My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.--(Lord Falconer of Thoroton.)
In rising to move Amendment No. 38 I should like to speak also to Amendment No. 40. Subsections (3) to (7) of Clause 4 provide for subordinate provisions of orders to be amended by negative resolution procedure. We on this side of the Committee are very concerned about the potential for abuse by the use of that procedure. As presently drafted, the clause allows a Minister to designate certain provisions in an order as subordinate provisions for the purpose of that clause. There is no indication as to what provisions in an order can be subordinate.
The Minister can designate any provisions that he chooses to be subordinate provisions. Those subordinate provisions can then be modified and, more worryingly, the Minister can add other provisions relating to the modifications. All the Minister need do is to state in the order that the order makes only provision which either modifies the subordinate provisions of an order previously made or is incidental, consequential, transitional or supplemental to the modification. All that the Minister is required to do is to make the statement in the order. The Minister may be completely wrong, but that is irrelevant. The only requirement for making a subordinate provisions order is that it contains the relevant statement specified in subsection (4), however wrong that statement may be. The subordinate provisions order is then subject only to the negative resolution procedure. The result is that the provisions may become law on the mere say so of a Minister, however wrong he may be. There is then little that this Chamber can do about it. We believe that that is unacceptable.
In its second special report the Deregulation Committee in another place expressed similar concerns. The committee also said that the clause opened up potential for abuse and that Ministers would be able to avoid subjecting proposals to amend subordinate provisions to the rigorous scrutiny which the affirmative order procedure provided. The committee believed that Parliament would be unwise to accept that procedure. It concluded that the negative resolution procedure was not appropriate in the circumstances and should be withdrawn from the Bill before its introduction. Despite those helpful comments, the Government have ignored those recommendations.
I turn next to paragraph 8 of the Explanatory Notes in which it is said that on no occasion has a Minister ignored an adverse report from either committee. The notes go on to say that the Government intend to continue this practice in their use of regulatory reform orders, and the Minister reaffirmed that intention. Those words are hollow in light of the fact that the Government have ignored the recommendation of the Deregulation Committee that Clause 4(6), which applies the negative resolution procedure to subordinate provisions, should be withdrawn.
I have, however, digressed to an extent, because the negative resolution procedure does not involve seeking the views of the Deregulation Committee. However much that committee may oppose these orders, it is powerless; and it now appears that if it expresses a view it may well be ignored. It is our view that subsections (3) to (7) should be deleted from the Bill. I beg to move.
I have listened with considerable interest to the noble Baroness. She will have noticed that shortly the Committee will turn to Amendment No. 45 in my name. Some of the remarks that I might have made then can be made now in opposition to the noble Baroness's observations. The noble Baroness suggests that there no basis for that part of Clause 4 which deals with subordinate provisions. She takes to extreme the views of the House of Commons, which up to a point are well justified; indeed, I flagged them up during Second Reading. The main argument against the case advanced by the noble Baroness is that in a regulatory reform Bill there are likely to be details relating to administrative forms and fees which a subsequent government may wish to alter. To suggest that that should be done by the super-affirmative resolution procedure to preserve the very proper parliamentary accountability which we desire is an exaggerated precaution. When the Committee comes to Amendment No. 45 I shall argue that that is adequate to deal with the variation of possibilities as to how important the special provisions are. I believe that that is a better procedure than to do away altogether with those parts of the clause which deal with special provisions.
The Bill is bedevilled with derogations from the unwritten constitution and, put simply, the way in which we have been traditionally governed. These amendments point to yet another such derogation. The recommendations of the committee have been ignored. The process has not yet hardened into a convention that such recommendations should be observed by government, but it is moving in that direction and these provisions are a derogation from it. For that reason I support the amendments.
For the past eight years of my parliamentary life I have been part of a fairly flimsy bulwark against an increasingly over-powerful executive in the shape of my position on the Joint Committee on Statutory Instruments where the orders dealt with in the two amendments would fall to be considered. It is all very well for the original orders which pass through the super-affirmative procedure outlined in the Bill to allow supplementary orders to be made by negative resolution, and to that extent I disagree with my noble friend on the Front Bench. The problem is that the vetting procedure in the Joint Committee is not, and never has been, good enough. I have lost count of the times I have been told that I cannot pursue through our legal advisers questions to a department of state because their view is that the questions relate to policy.
There will be policy matters in these subordinate orders. Therefore, there will be no proper vetting. Until the system is changed--and I should like to hear from the noble and learned Lord whether he has any proposals to change the system--these orders will be plain unsatisfactory.
This is an important area of the Bill. I am grateful to the noble Baroness, Lady Buscombe, for giving us the opportunity to discuss whether it is appropriate, first, that there should be provision for subordinate legislation under regulatory reform orders; and, secondly, what the correct procedure is to deal with them.
I understand the question of the noble Lord, Lord Skelmersdale, to be directed not just at RROs but at subordinate legislation generally. It is not a narrow question focused simply on the subordinate provision here.
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.
I understand the noble and learned Lord only too well. But, with the greatest of respect, that is more than a little of a cop-out. The problem is that although the Joint Committee reports to both Houses on--I am glad to say--an increasingly regular basis, and therefore usually within the 40 days praying time for individual instruments, the reports are seldom acted upon. Indeed, all the Joint Committee can do is to express doubt as to, for example, the vires. I suspect that is where the noble and learned Lord's real answer comes in. It is whether or not the negative resolution order which goes to the Joint Committee is within the vires of the super-affirmative order proposed under the Bill.
The position is unsatisfactory. But if we do not keep niggling away at the matter, we will never do anything about it. I hope that the noble and learned Lord will give some consideration to talking about this very serious matter within government because it desperately needs to be dealt with.
I take the point made by the noble Lord, Lord Skelmersdale. It applies, as he readily acknowledged earlier in the exchange, to all statutory instruments. He is much better equipped than I to judge the extent to which the problem needs to be addressed. While it is important for government to consider the problem, it is ultimately a matter for Parliament to decide how it is dealt with. In the meantime, I do not think the conclusion from the general point he raises is that it would be wrong to have subordinate provisions in RROs if the arguments otherwise supported that. I regard it as a legitimate opportunity for him to raise the matter.
Having dealt with the points raised by the noble Baroness and having regard to our acceptance of the amendment proposed by my noble friend Lord Borrie, I hope the noble Baroness will withdraw her amendment.
I thank the noble and learned Lord for his response. If it is correct that this amendment, which he proposes to accept, has been tabled by the noble Lord, Lord Borrie, and if the committee is to decide the division between the two categories, that is a helpful concession. However, perhaps the noble and learned Lord will clarify whether, in the event that the committee takes a different view from that of the Minister, the Minister will be bound to accept that view.
The position would be as it is at the moment. The Minister is entitled to propose the terms of a statute or an order. Both committees then give advice on those terms. The Minister in either House is not bound to accept the views expressed by the committee. My experience is that as a matter of practice we almost invariably accept the advice of the committee, but if the Minister was minded to reject the advice, it would then be for each House to decide whether or not it was prepared to accept it. I make it clear that the provisions of the Bill do not require acceptance. If a draft Bill proposes a delegated order-making power, the Delegated Powers and Deregulation Committee will give advice on it, which the Minister is not bound to accept, though he almost invariably will. If he does not accept it, the House must decide whether or not to allow that provision, where the Minister is acting against the advice of the Delegated Powers and Deregulation Committee.
I apologise for intervening at this point. The noble and learned Lord will be aware that this has been an important matter of interest to your Lordships' House ever since the establishment of the Delegated Powers Scrutiny Committee, as it used to be. This matter was raised in the margins of the central argument of yesterday's debate, initiated by the noble and learned Lord, Lord Simon of Glaisdale. I was most interested to hear the reply of the noble and learned Lord the Attorney-General to that debate, who substantially echoed what the Minister has just said.
To what extent do the Government say that we are developing a new constitutional convention, which, in practical terms, would mean that any government would be forced to accept the strictures of the Select Committee on Delegated Powers and Deregulation, and that the performance of this and the previous government would make it impracticable for governments to resist the strictures of those committees, since certainly this House is increasingly disinclined to encourage the government of the day to buck that particular recommendation?
I am loath to discuss the question of constitutional convention. I am, however, keen to describe what the practice has been. Constitutional conventions do not arise from what people say but from what institutions do. All one can do at this stage is consider what this House, interacting with the committee, has done. I am not in a position to say that it has never overridden a view of the Delegated Powers and Deregulation Committee. I expect that on occasions it has done so, albeit rarely. I do not want to comment on whether or not there is a constitutional convention. I simply direct the attention of the Committee to what the practice has been.
Perhaps I may make one point that I omitted to mention in my speech, which has nothing whatever to do with the question that we have just discussed. On Tuesday this week I referred to paragraph 26(2) of Schedule 2 to the Financial Services Act. I said that that was an example of the statement-type provision for subordinate provisions frequently used in parliamentary drafting--the Minister making a statement that the order contains a statement. However, I am advised that I may have overstated the position in saying that it was frequently used in parliamentary drafting. I therefore wish to correct that impression. I apologise for misrepresenting the position on Tuesday.
Before the noble and learned Lord sits down, if we are not to discuss the constitution, we can put it aside for a moment. As I understand it, the noble and learned Lord agrees that he proposes to introduce a procedure that has not previously been introduced. That is common ground. It is also to be implemented in a manner in which it has not previously been implemented. Having listened very carefully to the noble and learned Lord, I understand that the Minister is not bound by this procedure. Does the noble and learned Lord agree that it appears to require a fairly high degree of scrutiny?
With respect, I was not suggesting that I was not prepared to discuss the constitution. It is very important that I should discuss the constitution. In answer to the noble Viscount, Lord Cranborne, I said that I shall not say whether or not there is a constitutional convention but that we should look to it.
With regard to whether this is a new procedure, the super-affirmative order process has existed since 1994. We have taken it pretty well lock, stock and barrel from the 1994 Act. What is new is that under an RRO it is now possible to have a provision which states that they are subordinate provisions. It is a matter for the Minister, when proposing that order, to decide whether it is negative or affirmative, and the committee will then look at that issue just as it would in relation to a piece of primary legislation. To that extent, it is new, but it is a process in primary legislation with which the committee and the House are familiar. It is on that basis that the House must make a judgment about its appropriateness.
I thank the Minister for his response. I also accept his apology with regard to the paragraph in the Financial Services Act that was mentioned in debate earlier in Committee. I shall not pursue this point further at this stage. I shall listen with care to what the Minister says in response to Amendment No. 45 standing in the name of the noble Lord, Lord Borrie. We may well return to this point on Report. On that basis, I beg leave to withdraw the amendment.
Perhaps I should start by acknowledging that my amendment, if agreed to by the Committee, would represent a fundamental change to the structure of the Bill. I also accept that it can be justified only if I can establish a real need for it. I beg your Lordships' indulgence in endeavouring to do that.
I say at the outset that my amendment does not constitute a novelty. At least 10 previous Acts of Parliament have incorporated a right of Parliament to amend any secondary legislation flowing from them. In a nutshell, this amendment is designed to restore to ordinary Members of this House a real, as opposed to a phantasmagorical, power over a limited range of statutory instruments, by allowing Parliament to amend, rather than only being able wholly to reject, an order which imposes a new burden on any citizen under the powers in Clause 1(1)(b) and (c).
The backdrop, of course, is that more and more legislation is effected by secondary legislative measures. Were it not for the excellent work of the Delegated Powers and Deregulation Committee, for which I have very high praise, there would in recent times have been passed a whole series of skeleton Bills, the guts of which would have been left to legislation by secondary means.
The scale is immense. About 3,000 statutory instruments are enacted every year, divided roughly half and half between negative instruments and those requiring affirmative approval. That represents a doubling of negative instruments every 15 years or so and a 50 per cent increase in those requiring the affirmative procedure in the same time-scale. Those are crude statistics.
In a most learned and enlightening annual lecture given to the Statute Law Society last May, the Clerk to the Delegated Powers and Deregulation Committee--note that position--Philippa Tudor, asked, "Is secondary legislation second class or crucial?" She answered both questions in the affirmative. She noted that there was,
"widespread agreement that Parliament's consideration of secondary legislation is second rate".
She pointed out that there is,
"a huge democratic deficit in current parliamentary scrutiny arrangements".
I may say that her lecture was given after the main report of her committee on this Bill, since when the Government have made changes to their draft Bill.
Those are words that one could find echoed far and wide among the limited community of those who give close attention to secondary legislation, which community, if we are honest, does not include anything like the majority of Peers and MPs. At present, as the Government have not ceased to repeat, either House of Parliament has the theoretical power to reject any secondary legislation. However, the simple fact is that that has happened only once in the past 30 years, during which time more than 50,000 statutory instruments have flooded through this Palace, hugely swollen, of course, by European Union requirements.
Why are we apparently so supine? First and foremost, many--I would be one--would have to admit that even the primary law-making functions of this House are, if not out of control, on the very brink of overload. That, I hasten to add, is not for lack of interest or conscientiousness, but a function of the amount and complexity of legislation and the many other duties which we are invited to shoulder.
I do not think that there can be any doubt but that the main reason why secondary legislation is not turned back is that, with most Peers already preoccupied with main Bills and committees, it is not in practice possible to get enough of us into the House when secondary legislation is being considered--often on a Friday--to have any chance of defeating the Government. The stark fact of only one turn-back in 30 years speaks for itself.
Secondly, the all or nothing rule--only outright rejection but no amendment--invariably serves to kill off any residual possibility of successful opposition to an instrument. Legislators in this House are reluctant to contemplate adopting such a drastic strategy, by which I mean outright rejection, especially if, as would often be the case, one would be throwing out the baby with the bath water. The debate on human embryology last Monday was a quite exceptional event and illustrated, if one needed it, that governments have no scruple about introducing highly contentious and fundamentally important matters via secondary procedures.
But, the Government tell us, we have the Delegated Powers and Deregulation Committee to deal with these problems. On Tuesday, the noble and learned Lord, Lord Falconer, more than once took us through the stages by which consultation and committee scrutiny must proceed before any parliamentary consideration takes place. I accept that the super-affirmatory system is a real protection against breach of ultra vires or more general compliance. But, if I may say so, the Government are more easily satisfied with the committee than I am, and as I believe Back-Benchers in this House should be. To paraphrase the infamous saying, "They would be, wouldn't they?".
I call in aid of my concern the main 15th report of the Select Committee last May on the Bill. It said:
"We are conscious that the Government regards two Parliamentary Deregulation Committees as valuable protections against the abuse of this unprecedently wide power. In particular, it contemplates the two Committees deciding whether the use of the power is appropriate. Clearly the Committee would provide some protection. But from our own standpoint we do not consider--however flattering it might be to do so--that the fact that we carry out this work to the best of our ability within the existing framework is lasting protection against the misuse of the extremely wide powers now proposed".
In the same paragraph--paragraph 39--the committee went on to point out that although to date governments have acted on the committee's recommendations, they are,
"not obliged to do so, but only to take account of our reports".
It then went on to point out that although this Government say that they intend to continue that practice, that,
"is a promise given only on behalf of the present Government, and not its successors".
It thus concluded, in paragraph 45, that,
"the main issue which the present draft Bill raises--the considerable widening of the powers to legislate by order--is one for the House as a whole to decide".
But there are other considerations too. The Delegated Powers and Deregulation Committee is made up of no more than eight or nine Peers. However distinguished and however conscientious--and they are--they sit on a cross-party basis, and can in no way be a substitute for the knowledge and wisdom of their 700 colleagues; nor would they pretend to be.
Secondly, although the committee's terms of reference are wide and have, as a matter of government undertaking, been extended in this Bill to include whether or not the provisions of a regulatory order are "appropriate", they do not extend to the policy or political issues. They would allow the committee to look, for example, at whether the order satisfies the requirements of proportionality, necessary protection and reasonable expectation, but not at whether the Bill was politically misconceived or mischievous. In this respect the remit of the committee is seriously delimited. I also doubt whether its judgment on what is or is not "politically controversial"--because we are assured that this legislation will not be used if an order would be--is any substitute for the view of the whole House.
It is also a fact that the committee is almost invisible beyond these walls. It is not therefore a remotely satisfactory focus for public dissatisfaction which may or may not be tapped via the consultation the Bill provides for. The committee's low profile may serve it well in its dealings with government, but prevents it substituting for Parliament as a public sounding board.
The noble Lord, Lord Norton of Louth, commented on Tuesday (at col. 221) that this is, "not a managerial Bill". Unfortunately, I believe that it is likely to be just that. It should not be, but it is only too likely to be.
Finally, the objection will be made that this amendment is not practical, because it does not provide a procedure to resolve any disagreement between the two Houses as regards any amendment. Just such a procedure was agreed between the Officers of both Houses pursuant to the Government of India Act 1935 and the Government of Burma Act 1935, both of which gave powers to Parliament to amend statutory instruments promulgated under those enactments. I am indebted to the Library research staff for tracking down--it was tracking down--the protocol agreed between the Officers in 1935, and which served its purpose without any problem, as far as anyone can tell, until 1947.
On Tuesday the noble and learned Lord, Lord Falconer, stated:
"It is most important that these new provisions are given new scrutiny by both Houses of Parliament because they will have an effect on what can be done by this form of secondary legislation and what must be done by primary legislation".--[Official Report, 23/1/00; col. 173.]
That is very true. The noble and learned Lord also said--he made the point several times--that the Bill is drafted for Parliament to deal with rather than the courts. As he put it:
"We have faith in the fact that Parliament will appropriately scrutinise the orders. If Parliament does not like what it sees, it will be able to prevent the orders from going through. That is the right approach--Parliament should be the body that determines such matters, not Parliament and the courts".--[Official Report, 23/1/00; col. 208.]
That was in the course of saying that he did not want the protections to be justiciable other than in extreme cases. It means in effect, "If we don't do it, don't look to the courts". That is why I want this Bill to have a chance of working in practice; and that means giving the Members of this House, and indeed the other place, the chance to amend regulatory orders which impose new burdens. I beg to move.
I rise to add my support to the amendment. The noble Lord, Lord Phillips of Sudbury, has made out an important case which needs to be answered. I shall anticipate what objections the Minister may have to it. He may say that when measures are brought forward under this process the Motion in this House will be amendable. But that is not the case in the other place.
The other objection is likely to be the very reason for having secondary legislation. The argument against amending secondary legislation is that it would then become mini primary legislation in terms of procedure. However, as we have discussed previously, ways around that can be found. One is to use the conditional amendment approach which allows the House to reject a statutory instrument, but also to indicate what would be acceptable when it is brought back. There are ways of looking at this in terms of the exact procedure to be adopted, but the principle that has been enunciated in putting forward this amendment is enormously important. The noble Lord, Lord Phillips, has put a strong case which will require a serious response.
I am grateful to both noble Lords for their contributions. I am grateful in particular to the noble Lord, Lord Phillips, for explaining his concerns in such detail. Quite reasonably, a large part of his speech addressed the issue of secondary legislation in general rather than the secondary legislation which is proposed in the Bill. I thought that that formed a helpful contribution to our debate and I hope that he will submit his remarks to a journal such as the New Law Journal so that it can achieve a wider circulation than would usually be achieved by Hansard in this House. However, my response will not be anything like the one he anticipates. My answer will remain confined to the issue of the super-affirmative process. What I shall say to the noble Lord, Lord Phillips, and to the noble Lord, Lord Norton, is that the super-affirmative process already permits the amendment of regulatory reform orders.
I agree entirely that it is right that both the House and individual Peers should have the power to propose amendments that are thought necessary to a particular draft regulatory reform order. That is essential to proper parliamentary scrutiny. In fact, the special parliamentary procedure proposed in the Bill for regulatory reform orders affords a greater degree of parliamentary scrutiny than that which ordinary affirmative resolution orders receive. Furthermore, it affords the opportunity for amendment.
Perhaps I may take the Committee through the procedure as regards what happens during the committee-based scrutiny stages and after the committees have reported. First, the Minister lays his deregulation proposal before Parliament "in the form of" a draft order; by that I mean that it has not been formally laid before Parliament. Following the 60- day period of parliamentary consideration, the two deregulation committees make their first reports to their respective Houses. The words I have just quoted have been taken directly from the 1994 Act. They are important because they establish that the document is not at that stage a formally laid instrument and therefore does not attract any conventions as regards how such instruments are handled.
If the reports are favourable, the next stage is for the Minister formally to lay a draft order in each House, along with an explanation of any changes made compared to the earlier proposal. The committees can also report that the proposal would be acceptable only if certain amendments were made. Indeed, the committees may also make different recommendations for amendment. If the Minister is minded to accept any changes put forward by the committees in relation to the proposal between this stage and the final vote on the order, he will not lay the proposal until it has been amended, otherwise he would have to take it up and then re-lay it with amendments.
The ability to make changes, minor or otherwise, to the draft order while it is being scrutinised, and in response to the scrutiny, is a key feature of the order-making power. It is not available to statutory instruments made in the usual way. Ministers in charge of past deregulation orders have, on several occasions, taken the opportunity to change their draft orders in line with recommendations from the committee. On no occasion has a Minister ignored an adverse report from either committee. The proposed order has always been recast or withdrawn accordingly.
That procedure represents amendment by the committee rather than by the House. I shall now move on to the next point. The final procedures for parliamentary scrutiny of draft deregulation orders are set out in Standing Orders. The Commons committee procedure produces a report on the draft order within 15 days; the Lords committee has no set time period, but usually reports within the same period.
We then come to the stage where the House as a whole takes a view on the Minister's proposals. Both Houses vote on the relevant committee report on the draft order, but follow different procedures. In this House, following the publication of the committee's second report, the Minister tables a Motion that the House should approve the draft order. That is the procedure for ordinary orders as well as for regulatory orders. However, there is also an opportunity for debate, if any Peer wishes it, on an accompanying Motion at the same time as the Motion to approve a draft order. The companion Motion is moved first and can be amended and voted on. This means that any Peer has the ability to propose amendments to the draft order. As my noble and learned friend Lord Falconer pointed out in our debate on Tuesday last, there is a government undertaking that, in the event of a Motion amending a draft deregulation order being agreed by the House, the Motion for the draft order would not be moved. That was agreed by the previous government on 20th October 1994 and this Government have confirmed it.
As the noble Lord, Lord Phillips, remarked, in its 15th report, last Session, the Delegated Powers and Deregulation Committee drew,
"attention to the Government undertaking that, in the event of a motion hostile to a draft deregulation order being agreed to by the House of Lords, the motion for the draft order would not be moved. In oral evidence Lord Falconer accepted that ... if a motion hostile to a draft order were agreed to the Government would have to start the order-making process again from scratch (Q 64). This is clearly the strongest ultimate safeguard".
That is an exhaustive rehearsal of the super-affirmative process, from which it should be clear that there is plenty of scope for amendment not only as regards Clause 1(1)(b) and (c), as addressed by this amendment, but for the whole of the content of the order. That scope for amendment is available either to the Minister on his own volition, or as recommended by the committee, or following a companion Motion by any noble Lord. Diagrams have been reproduced in the Explanatory Notes to the Bill which throw light on the important and rigorous arrangements for scrutiny, amendment and approval of draft orders.
The noble Lord, Lord Phillips, went on to draw attention to the possibility of disagreements. Of course, at this stage different amendments could be put forward from this House or from another place. It is true that no parliamentary procedure is provided for reconciling any differences between the two Houses; they are co-equal in this matter. The key point here is that, contrary to the thrust of the argument put forward by the noble Lord, Lord Phillips, if a Minister cannot come up with a compromise acceptable to all concerned, he will lose the order. The Government have no defence against an impasse as they have with primary legislation through the Parliament Acts. Those Acts do not apply here. We need to reach agreement. I agree with the Delegated Powers and Deregulation Committee that that is a powerful safeguard against the possibility of abuse by a wicked Minister--even a Minister so wicked that he refused to honour the commitments given by my noble and learned friend Lord Falconer.
I hope that this explanation will satisfy both the noble Lord, Lord Phillips, and the noble Lord, Lord Norton, as regards the robustness of what we propose. It does not address the wider issues to which the noble Lord, Lord Phillips, referred as regards secondary legislation, but it does address them in so far as they are concerned in the Bill.
I am grateful to the Minister for that full explanation. My remarks were addressed exclusively to the Bill. I am well aware of the position as regards statutory instruments as a whole. However, as I have said, I addressed the matter only as it concerns the Bill because the effect of an amendment to a draft order in this House is to kill the order. That is the end of it. The matter is then left to the Government to decide whether they wish to take it away and amend the order or to negotiate with the House of Commons. They may then bring back an amended order, not bring it back at all, or bring it back in its original form.
All the points I made are, in substance, true; namely, that this House is in the position of being able only to reject the whole of an order or to do nothing. As I have said, the effect of attempting to amend the order is to kill the order, as the noble and learned Lord, Lord Falconer, pointed out in his evidence.
Of course the order would have to be re-laid, but if the Minister had any sense and felt that he had any chance of getting it through, it would need to be re-laid incorporating any amendments. I agree that there might be some delay in this process, but the ability to amend an order cannot be in doubt.
Again, with respect, I disagree with the Minister when he says that if the Minister has got any sense he will re-lay the order in accordance with the amendment. That is the whole point. It is only too frequent that governments, when defeated in this House with regard to an amendment to a Bill, bring back the Bill unamended and have a second go at it. My point is that we will never get to the position we are talking about unless Back-Benchers are allowed the prospect of amending a piece of delegated legislation without all this hoo-ha over defeating it, bringing it back or not bringing it back, amending it or not amending it. That is my first point.
Secondly, we all know very well the reality of secondary legislation. The chances of a government, with a much more Whipped force behind them, bringing back the piece of secondary legislation in unamended form and getting it through are almost overwhelming. But, I repeat, we will not even get that far.
It is exactly the same in primary legislation. That is politics. The point that must be made is that our procedures have to allow for amendment--and they do. If in a companion Motion an order is amended, the Minister has exactly the same choice in that case as he does in primary legislation. He can decide to accept the amendment and re-lay the order accordingly, or he can decide to tough it out and re-lay the order without the amendment, as can happen with primary legislation, or he can abandon the whole thing. There is no difference between this and primary legislation.
Perhaps I may make a very small point, which may help the argument. Can the Minister tell the Committee what are the procedural implications of such an order being defeated in this House and having to be re-laid, with or without amendment? If the order was re-laid without amendment, would all the same procedures, hoops and timetabling have to be gone through as when it was first laid?
The reason I ask is that on many occasions Ministers pray in aid the fact that if this House were to take a certain course of action great delay would result. An example of this was in the recent cloning debate in this House, when it was said that research would be set back by a certain period of time. I shall be interested in the Minister's reply.
The noble Lord, Lord Phillips, described it as a wholly exceptional event; it could happen again next Monday. There will be then another annulment Motion before the House, which will undoubtedly be voted upon.
The difference is that in ordinary secondary legislation, whether affirmative or negative, the Motion before the House can be either a fatal Motion--such as the Motion of the noble Lord, Lord Alton, last Monday or the Motion of the noble Baroness, Lady Young, for next Monday--or it can be a non-fatal Motion. If it is a non-fatal Motion, there are perfectly good precedents of governments simply ignoring it and going ahead and making the order regardless. If not, you have to go back to the beginning.
If on a companion Motion an amendment was proposed and carried by the House, the Government have exactly the same options as for primary legislation. They can re-lay the order, they can tough it out, as I said, or they can abandon the whole project.
I thank the Minister for that reply. I am sure it will be very helpful to the Committee. For the sake of clarity, if the Government were defeated on an amendment to primary legislation in this House, it would then go to another place; the other place might insist on its original legislation and it would come back here. It is possible for us to see the same piece of legislation return very quickly indeed when we are considering Commons amendments. Would that be the case in timing terms under this set of circumstances?
I am thinking of Ministers praying in aid the argument that if the House disagrees with the legislation it can have either a small amendment or it can reject it--in which case the whole thing falls and the Lords are doing a terrible disservice to the nation.
There is a greater delay than with primary legislation. Ministers could argue that point and the House would have to decide whether that argument was justified or not.
I thank the Minister for the clarity of his exposition on the situation. It is much appreciated. From what the noble Lord said, it would appear that we are wholly dependent upon the Joint Committee for scrutiny. It is the Joint Committee on secondary legislation, as I understand it. Has any thought be given as to the workload of that committee, how it will discharge its functions and whether it will be provided with adequate resources to discharge this mammoth task?
That is precisely what I am not saying. I am not saying that it is only the Committee on Delegated Powers and Deregulation which can propose amendments. I am saying that when a companion Motion on a regulatory reform order is presented in the House, any Member of the House can propose an amendment. That is why I am saying that the situation is comparable to that in primary legislation.
As to the issue of the workload on the Delegated Powers and Deregulation Committee, that is a serious matter. My noble and learned friend Lord Falconer acknowledged that on Tuesday. It is a matter for the House authorities to consider. I am sure they are taking it very seriously.
I know that the noble Lord, Lord Campbell, wishes to come back on that point, but perhaps I may elucidate a little bit further for the noble Viscount, Lord Goschen. An order could be laid again without going through the whole procedure. So the argument of, "This is intolerable delay", which might otherwise arise, is slightly weakened. The House would be entitled to take any threat from wicked Ministers--none of whom is in this Government, of course--with a grain of salt.
I regret to say that the noble Lord misunderstood the committee to which I was referring. I was not referring to the Delegated Powers and Deregulation Committee. I may have expressed myself badly. I was trying to refer to the Joint Committee on secondary legislation. I understood from the very full and clear exposition of the noble Lord, Lord McIntosh, that that committee has a pivotal part to play as regards scrutiny. Am I wrong in that?
I did not once refer to the Joint Committee on Statutory Instruments, of which the noble Lord, Lord Skelmersdale is a member. As he said, that is a committee with very limited responsibilities, and certainly not policy responsibilities.
I am sorry to prolong matters but I should like clarification in terms of the procedure outlined by the noble Lord. The Minister indicated that a Member of the House could move an amendment--in other words, it is not simply a recommendation of the committee as to an amendment. Is the noble Lord saying that that practice applies in both Chambers? On my reading of the procedure, it certainly would not apply if the committee in the other place did not divide on the proposal put forward by the Minister; it would just be put to the House without debate. But if the committee divided and it went through the normal processes, would there be an opportunity for a Member to propose an amendment?
I am not familiar with the procedures in another place. As they are a matter for that House rather than for the Bill, I do not think it would be proper, let alone possible, for me to respond on that point.
I want to respond, if I may--I am sorry to delay the Committee but these are important matters--to the point made by the noble Lord, Lord Phillips, about the period between 1935 and 1947, when indeed the Government of India and the Government of Burma Acts appeared to provide for amendable subordinate legislation. I make two points. First, it is not clear whether that power was ever used. Secondly, following that, in 1971 to 1972, the committees of this House considered the proposition that we should go for amendable secondary legislation. For reasons which I shall not lay before the Committee now--but they seemed to me to be overwhelming in their power--they decided not to do so.
I am grateful to those Members of the Committee who have taken part in the debate. It is an important matter. I hope that the Minister will consider what has been said and that we can return to the matter. The one thing that the Minister has not said--it has been obfuscated unintentionally, if I may say so--is that there is a massive difference between an amendment which has the effect of destroying the whole order and an amendment which has the effect of merely amending that which is amended. That is an enormous difference in practice and in psychology. If the Minister--I am tempted to say, if the Minister meant what he said, but that would have a note of disparagement that I do not intend--is saying that there is a power of amendment here which is the same as, or as good as, in mainstream legislation, why not accept my Amendment No. 39 which puts that in simple, direct terms and avoids going round and round the mulberry bush hither and thither, backwards and forwards? Ultimately--surely the Government Front Bench are as interested in this as anyone else in this Chamber--surely we seek to revive the ability and vitality of this Chamber with regard to scrutiny of secondary legislation which is, frankly, flat on its back. In saying all that, I beg leave to withdraw the amendment.
Subsection (4) of Clause 4 of the Bill restricts the type of provision that can be contained in a subordinate provisions order. The restrictions here are vital because subordinate provisions orders, as we have seen, are subject only to the negative resolution procedure.
These restrictions, in my submission, must be tightly drawn; and the Opposition are concerned especially about the restrictions in paragraph (b) which refer to provisions which are incidental, consequential, transitional or supplemental to a provision which modifies the subordinate provisions of an order previously made. I think I understand what "incidental" means; and I am not troubled by the word "transitional".
However, I am preoccupied about the words "consequential" and "supplemental". What are their limits in this context? Banning shooting and fishing might be regarded as consequential to banning hunting. There seems to me to be very little limit to what the word "consequential" might mean. Similarly, "supplemental" has no limit. Almost anything can be supplemental to something else. A supplementary question in another place is a good illustration of what this word might mean.
I would have thought it quite sufficient for the provisions falling within paragraph (b) to be solely those provisions incidental or transitional to a provision modifying the subordinate provisions of an order previously made.
There may, of course, be some implied specific and identifiable limits as to what provision could be regarded as consequential or supplemental which the noble and learned Lord may be able to clarify. I beg to move.
Of the two words that my noble friend Lord Kingsland objects to, I find "supplemental" the most objectionable. I must have said, "This is a consequential drafting amendment. I beg to move", several thousand times during the course of legislation when I spoke from the Benches opposite in a previous administration. However, I am not sure that that meant anything other than the sentence, "I hope that the House will not take too much time over this matter because we have already discussed the issues". Nevertheless, I am sure that my noble friend is utterly correct to point to the lack of meaning within the law.
I have difficulties with the word "supplemental". I notice that the Minister smiled when my noble friend drew attention to supplementary questions. Surely "supplemental" just means in addition to. Like so many other provisions of the Bill which we are assured are tightly drawn strictures, it is quite the opposite. If we are being offered the assurance that nothing can be done unless it is either consequential, transitional or supplemental, I believe that that is no stricture at all. I cannot see that the word "supplemental", undefined and unqualified, has any position within the subsection we are discussing.
I apologise; that is incorrect.
As regards the term "consequential", I deal with the point that the noble Lord quite correctly made; namely, that the Bill as presently drafted permits only supplemental provisions to a regulatory reform order to be approvable by the negative procedure. The noble Lord is right to address his argument on that basis, but the effect of Amendment No. 45, in the name of the noble Lord, Lord Borrie, if it were passed--we have indicated that we are prepared to accept it--would mean that there would be a choice as to whether it would be the negative or the affirmative procedure. While the noble Lord is absolutely right to address his argument on the basis that he did, if the Borrie amendment--if I may, with respect call it that--were to be accepted, there would be a wider choice. We intend to support that provision.
As regards the word "consequential", when reforming a large and complex regulatory regime, it is inevitable that some provision will have to be made that is merely consequential on the original order. Changing the licensing regime for small shops, for example, might involve some consequential changes to consumer legislation to make sure that the legislation still made sense and was consistent. Such changes are usually made to make the legislation make sense; for example, a change in a schedule number or a reference to a section. But, as always, the parent regulatory reform order would have to include the principles. There is nothing sinister here, as the noble Lord knows. It is a common word used in this kind of provision. It is a sensible, practical provision. I hope that the example I have given, which indicates the nature of the change, indicates the width of the word.
As regards the word "supplemental", the noble Lord objects to the ability of a subordinate provisions order to make supplemental provision. Again, I say with respect to the noble Lord that these fears are misplaced. As he knows, this is a perfectly normal legislative provision. It would simply make it possible to make necessary supplemental changes that flowed directly from the provisions of the order. Let me give an example. The Competition Act 1998 states that notice must be made "in writing". But it does not say how that notice is to be served. Supplemental provision was made for this. That is a provision that is plainly supplemental to the requirement for there to be a notice made in writing. We also made supplemental provision to ensure that the land and vertical exclusions should have the same status as other exclusions in relation to the end of the transitional period.
Again I repeat, the principles governing such supplemental provisions would have to be set out in the parent order. There is no chance of slipping things in on the quiet. I believe that the noble Lord gave the example of hunting and fishing. One could not possibly treat those matters as supplemental provisions.
The wording in the Bill contains nothing surprising. I am on confident ground on this occasion when I say that it is perfectly standard legislative drafting. In those circumstances I invite the noble Lord to withdraw his amendment.
I am much obliged to the noble and learned Lord for his response. In fact, I think that I used hunting and shooting as an example of a consequential rather than a supplemental matter.
I expected the noble and learned Lord to say that and to express it in the robust manner that he did at the Dispatch Box.
My concerns about the paragraph were expressed in the context of the negative resolution procedure. I have been at least partially reassured by what the noble and learned Lord said about his attitude to the amendment of the noble Lord, Lord Borrie, and by the prospect of his adopting it. I should like to reconsider my amendment in the light of the amendment of the noble Lord, Lord Borrie. Meanwhile, I beg leave to withdraw the amendment.
This subsection opens the gateway for the National Assembly for Wales to become involved in making subordinate provisions orders. I understand that an order may provide that the power to make subordinate provisions orders in Wales can be made only by a Minister with the agreement of the Assembly. That would be a privilege denied to your Lordships' House.
The acceptance by your Lordships' House of these provisions--they will permit subordinate provisions orders to be subject only to the negative resolution procedure--may be affected by the noble and learned Lord's comments on my previous amendment and his acceptance of the amendment in the name of the noble Lord, Lord Borrie. I beg to move.
I understand what the noble Lord says about the effect of the Borrie amendment. With regard to the Welsh Assembly, we framed the Bill to reflect and respect the devolution settlement. Under that settlement the Assembly is given the power to make its own subordinate provisions if the parent legislation so decrees. We do not see why regulatory reform orders--they have the effect of changing primary legislation--should not confer on the Assembly the same powers. In effect, we are putting the Assembly into the same position as it would be in relation to primary legislation: it cannot make primary legislation but it can make subordinate provisions; so, equally, it should under the regulatory reform orders.
Amendment No. 44, which I take to be a probing amendment, would deprive the Assembly of that power. That looks strange in the devolution settlement. We want to ensure that the devolution continues to be a success and is reflected in the legislation which forms the basic settlement.
The parent order would have to state clearly for what areas the Assembly could make its own provisions and, as always, the committees and Parliament would have the opportunity to scrutinise and approve those powers. I hope that that answer helps the noble Lord in his considerations.
moved Amendment No. 45:
Page 4, line 11, leave out from ("order") to end of line 13 and insert ("if--
(a) it is not made by a Minister of the Crown,
(b) the order designating the subordinate provisions concerned ("the main order") provides that the subordinate provisions order shall be subject to annulment in pursuance of a resolution of either House of Parliament, or
(c) the main order provides that the subordinate provisions order--
(i) is to be laid before Parliament after being made; and
(ii) is to cease to have effect at the end of the relevant period unless before the end of that period it is approved by a resolution of each House of Parliament (but without that affecting anything done under it or the power to make a new order).
(6A) In subsection (6)(c) "relevant period" means a period of twenty-eight days beginning with the day on which the subordinate provisions order is made.
(6B) In reckoning the period of twenty-eight days referred to in subsection (6A), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6C) For the purposes of section 5(1) of the Statutory Instruments Act 1946, provision falling within subsection (6)(b) is to be treated as provision made by an Act.").
Perhaps I may shorten my remarks because I spoke on the matter in debate on the earlier amendment of the noble Baroness, Lady Buscombe. The Minister indicated that the Government were likely to support the amendment. However, the amendment requires a little explanation.
Clause 4(6) states that a subordinate provisions order would be subject only to the negative resolution procedure. My amendment is designed to achieve a little more flexibility. It allows for the subordinate provisions order--the amendment refers to it as "the main order"--to provide either for the subordinate provisions order to be subject to the negative resolution procedure; or that it be subject to an affirmative resolution procedure which is described in detail in the amendment.
The purpose of the amendment is to give Parliament power, when examining the regulatory reform order, to determine which procedure should apply if the Government at any time wish to amend subordinate provisions.
I mentioned earlier that an obvious example of subordinate provisions would be the changing of the details on an administrative form. In most cases it may be suitable for that to be subject simply to the negative resolution procedure. However, sometimes more detailed parliamentarian scrutiny, even of subordinate provisions such as forms to be used under a regulation, may be desirable. I cite the Deregulation (Deduction from Pay of Union Subscriptions) Order 1998. That reform hinged on getting that important form exactly right. So, unusually, a mere form was of some importance. There may be other instances.
The flexibility would be most useful. The Government and the parliamentary scrutiny committees should be able to say not only whether the matter is appropriate for the subordinate provisions procedure but also which procedure would be the most appropriate for parliamentary accountability. I beg to move.
I am sure the Committee believes that the proposed amendment is a welcome addition. It is even more welcome that the noble Lord's Front Bench has accepted it. It gives more power to the deregulation committees of both Houses in respect of these orders.
However, perhaps I may ask the noble Lord a somewhat technical question. New subsection (6A) of the amendment defines the relevant period. The noble Lord has chosen 28 days. The super affirmative procedure is 60 days. The normal negative resolution statutory instrument period is 21 days. Why has the noble Lord chosen the 28 day period?
There is not a great deal of difference between 28 and 21 days. It allows for the procedure where approval can be up to such a period, not counting Recess, after the order was made. That is to deal with matters which are sufficiently important to require Parliament's positive approval which arise during, or shortly before, a Recess when it is not possible to arrange a prior debate. So the matter can be dealt with fairly speedily but still leave Parliament the ultimate right to approve.
In neither the 15th report of the previous Session, nor its second report of the present Session, did the Delegated Powers and Deregulation Committee of your Lordships' House feel it necessary to draw to the attention of your Lordships' House the powers in relation to subsidiary orders and subordinate provisions orders under Clause 4. That was not an oversight. Nevertheless, the Deregulation Committee in the other place raised the issue, so it is clearly a matter for concern.
The Delegated Powers and Deregulation Committee in your Lordships' House has not had an opportunity to consider the amendment, because it is not the Committee's practice to consider Back-Bench or Opposition amendments, even if they would affect delegated powers. I cannot say what view the Committee might take, but the amendment appears to be a useful step. It would improve parliamentary scrutiny of regulatory reform orders, so I welcome it. I am glad that the Government are apparently to accept it.
I accept my noble friend's arguments. I am pleased that everybody else who has spoken welcomes the amendment, subject to the point raised by thenoble Lord, Lord Skelmersdale. I think that I understood him to say that he welcomed the amendment in principle.
The amendment would give effect to something that the Government are committed to. The case for it can be put briefly.
"as appear to him to be representative of interests substantially affected by his proposals".
Under subsection (1)(e), he may also,
"consult such other persons as he considers appropriate".
Apart from the bodies specified by the clause, it is up to the Minister to decide which bodies to consult.
The amendment is designed to provide for more open consultation, ensuring that those who wish to make submissions can do so without having to be recognised by the Minister as a body that he wishes to consult. That would benefit those bodies that wished to make a submission but whose existence or work was not known to the Minister. It would also benefit the Minister because it could result in him receiving more informed comments than would otherwise be the case. It would also mean that, when laying his report before Parliament, as required under Clause 6, he would not be open to the accusation that he had conducted his consultation with only a small group of organisations sympathetic to his cause.
Furthermore, the amendment would bring the provision for consultation into line with the Government's draft code of practice on written consultation. The Explanatory Notes say that the Government intend to apply the code to all their consultation exercises. The code lists seven consultation criteria. Criterion 4 says:
"Documents should be made widely available, using electronic means as far as possible (though not to the exclusion of others), and effectively drawn to the attention of all interested groups".
The first paragraph under that heading begins:
"Every effort should be made to ensure effective communication with all groups who are, or potentially are, interested".
Paragraph 2 opens with the words:
"That will generally mean publicising the consultation by a press release or similar announcement, and making the document available on the department's web site".
Paragraph 3 says,
"But those methods alone may not effectively reach all interested groups".
It goes on to identify other methods to be considered.
All that is eminently sensible. I have no quibbles with it--indeed, quite the reverse. I want to bring the clause in line with the code. I believe that my amendment would achieve that goal. It is clearly the Government's intention that the code should apply. I have already quoted the Explanatory Notes to that effect. The amendment would give the Government the opportunity to meet their intention. I beg to move.
I do not know whether it is permitted, but I suggest that we deal with my Amendment No. 57 now, although it is due to come up after an amendment to be moved by the noble Baroness, Lady Buscombe. That would save the time of the Committee because it is on the same theme. My amendment is to Clause 6, which details the matters that have to be put to the Deregulation Committee. It would add to subsection (2)(j) a requirement that, as well as giving details of any consultation, the Government should particularly give details of the means and timescale of that consultation.
I shall be delighted to deal with the two together if the noble Lord, Lord Norton, does not object.
I am obliged. I concur with everything that the noble Lord, Lord Norton of Louth, said. It is commonplace for us all to bemoan the state of democracy and the lack of public involvement with politics. There is a low-level cynicism among the public about the nature of consultations. The Committee on Standards in Public Life urged us to avoid the "pretence of consultation", which simply "causes cynicism and mistrust".
The committee also drew attention to the need to break out of the usual circle of privileged consultees and to get as wide a cross-section as possible. It is fair to say that the Government have made consultation a pillar of the process. The Explanatory Notes constantly refer to it. The noble and learned Lord, Lord Falconer, slightly over-egged the pudding on Tuesday when he said:
"There is then an obligatory consultation period that will probably last for 12 weeks".--[Official Report, 23/1/01; col. 207.]
There is no obligatory consultation period in the Bill. The noble Lord, Lord Norton, is trying to insert one. I am sure that that was a slip of the Minister's tongue, but it is interesting because it may betray a state of firmness in his own mind about the consultation arrangements that is not carried through into the Bill.
I should be happy with either the amendment of the noble Lord, Lord Norton, or mine. Mine would make life easier for the overburdened Delegated Powers and Deregulation Committee by specifying that it should consider the crucial issues of timescale and means in addition to the five other important criteria.
I shall briefly support my noble friend Lord Norton. Consultation is key to the validity of the process that we have discussed this afternoon and on Tuesday. As well as being wide and appropriate, it is important that the consultation should be seen to be open. Bodies that feel that they have a view on an order should be able to respond to the Government and make their view known. No doubt, if such a body were shown to have no knowledge of the matter in hand, its views would be discounted. If it was seen to be a vexatious correspondent, which occasionally happens, its views would be cast aside.
My noble friend's amendment would give the Minister more protection, because it would not be possible for a body to come forward at a later stage claiming that it had a valid view but the Minister did not feel it appropriate to consult it. Rather than putting the burden on the Minister to consider what is appropriate--a phrase for which I have some distaste--the amendment would put the burden on those who felt that they had some specialist knowledge or were affected by the order.
Given that Clause 5 goes to some length to describe the bodies which should be consulted, I certainly support making the provision very much wider by removing paragraph (e) and inserting a general invitation for consultees to respond.
At the risk of repetition, I rise simply to support my noble friend Lord Norton of Louth. I also support the amendment in the name of the noble Lord, Lord Phillips of Sudbury. As has already been said, consultation is not merely a good idea; it is an essential part of the legislative process. During the course of this Parliament, the Government have made much of their activities in relation to consultation. That being the case, and if they are serious about this matter, they would accept in particular my noble friend's Amendment No. 48 and publish an invitation to all interested parties to make submissions.
We certainly all agree about the importance of consultation. It has been described as the pillar of the process and as essential in going to the heart of the Bill. I entirely agree with that.
The current procedure demands wide and open consultation with all interested parties, whether in favour of or likely to be opposed to the proposals. However, I understand the point made in Amendment No. 48 that there should be a general announcement that the consultation is being carried out. The difficulty lies in what we mean by a "general announcement". There is no longer, as there might have been in the 18th century, a single journal which reaches all the people who might be concerned. I do not believe that we would be satisfied with The Times of London or the London Gazette.
I want to put a better alternative to the Committee. We plan to publish all consultation documents on proposals under the regulatory reform order process both on the website of the department concerned, which means that it is well known to those who are interested in the affairs of that department, and on the Cabinet Office's website.
The UK online Citizen Portal--on "ukonline.gov.uk"--is a website where people can access all government information and services which are available online. One of the four main features of the site is an area called "Citizen Space", which makes it easy for people to find out about government plans and consultation. All current public consultations are listed on the site, whose address is "ukonline.gov.uk/online/citizenspace/default". It can be accessed without the need to go through all those domains. Users can search on key words to find out whether a consultation is being undertaken on a specific topic. Consultations on regulatory reform orders will be listed routinely on that site. There are direct links to each consultation document, and it is possible to submit comments on any consultation by e-mail directly from the Portal. I believe that, in today's circumstances, that is probably the best way to achieve what would be very difficult by any print form of publication.
In that way, all proposals will be in the public domain and it will be open to any interested party to make representations to the Minister. Of course, the Minister must report on all representations and not only on those submitted from people to whom he sent the document. In other words, if a person replies online to the Citizen Portal, he is part of the consultation process and reporting obligations apply.
I turn to Amendment No. 57 in the name of the noble Lord, Lord Phillips. It concerns the report which the Minister must provide to Parliament alongside the document containing his proposals in the form of a draft order. The amendment suggests that the means and timescale of the consultation should be included in the details provided to Parliament.
I believe that the Bill covers those requirements. Currently the Minister is required to include in his report details of the matters specified in Clause 6(2). The amendment addresses subsection (j), which refers to,
"any consultation undertaken as required by section 5(1) or (3)".
If we are asked to provide details of the consultation, would not those details include the means and timescale? I believe that they would have to.
The requirements on consultation in the Bill are strict. They demand a full and open process. The standard procedure requires the production of a written consultation document to be sent to all those who have an interest in the proposal. In all cases, consultation documents contain details of where to send representations and by when. In addition, as is currently the case with deregulation orders, it will be standard procedure for the department which issues a consultation document on a proposal for regulatory reform to send the names and addresses of consultees to both committees, together with a copy of the consultation document when it is first issued. All those consultation documents will be published on the Cabinet Office's website, as well as on the department's website.
I understand the implicit concern that the period in question must be long enough. As with Amendment No. 48, the consultations will be carried out in accordance with the criteria laid down in the Cabinet Office code of practice on written consultation exercises, from which, indeed, Amendment No. 48 comes. The current code of practice requires a 12-week consultation period to be the norm. Where that is not adhered to, Ministers must provide their reasons why that is not the case.
However, we would not want to limit a consultation simply to being a written one. If it was clear that there was no representative body for a class of people or organisations, it would be open to the Minister to gauge the impact of his proposals through survey or research, whether qualitative or quantitative. We would want to encourage such innovation so as to ensure that the consultation was as thorough as reasonably possible.
Another prompt for the Minister would be the scrutiny undertaken by committees in either House, with particular emphasis on the nature of the Minister's consultation exercise. The Minister will know that the scrutiny committees have the power to issue an adverse report on any proposal where they believe that the consultation has not been as thorough, as wide or as long as it should have been. They have not hesitated to do so in the past--the Sunday dancing example comes to mind. The result would be that a proposed order could be rejected. On several occasions the committees have also considered the length of consultation and, in relation to some, have said that it was barely adequate. We want that robust approach to continue. It is a strong procedural safeguard.
We face a difficulty in accepting these amendments. Certainly, the amendment moved by the noble Lord, Lord Norton, uses the code of conduct as it is presently worded. We would be most reluctant to put the code of conduct on the face of primary legislation because it can, should and has changed over a period of time.
However, I would be prepared to consider--but I emphasise the enormous difficulties involved--whether a provision should be included in the Bill specifying that the Minister should comply with a code of conduct which is issued from time to time. Huge difficulties would arise because it would apply much more widely than this Bill and we would have to obtain agreement from a number of other government departments in order to do so. But, because I recognise the significance of the argument which has been put forward, I am prepared to go away and consider it.
However, I am not prepared to say that we shall come back with an amendment which will achieve that. It might be necessary to say that in the future we shall consider whether all such cases of legislation where consultation is required should be subject to a code of conduct. That would take much longer than the passage of this Bill.
I am grateful to the Minister for his response. I fully recognise that he is making a genuine effort to move in my direction in terms of what I want to achieve. I readily put that on the record and acknowledge the move that he has made.
However, he has not quite assuaged me. Perhaps we may consider the reasons which he advanced against my amendment--that is, Amendment No. 48, although I can see that some of the points which he made are relevant to Amendment No. 49. My amendment requires the Minister to publish an invitation. He raised two objections. The first concerned the use of the word "publish" and the other was in relation to putting on the face of the Bill something that comes from the code.
On the first objection, the Minister in effect demolished his own argument. He did not argue against the amendment; he explained how the Government would give effect to its provisions by publishing all of the material. That is what I want him to do. The amendment would enable him to do that which he intends to do, but I want the relevant provisions to appear in the Bill.
That brings me to my second point. The amendment would not add to the Bill any provisions that were restrictive or specific in relation to the code. The code indicates what the Government should do, but the amendment uses the phrase, "publish an invitation". The Minister's point was that the code may change in future, but I cannot see how it could do so in a way that would be relevant to the proposals in Amendment No. 48, which are very simple. I want to include in the Bill the requirement that the Minister shall "publish an invitation". The Minister made it clear that that is what the Government intend to do, and he outlined precisely the method to be adopted.
I cannot see what the problem is. I appreciate the Minister's comments, but I seek to be even more helpful to him; I want to ensure that he can do what he wants to do by making it clear in the Bill that that is the case. On that basis, I wish to test the opinion of the Committee.
The aim of this amendment is similar to the one that I have just moved. Like the previous amendment, it is designed to bring the provisions of the clause into line with the provisions of the draft code of practice on written consultation.
The Explanatory Memorandum states that the Government intend to apply the code to all their consultation exercises under which, as a general rule, 12 weeks should be allowed for consultation. In fact, the code states:
"Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks is preferable, and eight weeks should be regarded as a general minimum".
That is criterion 5 under the code. It goes on to say:
"Inadequate time for responses is the single greatest cause of annoyance to people consulted by government".
The case for an adequate period of time for consultation is well made in the code. It stresses that eight weeks may be particularly inadequate if a substantial holiday period falls within it. In the education sector, it is not unknown for consultation periods to begin during or just after the start of the summer vacation and to close at or shortly after term resumes. The code suggests a norm of 12 weeks. That is fine.
However, the Bill is silent on the period for consultation. The clause stipulates that the Minister "shall" consult, but it does not say how long he must allow for that consultation. Given the importance of the Bill--I keep stressing the importance of the Bill throughout our debates--there is a case for including a minimum period. That is what my amendment does. It is in line with the draft code, stipulating a minimum period of eight weeks.
I recognise that the Minister may raise three objections. The first is that an eight-week minimum is in danger of becoming an eight-week norm. I recognise that danger. However, the inclusion of a minimum period is justified, not least in ensuring that no Minister is tempted to rush the consultation and in reassuring those who may be affected by the measure that there will be that period of consultation. It is better to have that minimum in the Bill and a norm established by the code than to have no period protected in the Bill.
The second objection that may be advanced is that it will be for Parliament to check that the period of consultation has been adequate and that the Minister has complied with the code. That is a fair point but it is not conclusive. It does not provide as strong a discipline as a minimum period clearly stipulated by statute.
However, I readily concede that an alternative way of addressing the point covered by my amendment would be to stipulate that the period of consultation must normally be 12 weeks and that any shorter period would require the Minister making a special case for it in the document he lays before Parliament. It would then be for Parliament to decide whether the case for a shorter period were justified.
The third objections is that there may be cases where consultation needs to be completed in less than eight weeks. The code states:
"Where a question of real urgency arises, the consultation period may exceptionally have to be under eight weeks".
Given the nature of this Bill, I do not believe that a shorter period is necessary and it is certainly not desirable. It would still require the 60 days for parliamentary scrutiny before the order is laid so I think there is no scope for "fast-tracking" an order.
I do not believe that those objections outweigh the benefits of including a time period within the Bill. I have indicated an alternative to my amendment, should that be felt to be preferable to the amendment that I have tabled. But, either way, I do not believe that the Bill should remain silent as to the time to be devoted to consultation. The period contained within the code of practice seems sensible and that is what the Government say they intend to follow. So why not put it in the Bill? I beg to move.
The noble Lord, Lord Norton, has very adequately answered his own proposition. Not only has he given three excellent arguments on the basis that I was going to bring them forward, but he has proposed an alternative to his own amendment. I agree with all those arguments, but not with his conclusion.
Of course, we have no intention whatever of pushing through a regulatory reform order with inadequate time for consultation. We must take account of the guidance on consultation documents which has been produced by the Cabinet Office. It requires 12 weeks to be the norm. The noble Lord was quite right to say in his first argument that if eight weeks were provided, that would become the norm. Of course, in any case, if the norm is not adhered to, Ministers must provide their reasons for that.
With this amendment, we should lose all the flexibility which is necessary when all parties, including Parliament and including committees, agree that rapid consultation might be justified. Let us suppose that we were in a situation whereby something had gone through public consultation; had become urgent because, for example, of a court judgment which altered the interpretation of the law; and for which there was great pressure to remove burdens. If we said, "Sorry, we cannot do it because we have only seven weeks and six days instead of eight weeks so we cannot do it in time to meet, for example, the deadline of midnight on 31st December", we should be a laughing stock.
In addition to the three arguments which the noble Lord, Lord Norton, put forward against his own amendment, I have a fourth one; namely, that the committees can look at the adequacy of the consultation period, including the adequacy of the time given to it, and if they do not like it, they can move against it and we shall have to pay attention to them. So there are four excellent arguments against the amendment.
The Minister has restated the arguments that I advanced. The only discussion may be as to whether I advanced them even better than the Minister or whether he advanced them better than I did.
My purpose in putting forward those arguments was not so much to undertake a balancing test but to anticipate what the Minister was going to say and to explain why I thought those objections did not outweigh the argument in favour of the amendment. As the Minister acknowledged, I indicated an alternative to what I had put forward. He did not undermine the case for the alternative by his reference to the possible need for speed, because that would be covered by the alternative which I mentioned. I appreciate that the Minister had to respond to the amendment that I had tabled.
The noble Lord, Lord Norton, has anticipated what I was going to say, which is that I respond to amendments that are on the Marshalled List. Of course, I shall read what he has said about his alternative amendment and, as always, I shall consider it.
I fully accept that the Minister, quite properly, was answering the amendment that I had tabled for this stage. I mentioned the alternative, as an improvement, in order to be helpful, in case the Minister wanted to indicate the way in which the Government would want to proceed.
I do not believe that the objections hold water. The principle of putting something into the Bill is important for ensuring that there is a statutory period and, returning to our discussion on an earlier amendment, as the noble Lord, Lord Phillips, mentioned, for sending out a message to those who are affected by the measure, so that they know that period is there. It is important for those reasons as well.
The other point raised by the Minister, which I anticipated, was on the period limit if it were considered that something needed to be put through quickly. I am not necessarily persuaded by what he said because there is an alternative. I believe that if something were felt to be so important, perhaps on the basis of a court case or, as he suggested, because of widespread public concern that something must be done--although one has to be wary of that kind of pressure--the Government have an alternative which is called primary legislation.
I am not persuaded by the Minister's response to the arguments that I have advanced. I have indicated an alternative and so I shall not press my amendment at this stage. I want to explore whether it would be better to table the alternative for later discussion. I do not believe that the Minister's argument works against the alternative. Having raised the issue, I may want to return to it at a later stage. I beg leave to withdraw the amendment.
In speaking to Amendment No. 58, I shall speak also to Amendment No. 59. One of the recommendations of the deregulation committee in another place was for a statutory requirement to make and lay before Parliament rigorous regulatory impact assessments. That was an important point made by the committee and, after hearing from the Minister, it suggested that the requirement for a regulatory impact assessment could be drafted in general terms as a duty to lay before Parliament a statement analysing the impact on persons likely to be affected by the enactment of the provisions of an order. The committee said that such a statement would overcome the difficulty of the rigidity of terminology which appeared to be the Minister's main concern.
We, on this side of the Committee, agree with those comments. Either of the amendments would be sufficient as they both satisfy the recommendations of the deregulation committee in another place.
As I said in relation to Amendment No. 48, consultation is an essential part of the legislative process, so I want to suggest that it may make sense, notwithstanding where I have placed these proposed amendments, for a regulatory impact assessment to be available at the time of consultation rather than later, when the draft order is laid before Parliament. If it were not available at the time of consultation, those who are really affected by it would not have the opportunity to consider it, to criticise it or to offer any suggestions to improve it.
We look to those people who are affected by the burdens, who are probably more expert and knowledgeable than those on the deregulation committee with regard to the specified burdens. I flag up that idea and I shall listen to the Minister's response. I beg to move.
First, I agree with the noble Baroness that any proposal needs to be accompanied by a full and detailed study of the information as to the likely impact of the proposal. We believe that the Bill already contains what is in her amendments. Indeed, there would be problems in carrying it out in the way that she proposes because that would limit too much the information that would be provided.
As the noble Baroness knows, the list of matters in Clause 6 already deals with the impact that any order would have. The list refers to the fact that the Minister must report on the effect of burdens imposed by the proposal; how the rigorous safeguards are satisfied, including necessary protection, rights and freedoms, fair balance and proportionality; whether any savings or increases in cost are estimated to result from the proposals, why and how much; and what benefits (other than savings in cost) are expected to flow from the proposal.
It is worth reading out Clause 6(2)(f)
"whether the proposals would have the effect of creating a burden affecting any person in the carrying on of an activity and, if so", how the relevant conditions are satisfied in relation to the burdens being created,
"(h) whether any savings or increases in cost are estimated to result from the proposals and, if so, either the estimated amount or the reasons why savings or increases in cost should be expected".
In the Bill we seek to spell out those matters that would be in a regulatory impact assessment. It is worth pointing out that the Government expect all legislative or regulatory proposals to be accompanied by a regulatory impact assessment. The Cabinet Office has issued detailed guidance on this issue which goes to the heart of good policy making and such an RIA would be included in a consultation document that would be published at the time that the regulations are first published in draft.
While I understand and share the motives of the noble Baroness, I do not consider that her proposals bring any additional benefits in this respect. Perhaps I can deal with what I consider to be the problem with her proposals. She wants to have on the face of the Bill the words "regulatory impact assessment", as Amendment No. 59 suggests. Government thinking develops all the time and "regulatory impact assessment" is the form of words currently in use. A few years ago it was "compliance cost assessment". Putting the current state of affairs on the face of the Bill would freeze policy at current thinking.
Surely, it would be better to allow the policy to develop and not to impose an unnecessary straitjacket on the Bill. The list of matters in Clause 6 deals with the impact that any order would have and it sets out those points that the noble Baroness indicated in her speech that the public at large would be entitled to know. While I support the motives behind the amendment, I believe that we have already covered the point in the Bill and there would be problems in the proposals that she suggests. I urge the noble Baroness not to move her amendment.
Before the noble and learned Lord sits down, perhaps I can ask him one question. The Government rely a good deal on Clause 6(2)(h) to indicate that the amendment of the noble Baroness is unnecessary. Clause 6(2)(h) states:
"whether any savings or increases in cost are estimated to result from the proposals and, if so, either the estimated amount or the reasons why savings or increases in cost should be expected".
Can the Minister explain why, in cases where it will be possible to give both--and it frequently will be--we should not be entitled to have the estimated amount and the reasons why savings or increases in costs should be expected?
Whether savings or increases in costs are estimated to result from the proposals is an interesting question which I shall need to consider. I need to write to the noble Lord about that.
The Minister told us that the information which we are asking to be provided through a regulatory impact assessment will be available to members of the general public and to all those whom the Government will be seeking to consult. Will that information be available at the beginning of the consultation process; that is, before the order is laid before Parliament?
I said that when a draft order is published and consultation begins, as a matter of practice and in accordance with Cabinet Office practice, it would normally contain a regulatory impact assessment. When one reaches the Clause 6 position, pursuant to the terms of the Act one must publish the results of the consultation, which include the items I have listed in relation to that clause.
In moving Amendment No. 60, I shall speak also to Amendments Nos. 62 and 63. If Clause 7(2) applies, the Minister must not disclose any representations made where a person, in making such representations, requests the Minister not to disclose them--unless one of two exceptions applies. The first is where the Minister obtains the consent of the representor and, if the information contained in the representations relates to any other person or business, also obtains the consent of the person to whom the information relates or of the person, for the time being, carrying on the business. The second exception is that, nevertheless, the Minister may disclose those representations in such a manner as not to associate them with that respondent, or with such other person or business.
The gateway into subsection (2) is a request by the person making the representations. Only then will the Minister need to obtain the consent of the person to whom the information relates, or the person carrying on the business to which the information relates. If no request is made by the person making the representations, the Minister does not need to obtain the consent of the others.
I understand that the only protection which such persons have is contained in the weak provision in subsection (3), which applies if it appears to the Minister that disclosure of the information could adversely affect the interests of a third person and the Minister has been unable to verify the information and obtain the consent of that person.
We believe it appropriate to impose a restriction on disclosure if the Minister has been requested not to disclose the representations by the person to whom the information relates, or the person carrying on the business to which the information relates. Such information is, in a sense, his information and may be confidential. Those persons should have the right to request the Minister not to disclose that information. I beg to move.
These amendments address the important issue of disclosure of information about third parties. They seek to address the cases in which representations have been made in response to a consultation exercise which contained information about a third party. That would enable those third parties to request that the Minister should not disclose those representations. It would have the result that the Minister could then disclose the representation only in anonymised form or if both the respondent and the third party agreed.
Perhaps I may reassure the noble Lord, Lord Kingsland, about the protections for third parties under the provisions in the Bill dealing with disclosure of representations to the committees. First, if the respondent has requested non-disclosure, information on a third party can be used only in anonymised form or with the consent of both the respondent and the third party, or if the committee specifically requests it.
Secondly, in those cases where the respondent has not requested non-disclosure, the Minister is not obliged to disclose information on the third party where he thinks the disclose of that information could adversely affect the interests of the third party, and he has been unable either to verify the information or to obtain the consent of the third party to the disclosure.
The Minister must apply his mind as to whether to disclose damaging information. But a balance must be struck. If the information is sufficiently important, the Minister will have to disclose it even in those circumstances, which he could do privately under subsection (4). Of course, if he does disclose damaging information, it will attract parliamentary privilege.
However, let us consider the alternatives. Let us suppose that there was some proposal to deregulate financial services law and someone wrote in saying that the kind of thing proposed was exactly what Peter Clowes got up to. That is clearly highly material and might well not be easily verifiable. But Peter Clowes would be unlikely to consent.
Similarly, if facing legal action, the accountants or other professionals involved might refuse if the representation was, for example, that an audit did not offer adequate protection as shown by the events in that case. But, again, it would be highly material and almost impossible to anomymise. That is why the previous government--those now putting forward the amendment--used the Parliamentary Papers Act 1840 to publish the Barlow Clowes report and did the same in other exceptional cases. Of course, the person aggrieved would have a remedy if the disclosure to the Minister were malicious as it would then not attract qualified privilege from defamation.
It seems to me perfectly reasonable that the Minister should disclose those types of information to the committee and I ask the noble Lord, Lord Kingsland, not to press his amendment.
I thank the Minister for that answer. I shall read it and reflect on it. Investigations under the Financial Services Act of particular individuals are likely to be different from the kind of investigations which take place under this legislation. I understand that this legislation deals with burdens imposed by other legislation with a view to alleviating them. Is it not unlikely that a situation similar to Barlow Clowes would arise as a result of investigations made under this legislation.
It might not arise directly. Suppose that the Financial Services Authority itself carried out an investigation of the kind to which the noble Lord refers and concluded that something had to be changed in primary legislation, secondary legislation or a directive. It would then promote a regulatory reform order through the Treasury. In order to promote that regulatory reform order the kind of evidence on which it had based its opinion would be relevant.
This is a good example of the issue that the Committee debated on Tuesday--namely, the kind of legislation which would be likely to be affected by the operation of the Bill. The example that the Minister gives is wholly inappropriate to the application of this legislation, raising as it does questions about criminal prosecution, the rights of the individual in such circumstances and so on. I have heard what the Minister says and shall reflect upon it. In the meantime, I beg leave to withdraw the amendment.
Amendment No. 61 is concerned with the same general theme. This amendment deals with a situation in which, even if a Minister has been requested not to disclose particular representations made by a person, he is nevertheless obliged to disclose the fact that the person has made some representations.
I illustrate my reservations by the example to be found in paragraph 78 of the Explanatory Notes which sets out the effect of Clause 7. The paragraph states:
"This clause sets out what should be done when someone responding to the consultation exercise on a proposed order requests that their response should not be disclosed".
The Explanatory Notes go on to give the following example:
"The reason for allowing representations to be made in confidence is that, for example, an elderly person living near a public house may want to give details of the disturbance caused if there is a proposal to extend the opening hours ... but he or she may be justifiably concerned about reprisals".
But in a situation like that the elderly person may have previously expressed her views to one or two people, perhaps even the publican. If there is a proposal to extend the opening hours and it is disclosed that that elderly person has made some representations, it does not require a great deal of intelligence to work out that that elderly person has given details of her previously expressed views. If the Minister is obliged to disclose the fact that any particular person has made representations, inevitably there is a risk of reprisals. That risk is not proportionate to the benefit.
I go further and suggest that there is no benefit at all in disclosing the fact that a particular person has made representations if the representations must not be disclosed in a manner that identifies them with the person who made them. On that premise, the disclosure of the identity of the person who made representations, whatever they may be, is an entirely useless piece of information. It becomes useful only if one can put two and two together and identify the representations with the person whose identity is disclosed. But that is the mischief that the clause seeks to avoid.
The Committee must remove the obligation on the Minister to disclose the fact that any particular respondent has made a representation. I beg to move.
The noble Lord describes a possible conflict between an elderly lady who lives near licensed premises who may be affected by a regulatory reform order and the contrary case, which he did not put fully and rejected out of hand as having no validity. I do not deny that there is something in his case, or that it is conceivable that a regulatory reform order is so precise in its application that disclosure of the identity of a respondent to consultation, without the content of that response to the committees of both Houses, may damage that respondent. However, I believe that it is highly unlikely. We are not dealing here with planning applications but much more general issues and burdens. Nevertheless, I acknowledge that there is some weight on that side of the scales.
The alternative case, which in a sense is anti-government, is one that the noble Lord dismisses out of hand. It is incumbent on Ministers to report everything that comes to them which is relevant to the consideration of the committees. If someone approached a wicked Minister, not of this Government or even the previous one, and asked him not to proceed with a particular regulatory reform, or, worse, to proceed with it because it would assist his despicable financial interests, should the Minister be able not to disclose those representations? Surely, the case for open government must be that when a consultation process is in place Ministers are not at liberty to pick and choose the representations or the names of respondents to make available to Parliament. That is the case on the other side, which I believe is a stronger one.
Subsection (2) as it appears in the Bill reproduces the provision in the 1994 Act which has worked well. However, we now face a new situation. One point made at Second Reading was that, if the Bill was to live up to the Government's intentions, the Delegated Powers and Deregulation Committee would labour under a substantial burden of work. We are faced with considering how to help the committee cope with that burden. Much of what we can do does not entail statutory provision. We have to look to our Standing Orders and to the provision of staff resources. However, one resource of the committee that will be under pressure is time, and my amendment is directed to that particular problem. My amendment is designed to give greater flexibility to the period of time that may be taken for parliamentary consideration by the committee. At present, the stipulated period is 60 days. When that period has elapsed a draft order may be laid. That repeats the provisions of the 1994 Act. I believe we are moving into new territory and that we may need to go beyond the existing provisions.
Under my amendment a draft order can be laid after 40 days if committee deliberation is complete, or it can be delayed for up to 90 days if the committee wants to take that long. Some flexibility may be useful. Orders made under the Bill are likely to differ significantly in scope and effect. Some may require little parliamentary scrutiny; others may require substantial scrutiny, perhaps taking longer than is presently the case with orders under the 1994 Act.
I readily concede that my amendment might not hit the mark. This is a probing amendment and one that is designed to elicit a response essentially from two quarters. One is from members of the Delegated Powers and Deregulation Committee. I shall be guided by their views as to what is necessary. The other is from the Government: first, in terms of the thought they have given to the burden that will fall on the Delegated Powers and Deregulation Committee; and, secondly, what resources will be necessary to enable it to fulfil what may well be an onerous duty. Given that the provisions of the Bill impose a burden on the Committee, and the Government wants to reduce burdens, it is appropriate that we turn our minds to achieving that.
My amendment is designed to focus attention on what is necessary and how we may assist the Committee in discharging what is likely to be an extremely onerous burden. I beg to move.
In principle, I support the amendment. As a probing amendment, it is concerned with the question of adequate time for scrutiny. In that context it relates to one of the aspects of Amendment No.10 to insert Clause 1A that my noble friend Lord Norton, and I move, and which I shall move on Report. Therefore, I support the amendment in principle as being relevant to that consideration.
While I can be somewhat critical of the drafting of the amendment, particularly because what is laid before Parliament in the first instance is not a draft order but a document in the form of a draft order, nevertheless there is something in the substance of the amendment. I would prefer to see greater flexibility with regard to the time. I shall be interested to hear what the Minister has to say.
The Minister is willing to be probed on this matter. I understand why the noble Lord, Lord Norton, wants to introduce a level of flexibility into the timetable against which the committees produce their report. The committees will undoubtedly face an additional burden in scrutinising reform orders under the Bill. That has always been acknowledged. It is a matter for the House authorities rather than the Government how that is achieved. The committee of this House and, so far as I am aware, the committee of the Commons, have not taken that as being an overriding objection to the Bill. Clearly, the House will want to consider the matter of appropriate resourcing.
There are problems associated with the amendment. The problem lies more with the people who want to make representations to the committees than with the committees. We need to give them priority. One can imagine an interested party who thought he had 60 days in which to contribute to a debate suddenly discovering that the committee had decided to resolve the issue in 40 days, and that the committee had reported perhaps 20 days earlier. That matter arose in consultation on the earlier drafts of the Bill. When we consulted on the provisions of the Bill in March 1999 a number of people raised that issue.
We need to ensure that the scrutiny period is as transparent as possible and that everyone knows exactly where they stand. The Deregulation Committee of the House of Commons objected to any reduction of the period for this very reason. Sixty days was seen as sufficient time to scrutinise reform proposals. I believe that the Bill already gives the committees sufficient scope for scrutiny. Primary legislation receives detailed scrutiny over such a period. As the Delegated Powers and Deregulation Committee said in its report, and as my noble friend Lord Borrie said in Committee on Tuesday (at col. 184 of the Official Report), the procedure under the Bill could arguably be seen as providing a greater level of scrutiny than that afforded to most Bills.
On that basis, although I recognise the advantages of scrutiny they are outweighed by the advantages of transparency.
Since there has been much discussion about a proposed regulatory reform order on the reform of the fire protection legislation mentioned in the Explanatory Notes and several times during our debate on the Bill, can the Minister say whether it is possible for the Committee, first, to take representations, and, secondly, to complete its consideration within the 60 days provided for under the Bill?
The 60 days provided for under the Bill are 60 days for the committee to do its work. If an issue is sufficiently complicated I am sure that it would have been aired publicly in a more informal way a long time in advance of that. There is nothing to stop that happening.
No, but the whole point is that the proposed legislation is very much nitty-gritty stuff. An enormous amount of work will need to be done by the committee and its advisers in order to understand the reformation which is going on.
Can the provision be amended to allow for flexibility if it were required in the view of the committee? There may be cases where it will be required. It may be that there will be few cases where it is. But cannot the straitjacket period on the face of the Bill be made more flexible so that if it is required it may be given?
I will think about that matter. But my instincts are very much against that. My instinct is that it is much better to have a transparent, known period for the committees' consideration of matters. It will start and finish on certain dates. Everyone will know those dates and anyone who wants to make representations will know the period in which they have to make them.
The noble Lord, Lord Skelmersdale, raised the fire safety case. That kind of case may need an advance period of public debate so that everyone knows what is being talked about. But it would be undesirable for that provision to be on the face of the Bill.
I am grateful to the Minister and to other noble Lords who have contributed to the discussion on the amendment. I hear what the Minister says. I understand his argument. I am not totally persuaded of his point in relation to the minimum period. One can have an adequate minimum period and some degree of flexibility. But it was a probing amendment.
I heard what the noble Lord, Lord Goodhart, said. I am very grateful for his contribution, both in terms of principle, which persuades me that I should go away and think about the matter, and his correct point about the drafting. Therefore, on that basis I shall not pursue the amendment. I shall go away and reflect upon the matter in the light of what noble Lords have said and what the Minister has put forward. I beg leave to withdraw the amendment.
It is my intention to allow us to focus for a moment on the most important safeguard in this Bill, to which reference has already been made today; namely, the role of the Select Committee on Delegated Powers and Deregulation.
I preface what I have to say to the Committee with the assurance that it is not my intention to patronise either the members of the committee or the role that it fulfils. On the contrary, I hold the committee in great esteem and recognise that its work and its contribution are invaluable. In that respect, I believe that I speak for all noble Lords. It is because of those points that I am concerned.
We have heard much about the opportunities that this Bill, if it becomes law, will create--opportunities that we are told do not currently exist because the scope of the 1994 Act is too narrow and inflexible. We are already in receipt of an ever-growing list of potential regulatory reform orders that could be implemented under this Bill. It is fair to say that the excitement shown by officials at the prospect of this Bill is tangible. That slightly worries me, as they are famous for wishing to regulate and in particular to gold-plate regulations coming in our direction from Europe. I hope that they are serious about changing their culture--and are being encouraged to that effect. In essence, we expect a raft of draft orders to come before the Select Committee on Delegated Powers and Deregulation in the coming years.
The Minister has made a number of references during this stage of the Bill to fire safety legislation and the opportunities that this Bill would afford with regard to simplifying and consolidating the current law. Fire safety requirements are currently spread over 120 statutes. We are now asking the Select Committee on Delegated Powers and Deregulation to scrutinise each and every one of those 120 statues to ensure that, although the proposed order is intended to simplify enforcement for fire authorities and the duty of compliance for business and landlords, as well as to eliminate legislative anomalies and duplication, it will not, in fact, reduce existing standards.
It has been revealed this evening that there is a questionable opportunity to amend draft orders. A great deal of time is given on the Floor of the House and in Committee to the consideration of primary legislation. With those two points in mind, I wonder whether the prospect of this very eminent committee becoming awash with an increased consideration of Acts and orders, many of which will relate to an infinite number and variety of subject matters, is realistic. Should more resources now be found to support the committee? Would it not be sensible to set up a sub-committee of the Select Committee on Delegated Powers and Deregulation to deal specifically with such draft orders and to support the work of the main committee? Do the Government have a view on this? In response to the previous amendment, the Minister said that the question of resourcing should be considered. I am grateful for that. However, I should also be grateful to the Minister for his views on this matter.
I am taken aback by that speech. If it is suggested that the problem concerns the workload of the Select Committee on Delegated Powers and Deregulation, I had understood that my noble and learned friend Lord Falconer and I had made it clear that it is a matter for the House authorities. If there had been a profound objection from the existing committee to the potential for an increased workload, I have no doubt that it would have said so. The committee will certainly consider the suggestion made by the noble Baroness, Lady Buscombe, about setting up a sub-committee. However, these are not matters for the Government to consider. Surely the noble Baroness, Lady Buscombe, is not telling this Committee that it should hold back on further deregulation because of the possibility of a lack of resources within this House.
I am saying precisely the opposite of that. I am suggesting that we do not want a situation in which that eminent committee is so overburdened that it cannot proceed effectively with the number of draft orders that will come before it for consideration. I make it clear to the Committee that I am not suggesting that we should like to get in the way of the process, or indeed that what the Minister is suggesting will get in the way of the process. I have used this procedure to flag up the need for this Committee to make it clear that, although we greatly support the work of the Select Committee, we have real concerns that, in the event of this Bill becoming law, it will be deluged by a considerable extra workload. We are therefore concerned to ensure that the point can be addressed by that committee.
I fully understand that giving notice of opposition to the Question that Clause 8 stand part of the Bill is a device for debate. I do not criticise that; I have done it on many occasions. However, if that opposition were to be carried, the effect would be to remove parliamentary consideration of proposals. That may be the opposite of what the noble Baroness, Lady Buscombe, has said, but it is not the opposite of what a successful removal of Clause 8 would achieve.
I am grateful to the noble Lord for giving way. He may recall that I began by saying that we are focusing on the most important safeguard, which is that the function of the Select Committee provides us with our best hope of such orders being properly policed. That is the point that we stress.
But not by removing Clause 8 of the Bill. We perfectly well understand the politics of this debate. We understand that it is the fixed view of the Opposition that in future this Bill could somehow be used to increase rather than reduce burdens. That is not the intention of the Bill. That is not what the Bill provides. I realise that this idea is fixed in the mind of the Opposition. That is why the noble Baroness, Lady Buscombe, and others refer to the enthusiasm of officials for these orders. The enthusiasm is not of officials for these orders. The enthusiasm is that of the Government, welcoming the pressure for deregulation by the noble Lord, Lord Haskins, and his Better Regulation Task Force. This Bill is about regulatory reform, not about increasing burdens.
If it is seriously suggested that the effect of this Bill will increase burdens, perhaps the noble Baroness, Lady Buscombe, or anybody else will tell me which of the 51 examples of measures that are high on our priority list for regulatory reform orders will actually increase burdens. Of course they will not. Whether or not officials are enthusiastic for these measures has nothing to do with the case. The Government are enthusiastic for decreasing the burdens on businesses and individuals. That is why we want to see the measure go through. Although there may be difficulties for the parliamentary committees, I do not accept that those difficulties should be allowed to stand in the way of the immense benefits that can be achieved by relieving burdens on individuals.
With respect, the noble Lord has hit the nail on the head. The problem is that this Bill can enable these extensions to be made. If we look at Clause 1(1)(c), we see that that is precisely the trouble which arises. Not only does it arise with us in this Chamber; it is precisely what was envisaged by the Delegated Powers and Deregulation Committee which, in the conclusions of its second report, said that very wide powers are given and that there have to be adequate safeguards. That is precisely the issue.
Let us forget about wicked Ministers. There are none in this Government and there were none in the previous government. But one cannot draft legislation on the basis that one will not have wicked Ministers. That is a real concern. It is not a political point. It is not something brought out to generate discussion. It is an essential point. It goes to the root of Clause 1 and safeguards.
We are debating Clause 8. We are debating the clause which refers to the parliamentary scrutiny of proposals. The peg on which we are debating it is the argument that the committee of this House will be inadequately resourced to do the job that will arise as a result of the Bill. I accept that there will be an increase. I accept that there will be orders. I challenge those who claim that what is proposed will be damaging and should be constrained by the ability of Parliament to carry out scrutiny to tell me which of the 51 orders increases burdens rather reduces burdens. That is, in practice, what is before the Committee. Those who believe that the Bill will increase burdens rather than reduce them should oppose Clause 1 of the Bill and the Bill as a whole. But that is not the issue before the Committee at the moment.
I agree with the Minister's final point. We are discussing Clause 8. But he is the one who raised the wider point. The objection is to Clause 1(1)(c), which some of us sought to remove. The Government resisted that. The Minister kept saying, "Here are our examples. Show us which ones will impose regulations". But of course they do not. The Government come up with examples that will do the opposite. That is what they keep arguing. The point is that the powers in the Bill could be used for other purposes. If the Government intended to use it for other purposes, the last thing they would do is include in the list of examples things which impose regulations.
Before the Minister replies, perhaps I may say to the noble Baroness, Lady Buscombe, that I have often sat in the Officials' Box and been very irritated by the kind of remark which she made about officials, to which the officials could have no opportunity of replying. If I heard her right, she said that officials were famous for enjoying regulation and indeed for gold-plating them. It is the case that many allegations of that kind are made and that they attract a good deal of consideration. In my experience, it was rare that on actual examination those allegations turned out to be justified. I would suggest that it is not worthy of the noble Baroness to attribute that to officials.
Before the noble Lord sits down, is he saying that the accepted range of gold-plated regulations have always been imposed on officials by politicians?
No. What I am saying is that the British Government, including the Civil Service, have a reputation for being meticulous--perhaps more meticulous than some countries--in fulfilling their international obligations. But when particular allegations were examined of whether officials had taken the opportunity to elaborate regulations beyond what was required by our international obligations, those allegations were found to be unjustified.
Though short, the debate seems to have ranged over a surprisingly wide field. It has covered the increased burdens that might be placed on the Delegated Powers and Deregulation Committee, it has covered the question of whether the powers under the Bill could be used to increase burdens on other people and it has covered the issue of gold-plating.
Perhaps I may deal briefly with the first of those issues. The noble Baroness, Lady Buscombe, was right to raise it because there will be an increased burden on the committee. At this stage it is difficult to say how great that increase will be. There are remedies that could be introduced. One possibility, which will no doubt have to be looked at, is splitting the committee into two and having a delegated powers committee and a separate deregulation committee. That possibility might have to be considered if a substantial number of deregulation orders were brought forward. The noble Lord, Lord Skelmersdale, was right to say that the great majority of the work that the committee now does is concerned with looking at the delegated powers contained in Bills rather than in deregulation orders.
It is also clear that the Minister is right to say that it is a matter for the authorities of the House and not one that it is appropriate to include on the face of the Bill.
Perhaps I may add one or two sentences to what my noble friend Lord Goodhart has said. I entirely agree with my noble friend. We are both members of the Delegated Powers and Deregulation Committee. It should be said that at this moment it would be wrong to say that the committee is overworked. We do suffer from the fact that too many amendments are introduced to Bills at a late stage and after we have looked at the original text of the Bills. That leads to a somewhat unjustifiable pressure. But part of the reason we are not overworked is that we are outstandingly served by our Clerk and our legal adviser.
At the same time, it is perfectly possible that the Bill will lead to a considerable additional burden. It will be a different kind of burden. In an earlier debate the noble Lord, Lord Kingsland, pointed to the different kinds of burdens. What I mean is that it will lead to additional work, especially if the committee has to see witnesses in considerable numbers. I therefore sympathise with the earlier call of the noble Lord, Lord Norton, for sufficient flexibility. Perhaps we can collectively give some thought to the question of whether the Bill leaves enough room tothe House for manoeuvre to introduce a certain amount of flexibility into the organisation and working patterns of the Delegated Powers and Deregulation Committee. On the whole, I feel that we are perhaps exaggerating the number of orders that will come down in the immediate future. But that is neither here nor there in this connection. Flexibility is what is needed.
I do not want to re-open the debate. On behalf of the Government, I acknowledge what the noble Lord, Lord Dahrendorf, has just said. In so far as there are unreasonable demands on the Delegated Powers and Deregulation Committee, they are because of amendments--the noble Lord means government amendments--brought forward at a late stage to primary legislation. We have to do something about that. We have to do better than we have done in the past.
The second point I wish to make concerns the issue of workload. First, the powers provided in Clause 8 are simply a re-enactment of the powers in the Deregulation and Contracting Out Act 1994. No change has been made to those powers. Furthermore, I am not suggesting that the noble Baroness, Lady Buscombe, said that that was the case. The perfectly legitimate point that she made was that a new flush--it might or might not be called a deluge--of new orders might result, just as there was a flush of new orders after the 1994 Act. Although only 42 orders were finally laid, when that happened the workload of the Delegated Powers and Deregulation Committee increased. However, it managed well. Ways must be found to manage this because removing and decreasing burdens on business and on individuals is a worthwhile goal. Parliamentary scrutiny is essential to achieving that.
I am grateful for this opportunity to speak also to Amendments Nos. 75 and 78A standing in my name on the Marshalled List. In order to help the Committee to follow my argument, I should explain that Amendment No. 78A corrects a fault--with the wisdom of hindsight, it probably was a fault--in the enforcement procedures laid down in the 1994 Act. Amendment No. 75 preserves that part of the Act which would otherwise be abolished. Thus, Clauses 9, 10 and 11 of this Bill are unnecessary because we would retain the relevant parts of the previous Act, along with the enforcement procedures which accompanied them.
Perhaps it would be useful to the Committee if I gave some background to my amendments. Noble Lords will recall that, prior to the 1994 Act, we would read repeatedly in the newspapers accounts of the misapplication of enforcement orders where over-zealous officials--perfectly reasonably in that they were trying to do their jobs--got out of bed the wrong side, did not bother to do their homework correctly as regards the correct interpretation of the statutes they were enforcing and bulldozed in, thus unfairly generating a great deal of unreasonable and incorrect enforcement. At the time, the practice was strongly highlighted by that champion of the underdog, Christopher Booker. Indeed, today's "Christopher Booker index" of such unfortunate practices has dropped back. Huge improvements have taken place.
The enforcement procedures enshrined in the 1994 Act were responsible for those improvements. Prior to the Act, the regulated party felt that it was being regulated unjustly, the appeals procedures were arcane, tortuous and, in most cases, extremely lengthy. Ultimately, the only hope lay in judicial review. By that time, so much water had gone under the bridge, so much economic harm was done and such high costs were involved that a great many incorrect applications of the law were never put right. The revised enforcement procedures in the 1994 Act were designed to correct a situation which manifestly was causing public harm.
However, I suggest that the clever element in the Act was to recognise that the appropriate place to put right a misapplication of the law would be before it took place rather than to conduct endless subsequent appeals, with lawyers earning giant fees in their efforts to correct what should not have happened in the first place. The Act aimed to achieve a better and more sensible balance when working out precautions and so forth between the regulator and the party being regulated at the point of application, in readiness for the day when the regulation was to be enforced.
The consequence was that schedules were introduced which statutorily, as codes of practice were adopted, forced the regulator--at the point at which he was to apply the law--first to state clearly the relevant statute under which he was applying a regulation; secondly, to invite the regulated party to speak to his superior officer in order to establish a fallback in case someone got it wrong; and, thirdly, once he had decided to apply the law, to make clear to the regulated party the routes of appeal. The objective was that any official who wished to do his job fairly and properly could then be confident that, if taken to appeal, he would have a good case. He would not think twice about explaining the route to such an appeal at that point.
Although that was admirable, unfortunately, it was overdone and the law was, I believe, overly prescriptive. Amendment No. 78A seeks to correct what was an imbalance. The relevant clause in the original Act stated that the officer,
"is considering taking the action and the reasons why he is considering it".
I do not think that that was what was intended. I believe that, from the first, the clause should have read, "when he intends to". I believe that the words "is considering" cause problems. The noble Lord, Lord Borrie, touched on this at Second Reading when he mentioned that enforcement officers were worried about the "minded to" clause, as they referred to it; namely, that when they were considering or "minded to" take action, at that point the regulations force them to explain the appeal procedures. Clearly that pulls the rug from underneath their argument because the threat of enforcement is their most powerful weapon. At the point when officers are only considering taking action, the strength of their position is unreasonably undermined. I accept that.
This amendment is designed to put the matter right by substituting the word "intends" rather than "is considering" so that when an officer is only considering taking action--which is the case most of the time--and thus only threatening his intentions, he will not have to make clear the full appeal procedures. However, at the point at which he intends to or does apply the law as regards any regulations, then he will do so. This would put right a previous wrong.
Because many regulatory authorities rightly did not like the "considering" and "minded to" procedures, they have in effect asked for the baby to be thrown out with the bath water. Thus all the sensible elements which were built into the enforcement procedures under Schedule 1 to the 1994 Act are to be thrown out by the legislation before us. I put it to the Committee that it would be far better to correct and then to continue to use the previous legislation. That is the burden of my proposal.
I rise to speak against Amendment No. 78A in particular. It is more restrictive than the Bill as currently drafted.
At present, the Bill is drafted with a view to avoiding formal action being taken whenever possible. It should allow for discussions and negotiations to take place, during which time it is hoped that agreement will be reached over any difficulties between those who must enforce the regulations and those who have to follow the regulations. The amendment would change this process and, in my view, that would not be for the better. Rather than the concept that enforcers "may" take action, the Bill would state that the enforcers "intend" to take action and therefore would give much less room for any negotiations or changing of positions to take place.
While serving on the Health and Safety Commission, I became very aware of how bureaucratic and confusing for everyone were the "minded to" provisions in health and safety legislation. It was a concept which was universally unpopular, not least with the officials who had to implement it. This contrasted with the proposals set out in the enforcement concordat which the Government have drawn up after considerable consultation with interested parties.
I am assuming that under the proposed new code a similar approach would be taken. It would give a chance for officials to talk over any particular area, with a view to resolving issues before any formal enforcement action is taken. This seems to me to be the most realistic and practical way to resolve difficulties whenever possible. Amendment No. 78A would appear to curtail this approach. I hope that the Minister will not accept it.
There is nothing between the noble Baroness and myself in recognising that the "minded to" proposals were harmful. But, contrary to what she is suggesting, my proposals meet that point. It depends on the way one reads them. Perhaps I have not drafted them very well. As it stands at the moment, when the enforcer is "considering", that is the point at which he is negotiating. Under my amendment, he can do what he likes when he is considering; he has the full powers to consider and to threaten without having to give the full route to appeal. It is only when he "intends"--when he has utterly made up his mind--that he has to give the appeal procedures. I think that that seems to meet the point of the noble Baroness, Lady Gibson, rather than going in the opposite direction.
I fully support my noble friend's amendment. As to the point made by the noble Baroness, Lady Gibson, Amendment No. 78A does not deny consultation or negotiation--far from it. The whole point of the amendment is to address what we believe to be the Government's concern in relation to that part of the 1994 Act--that it was overprescriptive; that it sent out the wrong signals to those on the other end of the enforcement process.
This is a straightforward point. It is absolutely to do with timing. The whole interpretation of the use of the words which are, in a sense, being exchanged here could make a real difference to the way in which the enforcement process would be carried out. At the risk of a repetition of my noble friend's words, we feel that throwing the baby out with the bath water--which is what the Bill intends--would be a great pity; there was a lot that was good in Section 5 of the 1994 Act. We would much rather see an amendment to that Act. We believe that that would send out the right signals, allowing all possible opportunities for negotiations and consultations to take place, after which it may then be decided that enforcement should proceed.
One of the enormous advantages of the amendment is that it would respond positively to a point made by the Minister earlier in our debates on the Bill in relation to what the noble Lord, Lord Renton, would say. If the amendment were approved and accepted, we feel that it would, first, entirely meet the Government's concerns; secondly, it would do away with a lot of unnecessary words in the Bill.
Perhaps I may draw the Committee's attention to paragraph 17 of the Explanatory Notes to the Bill. When there was consultation by the then government at the end of 1996 on proposals to apply Section 5 of the 1994 Act to the fields of trading standards, care services and environmental health, businesses themselves, according to the Explanatory Note, felt that sometimes businesses were confused between a "minded to" notice and formal enforcement action. I should have thought the same objection applied, indeed, perhaps even more strongly, that businesses would feel that a statement that it was "intended" to--not merely "minded to"--bring enforcement action would also be confused with formal enforcement action.
The same paragraph of the Explanatory Notes refers to the fear of local authority enforcement officers--particularly trading standards officers--of the proposal to apply Section 5 of the 1994 Act to trading standards. They felt that it could so easily be manipulated by what they call "illegitimate businesses"--"rogue traders", if you like. I feel that that objection, too, applies to the noble Lord's suggested amendment.
Looking at the Minister, I have a feeling that we shall not get much movement on this issue at this stage. Perhaps I may suggest that discussion on this point with the noble Lord, Lord Haskins, in his role as the head of the Better Regulation Unit, may be able to help us. We should perhaps ask him whether in his view this would be a sensible amendment.
Perhaps I should make it clear that we on these Benches regard Clauses 9, 10 and 11 as a considerable improvement on the provisions in the 1994 Act, whether amended as proposed or not.
Did I hear the Minister, who is always so courteous in these matters, suggest that Schedule 1 could be amended to make the difference between "considering" and "intends" quite clear? It is a very substantial difference. I believe that, on consideration, the noble Lord, Lord Borrie, would feel that this would meet his enforcement officers' fears. They are only fears; examples have not been given of where they have met corrupt traders who have exploited them through these procedures.
Perhaps the Minister will look at Amendment No. 78A. If he does not like the wording, perhaps he will come up with something that will put right what was obviously wrong or overprescribed in the previous Bill, and incorporate these schedules, as modified, in any guidelines for future procedures or codes of conduct.
So far, I have hardly said a word. Everyone is acting as if I have made a speech and they are putting words into my mouth. All I commented on was the suggestion by the noble Baroness, Lady Buscombe, that if we removed Clauses 9, 10 and 11 we would reduce the volume of the statute book. I contested that by reminding her that a large part of the 1994 Act would remain on the statute book.
I have difficulty with these amendments. History shows that there are difficulties which go back a long way--and that includes Amendment No. 78A, which I take seriously. I pay tribute to the noble Lord, Lord Vinson, for his active role in the passage of the 1994 Act. He expressed concerns--which the government of the day took very seriously--that it would be difficult if businesses, in particular, were suddenly leapt upon and told "For reasons you did not understand before, this is now illegal".
The noble Lord persuaded the previous government to put in a whole series of procedures in Schedule 1 to the Act which provided that they would, to begin with, have to go along to businesses and say, "We are minded to take action", thus providing the opportunity for discussion. However, it did not work. Having paid tribute to the noble Lord for his diligence in that respect, I have to say that it did not work.
I prefer to judge by results, not by the conjectural worries of the statutory bodies. I have in mind the rapid fall-off in complaints from businesses that felt that they had been unjustly regulated in the past. We live in a different world now; indeed, one has only to ask Christopher Booker to find out about that. Therefore, with the greatest respect, I believe that it did work. That is why I am so anxious to see these provisions preserved in the broadest sense.
I shall rephrase what I said and say that these provisions were hardly used, although that may not be quite the same thing.
In December 1996, the previous administration launched a consultation exercise on using Section 5 in respect of legislation in the field of trading standards, care services and environmental health. My noble friend Lord Borrie referred to that fact, and it is set out in the Explanatory Notes to the Bill. The feedback from that consultation showed, first, that local authority enforcers felt the "minded to" provisions were excessively bureaucratic--and noble Lords can discount that if they wish--and that they could be manipulated by illegitimate businesses. I do not discount it. I believe that the views of those who have to enforce the legislation are of considerable importance. Secondly, that feedback showed that businesses were not entirely convinced and that they sometimes confused the "minded to" notice with formal enforcement action.
Therefore, in line with the consultation exercise carried out by the previous government, we have decided not to pursue Section 5 procedures, which, as I said, were hardly used. We have instead drawn up the Enforcement Concordat, following extensive consultation with businesses, the voluntary sector, the enforcement community and consumer groups. It provides a blueprint for fair, practical and consistent enforcement. The new enforcement provisions are in keeping with the policy. They allow the voluntary approach to spreading best practice to continue, while providing a power to intervene if that runs into problems.
The proposal is a more flexible tool to improve enforcement than the old Section 5, which can be applied only by specifying each individual piece of legislation to which the enforcement procedures that it sets out should apply. The new power is not limited to application in that way; for example, it could be applied by geographic area or by type of enforcer. That will make it easier to target the intervention on a specific problem. Nor are the procedures to which it should apply specified in advance. The targeting of, and the procedures to be applied in, any code of enforcement practice will be the subject of prior consultation. This means that the code can be developed with the particular problem in mind and specific practices that have proved to be an unreasonable burden on business can be addressed.
Any code of practice on enforcement set out under the code will almost certainly include procedures which might cover requirements on enforcers to explain why remedial action is necessary and over what time-scale; clearly distinguish legal requirements from best practice advice; provide suitable opportunities for discussion; provide explanations of immediate action in writing within a given time-scale; and give an explanation of the rights of appeal. The concordat says that, before enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required. It is expected that any code would contain similar provisions.
I gave a report on progress towards acceptance of the concordat on Second Reading, but the present position is that over 84 per cent of local authorities in England, Scotland and Wales have adopted the concordat. Similarly, 80 per cent of central government agencies have adopted the concordat for all of their regulatory enforcement activities. In implementing the concordat, those agencies have rewritten their codes of practice and charters to reflect the content of the concordat. These codes of practice and charters are available to those who have been regulated. They set out the procedures that the regulatory body will adopt. The Government are continuing actively to promote the concordat to local authorities and central government agencies, along with other partners such as the Local Government Association, the Society of Local Authority Chief Executives, the Local Authority Co-ordinating Body on Food and Trading Standards and the Chartered Institute of Environmental Health. We expect that adoption of the concordat will be close to 100 per cent by this July.
Under those circumstances, surely to abandon the voluntary approach, backed up if necessary by a code of practice, by re-instating Section 5 and Schedule 1 to the 1994 Act would be a retrograde step. Indeed, it would be a retrograde step, especially if Amendment No. 78A were to be agreed. The effect of that amendment would be to change the character of any notice that might be issued to conform with any order made under Section 5. It would make the notice more of a firm statement of the enforcer's threatened action, rather than a statement that the enforcer was considering taking action. Presumably, for that reason, it would be more difficult for the business being regulated to dissuade the enforcer from taking that formal action. I cannot see how there would be any advantage to business, or to anyone else, from this proposed change to retain Schedule 1 as part of statute law.
I appreciate the sincerity with which this matter has been approached by all noble Lords who have spoken in favour of the noble Lord's proposals. But I ask the Committee to listen to my noble friend Lady Gibson, who knows from her membership of the Health and Safety Commission what has actually been happening, to my noble friend Lord Borrie, who knows more than any of us about the effect of these matters, and also to bear in mind the consultation exercise that was carried out by the previous government, as well as that carried out during the preparation of this Bill. I urge noble Lords not to accept these very major amendments to the Bill.
If we follow the route suggested by the Minister, we shall move from a regulatory regime where the regulatee has positive rights of appeal and the regulator has to act very properly within a statutory framework to a wishy-washy, voluntary concordat that may or may not have some of these provisions within it--provisions that I believe to be absolutely essential to seeing fair play at the point of the application of the law and which, in practice, have worked.
All we have heard from the other side is the fear that the existing provisions might not work or that they will be used against those concerned. But, in practice, they have not been so used. If the appeal provisions have not been used, it shows how well they are working in that such issues were sorted out before they went to appeal. That is precisely the outcome that we all wish to see. However, this is not the time for me to press the matter to a Division. Nevertheless, we shall need to return to such issues on Report so as to try to get some of the essentially useful appeal mechanisms contained in Schedule 1 to the 1994 Act mandatorily incorporated into new codes of practice. They should not be left in a voluntary state so that they might or might not be adopted.
As I say, we may return to the matter on Report. In the intervening time I hope that the Minister will have good discussions with the noble Lord, Lord Haskins, who I am sure would have wished to be present this evening--
I am sorry to interrupt the noble Lord, but the noble Baroness, Lady Buscombe, questioned the position of my noble friend Lord Haskins. Although my noble friend Lord Haskins has talked to the noble Lord, Lord Vinson, and has passed on his views to the Government, it ought to be made clear that he is not signed up to those views. We shall, of course, continue to discuss the matter with the Better Regulation Task Force and my noble friend Lord Haskins.
I did not suggest that the noble Lord had signed up to such views. However, I am sure that he would be sympathetic to some of them and no doubt to the incorporation of parts of them in any future concordats.
It was important to raise these issues. The voice of small businesses as regards the regulatory burdens under which they suffer is not often heard in this Chamber. The whole object of these amendments was to flag up what I believe is only just beginning to be an extraordinarily useful and effective mechanism in practice to get fairness, sensibleness and proportionality into the application of regulation. At this hour there is no more to be said. I note what the Minister said.
Clause 9 agreed to.
Clause 10 [Making of codes of practice by Ministers of the Crown]:
[Amendment No. 74 not moved.]
Clause 10 agreed to.
Clause 11 [Making of codes of practice by National Assembly for Wales]:
Clause 11 agreed to.
Clause 12 [Repeals and savings]:
[Amendment No. 75 not moved.]
Clause 12 agreed to.
Amendment No. 76 follows directly from the case I tried to make in the Second Reading debate. Therefore, there is no need to repeat the argument put forward at that time. Having listened to a great deal of this Committee stage debate, it is clear to me that there are two great issues in the Bill--there are at least two--namely, the scope of the Bill and its safeguards. Amendment No. 76 addresses the issue of safeguards.
As the Committee is aware, the delegated powers committee wanted the House to consider the matter of a sunset clause. I am pleased that in a few moments we shall have the opportunity to do just that. I have given the matter of a sunset clause much thought. The more I thought about it, the more I felt that it may not be the most appropriate way to introduce safeguards at this stage. What we really need--if the Committee will pardon this naive statement--are sunset clauses in new regulations. We need that much more than a sunset clause in the Bill we are discussing, which, on the contrary, should be open-ended in offering opportunities to deregulate, which is the aspect of the Bill in which I am most interested.
I am not particularly persuaded by one argument against a sunset clause; namely, that after three years Ministers might no longer be inclined to introduce any orders under this Bill, if it is enacted. I was interested to read the comments of the Law Society on the sunset issue but my main point is that what we want to see limited is the effectiveness of regulatory orders and not so much the effectiveness of the Bill. The second report of the delegated powers committee at paragraph 20 on page seven contains a valuable element which I have tried to pick up in Amendment No. 76. It requires,
"a report on the operation of the Act to be laid before Parliament".
I like that text--how can I not like it when I am a member of the delegated powers committee?--which continues,
"thereby ensuring that the Act is kept under frequent review and that the powers have been both appropriately and effectively used".
The sole purpose of Amendment No. 76 is to make sure that that safeguard is not lost. Therefore, I propose that the wording in Amendment No. 76 be included in the Bill. I propose that a report is produced every year to offer Parliament the opportunity to discuss and review the operation of the Act and to exercise the duty of scrutiny which is so central to what we are doing. That is what Amendment No. 76 seeks to achieve. I very much hope that it will gain the Minister's support. I beg to move.
The amendment asks a Minister to lay a report every 12 months on the working of the Act. Given that the working of the Act is something in which everyone in the Committee is interested, I should have thought there would be much support for that, at any rate from the Committee as constituted here this evening. Those who are present this evening will know that the Government seek to achieve regulatory reform by means of the Bill. Some members of the Opposition who would rather it was concerned solely with deregulation know that that is not the case. We have heard important substantive arguments on that issue. Therefore, the concept that the Government should each year report on the effectiveness, or lack of effectiveness, of the Act seems well justified and worth while.
As the Delegated Powers and Deregulation Committee--two distinguished members of that committee are present on the Liberal Democrat Benches--produces an annual report among other reports, perhaps the simplest thing to do would be to ask Ministers to respond to that committee's annual report, or at any rate to the parts of it which deal with the Bill which we hope will be enacted in a few weeks' time.
I support the amendment moved by the noble Lord, Lord Dahrendorf. It is an eminently sensible amendment. I hear what the noble Lord, Lord Borrie, says. However, I am concerned that his comments invite Ministers to follow the course he suggested. However, I would prefer to have a requirement such as that in Amendment No. 76 on the face of the Bill. The whole problem with the Bill is the extent to which the initiative is left to government rather than placing requirements on the face of the Bill. I hope that the Government will look favourably on the amendment. If I may say so, the Minister had what I would describe as a spasm of common sense earlier when he accepted the amendment of the noble Lord, Lord Borrie. I hope that he will have a similar spasm in response to what I consider an eminently sensible amendment.
I do not wish to take up more of the Committee's time. However, I say to the noble Lord, Lord Borrie, that the delegated powers committee has always insisted that it advises your Lordships' House. It would be unfortunate if in our debates and in assumptions that are made we increasingly seem to give that committee a separate and independent status which in my view it should not have. It should continue to offer this Chamber the best advice. For that reason I would prefer to see the obligation which I suggest in Amendment No. 76 on the face of the Bill.
This is an important point. The noble Lord, Lord Dahrendorf, rightly identifies two entirely separate strands. I believe he said that it would be rather confusing to have a sunset clause in a regulatory reform Bill and that the Bill does not impose regulation but effectively opens the door to removing regulations where that is appropriate and therefore should be open-ended. Therefore, we must decide as a matter of principle whether we think the Bill is worth having. If we decide that it is worth having, there is no logic in then saying that it is only worth having for a few years. The noble Lord, Lord Goodhart, suggested on Second Reading--the noble Lord, Lord Dahrendorf, mentioned that again today--that the House should consider the question of a sunset clause. The Delegated Powers and Deregulation Committee did not recommend the sunset clause. However, he raises a separate issue which introduces a new provision for the House. Should there be some regular way of considering how the procedure is operating? That is a totally different issue. The matter is raised in the context of the increased use of a procedure that is comparatively new.
We are open-minded about the issue. I am sceptical about whether a Minister laying a report every 12 months is the critical factor. Surely we want the interaction between Parliament's view of how the procedure is operating and Ministers' response to that view. The noble Lord's point relates to how the new procedure works. The new procedure is a parliamentary procedure. In those circumstances, the better approach may be along the lines proposed by the noble Lord, Lord Borrie: the committee giving its report, and the government response. One then has both views. That is what one wants, not a report from each department saying, "We have this or that in mind".
It is an important issue. I shall consider carefully what has been said in Committee and return on Report with a reasoned response.
moved Amendment No. 77:
After Clause 12, insert the following new clause--
(" .--(1) This Act shall continue in force for five years and shall then expire, subject to the following provisions of this section.
(2) The Secretary of State may by order made by statutory instrument provide for all or any of the provisions of this Act to continue in force for a period not exceeding five years from the coming into operation of the order.
(3) No order shall be made under subsection (2) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
(4) Such order shall be accompanied by a report laid before Parliament on the operation of the Act.").
In moving the amendment, I shall speak also to Amendment No. 78. Of the two amendments, we prefer Amendment No. 78. I have much sympathy with the view expressed by the noble Lord, Lord Dahrendorf, in the previous debate and that there should be sunset clauses on all regulations.
The Bill has serious constitutional implications. We have considered many of them. As has been said repeatedly, there is considerable concern in this Committee and elsewhere as regards the use that will be made of the Bill if enacted. There was similar concern with regard to the Deregulation and Contracting Out Act 1994, but the proof, or disproof, of the pudding was in the eating. The powers in that Act were not abused in any way. Because of the responsible way in which those powers have been used, this present Bill shows promise.
This Bill and the 1994 Act are very different creatures. The 1994 Act was a mouse of a Bill giving Ministers very limited powers. In contrast, this Bill is a beast; we do not know how it will work in practice. We believe, therefore, that it is sensible to muzzle it. That is why I propose the amendment which will allow us to reconsider the Bill in five years' time. If the beast has behaved, we can allow it to roam free for a few years. If the beast has become uncontrollable, we can deal with it humanely. Whoever may form the government in five years' time, they should have nothing to fear if the powers under the Bill have not been abused. On the other hand, if the Bill has been abused, it should not remain in force.
The proposed amendments also provide for a report on the use of the Bill to be laid before Parliament at the same time as a draft of the relevant order. We believe that that is important. The House will want to decide whether the Bill has been abused in the previous five years. The report should disclose the operation of the Bill over the period. Members of this House and another place can form their own views on whether the Bill has been used wisely and carefully, or has been abused.
The amendments will also go some way towards satisfying the recommendations of the deregulation committees which recommended a five-yearly review of orders made under the order-making powers, but we did not go as far as the recommendations of another place which suggested an annual report.
I understand arguments for an annual report but that is unacceptable to the Government. We are concerned that if we ask for an annual report, we shall not get it. If we ask for a report every five years but are not given one, we shall want a very good excuse.
In response to the Motion,
"to call attention to the Parliaments Acts and the Salisbury convention in the light of recent constitutional developments", the noble and learned Lord the Attorney-General stated:
"Time and again the Leader has said that the Government accept the broad thrust of the recommendations of the Royal Commission chaired by the noble Lord, Lord Wakeham".--[Official Report, 24/1/01; col. 299.]
That is in contrast to the words of the noble Lord, Lord Borrie, during the course of this debate, when he said that the future of the Wakeham report is speculative. Are the prospects of its recommendations being adopted, were this Government re-elected, real? We could be faced with having on the statute book a Bill with extraordinarily wide powers and no certain opportunity for this House to safeguard its use. For that reason alone, I believe that a sunset clause should be put in place. I beg to move.
My Amendment No. 80 has been grouped with these amendments; I make no complaint. I tabled that amendment, having listened to the Minister's opening speech and response at Second Reading. He gave reasons why the Government do not like a sunset clause with a time limit. My noble friend's two amendments propose a period of five years. It was said, "That's all very well. We'll work like crazy for three years and in the last two years nothing will happen".
I sought to overcome the problem by putting into the Bill an inbuilt time bomb. It is totally open ended. The Bill continues in force until it is repealed by order with all the safeguards that are already in the previous clauses of the Bill. I am in favour of a sunset clause. I accept that it is a novel way of doing business. I do not think that it has ever occurred in any Act of Parliament, but that is no reason why it should not happen now.
I believe that the noble Baroness, Lady Buscombe, is an optimist. If so, no doubt she thinks that during that five-year period a Conservative government may be elected. On that basis, will she say whether a Conservative government who introduced a regulatory reform order under the Bill would abide by the opposition of the Delegated Powers and Deregulation Committee in this House or the similar committee in another place?
I rise with some regret to support the amendment of the noble Baroness, Lady Buscombe. I would much prefer to have the Bill in a satisfactory form so that it could go forward on a permanent basis safe in the knowledge that it could be used for the highly desirable purposes for which it is intended but could not be abused by a government determined to do so.
I have to say that, at the end of the Committee stage, I am not satisfied that we have got the Bill right. I am concerned about the extent of the powers in Clause 1(1), particularly paragraph (c). The noble Lord, Lord McIntosh of Haringey, said that the Bill was intended to be deregulatory in effect, but it contains powers to add extensively to the existing list of regulations. If Clause 1 could be improved, I should be happy for the Act to remain in force until it was repealed. However, as matters stand, I would be willing to support a sunset clause to ensure that the legislation had to be reconsidered periodically by both Houses.
This is another important issue that has been raised by the Delegated Powers and Deregulation Committee. We should consider it carefully. I start with the same point that the noble Lord, Lord Dahrendorf, made on the previous occasion: we have thought carefully about the issue and we do not think that it is appropriate to insert a sunset clause.
There are sunset clauses in some legislation, but no other Act of Parliament has a sunset clause of this sort. The suggestion is that the provisions should stop after five years unless continued by statutory instrument. Sunset clauses have a role to play in regulations, where their use should be considered on a case by case basis.
The Bill does not impose regulations--quite the reverse; it is intended to deregulate. I am of the firm opinion that there should not be a sunset clause in the Bill. It has been the subject of extensive pre-legislative scrutiny involving the DPDC. The committee was highly praised in the course of that. The Government believe that that process has resulted in a Bill that is based on a tried and tested scrutiny process and includes safeguards that are more than robust enough to prevent possible misuse. The noble Baroness, Lady Buscombe, will correct me if I am wrong, but I assume that the Conservatives will replicate our undertaking to withdraw an RRO if the relevant committee objects to it. The working of the Bill can be dealt with on the basis that if particular RROs are not liked, the Government will have to come back with them in a different form. It would be for the committee to report against a draft order if it felt that it was inappropriate.
It is my firm belief that, for those reasons, there is no need for a sunsetting provision, because the safeguards are adequate. Equally, as I said on Second Reading, if the sunsetting provision were put in, departments would not engage in the amount of work that is required for an RRO--which is similar to the work required for primary legislation and in some cases is much harder--because they would not know whether the legislative basis for their RRO existed. With the greatest respect, there is no benefit in including a sunset clause--in fact, there is a positive disbenefit. We have thought very hard about the issue and if we thought that there was merit in the idea, we would go along with it, but we do not think that there is.
Similar amendments were tabled when the 1994 Act was going through Parliament. The noble Lord, Lord Strathclyde, vehemently objected to a sunset clause then, rightly arguing that the House had to make a decision about whether, having regard to the existence of the safeguards, it was right to go ahead with the Act. The House decided that it was. As the noble Baroness, Lady Buscombe, has said, the House was right.
The arguments of the noble Lord, Lord Skelmersdale, about giving the legislation an in-built ability to swallow itself at any time and under almost any circumstances fall foul of the same argument that it would provide no benefits because the protections are adequate. His amendment would create the additional problem that a department would never know when the legislative basis might be swept from under its feet. With the greatest respect, neither provision stands scrutiny.
The noble Lord, Lord Goodhart, said, legitimately, that if we were prepared to amend Clause 1 a little, he might be prepared to reconsider his position. That may be a sensible negotiating position, but it lacks a bit of logic. For all those reasons, I invite the noble Baroness to withdraw the amendment.
The noble and learned Lord may have ignored subsection (3) of my amendment. All the consultation provisions are included in the amendment. Any Government that proposed to do away with the Act would be able to use the order-making procedure rather than using primary legislation, which they would have to do under any other circumstances.
The noble and learned Lord cited my noble friend Lord Strathclyde, who is currently the leader of my party in this House, in support of his vehement opposition to the idea. Quite a lot of water has fallen over the weir since 1994. On reflection, perhaps my noble friend and I were wrong on that Bill.
I have never heard the noble Lord, Lord Strathclyde, referred to as "the weir". I had taken subsection (3) of the noble Lord's amendment into account. That does not deal with our principled objection to the amendment, which is that the a department would never know whether the power existed to make its RRO, because, subject to a 60-day or three-month period, the Act could be repealed at any time by Parliament. That would be worse than providing for the Act to last for five years, because at least the department would know that the power was going to exist for a specified period. Under the noble Lord's proposal, subject to the time required for the consultation process, the department would not know whether the power was going to exist when it embarked on the long task of preparing an RRO.
I thank the Minister for his response to the amendments. I shall not repeat my arguments at this late hour. I merely reconfirm that we are debating a very different animal from the 1994 Act.
I am sure that the noble Lord, Lord Borrie, knows that I cannot bind any future government, but, as a good parliamentarian, I can confirm that any parliamentary review of legislation would be taken seriously.
I apologise for interrupting the noble Baroness. Of course she cannot bind a future government, but she could tell us the present intention of the Conservative Party in relation to a recommendation from the committee.
I am unable to give an undertaking. Of course, there is also a question mark, in a bigger sense, over what will happen in relation to the Wakeham report. That is one of my points. I believe that we should give consideration to this matter between now and Report and read carefully what the Minister said. However, for now, I beg leave to withdraw the amendment.
moved Amendment No. 79:
After Clause 13, insert the following new clause--
(" .--(1) This Act may be amended by order made by statutory instrument.
(2) An order under subsection (1) shall be laid in draft before, and approved by a resolution of, each House of Parliament.
(3) Before laying an order under this section, the Secretary of State shall carry out the procedures set out in--
(a) section 5(1)(a), (c), (d) and (e),
(b) section 6(1) with the omission of the words "together with details of the matters specified in subsection (2)",
(c) section 7, and
(d) section 8, above.").
Part of the explanation for the Bill, given at Second Reading, put me in mind of the musical show of, I believe, the 1950s--"Oklahoma". The rationale was that the Government feel that they have gone as far as they can in respect of the 1994 Act. I am sure that Members of the Committee will remember the character to whom I refer. In my study of the Bill, it occurred to me that that position may well arise in 10 or 11 years' time. Therefore, I propose that it should be possible to amend the Bill, when it becomes an Act, as the circumstances require. I beg to move.
Fundamentally, the reason why the 1994 Act ran out of steam was because it could deal only with legislation up to and including the 1993-94 Session. Therefore, it had to run out of steam eventually. However, it also ran out of steam for other reasons. It was not possible to initiate a number of valuable projects which might have come under the scope of regulatory reform orders because the Act was drawn too tightly. We have now introduced a Bill with wide powers and extensive safeguards, and we believe that it will have a longer shelf life than the 1994 Act.