Legislative and Regulatory Reform Bill

In one of the more arcane Committee debates, it was discovered that the words ““local Act”” included Acts of Parliament relating to universities, so as new clause 19 still includes those words I declare my interest as a fellow of a Cambridge college and a university reader. The hon. Member for Stone (Mr. Cash) is right: in the end, it comes down to a political, diplomatic choice. It is perfectly open to the House to repeal section 2 of the European Communities Act 1972 either in whole or in part, and to do whatever it wants with our relationship with Europe. I would not deny any part of his speech when he was making those remarks, but the question is whether those actions would be wise and on that matter he and I might disagree. I agree with my hon. Friend the Member for Somerton and Frome (Mr. Heath) that the best amendment in the group is Government amendment No. 10, which removes clause 1—a very good thing to remove. It is an extraordinary provision that allowed the Government to change any primary legislation at will. The theory that the Government appear to be following, and which they appeared to be following last Wednesday night when we were discussing House of Lords reform, is that by their mere existence as the Government they are entitled to whatever legislation they want. But that is not the constitutional theory on which this country is based. Parliament legislates, not the Government. Another point that we tried to make in Committee, and a mistake into which the Minister appeared to be slipping today, is that it is not the motives of Ministers, or those of the Government that matter, but what the Bill actually says. In that regard, new clause 19 is still defective in two ways. The first is that there is still no control over the subject matter to which the Bill applies. As the hon. Member for Stoke-on-Trent, Central (Mark Fisher) said, under subsection (6) the provision applies, in principle, to all legislation. In principle, the abolition of jury trial, for example, can be achieved under the Bill by statutory instrument. If new clause 26, which prevents the use of the Bill for amendments to the measure itself and to the Human Rights Act 1998, were passed, even that would not protect jury trial because the Human Rights Act does not in terms, or by implication, protect jury trial. That aspect of our legal tradition is not protected by the European convention on human rights or by our incorporation of it into our law. The right hon. and learned Member for Rushcliffe (Mr. Clarke) said that outlandish possibilities were being discussed, but the erosion of the right to trial by jury by the Labour Government is far from an outlandish possibility. Indeed, every time the Prime Minister talks about changing the balance in the criminal justice system he means measures of that sort. A second reason why control over subject matter is important is that it would still be possible under new clause 19 to institute major constitutional change by statutory instrument as long as a Minister considered that it would relieve or reduce burdens. That might include abrogation of section 2 of the European Communities Act and would certainly include matters such as the radical reform of local government, which should, in my view, be achieved only by primary legislation. Although the new clause is welcome, it needs to go much further in a number of ways. In a later group, we shall discuss new clause 16, which deals directly with subject matter, but there are other problems with the measure. The second major problem is the subjective test. The new clause, like the original provision, leaves the decision about whether use of the Bill is appropriate in the hands of the Minister—if the Minister considers that the conditions for its use are fulfilled. The Minister might consider that jury trial—to take that example again—constitutes an administrative or financial burden. It is right that the new clause excludes from the scope of the Bill burdens on Ministers and Departments, but a Minister could easily consider that jury trial imposed burdens on employers, by removing employees from their workplace for the duration of a trial. It is important to recognise the weakness of the subjective test under the new clause. Our amendment (a) would strengthen that test by inserting the word ““reasonably””, the effect of which would be to heighten the bar over which the Minister must leap to entitle him to use the Bill. In the longer term, the provision would give the courts clearer guidance when considering new orders under judicial review.