Legislative and Regulatory Reform Bill

Part of the debate – in the House of Lords at 5:45 pm on 26 October 2006.

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Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 5:45, 26 October 2006

My Lords, I emphasise at the outset that this amendment is not about the content of the directives themselves. They raise a range of issues that are of great importance but form no part of this matter. The Cassis de Dijon case, decided in the late 1980s, and the White Paper of the noble Lord, Lord Cockfield, which came a few years later, got the Community off to a good start in pursuing its objective of a single market. I think your Lordships will agree that, since then, the results have been like the curate's egg. I am in no doubt that it will not be long before one or other of your Lordships will again be drawing to our attention matters about the contents of the directives.

The noble and learned Lord, Lord Davidson, has been conducting an inquiry about gold-plating, the background to the issue that this amendment attempts to raise; and we applaud that. It is somewhat surprising that it has taken the Government nine and a half years to get down to studying this issue, because concerns about gold-plating have been expressed at least since the mid. or late 1980s; and, to be fair to the Government, my own party did not address this issue when it was in Government.

I hope that I will be forgiven for being uncharacteristically cynical in seeking a reason for the reluctance of both Governments to look at the issue. Community legislation gets on to the statute book very easily in this country because directives are introduced through Section 2 of the European Communities Act 1972; that section requires only an Order in Council for the legislation to be made. None of the legislation goes through the elaborate process that primary legislation has to go through in your Lordships' House and another place.

The framework for everything that has been done in the world of Community directives starts with essentially unscrutinised legislation; and that breeds a morass of regulation that is equally unscrutinised, because the only thing that your Lordships' House and another place can do is to adopt it or refuse it, on a take-it-or-leave-it basis. This is very attractive to officials and Ministers for obvious reasons: partly because they are not obliged to defend their case against the Opposition in Parliament, and partly because they can make wide-ranging decisions about how the British economy should work, without having to clutter up the annual demands for primary legislation or queue for it. So we get a disproportionately large amount of Community legislation on the statute book because it is very easy to get it there. The other reason is that civil servants—in many cases, no doubt, for very good reasons—have been aching to get matters on to the statute book for years and years but have never succeeded in the annual bid for primary legislation. So they tend to add on to a directive a whole range of purely domestic matters for which they could find no happy legislative home at an earlier stage.

I commend the Government on having had the courage at last to come out of the closet on this issue and on inviting the noble and learned Lord, Lord Davidson, to look at it, in a sense, at a stage removed from Government and to come up with some sensible answers. We applaud the establishment of the Davidson committee, but we feel that we are entitled to ask the Government: why nine and a half years? After all, their task force has been going for almost the same length of time as the Government. If they were so enthusiastic about deregulation, one would have thought that they would have confronted the issue of gold-plating head-on earlier. However, we are all looking forward, as I suppose the Government are, to the noble and learned Lord's conclusions.

As I understand it, one technique used by the noble and learned Lord, Lord Davidson, in his investigation is to talk to government departments and non-governmental agencies in other member states, which are recognised as having a lighter regulatory touch than ours, to see whether a similar approach would be acceptable in the UK. If that is what the noble and learned Lord has, in fact, done, I find that enormously refreshing. First, by doing so, the Government—or, at least, the noble and learned Lord, Lord Davidson—are accepting that some other nation states apply a lighter touch than us. That, in itself, is good reason for conducting his investigation. But I very much hope that in his report he will give a full account of the work done in this area.

From what has appeared so far on the noble and learned Lord's website, the questions that he is asking seem pertinent and, in some cases, rather penetrating. His general approach is to ensure that, in future, UK business will not be disadvantaged when competing with businesses in other euro states because of regulatory burdens. I believe that that principle lies behind his investigation. I think that he focuses particularly on whether the implementing measures widen the scope of the original directives. That is a very important area of investigation. You might argue that a directive needs to be elaborated in a certain way because we have law in this country that does not derive from the Community but presents a problem for implementation in exactly the way that the directive suggests. However, I do not think that there is any case for domestic legislation to widen the scope of a directive. That goes to my earlier point about some departments using Community directives to get in purely domestic issues for which they cannot find a primary legislative home.

There are one or two other matters that the noble and learned Lord wisely included in his terms of reference. He asks, for example, whether the UK is really taking full advantage of any derogations in the EU measure, and if not, why not. There are wide-ranging derogations in directives simply because member states negotiate hard, and one of the ways for the Community to end up legislating is by making concessions to such member states. They are not described as concessions to Lithuania, the UK or France; they appear on the face of the directive as derogations—sensible conclusions that all 25 states, or however many there are in the European Community these days, agree with.

The noble and learned Lord will also concentrate on whether enforcement mechanisms themselves, or the sanctions imposed, go beyond the minimum necessary. That matter will be plainly in his sights, as indeed it is in the Bill.

One task that the noble and learned Lord has given himself, which I also find most interesting, is to look at the risks that the Government thought required a measure of gold-plating at the outset—when the directive was implemented—and to assess whether these risks today are still as apparent and of as much concern as they were then. I think that he will ask government departments to address the issue with great particularity.

In the context of the Bill, it seems that the noble and learned Lord's investigation is absolutely central. That is why I tabled my amendment. I sense that the Government will say, "Well, thank you very much for saying that the Davidson committee has been set up, but, unfortunately, we will not know what it says until long after the Bill leaves your Lordships' House. Of course, we cannot be absolutely certain that his conclusions will comply with the absolutist tone of your directive. Therefore, let's wait and see what the noble and learned Lord says, and the issue can then be addressed on some subsequent occasion".

I shall be very interested to hear what the Minister says in reply. I might be quick-footed enough, if I think there is some weight in what the Government say, to change my amendment before Third Reading, but I am not inclined to let this go if the Government turn me down at this stage. I beg to move.