My Lords, Amendment No. 2 proposes that the Scotland Act be added to Clause 8, to join the Bill and the Human Rights Act as statutes that cannot be altered by an order made under the Bill. I moved, and we debated, a similar amendment on Report. At that time I understood from colleagues who are Members of the Scottish Parliament that the Scottish Government had indicated to them that any changes to the Scotland Act would be regarded as matters of constitutional significance, and so would not satisfy the new condition at Clause 3(2)(f). I was therefore expecting a statement to that effect from the Minister. What he in fact said was different:
"The Government are content that the new precondition would prevent any constitutionally significant amendments to the Scotland Act and the Government of Wales Acts, just as it would prevent constitutionally significant amendments to any other enactment".—[Hansard, 26/10/2006; col. 1305.]
In other words, there is no special treatment for the Scotland Act, which is treated for the purposes of this Bill exactly like all other statutes, other than the two specifically mentioned in Clause 8.
As I said then, I recognise that there are some provisions in the Scotland Act where the changes would not in themselves be constitutionally significant. I also believe, however, that constitutional significance arises not just from the nature of the changes proposed by the order, but by the fact that the Scotland Act governs the relationship between two Governments and two Parliaments; that is, of course, the Governments and Parliaments of the United Kingdom and of Scotland. The Scotland Act is an Act of the United Kingdom Parliament, but for that reason, because it lays down the details of the division of responsibilities between the two Parliaments, I believe that any change to the Scotland Act, even if minor in itself, is of constitutional significance and should be dealt with by primary legislation.
The Minister said that he would reflect on this matter. I hope his reflections have borne fruit—if indeed a reflection can bear fruit. I beg to move.
My Lords, I briefly add my support to the amendment moved by the noble Lord, Lord Goodhart. I will not rehearse the arguments we had on Report. My view is that we should be going even further than what is embodied in this amendment, but I take the point the noble Lord has made. As he says, there are one or two measures where, even if incidental provisions could be changed by order, it is important to protect the whole measure. I am therefore happy to support the amendment.
My Lords, I ought to address a point made on Report by the noble Lord, Lord Goodhart, about the Scotland Act, on which, as the noble Lord observed, I agreed to reflect. As he astutely judged, I am unlikely to promise that we shall change things, but one can always think about these things.
The noble Lord suggested that any amendment to the Scotland Act would be of constitutional significance. That is a large statement but one that has to be taken into account and thought about as it has many implications. He did so on the grounds that the Act was,
"in a sense, the possession of the Scottish Parliament".—[Hansard, 26/10/06; col. 1309.]
I do not think that anyone would disagree fundamentally with that. I am pleased that the noble Lord recognised the not insignificant interest in the devolution Acts that Westminster has, not least because it is this sovereign Parliament that debated and passed the Acts and chose to devolve power to the then newly created legislatures.
I labour the point about sovereignty because devolution is based on the retention of a sovereign UK Parliament—a Parliament that continues to be able to legislate on any matter, reserved or devolved. We, of course, choose to exercise a self-denying ordinance in relation to devolved matters in Scotland through the Sewel convention. Indeed, the Bill before us contains provisions in Part 3 that require the consent of the Scottish Parliament, and that consent was overwhelmingly given on
But the sovereign UK Parliament retains the responsibility for reserved matters such as the constitution. The Scotland Act itself is a matter reserved to Westminster. Of course, we must respect the views of the Scottish Parliament. That is why we have listened not only to your Lordships' concerns about the Bill but also to our colleagues in the Scottish Parliament. We brought forward the amendment debated and agreed on Report, which adds a new precondition—which the noble Lord welcomed—ruling out provisions which the Minister considers to be of constitutional significance. We firmly believe that this is the right way to address those concerns and reflects the fact that there is not a consensus on this issue.
The constitutional precondition allows for minor changes to enactments which contain provisions which are constitutionally significant—that would include the devolution Acts—but only ever for the purpose of better regulation, as the limits of the order-making powers make clear. The constitutional precondition rightly respects the sovereign nature of Westminster within our governance arrangements.
On Report, the noble Lord, Lord Goodhart, said that he could not support a list of constitutional statutes because it would need constant updating and, importantly, because,
"many statutes contain provisions that are constitutionally important alongside those that are not".—[Hansard, 26/10/06; col. 1309.]
This is exactly what the Government's amendment introducing the new constitutional precondition was intended to address. It is not easy to reconcile the noble Lord's statement with the proposition that any change to the Scotland Act would be of constitutional significance.
It is worth adding that Clause 9 already restricts the order-making powers to reserved matters; that is, to matters for which only this Parliament is responsible. So these order-making powers cannot be used to make changes to legislation that has been passed by the Scottish Parliament. The only exception is that the Bill allows for incidental and consequential changes to be made to devolved matters, but only ever for a reserved purpose. This is consistent with the fact that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in, or the agreement of, the Westminster Parliament.
I highlight an important point that I think will provide the noble Lord with some of the comfort which he seeks. The Scotland Act recognises that over time changes may have to be made to the reservations and exceptions set out in Schedule 5. Section 30(2) of the Act therefore allows the schedule to be modified through an Order in Council. A draft order has to be approved by the Scottish Parliament and both Houses at Westminster before it is made. The initiative in proposing a Section 30(2) order can be taken by either Administration but both sides agree to both the principle and the detail before the order can be pursued. Since devolution, the Government are committed to that being the appropriate route to effect alterations to the Scottish Parliament's legislative competence. The Legislative and Regulatory Reform Bill does not change that arrangement. Orders under the Bill should not be subject to procedure in the Scottish Parliament.
As I have already mentioned, the Bill restricts the order-making powers to reserved matters; that is, matter for which only this Parliament is responsible. It would not therefore be appropriate for orders to go before the Scottish Parliament for approval. That is particularly true when one considers that the Scottish Parliament can and does make incidental or consequential changes to reserved matters for a devolved purpose without requiring procedure in or the agreement of the Westminster Parliament. For those reasons, we stick to our original position. I invite the noble Lord to withdraw his amendment.
My Lords, I am disappointed with the answer from the Minister. Of course, I recognise that in law this Parliament is sovereign and that the Scotland Act is a reserved matter and can be changed by this Parliament. Nor am I suggesting that it is necessary for changes to the Scotland Act to receive the approval of the Scottish Parliament. I am suggesting that what is important is how this Parliament is to exercise its sovereignty. The Scotland Act is of such importance in determining the relationship between the two Parliaments and the two nations that it is necessary that any amendment of the Scotland Act should be treated as a matter of constitutional importance, however minor the proposed change. In those circumstances, it would be right to insist that any change to the Scotland Act, however minor in itself, should be made by primary legislation. That is essential in the case, which could happen, where Members of the Scottish Parliament, or the Scottish Executive, were not in favour of those changes.
However, I recognise that this is a very late stage in the procedure of the Bill. I imagine, now that we have paragraph (f) in Clause 3(2), that it is pretty unlikely that a problem such as the one that I envisage would happen. In those circumstances, it is not appropriate to press the amendment to a Division. I beg leave to withdraw the amendment.
My Lords, Amendments Nos. 3 and 4 have been grouped. They both deal with the inter-relationship between this Bill and the Human Rights Act. Amendment No. 3 requires any draft order laid under the Bill to be accompanied by a statement of compliance with the convention rights under the Human Rights Act. That is not in the same form as Section 19 of the Human Rights Act, because that permits a Minister introducing primary legislation to make instead of a statement of compliance a statement that the Government wish to proceed with the Bill even though it is not compliant. In fact, that power has, I understand, only been used on one occasion, when the Government took the view that an amendment inserted into a Bill in your Lordships' House was not compliant. The Government decided that the appropriate course was to send the Bill back to the House of Commons with a statement of non-compliance, in the expectation that the non-compliant amendment would be removed, as it was.
That cannot be done with secondary legislation such as an order under this Bill; in other words, as the Minister pointed out on Report, it would be unlawful for a Minister to lay before the House a draft order that was not compatible. It has become standard practice for draft statutory instruments that require the affirmative resolution procedure to be accompanied by a statement of compatibility when they are laid. That requirement results from a direction given some years ago by the late Lord Williams of Mostyn—possibly in response to an issue that I raised with him. Since the Bill gives a wide general power to legislate by statutory instrument, it is desirable that the practice should be put on the face of the Bill.
Amendment No. 3, as it stands, would extend that principle to orders made under the negative resolution procedure, in addition to those under the affirmative and super-affirmative procedures. That is reasonable, due to the special nature of the Bill and, anyway, very few orders are likely to use the negative resolution procedure. I accept that the statement that I propose will simply reflect the law, but I believe that it will nevertheless be useful, because it will concentrate the minds of those drafting the order to check for compatibility. It should not be assumed that a reminder is unnecessary.
Amendment No. 4 provides that orders made under the Bill will be treated as secondary legislation, although they amend primary legislation. That is a departure from the rule in Section 21 of the Human Rights Act which states that where primary legislation is amended by secondary legislation under what is widely known as a Henry VIII clause, the amendment is treated as being primary legislation. I can see the point of that, as it is inconvenient, when challenged on human rights grounds, to have to check primary legislation to see whether it has been altered by an order made under a Henry VIII clause.
But there are also problems with the other way. Orders made under the Bill are secondary legislation; therefore, an amendment to primary legislation made by an order under the Bill can be quashed on judicial review if the court is, for example, satisfied that one of the conditions in Clause 3 has not been met or that the procedure for consultation or otherwise, as laid down by the Bill, has not been properly followed. In any event, we would be left with a potential degree of uncertainty as to whether the court could quash the order, thereby removing it from the Bill. We may still have to find out whether the statute was or was not amended by the order.
It would be illogical also to have two different consequences of the unlawfulness of the order, depending whether the unlawfulness was based on its incompatibility with the Human Rights Act or on some other defect in the making of the order. It would be more consistent and simpler to state that if the order is unlawful, whether for incompatibility or other reasons, it should be quashed and the amendment to primary legislation made by the order should disappear at that point and not wait to be removed by new primary legislation or by the special, relatively fast-track procedure under Section 10 of and Schedule 2 to the Human Rights Act 1998. I beg to move.
My Lords, we support the amendments of the noble Lord, Lord Goodhart, for the reasons that he has given.
My Lords, my noble friend Lord Bassam outlined the workings of the Human Rights Act on Report, so I do not propose to reiterate that which noble Lords who have already spoken know as well as I do, if not better. I am replying now because I have been engaged in conversation with the noble Lord, Lord Goodhart, in light of my responsibilities for human rights. My noble friend was kind enough to let me deal with these amendments, in order, I hope, to reassure both noble Lords appropriately of the position.
As I said, I am not going to repeat what has been indicated at previous stages, except to say that—as the noble Lord, Lord Goodhart, said—it is unlawful for a Minister of the Crown to make secondary legislation that is incompatible with the convention rights. As he indicated, his Amendment No. 3 would put a requirement into the Bill that orders made under it would have to be accompanied by a statement of compatibility with the convention rights. My noble friend Lord Bassam explained on Report that the Section 19 statement, which we already have, is in a sense a genuine alternative in respect of primary legislation, as Parliament can choose to legislate incompatibility. That alternative does not exist with secondary legislation, which it is simply unlawful for Ministers to make incompatible.
As the noble Lord said, the Government as a matter of convention accompany some secondary legislation with a statement confirming compatibility with the convention rights—specifically, where secondary legislation amends primary legislation, or where it is subject to affirmative or super-affirmative procedures. My honourable friend Jim Murphy gave an undertaking in Committee in another place that the Government would accompany all orders under this Bill with a statement confirming their compatibility, of the precise kind envisaged by the noble Lord, Lord Goodhart. I can confirm that undertaking today; it will be followed through.
However, as the noble Lord knows, I have no desire to put that into the Bill—not just because it confirms what we have already said would be the case about the compatibility of orders, but because I am worried about there appearing to be a genuine alternative in consequence. In other words, by putting this into the Bill we might suggest that there is an alternative where the order could be incompatible, just as with primary legislation. While I am sympathetic to the noble Lord's wishes, I hope that he will understand that the commitment we have given should not lead—accidentally or otherwise—to a place where we might suggest something other than that which is already the case. I hope that he will accept the double reassurance, from my honourable friend in another place and me, that it will be the case. No doubt, he will hold us to account on that basis.
I am sympathetic to what lies behind Amendment No. 4, as the noble Lord would expect. However, I hope that he will feel eventually that it is unnecessary and could cause some difficulty and confusion, as his opening remarks indicated. Let us again be clear: a Minister could not seek to make an order that amended primary legislation in a manner incompatible with the convention rights—nor would such an order pass parliamentary scrutiny. Not only would that be unlawful under Section 6 of the Human Rights Act, as I have explained, but it would probably not meet the preconditions set out in Clause 3 of this Bill—which, from the human rights perspective, I have studied and discussed with my officials to ensure that we are absolutely clear on the meaning. Notably, within Clause 3(2)(e), there is the precondition that requires the Minister to be satisfied, before he can make the order, that provision in it will not prevent an individual,
"from continuing to exercise any right or freedom", that he,
"might reasonably expect to continue to exercise".
Noble Lords will, I am sure, also look at Clause 3(2)(d), which says that,
"the provision does not remove ... necessary protection", and subsection (2)(f), which says that,
"the provision is not of constitutional significance".
We therefore believe that the preconditions set up around this Bill, which noble Lords have debated at length, are the key to why we do not wish to accept this amendment, despite our great sympathy with what is behind it. We believe that in putting forward any proposal the Minister would have to be mindful of those preconditions in the Bill. That would have an impact.
The effect of the amendment on legal certainty, as the noble Lord indicated, could present problems. As he would expect, although there is a position under what I have said on preconditions where an order being dealt with would be ultra vires—and able to be challenged in the courts—I am not minded to add any other "uncertainty" within this legislation. The difficulty is that we would then create different kinds of primary legislation—that already within an Act of Parliament and that inserted through the order.
I had to ask myself whether I was comfortable that the way in which we set up the Bill and the way in which we would be looking at secondary legislation meant that we had dealt with the underlying concern within the amendment. I believe that that is the case. The courts can strike down under ultra vires and, if legislation went through, it would amend primary legislation and would be dealt with in the way that primary legislation is dealt with. I am not minded to set up a different category of legislation.
Therefore, with the combination of the preconditions and what I have already said about the convention and the Human Rights Act, I hope that the noble Lord will feel that we have addressed his underlying concerns. I hope he will accept that I do not wish to create forms of uncertainty in determining legislation that I think are unnecessary in these circumstances, and that he will feel able to withdraw the amendment.
My Lords, I am happy to accept the noble Baroness's assurance on Amendment No. 3. I regard that as adequate and, although I still think that no harm would be caused by making that amendment to the Bill, I do not wish to press it any further.
I am less satisfied with the noble Baroness's response to Amendment No. 4. The position as she outlined seems to produce an unnecessarily complicated situation. If it can be argued that something in the Bill that is incompatible with the Human Rights Act is also a breach of one of the statutory preconditions, it then follows that that order can be declared void by the court, with the result that the primary legislation will continue in force in the same way as it did before the order was made and the order will be totally ineffective. If, on the other hand, it is held that something in the order is in breach of the convention rights but is not in breach of one of the preconditions, then the consequences of judicial review would be entirely different because the court could not quash the order; it would simply have to declare its incompatibility and that would then lead to a different procedure. I regard that as confusing and unnecessary. I should have much preferred my amendment to be accepted.
I regret that the noble Baroness has not been able to accept Amendment No. 4. However, again, I recognise that at this late stage in the Bill it is undesirable to press what is, on any footing, a pretty technical amendment, so with some regret I shall not move Amendment No. 4. Meanwhile, I beg leave to withdraw Amendment No. 3.
My Lords, this amendment is grouped with Amendments Nos. 6 to 10. There are two issues here, and I shall deal with Amendment No. 5 first. It aims to limit the application of the better regulation principles to issues of policy rather than to individual regulatory decisions. The better regulation principles are fine things. Indeed, many regulators across Britain are moving to adopt them and to build them into their practice. But my concerns about them being applied simply at policy level rather than at the level of individual regulatory decision is that they are capable of being challenged on the grounds of the principles rather than on the grounds of practice. I shall explain what I mean by that.
I believe that being able to challenge regulators on the principles in their regulatory decisions will mean that they will face more litigation. Even if they do not face more litigation, they could behave very defensively and regulatory decisions could take longer and be more costly. Of course, that flies in the face of the Bill and its otherwise excellent intentions to ensure better regulation—not slower, more bureaucratic and expensive regulation.
There are a number of individuals for whom that would be a good avenue through which to challenge regulatory decisions. Vexatious individuals who know that they cannot challenge a case on their compliance or otherwise with the law as to whether they created the nuisance or damage, or whatever the law is aiming to prevent them doing, would instead bring a procedural challenge against a decision either to delay or to have a decision overturned. Defendants who could not hope to succeed in challenging their culpability in a case might still bring that procedural challenge. For example, if a decision were made entirely on the principle of being risk-based, which is a fundamental principle of better regulation, it might be challenged on the basis that it was not consistent, which is another fundamental principle of better regulation.
The two are fine judgments and placing this as a statutory requirement means that we will have to test the fine judgments more often in the courts. I am sure that regulators will be able to defend their actions successfully in such cases, but I am not sure that that is the best use of public funds or that it is in the interests of better regulation to have to do so. Were the principles to apply at the policy level, rather than at the level of individual regulatory decisions, I believe that there would be sufficient spur to the regulators to behave in consistency with the principles, rather than propelling them to be defensive, slower, more bureaucratic and lengthy in the face of the risk of vexatious legal challenge. That is the content of Amendment No. 5.
On the Government's side, I have no doubt that we will be told that the solution to this problem is the proposed listing order. However, one needs to be alert to the nature of the listing order because it will be brought upon one at some stage in the future. The intention is to list all the regulatory functions that will be subject, first, to the principles and, secondly and separately, to the code. Considering the number of regulatory functions in this country, it will be a very long and complex list and it will apply different standards for different regulatory functions. It will be consulted on and a decision will be made on it in this House, so I am prepared to be very bored and confused by it. The worst issues will not be our boredom and confusion, but that it will not provide the businesses, which we aim to regulate more effectively and with less bureaucracy, with the clarity they need and the transparency which the Bill promotes. I do not think that the clause as it stands is an example of better regulation and I believe that my amendment would help.
Amendments Nos. 6 to 10 contain only one issue, which is the nature of the compliance code. I have considerable concerns about its being a statutory code. I would prefer to see it reframed as normal ministerial guidance. At the moment, the Bill has a statutory statement of the principles and although the code operates at a general policy and principle level, rather than at the level of individual regulatory decisions, I believe that the same sorts of vexatious litigation that I have outlined in regard to Amendment No. 5 will be possible in regard to Amendments Nos. 6 to 10.
Regulators come in many shapes and sizes. Indeed, we are told that, in the principles of good regulation, flexibility to meet individual circumstances is an admirable quality, but alas, that is not to be the nature of the code. It is to be a one-size-fits-all code, which I believe is very inflexible. For example, the draft code requires regulators to intervene only where there is a clear case for protection, but what sort of protection? Different sorts of protection require different principles to be invoked. In my primary background of environmental protection, the precautionary principle has to be invoked from time to time and the regulator has to intervene before there is a clear case to prevent future damage to the environment.
It is unfortunate that we have to agree the nature of the code when we have not yet seen a near-final draft. I urge the Government to ensure that, if there are substantial codes fundamental to Bills, as happens from time to time, we have the opportunity to see them at that near-final stage before we are asked to approve the Bills. The code will not be applied only at general policy level, but I believe, as I said with regard to Amendment No. 5, that the same opportunity of challenging individual regulatory decisions while masquerading as a challenge on policy and principle will be taken by those who wish to be vexatious. Some areas of legislation are already more vexatious than others.
If the contents of the statutory code were reframed as guidance, these concerns would be removed while still giving guidance to regulators on how to implement better regulation. That would mean that we could take account of progressive regulators who already have in place their own non-statutory codes and would not be penalised for having made good progress. All regulators, including the laggards, could be required to draw up their own strategies in line with the guidance but tailored to the needs of different individual regulatory regimes. There could be a requirement on them to report annually on their performance and progress.
I hope that this admirable Bill will not be marred by failing in its own principles. I look on it as one that regulates the regulators; it will fail the test of better regulation if we end up with mechanisms that result in the more defensive, slower, less flexible and more expensive behaviour of regulators as they seek to make their decisions wholly defensible in the face of potential vexatious challenge under the code.
I recognise that it is very late in the day to be raising this issue—alas, I have not been able to take part in the Bill's proceedings for some time. I hope that we can get some assurances from the Government that they will at least take account of the fears that I have expressed about the ultimate nature and application of the code to minimise the opportunity for vexatious legislation. I beg to move.
My Lords, I support the amendments. I raised similar points in Committee. For the reasons the noble Baroness has given, I was conscious of the regulators' concern about the possibility of the challenge of litigation in pursuing particular functions—for example, when they are investigating an offence. That might cause considerable problems. I was also aware of the concern about making the code statutory.
I sought to raise these concerns in Committee; unfortunately, my drafting was either so clumsy—or possibly so subtle—that the noble Lord, Lord Bassam, was not quite sure what I was getting at and we did not get the response that might have been appropriate at that stage. The noble Baroness has tabled amendments which are clearer, better drafted and get at the point and, as she indicated, they demand a fairly full response from the Government. I fully support the case she has advanced.
My Lords, I support Amendment No. 5. The principles of better regulation—proportionality, accountability, consistency and transparency—are well targeted in terms of broad policy development. I apologise for not being here for the Committee stage of the Bill when I might have understood this better, but as I understand it, it proposes that they should apply at the level of the individual enforcement officer.
I declare an interest as a board member of the Food Standards Agency and deputy chair of the Meat Hygiene Service. In both organisations, the Bill would seriously hamper how our regulations are enforced. Regulators could not enforce against one individual or business to make an example but would have to enforce against every recalcitrant individual business. That is obviously impractical and would not help us to move towards better regulation.
We are less fussed about the code but would be very concerned if we lost the capacity for modifications to be laid before Parliament, as might well be suggested in the noble Baroness's later amendments.
My Lords, before I reply to the substance of the amendments, I should like to thank my noble friend Lady Young for writing to me between the stages of the Bill and setting out very clearly the rationale behind her amendments. I am very grateful to my noble friend for taking the time to meet the Better Regulation Executive officials and exchange views, which we found very helpful. I hope that it was a productive meeting. I should also like to welcome my noble friend back into the fold of the House of Lords. We have missed her over these many months. I hope that we shall see more of her because of her very constructive approach to this and many other issues.
I will set out in some detail why the Government do not think that these amendments should form part of the Bill, although we recognise that they touch on very important issues and reflect back to issues raised at an earlier stage with such subtlety that I clearly missed the true import of the amendments of the noble Lord, Lord Norton of Louth.
Part 2 supports the Government's aim of bringing about risk-based, consistent, proportionate and targeted regulation and is designed to instil a change in the behaviour of regulators. The Hampton review covered the work of 63 national regulators and 468 local authorities and found that while the UK's regulatory reform regime is well respected internationally, fewer than half the regulators in scope use risk assessment to reduce enforcement activity on high-performing business, and even where risk assessment is used, regulators' activity is often not closely linked to it.
Given the variety of functions regulators have and the variety of contexts in which they operate, inconsistency of approach is a real risk. That inconsistency causes difficulties for those who are regulated, in particular, the small business sector. That is what Philip Hampton's report Reducing administrative burdens found and that is what we are trying to put right through changing Part 2 of the Bill.
Part 2 uses a two-pronged approach to achieve this: first, a code of practice for regulators; and, secondly, the principles of good regulation. I should like to respond first to the amendments to Clauses 22 and 23. Amendments Nos. 6 to 10 seek to secure that the code is non-statutory. However, I should like to point out to the House the consequences of adopting that approach. Amendment No. 10 would remove the Minister's obligation to lay a copy of the draft code of practice before Parliament and also remove Parliament's ability to scrutinise and approve the code of practice, taking away at one stroke the important protections provided in the Bill. Perhaps an unintended consequence of the amendment is that regulators would not have to have regard to a code of practice which Parliament itself had not had a chance properly to scrutinise, approve or think about.
Amendments Nos. 6 to 8 replace the references to "a code of practice" with "guidance". In a sense that is cosmetic and would not have a profound legal effect. It is the effect of the guidance as set out in the Bill, rather than the title, which is important. The amendments as drafted do not remove the statutory duty on regulators to have regard to the code of practice.
The provision in the Bill to issue a statutory code of practice derives from the current power in the 2001 Act. The House will be aware that in its report on the Bill the Delegated Powers and Regulatory Reform Committee stated that the power and the degree of scrutiny in issuing the code of practice were "appropriate".
The power to issue a statutory code under the 2001 Act has to date not been exercised. It was thought that a voluntary code—the enforcement concordat—might bring about the necessary changes in the behaviour of regulators. However, the evidence analysed by the Hampton review suggests that there are still serious problems with variation and consistency with the application of this code, and that businesses are uncertain of regulatory requirements.
The Government took that to heart when we consulted on the Bill. We asked whether the existing code of practice for regulators—the concordat—should apply on a statutory footing. Two responses were especially telling. The CBI that said it,
"strongly believes that the Concordat should be placed on a statutory basis since current arrangements for voluntary compliance with the Concordat have not been effective".
Similarly, the Federation of Small Businesses said:
"If consistency of enforcement is to be achieved we see little alternative to a statutory requirement".
For that reason, the Chancellor in the 2006 Budget announced that the Government intended to put on a statutory footing a code of practice for regulators and that that code would apply where a regulator determines its policies about the exercise of regulatory functions.
Part 2 includes a provision to consult those affected by a code of practice, a duty for a Minister to lay a draft of the code before Parliament and for subsequent approval by both Houses before the code can be issued by the Minister.
As I have already explained, Amendment No. 10 would remove the Minister's obligation to lay a copy of the draft code of practice before Parliament, and Parliament's ability to scrutinise and approve the code. I point out that the degree of scrutiny in the Bill for issuing a code of practice is more stringent than that contained in the 2001 Act. Issuing a code is subject to negative resolution under that Act; under the Bill, there will be an affirmative resolution.
We have already published a draft of the code, a copy of which is available in the Library of the House, and the Government are working closely with regulators—including the Environment Agency, as I am sure the noble Baroness will be aware—and those regulated. The Government want to get this right. We want to work closely with the regulators and those regulated to achieve the right balance. The second draft of the code will be published later in the autumn and we will of course ensure that a copy is placed in the Library of the House. For those reasons, I urge that the amendments to Clauses 22 and 23 be not moved.
Amendment No. 5 is intended to secure that the duty to have regard to the principles of good regulation in Clause 21(2) applies at the general level only, which is at the level where regulators determine their general policies or principles about how their regulatory functions, such as inspection or enforcement, should be exercised.
The noble Baroness's rationale for that change is that because the Bill currently enables the duty to have regard to the principles to apply when regulators exercise individual level functions, such as inspecting a particular business, as well as to the exercise of general level regulatory functions, that might give rise to unintended consequences. I am well aware that legislation can sometimes have that effect but, in this instance, we disagree.
The noble Baroness's concern, as set out in correspondence, is that the statutory duty to have regard to the principles will give grounds for regulated individuals to bring legal challenges against regulators—for example, by complaining that when inspecting the individual the regulator did not exercise its functions in a consistent or proportionate way and was therefore in breach of the duty. The fact that the duty to have regard to the principles can be applied to individual level functions does not mean that it will apply at the individual level in all cases, nor does it mean that that duty would, as a matter of course, give rise to vexatious litigation.
For the benefit of the House, it is worth noting that the principles of good regulation in Clause 21 are not unprecedented in statute and can also be found in the Communications Act 2003, where the duty to have regard to them applies to both the general and individual level functions of Ofcom. Ofcom has informed Better Regulation Executive officials that the duty on it to have regard to these five principles does not cause problems in terms of vexatious litigation being brought against it in individual cases.
Clause 24 enables a Minister to specify by order the regulatory functions to which the duties to have regard to the principles in Clause 21 and the code in Clause 22 apply. The order provides the flexibility for a Minister to list, or to choose not to list, specific functions of a regulator, whether these are individual or general level functions, depending on what is considered appropriate for that particular regulator, following consultation. As I am sure the noble Baroness will be aware, and Members of the House will generally acknowledge, regulators operate differently and carry out different types of functions in different contexts. Amending the Bill so that the duty to have regard to the principles can be applied only to general level functions would be to disregard the range and types of activities that regulators have. As the noble Baroness stated in her letter to me, regulators are, as a consequence,
"many and varied, differing in size, legal status, geographic coverage, remit function and progress in delivering better regulation".
The application of the principles at the individual level might be appropriate for one regulator—I refer again to Ofcom—but not for another. Although the principles will become statutory once the Bill becomes an Act and comes into force, the principles will have no real effect until an order is made listing the functions of a regulator to which the duty to have regard to the principles will apply. The order is subject to statutory consultation, and it will be accompanied by a regulatory impact assessment and debated in this House and in another place.
Before making an order under Clause 24, the Government will seek the views of all those—the regulators and the regulated—who are affected bythe provisions of the proposed listing order. We will do this through formal written consultation, when appropriate, after the Bill receives Royal Assent. Having come so far, we must not prevent those who are regulated benefiting from Part 2. I have said that an impact assessment will accompany the order to be made under Clause 24, and that we will work alongside regulators and those regulated to ascertain the costs and benefits of applying to the regulators the duty to have regard to the principles. The Food Standards Agency has welcomed the opportunity to be involved once the Better Regulation Executive has started to develop the impact assessment on the order, and I hope that the noble Baroness will equally welcome this opportunity when the time comes. I reassure her and her colleagues in the other regulators that we will consider whether it is appropriate to list the individual-level functions of the Environment Agency, the Food Standards Agency, the Financial Services Authority and other comparable regulators from the scope to which the principles will apply.
We understand exactly the point about vexatious litigants. We can pick it up as we work through the implementation of the legislation. I am extremely grateful to her for her supportive comments about the excellent intentions behind the legislation, and I think that we can deal with some of the issues as they arise through the implementation of guidance and codes. For all those reasons, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank the Minister for replying so fully to my amendments, and the noble Lord, Lord Norton of Louth, and the noble Baroness, Lady Harris, for their support for elements of them. I hope that the way in which my amendments were framed did not suggest that I was trying to reduce the scrutiny of this House to whatever is applied to a code or guidance. I still think that any guidance should be subject to consultation and scrutiny.
On Amendments Nos. 6 to 10, the enforcement concordat set up by the previous Act had barely come into existence when Philip Hampton produced his admirable report, so it was a little rash of the Government to say that it was not working and probably a bit premature to declare it defunct before it had properly come to breath. I look forward to seeing the second draft of the code and the listing order. The Government are clearly placing a great reliance on the listing order to provide a differential approach to different regulatory functions in different regulators. I do not share their confidence. I think that we will be spending quite a long time on that order in this House. Thereafter, I believe that the only way in which we will be able to judge this part of the Bill will be by assessing the proof of the pudding in the eating and deciding whether, after some of these arrangements have been in place for a short or medium amount of time, they are contributing to better regulation or to vexatious litigation.
As the Government show no signs of moving, despite the spontaneous uprising of support across the House for my amendment, I beg leave to withdraw the amendment.
moved Amendment No. 11:
After Clause 29, insert the following new clause-
(1) Subordinate legislation implementing any Community obligation of the United Kingdom, or enabling such obligation to be implemented, or enabling any rights to be enjoyed by the United Kingdom under or by virtue of the treaties may not impose or increase any burden on any person which does not conform with the Cabinet Office Transposition Guide.
(2) In this section-
"burden" has the same meaning as in section 1(3); "subordinate legislation" has the same meaning as in section 27(9)(b); "the treaties" has the same meaning as in section 1(2) of the European Communities Act 1972 (c. 68) (short title and interpretation)."
My Lords, the amendment sought on Report required the Government, when implementing a directive, not to include any provision that increased burdens on individuals and businesses in the United Kingdom that went beyond the burdens in the directive itself. The Government, for reasons which I partially understand, were unwilling to accept the amendment. Differences in the legal systems of the member states do, of course, require different forms of implementation, and sometimes those implementing measures, in effect, increase burdens as defined in the Bill, without intending in any way to impose discriminatory obligations on members' citizens.
The Minister explained in some detail to your Lordships the role that the Cabinet Office transposition guide plays, in decisions taken in government services, on whether to introduce additional burdens in implementing legislation. It seemed to us, from the way in which the Minister described the criteria laid down in the transposition guide, that this was, on the whole, fairly good guidance for administrators and the Government. I am therefore seeking at Third Reading to transpose into an amendment what the Minister said on Report. I beg to move.
My Lords, I congratulate the noble Lord, Lord Kingsland, fulsomely on a very canny amendment that would make the transposition guide an add-on. However, I shall take noble Lords through the issue and explain why we cannot accept it.
As the noble Lord explained on Report, the purpose of his original amendment was to ensure that, in implementing Community obligations into domestic law, the Government did not go beyond the minimum required by the Community obligation. This would have created a legislative barrier to gold-plating European Community obligations when they are transposed into domestic law. On Report, the noble Lord stated that the requirements of the Cabinet Office guidance to the effective transposition of European directives into domestic law gave him pause for thought on the absolutism of his amendment. I suspect that Amendment No. 11 is a response to that.
As my noble friend Lord McKenzie explained on Report, the transposition guide makes it explicitly clear that, only in certain exceptional circumstances and where it is justified by a robust cost-benefit analysis and extensive consultation with stakeholders, should departments consider implementation that goes beyond the minimum required by a European directive. The transposition guide also makes it clear that any over-implementation must be made public. For example, to ensure transparency, all UK legislation laid before Parliament that gives effect to any European directive must be accompanied by a transposition note, which must contain an explicit statement on any over-implementation that has taken place during the transposition process.
The guide also makes clear that the Select Committee on the Merits of Statutory Instruments can report to this House on any statutory instrument that it considers to have inappropriately implemented a European directive, including where there has been unjustified over-implementation.
Although the requirements of the transposition guide are an essential part of ensuring that all legislation used to give effect to a European directive is thoroughly scrutinised and that any over-implementation is justified robustly, referring to the guide in the manner proposed in Amendment No. 11 would present problems. For example, as the transposition guide is guidance, it is written in terms appropriate to that status. It is not on the statute book and therefore is not written in statutory language; it therefore lacks the legal clarity and certainty required of legislation.
This lack of clarity and certainty would cause difficulty for domestic courts. As a result of Amendment No. 11, it would be possible, for example, to challenge the lawfulness of subordinate legislation implementing Community obligations on the basis that it did not conform to the guide. The court would, on occasion, need to inquire into whether any cost-benefit analysis justifying gold-plating was robust. That would create new areas of uncertainty and of legal challenge. Furthermore, as the transposition guidance is not on the statute book, it can be updated and amended without scrutiny by Parliament.
As Amendment No. 11 requires that subordinate legislation does not,
"impose or increase any burden on any person which does not conform with the Cabinet Office Transposition Guide", departments would be legally required to comply with any amendments to the guidance, in spite of the fact that they had not been approved by Parliament. A future Government could therefore create a legal requirement that all departments over-implement European Community obligations, simply by amending the transposition guide. While I cannot envisage any Government doing that, it underlines the effect of this amendment, which I am sure the noble Lord had not intended.
Given that the amendment would cause uncertainty for the courts and allow for legislative changes without the need for parliamentary scrutiny, we cannot support it, and although I congratulate the noble Lord on its cleverness, I urge him to withdraw it.
My Lords, I am extremely grateful to the Minister for his response and not surprised at what he said. He did, however, admit that the transposition guide lacked clarity and certainty. I find that rather worrying. On Report, he advanced the Cabinet Office transposition guide as the complete answer to the concerns I expressed about gold-plating.
My Lords, I said that the transposition guidance lacked the legal clarity and certainty required of legislation. I said not that it lacked clarity and certainty but that it did not have the sort of clarity and certainty that we require of legislation. There is a difference.
My Lords, I do not understand the distinction between clarity and certainty that has legal force and clarity and certainty that does not. You either have clarity and certainty or you do not. If a document is clear and certain, it seems just as likely to be binding in law as a clear and certain document that has been declared binding in law. If I may respectfully say to the Minister, he is making a distinction without a difference. He is not demonstrating the confidence in the transposition guide that he manifested so trenchantly on Report.
There may be good reasons for rejecting my amendment, but I do not think they have been advanced from the government Dispatch Box. However, we are at Third Reading, and attached as I am to the text of my amendment, like the noble Lord, Lord Goodhart, I will not press it.
I think that I am right in saying that this is the last amendment of Third Reading; therefore, events will be moving quickly to a close. I believe that the Minister will agree that this Bill has had a rather bumpy ride in another place and in your Lordships' House. It has generated more than the usual amount of controversy. Mercifully, in this instance, controversy has proved fruitful. The Government have responded to what may accurately be described as a storm of protest from many quarters. Above all, it is accepted that the attempt to blur the distinction between primary and secondary legislation was wholly misplaced. The removal of the Law Commission clause and the exclusion of amendments of constitutional importance have also improved the text immensely. It is a great shame that the Government have not been so receptive over maintaining the independence of the economic regulators. We can only hope that the memory of Mr Byers's conduct towards Railtrack and the scrutiny of orders made under this Bill will suffice.
I hope that, this time, government words lead to action. We remain unconvinced that this Bill was ever necessary to reduce the burden of red tape and excessive regulation that suffocates British business. We still feel that the departments could do much more, by secondary not primary legislation. However, we have decided to give the Government the benefit of the doubt. I hope that we see real improvements. I beg leave to withdraw the amendment.
My Lords, I beg to move that this Bill do now pass. I thank the noble Lord and his Front-Bench team—we had four or even five members of the loyal Opposition performing at any given time. On reflection, while undoubtedly there was a time when the Bill generated controversy and hostility in another place, it was less the case here. That is because the Government were very careful in listening to the concerns of the regulators and regulated businesses, large and small. Their representations were very important to us.
The Bill is in better shape now than it was previously. We look forward to a period of support from both opposition parties for the implementation of the legislation. It will have significance and will enable us to do things that I think we would all support to make it easier for businesses to grow, flourish and develop. It will provide us with a flexible, workable tool to make necessary changes to smooth the passage of business, local government, charities and those who provide goods and services in the United Kingdom.
I thank the noble Lord, Lord Kingsland, and, in particular, the noble Baroness, Lady Wilcox, for her contributions on the Bill, as well as the noble Lords, Lord Howard of Rising, Lord Henley and Lord Goodhart. I also thank the Bill team, who advised us very skilfully during the passage of the legislation.
Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)
My Lords, before the Bill finally passes, I should like to raise one point for the record. Noble Lords who have taken an interest in this Bill will remember that when it arrived in your Lordships' House it contained a clause relating to Law Commission Bills. Many of us disagreed with that and the clause was removed. Following that, the noble Baroness, Lady Ashton, put in some extremely hard work and she and her team, who are to be congratulated on what they have so far managed to do, came up with proposals for dealing with Law Commission Bills in a different way. They would not require primary legislation, although I believe that some alteration to standing orders of both Houses would be required.
I strongly approved of that and had hoped that it would be possible to have a final form of the proposed new procedure announced during the passage of this Bill either on Report or today. As I understand it, although the principle has been accepted all around, some details of the procedure have not yet been finalised with the result that it is not yet possible to make this announcement. However, I hope that very shortly it will be possible to announce new arrangements for Law Commission Bills. I think that we all accept that current procedures have made it impossible for a significant number of useful Bills to obtain parliamentary approval. I hope that the Minister will confirm that. It is certainly my understanding, and I was told by the noble Baroness, Lady Ashton, yesterday, that that is the position.
Finally, this Bill went to the House of Commons in a completely unacceptable form, which was not initially realised. A lot of credit for pointing out the very serious defects in the Bill rests on two of my honourable friends in the other place—Mr David Heath and Mr David Howarth—who campaigned strongly on this issue. As a result, the Government have recognised that there were very serious difficulties and have come up with a Bill which we now recognise, as does the noble Lord, Lord Kingsland, as being satisfactory and acceptable. I believe that there are now no amendments to the Bill which are not acceptable to the Government, so it will not return to us from the other place.
My Lords, the noble Lord, Lord Goodhart, has rightly paid tribute to the energy of the noble Baroness in pursuing an alternative solution to the one initially proposed by the Government. Because he is so modest, he has not mentioned his own role in developing the initial idea, to which I now want to pay tribute. I would also like to pay tribute to the work that the noble and learned Lord, Lord Lloyd, and others have done. It has been very much driven by your Lordships' House, rather than the Government, which is entirely to be applauded.
My Lords, I join in that general congratulation. The initiative that was sparked by the debate on Clause 3 has been extremely valuable. I confirm that what the noble Lord, Lord Goodhart, has said is right. As we speak, the alternative procedures are being developed and deliberated on. I am confident that my noble friend Lady Ashton will give voice to the progress that has been made in due course. As the noble Lord, Lord Goodhart, said, it was intended originally to be able to say a few words about it during the passage of this Bill. Clearly, progress has slowed just a fraction, but I know that we all anxiously await the outcome of further thoughts and considerations.
On Question, Bill passed, and returned to the Commons with amendments.