Regulatory Reform Bill [H.L.]
Lord Falconer of Thoroton (Minister of State, Cabinet Office; Labour)
I am sure it is. Perhaps I may deal with the Bill. Orders under the Bill would be able, and indeed should be able, to make widescale reform to outdated, overcomplex and overburdensome regimes. These are reforms that would otherwise have to wait for a slot in the legislative programme. I am sure that the noble Baroness agrees that, if such reforms were to be enacted via a Bill, such a Bill would undoubtedly require certain aspects of the reform to be implemented via subordinate provision, such as where a further order might be required.
For example, it will frequently not make much sense for the precise level of a fee, the layout of a written licence or other procedures to be frozen in time on the face of an order. We need the flexibility to be able to change such provisions. The accepted parliamentary route for this--this touches on the point of the noble Lord, Lord Skelmersdale, about its inadequacy--is via subordinate provisions. It would be wrong to require the super-affirmative procedure when what one wanted to do, for example, was to change the level of a fee or change the layout of a licence.
The technical case, therefore, for including such orders as subordinate provisions to RROs is practical, clear and strong. However, I fully understand that the objection of the noble Baroness is based on the appropriateness of having such a provision in what is secondary legislation. Her point is that it is secondary legislation on secondary legislation. While I understand that point, I do not agree with it. I feel strongly that the Bill as it stands contains sufficient safeguards to ensure that delegated power under RROs is, first, used appropriately, and, secondly, for reasons I will turn to in a moment, is done only in the appropriate form; for example, employing either the negative or affirmative procedure where appropriate.
Under Clause 4, an order would have to show clearly what was to be included as a subordinate provision order. Subsection (4) lays down that Parliament must see exactly what is proposed. There is no way that the Government could put forward a "skeleton" order whereby all the details were laid down in subordinate provision. The Bill calls for transparency and clarity. Again, it would be for the committees in both Houses and each Chamber of Parliament to decide what is and what is not appropriate to be included as a subordinate provision. The Government do not have a free hand to do as they like.
A separate issue was raised by my noble friend Lord Borrie, which he previewed in his speech on Second Reading. Like him, I look forward to the power in the Bill being used to enact many worthwhile and wide-ranging reforms. However, both he and the noble Baroness have raised the issue which was raised by the committee in another place.
The Government have considered carefully the arguments that have been put forward in the issue. We are persuaded that we should make the change that my noble friend Lord Borrie proposes in relation to subordinate provisions in regulatory reform orders. That means that they can be approved either by the negative or affirmative procedure, which means that the committees in both Houses would be able to express views about the matter. As noble Lords know, it is invariably the case that the Government accept the view of those committees.
I very much hope that that meets the quite legitimate concerns raised by the noble Baroness, Lady Buscombe, about the procedure and the point raised by my noble friend Lord Borrie. It would be convenient for me to indicate that I accept Amendment No. 45, so that we can treat it as having been dealt with.
Perhaps I may deal with the much broader point raised by the noble Lord, Lord Skelmersdale. He is right that the Joint Committee on Statutory Instruments does not deal with policy. However, if the House decides to subject subordinate provisions to the JCSI it will consider the statement to which the noble Baroness, Lady Buscombe, objects. That does not provide much of an answer. In terms of the principle, I cannot take the matter much further forward. It is for both Houses separately to consider whether or not they think the Joint Committee on Statutory Instruments requires reform or change in the way it operates. We are rightly considering in considerable detail whether or not the procedures that we propose which flow from the Bill will be adequate to provide protection in relation to regulatory reform orders. I am not in a position to take the matter much further forward in relation to the Joint Committee on Statutory Instruments.