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Legislative and Regulatory Reform Bill

moved Amendment No. 30: After Clause 1, insert the following new clause- ““DISAPPLICATION OF EUROPEAN COMMUNITIES ACT 1972 (1) An order made under Part 1 containing provision relating to Community Treaties, Community instruments or Community obligations shall, notwithstanding the European Communities Act 1972 (c. 68), be binding in any legal proceedings in the United Kingdom. (2) In subsection (1)- ““Community instruments”” and ““Community obligations”” have the same meaning as in Part 2 of Schedule 1 to the European Communities Act 1972; ““Community Treaties”” has the same meaning as insection 1(2) of the European Communities Act 1972.”” The noble Lord said: I had an opportunity of trailing this new clause the other day, so I shall try not to dwell too long on what I said then. Most of the regulatory burden on business has its origin in Europe, and many may think that a deregulatory initiative that does not recognise that fact is little more than window dressing. The Government said that better and less regulation was a priority of the EU, but the figures that they cite in support of that proposition show nothing of the sort. At Second Reading, the noble Lord, Lord Bassam, said that the Commission had dropped more than 65 proposed pieces of legislation and had undertaken to simplify up to 1,400 pieces of legislation. In plain English, that means that while some measures in the pipeline are not going to be taken any further, there are no plans whatever to repeal any existing legislation. The noble Lord, Lord Bassam, seems reluctant to admit that to the best of my knowledge not one single measure introduced by the Commission over the years has ever been repealed. That is hardly surprising. If you have a system under which only the Commission can introduce legislation, it is only the Commission that can introduce repealing legislation, and it is not in its nature to do so. Where does that leave us? Have we just to accept that a burden placed on business is irremovable, and there is nothing to be done about it if that burden has been placed as a result of a decision in Europe? I suggest that if Parliament so wills, there is something we can do about it, and this new clause points the way. If the new clause is accepted, three things will happen. First, it will be plainly stated in legislation—for the first time, I think —that the 1972 Act, although of great importance, is no different from any other Act of Parliament. With the European Communities Act 1972, there was, in the words of noble and learned Lord, Lord Bridge of Harwich, in the Factortame case, a voluntary surrender of sovereignty. What has been given, however, can be taken away. The Act can be repealed by any other Act, and other legislation can disapply it in specified cases. It is no bad thing for Parliament to assert that fact. If it does not, the time may come when the courts say, ““It’s too late to assert that the 1972 Act is like any other Act; too late to ask the courts to affirm a law which contradicts a treaty obligation, even if Parliament states in plain and unambiguous terms that that is the law’s intent””. I must emphasise that the new clause is not an invitation to the Government to break our EU treaty obligations. It is a reminder that Parliament is sovereign and can, by appropriate legislation, override earlier legislation, none of which is entrenched, and can certainly, if it so wishes, use machinery such as is provided in the Bill to make laws relating to Community obligations. The clause does not attack the 1972 Act, but merely states that, notwithstanding what is contained in the 1972 Act, a Minister may make an order removing or reducing a burden of the type referred to in Clause 1, and we can ensure by the use of clear and unambiguous words that the order is binding in any legal proceedings in the United Kingdom. The new clause is a timely reminder of Parliament’s rights—an assertion of Parliament’s sovereignty. Secondly, I want to be sure that a Minister is able to make a legally binding and effective deregulation order where the original order was made in purported compliance with the 1972 Act, but in fact went further than was necessary to meet our EU obligations. Surely the Bill should make it clear that a new order could be brought into force doing no more than is strictly necessary to comply with the EU law. When we were last in Committee the noble Lord, Lord Bassam, seemed to be suggesting that the powers in this Bill could be used to get rid of what is often called ““gold-plating””. I suppose it depends what one means by gold-plating, but I want to make absolutely sure that a Minister will have the power to revisit regulations that have been made under the 1972 Act, but which on later consideration are thought to go further than necessary to meet the Community obligation in point. The new clause would give that assurance. I can give two examples where the new clause might be helpful. One example of how the power might be used is in relation to the droit de suite directive, which gives artists the right to a cut when their works are resold. Although the Government opposed the directive, and it was imposed on us only by majority voting, the Minister did not take what many might have thought was the obvious course of implementing the directive to the letter, but proceeded to enlarge its scope dramatically by applying it to transactions of far less value than those covered by the agreed scheme. This provision could be used to take the regulations back to what is strictly required. Another example was highlighted by a case in the Court of Appeal the other day. Under the EU regulations, boats less than 10 metres in length do not have to keep records of their fish catches. In Britain there is no such exemption for small boats. In that way Defra makes the common fisheries policy even more onerous than is necessary for many of our fishermen, and ensures, incidentally, not that fish stocks are preserved but that the fish are caught not by British fishermen but by those of other nations. This new clause is an assertion of sovereignty and would meet the need to ensure that the Bill’s machinery can be used in respect of orders made under the 1972 Act, in particular when an order has gone further than is necessary to meet the Community obligation. Finally, the new clause would enable the Government in an exceptional case, and after appropriate negotiations, to say to our partners in Europe and/or the Commission, that we insist on deregulating on our own terms and propose to make such deregulatory law binding on the judiciary in this country, notwithstanding the 1972 Act. I submit that that is a common-sense approach. It lacks common sense and it is an insult to Parliament to say that what is done in Europe, however absurd it may be, is inevitable and that in no circumstances can Parliament touch it. With that I could never agree. I beg to move.