the Bill has been brought in. There have been gross errors and omissions by the Government all the way through. Happily, most of them—I hope all of them, but I have no confidence in that—have been corrected during the passage of the Bill. That is why it is so important that we do our work of scrutinising Bills in this Chamber effectively, as I believe we have done in this case.

As someone who would dearly love to see some taxes abolished, I accept the normal form for doing that. Unfortunately, we have an annual Finance Bill, and it is an increasingly large Bill under this Government. It gives them ample legislative opportunity to make changes to taxes. I would like to press the Minister a little further on surrogate taxation or quasi-taxation. In the regulatory world, many regulators now have the power to impose all sorts of regulatory costs on businesses, individuals, institutions and families, and even to impose direct fees or charges. I would like the reassurance that we shall be able to deregulate, in the sense of getting rid of part or all of a particular regulator and their task, rather than just removing the indirect regulatory costs. Shall we be able to remove the direct fees and charges involved? They should not be deemed to be a tax, under these amendments.

By leave of the House, Mr. Deputy Speaker, I should like to clarify this issue for the right hon. Gentleman. The prohibition on an order reducing tax would not stop an order reducing fees, including fees charged by a regulator, for example.

Lords amendment agreed to.

Lords amendments Nos. 19 to 29 agreed to.

Clause 17

Negative resolution procedure

Lords amendment: No. 30.

With this it will be convenient to discuss Lords amendments Nos. 31 to 34.

The amendments deal with an issue that is close to the heart of many right hon. and hon. Members who debated the Bill in its earlier parliamentary stages. They fulfil our commitment, made on Second Reading in the other place, to look again at the criteria for the parliamentary Committees’ statutory veto. That issue was debated earlier in our proceedings. The Lords amendments will allow Committees of both Houses to block proposals on any grounds and under any of the three procedures: negative, affirmative or super-affirmative.

This issue has been bubbling around during the time my hon. Friend has been dealing with the Bill and before that. For the avoidance of doubt, will he give the House a clear assurance that time will be set aside by the Government to enable us to debate the necessary amendments to the standing orders of the Regulatory Reform Committee?

I hesitate to make promises about parliamentary time. My hon. Friend will be awarethat that matter is not solely under my control. I hope that he will acknowledge, however, that the approach that we have taken so far has been to consult the relevant Select Committee Chairs on these issues. I hope to carry forward these matters in that spirit. I also hope that he will understand that it would be unwise of me to make any further promises this evening.

Before the Minister gave way to the hon. Member for Ellesmere Port and Neston (Andrew Miller), he said that this would be a matter for both Houses. Did he mean to say “either House”?

Yes, that is correct. I meant that the amendment will allow Committees of either House to exercise their veto.

It is vital that we strike the right balance betweenthe order-making powers in the Bill and effective safeguards. We hope that, by framing the veto in this way, we will ensure that the relevant parliamentary Committees are equipped with a workable and effective mechanism, should they oppose any proposed orders.

Lords amendment No. 30 makes a drafting change to clause 17 to clarify that, where orders are subject to the negative resolution procedure, the effect of exercising the veto is that the Minister cannot make the order. I commend the amendments to the House.

The word “veto” is not entirely appropriate in this case. It is a parliamentary caveat, which enables the House to take a decision, but it is nevertheless an important mechanism, which I welcome.

I particularly welcome the removal of the criteria that were to have been applied to Committees when exercising their discretion. That was an abhorrent suggestion. It is bizarre to say that Ministers should not be subject to the courts when they determine what is an appropriate matter for the procedure, but that a Committee of the House, of all things, should be. A criterion in statute, which would potentially be enforced by a judicial review, has now been removed—I do not need the Minister to tell me that, because I know that. Had it remained, however, one of the consequences would have been that we would be partly repealing the Bill of Rights, which most of us would have preferred not to do. I therefore welcome the Government’s volte face.

The hon. Gentleman is being a trifle unfair. Does not he accept that giving the Committees a statutory veto was an important statement that Parliament has a strong role in such matters? It was a commitment to a proper balance between ministerial recommendation and parliamentary scrutiny. The Government deserve credit for recognising the proper role and powers of Select Committees in that way.

I am grateful to the Minister for that response, but the Government would have had considerably more credit had they not told us before the Bill was even published that there would be that veto, as he describes it, which they did not put into the Bill when we were first asked to consider it. They were then forced by the majorities in the other place to ensure a proper regard for the rights of the House. That is not the best way of doing business.

As we reach the last moments of our consideration of the Bill, however, let us not be churlish. Let us accept that the Minister has listened to what we have had to say in many respects and that, as a result, the Bill is better than it would otherwise have been. Had he not listened, the Bill would have been a disaster. Now, although I am not sure that it is the most significant Bill in the world, it is not a disaster.

It is a great pity that once again we do not have enough time to have a civilised, sensible debate about an important underlying issue, over-regulation, and ways in which it might be tackled.

I support the Lords amendment, and it is right that there should be as much of a parliamentary check as possible in a world in which Ministers normally command majorities and can therefore rightly carry their wishes in a democratic format. It is good that it has been recognised that we need to—

It being two hours after commencement of proceedings, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Orders[9 February, 15 May and this day].

Lords amendment agreed to.

Remaining Lords amendments agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

Representation of the People

That the draft Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006, which were laid before this House on 19th October, be approved.

Question agreed to.

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

That the draft Service Voters’ Registration Period Order 2006, which was laid before this House on 19th October, be approved.

Question agreed to.

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

That the draft Review of Polling Districts and Polling Places (Parliamentary Elections) Regulations 2006, which were laid before this House on 19th October, be approved.—[Mr. Cawsey.]

Question agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(6) (Programme motions),

That the following provisions shall apply to the ArmedForces Bill for the purpose of supplementing the Order of12th December 2005 (Armed Forces Bill (Programme)):

Consideration of Lords Message

1. Any Message from the Lords may be considered forthwith without any Question being put.

2. Proceedings on consideration of any Lords Message that may be received shall (so far as not previously concluded) be brought to a conclusion three hours after their commencement at this day’s sitting.

3. The proceedings shall be taken in the following order, namely any Lords Amendments relating to pardons for servicemen executed for offences committed during the First World War, any other Lords Amendments.

Subsequent stages

4. Any further Message from the Lords may be considered forthwith without any Question being put.

5. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—[Mr. Cawsey.]

Question agreed to.