Clause 26 adds to the ways in which the law in the European Union can be brought into English law under section 2 of the European Communities Act 1972. Currently, that has to be done by regulations, but the clause would add orders, rules and schemes to that provision.
What sort of changes does the Minister envisage being made by “orders, rules and schemes”—those are the words that will be added—rather than by regulations? Will he explain what orders, rules and schemes are in this context? What procedures would be used to introduce them? Can he give examples of a particular change that would be best made by an order, rule or scheme? In other words, what is this all about?
The 1972 Act refers to regulations. The Minister now wants to add these other categories, and we should probe him as to what he has in mind. Subsection (5) gives Ministers powers to change Acts or subordinate legislation to include references to orders, rules and schemes. Did such things exist at the time that such Acts were made? In other words, to what extent is this provision retrospective as regards orders, rules and schemes? For example, if we wanted to change Acts that were introduced in 1995, 1996 or 1997, were orders, schemes and rules in place at the time? Are such terms known specifically under the English law?
Sir Nicholas, what is it about? I have already offered to supply an explanatory memorandum. Obviously, all members of the Committee have followed every detail of the specific clauses under part 3, but those hon. Members who have not had the benefit of serving on the Committee might not have so acquainted themselves.
As for rules, regulations, orders and schemes, paragraph 1500 in volume 6 of “Halsbury’s Laws of England” states that the
“contents of rules, regulations and orders are, in fact, often indistinguishable in nature”.
If that were the case under English law, to put it flippantly it is mostly the case in some aspects of European law. I reassure the hon. Gentleman that the provision will not affect policy made in Europe or what can be legislated for in Europe. It will not lead to more regulation from Europe but, when we have already agreed to European legislation, clause 26 will help to streamline the process of transposing those EC obligations into United Kingdom legislation.
I shall illustrate matters further to inform and enlighten the Committee. As a general rule, it is possible for statutory instruments of the same type—two orders or two sets of regulations—that are subject to the same parliamentary procedure, both affirmative resolution for example, to be combined into a single instrument to avoid having to make two separate statutory instruments. Section 2(2) of the European Communities Act 1972 provides a power to implement European Community obligations into UK law by statutory instrument.
When a Minister is exercising the power to implement Community obligations, he can in general currently do so only by making regulations, not other types of secondary legislation. Regulations made under the power of section 2(2) of the 1972 Act can be combined into a single instrument with regulations made under the power in another Act, but cannot be combined with another type of statutory instrument such as orders, rules or schemes. Instead, two separate instruments would have to be made even if they were intended to create a single, seamless regulatory framework governing one particular area.
If the clause were not in place, the people being regulated would need to refer to both instruments. It is much more convenient and accessible to include all the provisions that made up a single regime or cover a particular area in one instrument in such a manner. The clause addresses the problem. It provides that the power under section 2(2) of the European Communities Act can be exercised by a Minister making orders, rules or schemes as well as regulations. The clause sets out the procedure.
A provision under clause 3 of the European Union Bill of the current session ensured that, when such an instrument was coming forward, the Minister would have to make a statement about whether it complied with the principle of subsidiarity. Can the hon. Gentleman assure us that that will still remain the Government’s policy and that such powers will not be used unless they are accompanied by a principle of subsidiarity compliance statement, which is not referred to under this Bill?
I am grateful to the Minister. Now that he has explained his view of the meaning of regulations, rules and orders, we are on familiar territory.
However, what about the schemes? Anyone who hears the expression “schemes”—[Interruption.]—is automatically a little worried and possibly wants to frustrate them, as the hon. Member for Somerton and Frome said. I am aware of only one reference under the law to schemes. The Fisheries Act 1981 brought in a scheme that was not popular universally. However, it was described under that Act as a scheme. Is that the only one of which he is aware, or is it a term that is used more widely than in the Fisheries Act?
By way of information for the hon. Gentleman, schemes normally prescribe overall plans for the attainment of objectives described in general terms. I accept that that is very technical, and I know that the hon. Gentleman accepts that. Rules usually deal more with procedural matters, such as the procedures of a court of tribunal. Volume 6, paragraph 1500 of “Halsbury’s Laws of England”says:
“the contents of rules, regulations and orders are, in fact, often indistinguishable in nature.”
I think “Halsbury” is totally wrong about that. In 1932, the report of the Committee on Ministers’ powers—the Donoughmore Committee—made it clear that regulations, rules and orders have distinct meanings. The report said that they
“should not be used indiscriminately ... The expression ‘regulation’ should be used to describe an instrument by which the power to make substantive law is exercised, and the expression ‘rule’ to describe the instrument by which the power to make law about procedure is exercised. The expression ‘order’ should be used to describe the instrument of the exercise of (A) executive power or (B) the power to take judicial and quasi-judicial decisions.”
So it seems to me that “Halsbury” is actually being rather sloppy.
I am not in a position to assess whether “Halsbury” was being sloppy, I am simply here to inform the Committee about the specifics in the clause. As I understand it, any power in an Act to make secondary legislation will specify the type of instrument that can be made, and there is not a completely clear distinction between the different types of instrument, as I said earlier about the distinction between schemes and rules.
I do not wish to pass judgment on “Halsbury” or anyone else, including the hon. Gentleman, whose legal background we have already heard about in some detail. I have offered to provide the Committee with an additional explanatory memorandum dealing with some of the specifics that everyone acknowledges are detailed and complicated. It may also be helpful to place copies in the Libraries of both Houses.
Sir Nicholas, I suppose it is excessively pedantic to ask why the spelling of byelaw has changed in last couple of years, and why we now have an extraneous “e” in it which never used to be there.