HC Deb 23 May 1994 vol 244 cc101-18

'.—(1) Chapter 1 of Part I of this Act shall expire with the end of the period of five years beginning with the date on which it came into force unless it is continued in force by an order under subsection (2) below.

(2) The Secretary of State may by order provide that Chapter 1 of Part I of this Act shall continue in force for a period not exceeding twelve months from the coming into operation of the order.

(3) No order under subsection (2) above shall be made unless—

  1. (a) a draft of the order has been laid before Parliament together with a list of proposals to be made for orders under section 1 of this Act; and
  2. (b) the draft has been approved by resolution of each House of Parliament.'.—[Mr. Fatchett.]

Brought up, and read the First time.

Mr. Fatchett

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to consider Government amendments Nos 97 to 100 and No. 24.

Mr. Fatchett

New clause 3 relates to what I consider to be the most important issues in the Bill. In many respects this is a strange Bill. The meat of the sandwich is the deregulatory measures that we have spent considerable time debating, but the outside of the sandwich includes provisions which cause the constitutional concerns on privatising and contracting out civil service functions. The other side of the sandwich relates to the new powers taken under the first four clauses—the so-called Henry VIII powers.

The new clause aims to limit those powers to a five-year period. We consider that to be unsatisfactory and second best. I made our position clear in the debate on the report of the Select Committee on Procedure. We object in principle to any Executive taking powers to repeal primary legislation by order. On that issue, a great divide exists between us and the Government. The new clause does not heal that divide, but in a sense reflects and builds on the current position. Sadly, we have lost the argument on principle.

This is an important constitutional issue and it is sad that fewer hon. Members are present than for debates on Sunday racing and Scottish off licences. The new clause relates closely to the powers of Members of Parliament, which in recent years have been substantially eroded. We should be jealous of our power to make Ministers of any political party accountable to the House. That is the principal point underpinning clauses 1 to 4 and it is reflected in new clause 3.

We oppose in principle the use of order-making powers to repeal primary legislation. Last Wednesday, the Leader of the House said that the Bill contained certain safeguards —that the powers can be used to deal only with what are called deregulatory orders and only in circumstances which satisfy the provisions of the first four clauses. He drew our attention in particular to the need to remove a burden and said that necessary protection should be given.

As members of the Committee who considered the Bill will know, those words have become the golden formula of the Bill. Unfortunately, however, they are not subject to any objective test to verify them and to ensure that the Bill will be used in particular circumstances. They are not scientific, but are the essence of political debate and controversy. It is crucial that we recognise that the mechanism in the first four clauses is dependent not on objectivity but on subjectivity and is therefore open to political debate and controversy.

Hon. Members have expressed different opinions about the nature of the burden of necessary protection in relation to health and safety at work, fire safety provision and continuous licensing for heavy goods vehicles and coaches. Such matters are the stuff of political debate. There is nothing wrong with that, but the stuff of political debate should be dealt with through normal procedures rather than through a mechanism which pretends towards objectivity.

During the debate on the Procedure Committee report, the impression was given that the deregulation process was an ongoing process—that it could last indefinitely or, to put it in objective and more accurate terms, for as long as the Government last. That is a strange intellectual concept. If the Government introduce legislation which does not pass their deregulatory test, something must be wrong with the legislation. The Minister laughs, but it is a crucial point. Why should mechanisms be built in at this stage to deal with failures that are recognised by the Government? That is unacceptable and an incoherent argument.

If the deregulation process is ongoing, the way in which the Government describe it becomes crucial. In Committee, we were told time and again that the proposals were modest and limited and that they would be small in number and limited in scope. If so, why do we need the special new procedures? If we will deal with only a handful of cases each year, many of which cause no controversy —like some of the provisions of the Bill, which were agreed after limited debate and without a Division—why do we need a special procedure? Is not the answer that an annual Deregulation (Miscellaneous Provisions) Bill can be introduced, which could be dealt with like any other Bill and on which substantial and quick progress could probably be made?

If the deregulation process is not limited in scope, the argument changes. If we are talking about a substantial number of deregulatory initiatives and about extensive deregulation that will bear down heavily on our constituents—consumers or employees—the argument for a special mechanism becomes weaker still because the Government cannot pretend that we are dealing with matter of fact issues. They are issues of substantial importance and they should be dealt with not through a back door process but clearly and openly and, where necessary, by primary legislation.

The nature of the powers suggests that we should not use the mechanisms in the first four clauses. The powers sought by the Government are either so extensive that the first four clauses become increasingly worrying to those concerned about accountability, or they are not extensive, in which case we do not need them. The Government have never answered that conundrum and paradox in their position. Those powers are a substantial and worrying departure.

In Committee, Conservative Members did not seem to recognise the fact that Governments can change. Opposition Members have experienced that process often enough—and painfully—to know that Governments change and that in a long political cycle there are periods of opposition and periods of government. That being so, there is an even stronger case for saying that we should be conscious of the powers of this Chamber and of those of each Member of Parliament. It is our job, as part of this legislature, to make the Executive accountable.

It is not a question of whether deregulation legislation is introduced by a Conservative or Labour Administration; it is a question of the powers taken by one Executive, which will make Ministers less accountable for their actions. Conservatives should not regard this Bill simply as a Bill introduced by a Conservative Administration; they should regard it as a Bill that could come from any Administration which could then have powers to do things with which they do not agree, whether for ideological or other reasons. The test is what one would feel when in the minority—in opposition. Anyone in opposition would be worried about these new powers being granted to the Executive, and that must always be the test used by Members of Parliament.

8.30 pm

In moving clause 3, I recognise—as we often do—that we are arguing for second best. We are arguing for a measure that I would rather not see on the statute book. I would prefer the Bill to be without the first four clauses, but I am trying to find ways to limit the powers that they contain. Those powers could have been limited by subject—something that we attempted to do in relation to health and safety and other issues—but in this case we are limiting the powers by a period of time. I believe that within five years the deregulation initiative that the Government launched 18 months or so ago will have run its course. The arguments support that, so there is merit in the new clause on practical grounds.

We are debating a key constitutional issue. It is sad that we have been unable to arouse more interest in the Henry VIII powers granted under the first four clauses. When the history of our debates is examined at a later stage—if it ever is—our lack of interest in those powers will seem strange. We should have been much more concerned about the first four clauses of the Bill.

Mr. Richard Shepherd (Aldridge-Brownhills)

There is something deeply destabilising about following the hon. Member for Leeds, Central (Mr. Fatchett) who, if I may say so, made a very conservative speech. I agree with him about the glories of some of our constitutional development. When I was a lad, there was a general and perhaps misconceived idea that one understood the law. We had a general view of the law; it seemed a much smaller thing, more contained and directed towards the objectives of society. We knew, by and large, what was right and what was wrong. We had a feeling for the law.

My hon. Friend the Member for South Hams (Mr. Steen) emphasised the sheer burden of the flood of legislation, administrative orders and delegated legislation. It is because of that flood that I no longer have any real feel for the law of the land which affects my conduct or that of my fellow citizens and constituents. One therefore understands the drift behind this Bill. Some Members of all parties believe that the House has over-regulated and over-legislated. We understand the Government's purpose in introducing the Bill but, although the new clauses are ameliorating, they do not alter the Bill's fundamental principle, as the hon. Member for Leeds, Central said.

The law is no longer a glass through which we look darkly in order to have a concept of the soul and purpose of public society. It is probably now a mirror of a very unsatisfactory human being such as myself who has heard the Minister responsible for deregulation say that when we—the Conservative party—first came into office there were about 300 pages of law per annum but that in 1991 we reached about 3,000 pages. There is no way in which an honourable citizen, mindful of his duties before the law, can have the remotest concept of what that means. We have seen the destructive impact on businesses but the question asked by members of the Opposition Front Bench, and by the hon. Member for Newham, South (Mr. Spearing) in the debate on the Procedure Committee's report, was why the powers are necessary. Why is there not an annual deregulation Bill to meet the challenges that face us? We have not received an answer.

In my time in the House of Commons, which is only—or as much as—15 years, I have reached the stage where I have no idea what the law is or, as often as not, where the balance of importance lies within the clauses that form the law. As I said, I am no longer able to advise my fellow citizens on the generality of where we stand before the law. I have seen the balance shift even further not only to Ministers but to what we call the Executive.

The hon. Member for Newham, South has made very valuable contributions to the argument. In many instances, we are talking about administrative law, which is the right of bureaucrats to make law that profoundly affects our lives. We are now giving them the power to unmake law, which may also profoundly affect our lives. Judgment depends on each instrument—some we shall think important and some we shall think unimportant. In the majority of cases, the House has a consensus. We therefore come back to the question: why can we not have an annual deregulation Bill?

How may I, as a Back Bencher who may not always find favour with the Committee of Selection, ever move an amendment to something which profoundly affects my constituents? There is no provision for amendment of that rule. I cannot put my case on the Floor of the House. By an administrative device, therefore—that is what I think of statutory instruments—we shall be governing England, Scotland and Wales as we have governed Ulster. The government of Ulster is unsatisfactory. I would not wish that fate on my fellow citizens. We should therefore take this issue very seriously. It is incumbent on the Government to consider why they are trying to tilt the balance further in favour of Executive power.

For many years, I have criticised the incessant drumbeat of guillotines. The folly implicit in them is that by driving legislation and regulation through unconsidered we have created the morass that now governs our lives. The Government's solution is to provide a mechanism by which we may "undrive" it through—if necessary, at a heroic pace. We may indeed unwind, almost at a stroke, many of what I would claim are the benefits of the legislation of the 1980s. An incoming Labour Government might delete some of our most cherished contributions to the development of public society.

In the debate on the Procedure Committee report, the hon. Member for Leeds, Central pledged that the Labour Government would unwind certain features of the Bill. I hope that every hon. Member of spirit will give a cheer. Like the hon. Gentleman, I hope that a benign Conservative Administration will not use the powers oppressively; I also hope that his own party's Administration—should it ever come about—would also honour that notion.

I now pick up a point raised by my hon. Friend the Member for South Hams, although I do not do so in a spirit of contention. A system which enables us to unwind legislation so rapidly shows how quick a thing legislation is. When I first became a Member of Parliament and someone came to argue about a scheme, I would suck on my teeth, draw in my breath and say that the majesty of the law is such that it would take time because society does not move rapidly. What I might have considered a good idea had to be weighed by my peers, fellow Members of Parliament and fellow citizens. All the stages of legislation —Second Reading, Committee stage and Report—enable the public at large to participate in matters which might have profound effects on their lives.

We should be wary of creating a device which allows us simply to make a law today. We all remember the famous Baker Bills which attempted to meet the disasters surrounding us—the Dangerous Dogs Act 1991 and the Football Spectators Bill. I am sure that we can all chant the laws that have so improved our lives and removed menaces. If we can so easily incorporate a law and so easily undo it, why are we talking only about 3,000 pages of law per Session? Why not have 6,000 pages of law? After all, what we do on Monday afternoon we can change on Tuesday, and by Thursday we may have yet another view on the matter.

This is the corruption of the majesty of law. If one has no regard or respect for the processes of law or for the instruments that issue forth from it, one undermines civil society. I would argue that one of the corruptions of my adult life is the general contempt in which law is held. I do not know what the law is. When I transgress, I no longer feel it as a transgression. Most of my fellow citizens are increasingly coming to the view that they can disregard the law. That is the crisis on our streets; that is the crisis in our homes.

Yet here we are providing an instrument to make laws on Mondays with guillotines and unmake them on Tuesdays by order after 60 days if they are contentious and after 40 days if they are non-contentious. The balance is shifting too far, not only from the Opposition to the Government but, more importantly to my purpose, from the House of Commons to the Executive. That is why we should punctuate the matter by saying that it is not right.

The ameliorating new clause has merit, but, as the hon. Member for Leeds, Central said, it is only a second best. The Government are meeting some of the observations made by the Select Committee on Procedure and have improved clause 4, but only marginally. The principle is important and it will not enable me to support the Bill.

Mr. Miller

It is a great pleasure to follow the hon. Member for Aldridge-Brownhills (Mr. Shepherd). His comments, which were reflected in some of the Committee debates, get to the root of the question. My hon. Friend the Member for Cannock and Burntwood (Dr. Wright) developed a similar theme in Committee. There is concern about the integrity of the House of Commons in the context of the Bill.

My remarks go one step further. There is concern outside this place about the integrity of the House of Commons. Some of the things said today, when reported outside, will give members of the public great cause for concern. I listened, for example, to the hon. Member for Brentford and Isleworth (Mr. Deva) who spoke about health and safety legislation and drew parallels with India. It is incredible that we should draw parallels between our regulations and those of a nation in which, in some parts, there are, regrettably, enormous numbers of deaths—way above the number in this country—from industrial accidents, and in which child labour is used.

The hon. Member for Chingford (Mr. Duncan Smith) referred to getting bureaucrats off the backs of the people. When one analyses what he was saying, one realises that he meant getting bureaucrats off the back of business. It is important that we should consider the Bill in the context of what it seeks to do and that we should not accept the contributions made by Conservative Members tonight in which they have sweepingly suggested that the Bill will liberate the people. It cannot liberate the people when the House of Commons, as an institution, is under threat. The Bill threatens the very roots of our democracy and that is why the new clause is important. It would at least ameliorate the worst excesses of the Bill.

I say with some confidence that a five-year period will not be relevant to the Conservative party because it will not be in power in five years' time. The hon. Member for Aldridge-Brownhills has referred to the comments made by my hon. Friend the Member for Leeds, Central (Mr. Fatchett) about the Select Committee on Procedure. We take a serious view of the challenge to our democracy and of the need to protect hon. Members from the excesses of the Executive.

8.45 pm

The integrity of the Government is at stake in the Bill. It is a pity that the Minister for Transport in London is not here on the Front Bench. He did not do himself or the House proud, as reported at column 874 of the Official Report of our proceedings in Committee on 12 April. In response to a point I raised, he said that it was okay for hon. Members to say one thing in the House and another thing in their constituencies. If they believe that that is an acceptable standard, it is an extraordinary position, and it illustrates the depths to which the Government have sunk.

Mr. Spearing

I was not a member of the Committee. My hon. Friend has told me something of considerable significance. First, can he give the reference? Secondly, does he agree that it is not just wrong for a Minister to say that, but wrong for any Member of Parliament, any member of the public and anybody who believes in democracy?

Mr. Miller

I am grateful to my hon. Friend for that intervention. The reference is column 874 of the Committee proceedings of 12 April. The Minister said: If my hon. Friend the Member for Falmouth and Camborne has learnt that lesson after only two years in the House, I commend him. It will serve him well in the next 20 or 30 years in which he remains in this place."—[Official Report, Standing Committee F, 12 April 1994; c. 874.] Such a comment undermines the integrity of this House. The Bill will be seen by members of the public as a further attempt by the Government to take powers that they have no moral right to take.

The balance between what is a "necessary protection" and what is a burden on business needs some careful definition. Despite numerous attempts in Committee, the Government refused to define the sectors that were incorporated in the phrase "necessary protection". They refused to say which of the many health and safety regulations were covered by the phrase. Is it all of them or none of them? I would be happy if the Minister for Industry could answer that point now. He is listening quietly and I am sure that he will respond in the wind-up.

Unless the Government can define exactly what they mean by "necessary protection", and unless they can be clear about what those words mean in the context of the burden on business, the only example we have is the example given late one night on the Floor of the House by the Under-Secretary of State for Schools. In an Adjournment debate on the Lyme bay tragedy, when my hon. Friend the Member for Plymouth, Devonport (Mr. Jamieson) argued the case for the regulation of outward bound centres, the Minister responded by saying that that would be a burden on business. That is the only example that the House has had placed before it in the context of the language used in the Bill. Unless the Minister can be absolutely specific—

Mr. Sainsbury

indicated dissent.

Mr. Miller

He is shaking his head. I am looking forward to the intervention and the great list of examples. He is not going to give it, I am sure. Unless the Minister can be absolutely precise, the House needs the protection of the new clause. On that basis, I urge the House, with all sincerity, to take on board the point that has been made. The integrity of the House is at stake. The Minister is now thumbing through a book on red tape, which he will wave around, but he will not find in there any of the lists of regulations governing health and safety to which I have referred and he has yet to give, either in Committee or at any stage, a commitment that any of them will be incorporated. In fact, the only example that we have is of exactly the opposite. Whom do we trust? Whom do the people outside trust? We cannot trust this Administration on this point or on the Bill, so I urge the House to support the new clause.

Mr. Gary Waller (Keighley)

Until the final words of the hon. Member for Ellesmere Port and Neston (Mr. Miller), I was going to say that I supported the consensus that seems to have developed during the debate. I should certainly like to congratulate the hon. Member for Leeds, Central (Mr. Fatchett) on the carefully argued and moderate way in which he advanced his case. There was little in his speech with which I could possibly disagree.

Like my hon. Friends, I warmly welcome the deregulation initiative. It is the motor that underpins the Bill and it is entirely welcome. However, that objective is not in itself sufficient to justify any means that may be used to support it. The new clause would set a time limit to the exercise by Ministers of the so-called Henry VIII clauses. In fact, it is somewhat misleading to describe them in that way. Certainly, a Parliament was asked to give Henry VIII powers to rule by proclamation that were much more untrammelled than anything in this context. Nevertheless, one adopts a time-honoured convention by describing such powers under that all-embracing title.

Such a provision, defined as one that enables primary legislation to be amended or repealed by subordinate legislation, with or without further parliamentary scrutiny, is not, of course, entirely new. Nevertheless, I suggest that such a provision has never been advanced in such a way before, even though the exercise of Henry VIII powers has been considered by Parliament on previous occasions. The committee on ministers' powers, otherwise known as the Donoughmore committee, considered that matter when it reported in 1932. It noted that the powers had been rarely used and that they had been used with the best possible motives. I am sure that, today, they are being advanced with the best possible motives again.

However, the committee also stated that the exercise of the power had not, in practice, given ground for complaint. That is an interesting observation and it may well be that there will be few complaints about the way in which the power may be exercised in future. Nevertheless, the possibility exists that the complaints may be extremely great and that they will worry us a great deal in future.

The committee stated: The power has been asked for and granted but rarely and always subject to conditions limiting the period of its operation … Even with safeguards … it is clearly a power which in theory at any rate may be unscrupulously used. It is not short-sighted to consider the theoretical way in which such powers may be used and one should not be assuaged by assurances about the benevolent motives that underpin them in practice.

A case has been advanced over the years for clauses such as this to be used in certain rather more limited ways. Indeed, their use has become increasingly common over the years. It has been recognised that there is a case for the powers to be used, for example, updating lists of threatened species in a schedule of protected wildlife, for upgrading monetary figures to take account of inflation or in respect of consequential and traditional provisions. However, here we will be giving power to amend any other Act of Parliament in the past or in future. I suggest that a general power to create or amend the law, even with limitations, is a power that should give us, as parliamentarians, pause for thought. We should at the very least set a time limit on its application.

As I initially said, the motives that underpin the provision are entirely honourable. Indeed, they are worthy of support. However, means should surely not justify ends and we should as parliamentarians always consider such means. In the past, constitutionalists have clearly made the point that such a power should not be used simply for convenience. Yet, as has already been clearly shown in the debate, there are alternative ways in which to achieve the Government's ends. It just so happens that this appears to be a rather convenient way in which to do it. It is a great mistake to rely on good intentions and those who have in the past relied on good intentions have often subsequently rued their words and their decisions.

I am also concerned because of the precedent that we are setting. It was something to which my right hon. Friend Lord Simon of Glaisdale, a former Law Officer, referred in the other place, in a debate on what became the Children Act. He said: If we pass this measure, it will be used as a precedent in other measures."—[Official Report, House of Lords, 6 February 1989; Vol. 503, c. 1362.] I believe that those concerns were reasonable.

The concern here is that the powers that are implemented in the Bill could be used by future Governments in a way that we cannot foresee today. Looking further than that, there is also the possibility that a future Government could use this kind of provision as a precedent for yet further inroads into parliamentary democracy. I was very pleased to hear the hon. Member for Leeds, Central say that that was not the intention of his party and that it rejected that kind of approach to legislation.

It is a fact that most of the changes that are set out in the Bill do not cause too many concerns, even among organisations that are not favourably disposed towards the Government. There is concern, however, because of the perceived threat of undefined and indeterminate changes in future. That is the factor that causes anxiety. As has been said, there is no power to amend statutory instruments. That worries me. I accept that, in devising a special procedure, the Government have tried hard to overcome the objections to which I have referred. At the end of the day, however, it is the Government who will take the decision. There will be no power to amend the legislation that comes forward to replace legislation that has been repealed.

Mr. Spearing

Does the hon. Gentleman agree that the position is even worse than that? However long the committee may sit and however many questions it may ask, constitutionally, its opinion will be only advisory and in terms of the orders of the House.

Mr. Waller

Yes, I agree with the hon. Gentleman. It has been suggested, of course, that the Government would listen carefully to the opinions of the committee and that they would be extremely unlikely to reject the committee's considered views, but that is not good enough for me. I must reject the placing of untrammelled power into the hands of Ministers, of any Government.

9 pm

I agree that the conclusions of the Donoughmore committee all those years ago were restrictive. Indeed, they were too restrictive in their application to Ministers. I support its view, however, that a clause of the sort that is proposed should be time limited. The committee concluded: The clause"— a Henry VIII clause— should always contain a maximum time limit of one year after which the powers should lapse. If in the event the time limit proves too short—which is unlikely—the Government should then come back to Parliament with a one clause Bill to extend it. That seems to be close to the provision that is encompassed in the new clause. I agree, too, that the subjectivity of tests using words such as "protection" and "burdens" is objectionable.

I wish that I were able to give my full support to the Government in this instance. I have read carefully the report of the proceedings in Committee. I was anxious, if possible, to find a way in which I could support the Government, but I read in vain. I rarely oppose the Government on other issues and I hope that that very fact will in itself demonstrate the depth of my concern in relation to this one. I am sorry that there are few Members in the Chamber because when I have spoken to my colleagues I have found that many of them do not fully appreciate the effect of the provisions in the first part of the Bill. I believe that tonight there has been a general consensus on the matter. With regret, I find that there is no way that I am unable to support the new clause.

Mrs. Helen Jackson

Throughout our debates, I have had the uneasy feeling that there is something almost unconstitutional about the first four clauses. Yet, here we are debating the Bill, and we are part of the constitution. The four clauses have been described as Henry VIII clauses, and we know that Henry VIII was an arbitrary dictator fond of cutting off people's heads and of ruling by decree. The clauses have caused some of us to believe that we are being asked to act unconstitutionally. It might be better to describe the first four clauses as Charles I clauses. It is almost as if the king is trying to cut off his own head.

I know that that would be rather difficult, but it seems that Parliament is trying to cut its powers to decide what is or is not best in the public interest. I do not believe that, constitutionally, a Parliament can decide to act not in the public interest but in the interests—this has been clear throughout our consideration of the Bill—of one element of the public, financial business.

Earlier today, the hon. Member for Scarborough (Mr. Sykes) referred to a small care home for the elderly. He said that it was unfair for that business man, as he tried so hard to make money, with sweat pouring down his brow, to have the burden of complying with certain staffing regulations. I could not help thinking of the residents of that care home and to whom they could go, other than to their Member of Parliament, if they felt that they were not receiving adequate care.

If the interests are balanced out, I must inevitably come down on the side of the residents of that home in respect of the legislation that we may pass on their behalf rather than on the side of the efforts, which I accept may be genuine, of the person trying to make money by running that care home and that person's ability or otherwise to make that money.

I agree with the hon. Member for Aldridge-Brownhills (Mr. Shepherd) that legislation requires a continuous process of simplification. Regulations need amending as time moves on and we must find a way to achieve that. However, the Bill is not couched in such terms. The Bill prevents regulations from being amended in such a way that they may become more onerous on business. If new research on safety or the environment means that regulations have to be amended to protect the public more securely, the Bill precludes us in Parliament, and Ministers, from doing that. Parliament can act only in a way that makes legislation less onerous to business.

My final point should be challenged in a wider debate and I believe that that will happen over the next few weeks. I do not accept, and I do not believe that most Conservative Members accept, that the key element that holds back the profitability of British industry is the minor bureaucratic regulations with which industry must comply. The manufacturing sector in Sheffield does not cite that as the main reason for its problems in stimulating British industry and manufacturing. The Government have not introduced the Bill to solve that problem. The Government are abrogating responsibility, which I believe has rested quite correctly with Parliament for many hundreds of years.

Dr. Wright

At the tail end of debate on such a large Bill, it is difficult, particularly for those of us who have been associated with it in Committee, to remember the anger and outrage that we felt when the Bill first appeared. However, we should remember that if we are to obtain a measure of the enormity of what is being proposed and what Parliament is being asked to approve.

My hon. Friend the Member for Sheffield, Hillsborough (Mrs. Jackson) put it very nicely just now. She said that from the very moment Bill was first suggested, when it was a gleam in ministerial eyes, it had a nasty smell about it. The Government knew that and they knew that they had to build in a procedure so that Parliament could be persuaded that it would be all right. That process has been undertaken and we have reached that moment. However, we should remember that there are two crucial issues.

The first issue is that the Government are claiming a general order-making power, and the right to make legislation by order, of a kind that no Government have hitherto claimed. That is simply a matter of fact. We speak about Henry VIII clauses and it is quite true, as Conservative Members have said, that everyone who has considered those, from the Donoughmore committee in the 1930s right through to the recent Hansard study of the legislative process, has said that those are inherently undesirable clauses which should not be in Bills; they are only there for transitional purposes, consequential purposes and updating purposes. They should be at the margin, and they should stay there.

The Government are now saying that that is not the way in which they would like to proceed. They want to proceed by claiming for themselves a general power to legislate by order. The first question becomes, "Is Parliament willing to grant that power to Ministers?" That is the crucial question. It is being asked now by the Labour party of the Government, but it could be being asked the other way round. It is a question for Parliament. It is a question about our political and constitutional system, and Parliament must answer it tonight.

The second issue is that of the mechanism that the Government have offered Parliament to make the process all right—the scrutiny Committees. The Procedure Committee was sent away to examine that proposal and to come forward with a device. It has done so, but Parliament ought to understand what has happened before it votes this evening. I understand that there was largely non-cooperation from Labour members of the Procedure Committee as a result of their disapproval of the entire process, so the Committee was dominated by the Government.

The Procedure Committee made a set of proposals. It essentially said, "We are not satisfied with the safeguards that the Government are offering the House in relation to this claimed power" and it listed five essential safeguards that it wanted before it was prepared to give its imprimatur to the Government's proposals. Two of those safeguards have not been met. When I mentioned it to the Chairman of the Committee, he seemed surprised. I shall never forget the look of surprise on his face when he asked the Leader of the House, "Can this be true?"—and of course it is true that two of those safeguards have not been met.

One safeguard relates to the ability of the Committee, and therefore the House, to summon Ministers; a very important power. However, the key safeguard, the fundamental safeguard, is for a Committee of the House —the suggested scrutiny Committee, remember—a Committee with a Government majority, chaired by a member of the Government party, to claim the right to say whether it is appropriate to use the order-making power in relation to the proposals that the Government are making. That is the crucial issue. Is it appropriate to proceed by using order-making powers instead of primary legislation in relation to this proposal? That is the key issue for the Procedure Committee.

What do the Government say? I would ask all hon. Members, before they vote tonight, to read what the Government say. They essentially say, "We are interested in what you say; we shall take it"—the phrase is, "with the utmost seriousness"—"but we shall not accept it." There we have it. When the Procedure Committee reported, there were people around and outside who said, "This is a sensible report; the safeguards seem sensible; I am sure that we can go ahead on that basis." Some of us did not think so; nevertheless, that was what was said. The reality is that the Government have not accepted those proposals.

So what will happen tonight? This Parliament will give Ministers a general order-making power, and it will do so in a context in which the Government have not even been prepared to accept the safeguards of the House's own Procedure Committee. That is the issue. It is not for nothing that those powers are called Henry VIII powers, because if there is one golden, malevolent thread running through our constitution, it is the transfer of prerogative powers from the Crown, not to the House, not to Parliament, but to the Executive. That is the issue for us. It is revealing that a Government should have the arrogance to ask for such powers. It would be even more revealing if a Parliament—this Parliament—agreed to grant Ministers those powers.

9.15 pm
Mr. Sainsbury

The hon. Member for Leeds, Central (Mr. Fatchett) put forward his new clause as a constitutional issue. He argued in measured terms against the order-making power, saying that his argument was on principle. However, in so doing, he brushed aside the safeguards in the Bill and largely ignored the careful work of the Procedure Committee. He revealed the underlying reason for his new clause. He has no interest, and nor do his hon. Friends, in lifting burdens from business, charities or individuals.

The hon. Member for Leeds, Central asked why the order-making powers were needed. They are needed to facilitate the timely removal or reduction of burdens in primary legislation. This need will still exist in five, 10 or 15 years' time. What may not appear to be a burden now may become a substantial problem in the future. Markets, technologies—a whole range of circumstances—will change the nature of business in years to come. We need an effective mechanism to deal with those burdens, both now and in the future. For those reasons, we do not consider that any time limit is appropriate.

The new clause would undermine our objective in seeking the powers in clause 1. We have a rolling programme which will identify many more measures which would remove or reduce bureaucratic burdens without removing necessary protection, and would therefore be suitable candidates for use of the order-making power.

Moreover, circumstances change so that legislation that is necessary now may in the future no longer be needed to provide protection. We have seen how new technology can offer ways of providing legislative protection that are less burdensome. Computers have already led to substantial changes in record-keeping requirements.

Technological developments are bound to continue. For example, the further development of smart cards may mean that all sorts of detailed legislative requirements could become outdated. We, therefore, want a power to amend existing primary legislation to be available into the future. We see no need to limit the availability of the power. It should be available for any future Government to pursue the lifting of burdens without removing necessary protection.

Mr. Richard Shepherd

My right hon. Friend has not answered the question why an annual deregulation Bill or series of deregulation Bills could not meet the point. That would enable us to amend provisions that might be contentious. No one in the House disputes his canter round technological advances and the changing nature of society. We are agreed on that. That argument is almost redundant. We want to know why it is necessary for the Government to have extraordinary powers which contradict our constitution instead of a proper approach to the matter.

Mr. Sainsbury

First, I do not think that the powers are so extraordinary. Secondly, there are substantial safeguards. Thirdly, the very thing that my hon. Friend asks for would demand more legislative time. That is the problem that we are addressing.

The power in clause 1, which worries my hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for Keighley (Mr. Waller), applies only to Acts currently on the statute book and those passed in the current Session. It is not untrammelled. There are limits on the use of the power in the Bill. We should also bear in mind the stringent safeguards and constraints on the use of the power included in the unique arrangements for scrutiny by special Committees. That scrutiny would be followed by the affirmative resolution procedure, which requires the positive approval of each House. Therefore, it would be debated in this House and no additional purpose could be served by some annual review of all the uses to which the power was to be put in the following year, or by requiring the power to be reviewed by the affirmative resolution every year.

Amendment No. 24 gives effect to an undertaking that we gave in the Standing Committee on 24 February, at column 232. It also follows up a recommendation made by the Procedure Committee during its inquiry. It would require a Minister bringing forward a proposal under the order-making power to report back to the House following a special scrutiny period, giving details of any further representation made during that period, subject to protection for information given in confidence, as well as any report or resolution of either House or their Committees. The statement would have to give details of any changes made to the proposals or as a result of such representations, resolutions or reports during the scrutiny period.

On amendments Nos. 97 to 100, my right hon. Friend the Lord President made clear during our debate on the Procedure Committee's helpful report that we have given very careful consideration to the views of the Procedure Committee. The Committee reached the view that, in a small minority of cases, the scrutiny period of 40 days provided by clause 4 would not be sufficient to allow the deregulation Committee to complete a proper scrutiny inquiry. The amendments give effect to the Committee's recommendations that, in such cases, the period for scrutiny should be extended to 60 days.

The Procedure Committee in another place has now also undertaken an inquiry into the arrangements for scrutinising deregulation orders. The Government will, of course, take careful account of the outcome of that inquiry and will propose any further amendments to the Bill that appear necessary in the light of it.

I, therefore, commend amendments Nos. 24 and 97 to 100 to the House and urge hon. Members to reject new clause 3.

Mr. Fatchett

I fear that there has been no meeting of minds on this issue during the debate; the same was true during the Standing Committee proceedings. The Opposition—and the hon. Members for Keighley (Mr. Waller) and for Aldridge-Brownhills (Mr. Shepherd)—see the issue as one of principle. The Minister regards it as a practical issue, and does not see beyond the means. We are concerned about the means and the ends, and also about the way in which the powers taken will subvert the role of this Chamber and of Members of Parliament, and will make the Executive less accountable.

That is the argument which we have made throughout. It has been a principled argument. It is, as the hon. Member for Aldridge-Brownhills said, a Conservative constitutional argument. I am not embarrassed by that, as sometimes the very simple constitutional principle of making the Executive accountable is worth defending and justifying. That has been the principal difference, and the Minister has failed to understand those principles and our concern about them. I was disappointed by the nature of his reply, but I was not surprised. Throughout, he has seen the matter as being totally practical.

I repeat the commitment given earlier: no incoming Labour Government will use the powers, because I think that the powers are an abuse of the House of Commons and give too much power to the Executive. For that reason, I ask my hon. Friends to support me in the Lobby and to support new clause 3.

Question put, That the clause be read a Second time:—

The House divided: Ayes 234, Noes 275.

Division No. 254] [9.22 pm
Abbott, Ms Diane Banks, Tony (Newham NW)
Adams, Mrs Irene Barnes, Harry
Ainger, Nick Barron, Kevin
Ainsworth, Robert (Cov'try NE) Battle, John
Allen, Graham Bayley, Hugh
Alton, David Beckett, Rt Hon Margaret
Anderson, Donald (Swansea E) Beith, Rt Hon A. J.
Anderson, Ms Janet (Ros'dale) Bell, Stuart
Armstrong, Hilary Benn, Rt Hon Tony
Ashton, Joe Benton, Joe
Austin-Walker, John Bermingham, Gerald
Berry, Roger Hattersley, Rt Hon Roy
Betts, Clive Heppell, John
Blair, Tony Hill, Keith (Streatham)
Blunkett, David Hinchliffe, David
Boateng, Paul Home Robertson, John
Boyes, Roland Hood, Jimmy
Bradley, Keith Hoon, Geoffrey
Bray, Dr Jeremy Howarth, George (Knowsley N)
Brown, Gordon (Dunfermline E) Howells, Dr. Kim (Pontypridd)
Brown, N. (N'c'tle upon Tyne E) Hughes, Kevin (Doncaster N)
Burden, Richard Hughes, Robert (Aberdeen N)
Byers, Stephen Hutton, John
Caborn, Richard Ingram, Adam
Callaghan, Jim Jackson, Glenda (H'stead)
Campbell, Mrs Anne (C'bridge) Jackson, Helen (Shef'ld, H)
Campbell, Menzies (Fife NE) Jamieson, David
Campbell, Ronnie (Blyth V) Janner, Greville
Campbell-Savours, D. N. Jones, Barry (Alyn and D'side)
Canavan, Dennis Jones, Ieuan Wyn (Ynys Môn)
Cann, Jamie Jones, Jon Owen (Cardiff C)
Chisholm, Malcolm Jones, Lynne (B'ham S O)
Clapham, Michael Jones, Martyn (Clwyd, SW)
Clarke, Eric (Midlothian) Kaufman, Rt Hon Gerald
Clarke, Tom (Monklands W) Keen, Alan
Clelland, David Kennedy, Jane (Lpool Brdgn)
Clwyd, Mrs Ann Khabra, Piara S.
Coffey, Ann Kilfoyle, Peter
Cohen, Harry Kinnock, Rt Hon Neil (Islwyn)
Cook, Robin (Livingston) Lewis, Terry
Corbett, Robin Litherland, Robert
Corston, Ms Jean Livingstone, Ken
Cousins, Jim Lloyd, Tony (Stretford)
Cunliffe, Lawrence Llwyd, Elfyn
Cunningham, Jim (Covy SE) Loyden, Eddie
Cunningham, Rt Hon Dr John Lynne, Ms Liz
Dafis, Cynog McAllion, John
Dalyell, Tam McAvoy, Thomas
Darling, Alistair McCartney, Ian
Davidson, Ian Macdonald, Calum
Davies, Bryan (Oldham C'tral) McFall, John
Davies, Rt Hon Denzil (Llanelli) Mackinlay, Andrew
Davies, Ron (Caerphilly) McLeish, Henry
Davis, Terry (B'ham, H'dge H'I) McMaster, Gordon
Dewar, Donald McNamara, Kevin
Dixon, Don MacShane, Denis
Donohoe, Brian H. McWilliam, John
Dowd, Jim Madden, Max
Dunnachie, Jimmy Maddock, Mrs Diana
Dunwoody, Mrs Gwyneth Mahon, Alice
Eagle, Ms Angela Mandelson, Peter
Enright, Derek Marek, Dr John
Etherington, Bill Marshall, David (Shettleston)
Evans, John (St Helens N) Martin, Michael J. (Springburn)
Ewing, Mrs Margaret Martlew, Eric
Fatchett, Derek Maxton, John
Field, Frank (Birkenhead) Meacher, Michael
Fisher, Mark Michael, Alun
Foster, Rt Hon Derek Michie, Bill (Sheffield Heeley)
Foster, Don (Bath) Michie, Mrs Ray (Argyll Bute)
Fyfe, Maria Milburn, Alan
Galloway, George Miller, Andrew
Gapes, Mike Moonie, Dr Lewis
Garrett, John Morgan, Rhodri
George, Bruce Morley, Elliot
Gerrard, Neil Morris, Rt Hon J. (Aberavon)
Gilbert, Rt Hon Dr John Mowlam, Marjorie
Godman, Dr Norman A. Mudie, George
Godsiff, Roger Mullin, Chris
Golding, Mrs Llin Murphy, Paul
Gordon, Mildred Oakes, Rt Hon Gordon
Graham, Thomas O'Brien, Michael (N W'kshire)
Grant, Bernie (Tottenham) O'Brien, William (Normanton)
Griffiths, Nigel (Edinburgh S) O'Hara, Edward
Griffiths, Win (Bridgend) Olner, William
Gunnell, John O'Neill, Martin
Hall, Mike Orme, Rt Hon Stanley
Hanson, David Parry, Robert
Hardy, Peter Patchett, Terry
Harman, Ms Harriet Pickthall, Colin
Harvey, Nick Pike, Peter L.
Pope, Greg Spearing, Nigel
Powell, Ray (Ogmore) Spellar, John
Prentice, Ms Bridget (Lew'm E) Squire, Rachel (Dunfermline W)
Prentice, Gordon (Pendle) Steinberg, Gerry
Prescott, John Stevenson, George
Primarolo, Dawn Stott, Roger
Purchase, Ken Strang, Dr. Gavin
Quin, Ms Joyce Taylor, Mrs Ann (Dewsbury)
Randall, Stuart Turner, Dennis
Raynsford, Nick Tyler, Paul
Reid, Dr John Vaz, Keith
Robertson, George (Hamilton) Walker, Rt Hon Sir Harold
Robinson, Geoffrey (Co'try NW) Waller, Gary
Roche, Mrs. Barbara Wareing, Robert N
Rogers, Allan Watson, Mike
Rooker, Jeff Williams, Rt Hon Alan (Sw'n W)
Rowlands, Ted Williams, Alan W (Carmarthen)
Ruddock, Joan Wilson, Brian
Sedgemore, Brian Winnick, David
Shore, Rt Hon Peter Wise, Audrey
Short, Clare Worthington, Tony
Simpson, Alan Wray, Jimmy
Skinner, Dennis Wright, Dr Tony
Smith, Andrew (Oxford E) Young, David (Bolton SE)
Smith, C. (Isl'ton S & F'sbury)
Smith, Llew (Blaenau Gwent) Tellers for the Ayes:
Snape, Peter Mr. Eric Illsley and
Soley, Clive Mr. Alan Meale.
Ainsworth, Peter (East Surrey) Clifton-Brown, Geoffrey
Aitken, Jonathan Coe, Sebastian
Alison, Rt Hon Michael (Selby) Conway, Derek
Amess, David Coombs, Anthony (Wyre For'st)
Arbuthnot, James Coombs, Simon (Swindon)
Arnold, Jacques (Gravesham) Cope, Rt Hon Sir John
Arnold, Sir Thomas (Hazel Grv) Couchman, James
Ashby, David Cran, James
Atkins, Robert Curry, David (Skipton & Ripon)
Atkinson, Peter (Hexham) Davies, Quentin (Stamford)
Baker, Rt Hon K. (Mole Valley) Davis, David (Boothferry)
Baker, Nicholas (Dorset North) Day, Stephen
Baldry, Tony Deva, Nirj Joseph
Banks, Matthew (Southport) Devlin, Tim
Banks, Robert (Harrogate) Dickens, Geoffrey
Bates, Michael Dicks, Terry
Bellingham, Henry Dorrell, Stephen
Bendall, Vivian Douglas-Hamilton, Lord James
Biffen, Rt Hon John Dover, Den
Blackburn, Dr John G. Duncan, Alan
Body, Sir Richard Duncan-Smith, Iain
Bonsor, Sir Nicholas Dunn, Bob
Booth, Hartley Durant, Sir Anthony
Boswell, Tim Dykes, Hugh
Bowden, Andrew Elletson, Harold
Bowis, John Emery, Rt Hon Sir Peter
Boyson, Rt Hon Sir Rhodes Evans, David (Welwyn Hatfield)
Brandreth, Gyles Evans, Jonathan (Brecon)
Brazier, Julian Evans, Nigel (Ribble Valley)
Bright, Graham Evans, Roger (Monmouth)
Brown, M. (Brigg & Cl'thorpes) Evennett, David
Browning, Mrs. Angela Faber, David
Bruce, Ian (S Dorset) Fabricant, Michael
Budgen, Nicholas Fairbairn, Sir Nicholas
Burns, Simon Fenner, Dame Peggy
Burt, Alistair Field, Barry (Isle of Wight)
Butcher, John Fishburn, Dudley
Butler, Peter Forman, Nigel
Butterfill, John Forsyth, Michael (Stirling)
Carlisle, John (Luton North) Forth, Eric
Carlisle, Kenneth (Lincoln) Fox, Dr Liam (Woodspring)
Carrington, Matthew Fox, Sir Marcus (Shipley)
Carttiss, Michael Freeman, Rt Hon Roger
Cash, William French, Douglas
Channon, Rt Hon Paul Fry, Sir Peter
Chapman, Sydney Gale, Roger
Churchill, Mr Gallie, Phil
Clappison, James Gardiner, Sir George
Clark, Dr Michael (Rochford) Garel-Jones, Rt Hon Tristan
Clarke, Rt Hon Kenneth (Ruclif) Garnier, Edward
Gill, Christopher Mills, Iain
Gillan, Cheryl Mitchell, Andrew (Gedling)
Goodson-Wickes, Dr Charles Mitchell, Sir David (Hants NW)
Gorman, Mrs Teresa Moate, Sir Roger
Gorst, John Montgomery, Sir Fergus
Grant, Sir A. (Cambs SW) Moss, Malcolm
Greenway, Harry (Ealing N) Nelson, Anthony
Greenway, John (Ryedale) Neubert, Sir Michael
Griffiths, Peter (Portsmouth, N) Newton, Rt Hon Tony
Grylls, Sir Michael Nicholls, Patrick
Gummer, Rt Hon John Selwyn Nicholson, David (Taunton)
Hague, William Nicholson, Emma (Devon West)
Hamilton, Rt Hon Sir Archie Norris, Steve
Hamilton, Neil (Tatton) Onslow, Rt Hon Sir Cranley
Hampson, Dr Keith Oppenheim, Phillip
Hanley, Jeremy Ottaway, Richard
Hannam, Sir John Page, Richard
Hargreaves, Andrew Paice, James
Harris, David Patnick, Irvine
Haselhurst, Alan Patten, Rt Hon John
Hawkins, Nick Pattie, Rt Hon Sir Geoffrey
Hawksley, Warren Pawsey, James
Hayes, Jerry Peacock, Mrs Elizabeth
Heald, Oliver Porter, Barry (Wirral S)
Heathcoat-Amory, David Porter, David (Waveney)
Hendry, Charles Portillo, Rt Hon Michael
Hicks, Robert Redwood, Rt Hon John
Higgins, Rt Hon Sir Terence L. Renton, Rt Hon Tim
Hill, James (Southampton Test) Riddick, Graham
Hogg, Rt Hon Douglas (G'tham) Robathan, Andrew
Horam, John Roberts, Rt Hon Sir Wyn
Hordern, Rt Hon Sir Peter Robertson, Raymond (Ab'd'n S)
Howard, Rt Hon Michael Robinson, Mark (Somerton)
Howarth, Alan (Strat'rd-on-A) Roe, Mrs Marion (Broxbourne)
Howell, Rt Hon David (G'dford) Rowe, Andrew (Mid Kent)
Howell, Sir Ralph (N Norfolk) Rumbold, Rt Hon Dame Angela
Hughes Robert G. (Harrow W) Ryder, Rt Hon Richard
Hunt, Rt Hon David (Wirral W) Sackville, Tom
Hunt, Sir John (Ravensbourne) Sainsbury, Rt Hon Tim
Hunter, Andrew Scott, Rt Hon Nicholas
Jack, Michael Shaw, David (Dover)
Jackson, Robert (Wantage) Shephard, Rt Hon Gillian
Jenkin, Bernard Sims, Roger
Jessel, Toby Skeet, Sir Trevor
Johnson Smith, Sir Geoffrey Smith, Sir Dudley (Warwick)
Jones, Gwilym (Cardiff N) Soames, Nicholas
Jones, Robert B. (W Hertfdshr) Speed, Sir Keith
Jopling, Rt Hon Michael Spencer, Sir Derek
Key, Robert Spicer, Michael (S Worcs)
King, Rt Hon Tom Spink, Dr Robert
Kirkhope, Timothy Spring, Richard
Knapman, Roger Sproat, Iain
Knight, Mrs Angela (Erewash) Squire, Robin (Hornchurch)
Knight, Greg (Derby N) Stanley, Rt Hon Sir John
Knight, Dame Jill (Bir'm E'st'n) Steen, Anthony
Knox, Sir David Stephen, Michael
Kynoch, George (Kincardine) Stern, Michael
Lait, Mrs Jacqui Stewart, Allan
Lang, Rt Hon Ian Streeter, Gary
Lawrence, Sir Ivan Sumberg, David
Legg, Barry Sweeney, Walter
Lennox-Boyd, Mark Sykes, John
Lidington, David Tapsell, Sir Peter
Lightbown, David Taylor, Ian (Esher)
Lilley, Rt Hon Peter Taylor, John M. (Solihull)
Lloyd, Rt Hon Peter (Fareham) Taylor, Sir Teddy (Southend, E)
Lord, Michael Temple-Morris, Peter
Luff, Peter Thomason, Roy
Lyell, Rt Hon Sir Nicholas Thompson, Sir Donald (C'er V)
MacGregor, Rt Hon John Thompson, Patrick (Norwich N)
McLoughlin, Patrick Thornton, Sir Malcolm
McNair-Wilson, Sir Patrick Thurnham, Peter
Mans, Keith Townend, John (Bridlington)
Marlow, Tony Townsend, Cyril D. (Bexl'yh'th)
Marshall, John (Hendon S) Tracey, Richard
Marshall, Sir Michael (Arundel) Tredinnick, David
Martin, David (Portsmouth S) Trend, Michael
Mates, Michael Trotter, Neville
Mawhinney, Rt Hon Dr Brian Twinn, Dr Ian
Merchant, Piers Vaughan, Sir Gerard
Walden, George Winterton, Nicholas (Macc'f'ld)
Walker, Bill (N Tayside) Wolfson, Mark
Wardle, Charles (Bexhill) Wood, Timothy
Waterson, Nigel Yeo, Tim
Watts, John Young, Rt Hon Sir George
Whitney, Ray
Whittingdale, John Tellers for the Noes:
Widdecombe, Ann Mr. Andrew MacKay and
Wiggin, Sir Jerry Mr. Bowen Wells.
Wilkinson, John

Question accordingly negatived.

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