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Legislative and Regulatory Reform Bill

My Lords, the Government apparently originally thought that this Bill would be straightforward and uncontroversial. On first publication, it seemed that many people agreed. There was certainly no great initial reaction from the Official Opposition in the House of Commons. They seemed to have thought that deregulation was a good thing, that this Bill was about deregulation, and therefore that this Bill must be a good thing. It was only when my honourable friends in the House of Commons, Mr David Heath and Mr David Howarth, pointed out the dangers implicit in the Bill as it then stood that the Conservatives sat up and took notice, for which I am glad. It took very much longer for the Government to accept that the Bill had real problems. All through Committee in the House of Commons, the Government insisted that the Bill did not need serious alteration. It was only on Report in the Commons that they accepted that big changes were needed. Probably even then that was only because the government Chief Whip in your Lordships’ House told them that they would not get the Bill through this place. The changes introduced by the Government at that stage altered the Bill from being wholly unacceptable to a Bill that is acceptable in principle but still in need of major surgery. The Bill allows primary legislation to be removed, amended or even created by secondary legislation. That power needs to be kept under very close controls. It is of course true that, in doing this, the Bill is not doing something entirely new. The process began with the Deregulation and Contracting Out Act 1994, which was replaced and extended by the Regulatory Reform Act 2001. I was a member of the Delegated Powers and Regulatory Reform Committee at the time and also spoke from these Benches when the then Bill went through your Lordships’ House, so I can remember it very well; it was fairly controversial. I accept three propositions. First, it is useful to have a system by which technical and uncontroversial amendments can be made to Acts of Parliament without taking up parliamentary time by primary legislation. If there were no such system, desirable amendments would be delayed or not made at all. Secondly, I accept that the Government have not up to now attempted to abuse their powers under the 2001 Act. Only in one case has the Delegated Powers and Regulatory Reform Committee reported that the Act was being used inappropriately. In that case, the Government withdrew the draft order. However, your Lordships’ House cannot of course assume that the present Government, or still less any future Government, will never abuse the powers. We cannot allow this Bill to go through on that basis. Thirdly, I also accept that the Regulatory Reform Act has not proved as useful as was hoped. By the end of 2005, only 27 regulatory reform orders had been made against a government target of 60. The reasons for that are not clear. It may be in part because procedures under the 2001 Act are cumbersome. It may be because some restrictions in the 2001 Act have made it difficult or impossible to use the regulatory reform procedure for what may be regarded as legitimate purposes. I accept therefore that it is arguable for some extension of powers under the 2001 Act to be made, and we do not oppose this Bill in principle. However, to begin with we need an explanation of why this result could not be achieved simply by making amendments to the Regulatory Reform Act 2001 rather than by an entirely new Bill to replace it. Turning to the content of the Bill, I believe that we must remove the special provision for Law Commission Bills. I speak as a great admirer of the work of the Law Commission and I am fully aware of the backlog of useful reform proposals waiting enactment for years, and sometimes never going through. Originally I thought that Clause 3 would provide a reasonable way of enacting Law Commission reforms more quickly and that the clause would become acceptable if any differences between the order and the Law Commission proposals had to be approved by the Law Commission itself. I am now persuaded that this view is wrong. It is wrong in principle for orders to be used to create new primary legislation by a process which does not admit to amendments being made during its passage through Parliament; Clause 3, of course, does exactly that. It does not matter that the proposal came originally from the Law Commission rather than from the Government. If the Law Commission proposal creates new legislation, I believe that the reform order procedure is wrong in principle. If the proposal merely alters existing legislation, it may well be that the reform order procedure can be used to enact Law Commission proposals, as has already happened on occasion under the 2001 Act. It is simply one of the procedures; others enable Law Commission legislation to be fast-tracked, but there should be no exemption for the Law Commission from general restrictions in the Bill. I move on to the remaining provisions that need to be altered before the Bill can be considered acceptable. Here I shall touch only on the most important. First, we need to ensure that the test whether the reform order procedure can be legitimately used is objective and therefore not subjective. The test should not be whether the Minister considers it appropriate to use the reform order procedure, but whether it is in fact reasonable to do so. In a letter I have received from them, the Government say that the test is already objective, but I am not convinced of that and no doubt we shall need to consider it when we reach further stages. Next, we need to restrict the ability under this Bill to confer powers on other people. As it stands, that is far too wide. We have heard jokes about this power, such as the one which would delegate powers to President Chirac. While that may not be a very likely proposition, it is an example of how serious the problem here is. In particular, the Bill enables an order to confer powers to legislate on people other than Ministers themselves. Powers to make secondary legislation by statutory instrument should be reserved to Ministers of the Crown and should not be capable of being either delegated or transferred to other people. For others, the power to legislate should be limited to what is loosely called ““tertiary legislation””; that is, the making of rules, codes of conduct, by-laws and other similar provisions. Nor should Ministers be able to use the reform order procedure to confer on other people powers which they themselves could not have exercised. I note and welcome the fact that in Clause 4 the Government have reintroduced restrictions on powers originally in the 2001 Act, but the wider powers in this Bill require yet further constrictions. In particular, we wish to see provisions to ensure that the regulatory reform order procedure has no adverse effect on matters of constitutional importance such as the rule of law or the independence of the judiciary. In Clause 9 there is a provision that the reform order procedure cannot be used to alter the Act itself or the Human Rights Act. That plainly does not go far enough. The Select Committee on the Constitution, under the chairmanship of my noble friend Lord Holme of Cheltenham, has set out in paragraph 53 a list of the statutes of a constitutional nature, from Magna Carta to the Constitutional Reform Act 2005, which are of particular constitutional importance and therefore should not be capable of being altered by the reform order procedure. Listing statutes is not entirely satisfactory because there can be disagreement about what the relevant statutes are. For example, I certainly wish to see added to this list—if we make lists—the Freedom of Information Act as an Act of constitutional importance. Some Acts which are not of general constitutional importance may include provisions which are of importance. Others, such as the Constitutional Reform Act, include matters of obvious and highly significant constitutional importance but also matters which are perhaps not of such importance—for example, the procedures for dealing with complaints against judges by the ombudsman. The Select Committee on the Constitution suggests as an alternative what is probably a better system. This involves referring not to particular statutes but to principles such as the powers of and succession to the Crown and many other matters. Further alternative procedures might be available—for example, that something similar to the procedure for money Bills under the Parliament Act 1911 might be used, which would give the Speaker of each House a power, after obtaining advice, to certify that a draft regulatory reform order made alterations of constitutional importance. Again, there should be limitations not only on the power to create new offences but on the abolition of existing offences which carry a serious penalty. For example, reform orders without such restrictions would give the power to decriminalise statutes dealing with drug possession or allow assisted suicide for the terminally ill. I support the latter but it is plainly a matter for a proper Bill in Parliament and not for a regulatory reform order. Finally, I turn to the question of procedure. First, there should be no amendment whatever under this Bill of primary legislation by the negative resolution procedure. We need either the affirmative or the super-affirmative procedure. The use of the negative procedure is not appropriate because it does not necessarily involve any parliamentary debate or approval of the amendment to the primary legislation. The so-called veto in Clauses 17, 18 and 19 is plainly not genuinely a veto. I welcome, as did the noble Baroness, Lady Wilcox, the Government’s decision not to limit the grounds on which a Select Committee can make its recommendation, but that does not deal with the matter adequately. At present, there is no proper veto at all. The veto arises only if the committee makes a recommendation that the order should not proceed and that recommendation is not overridden by the vote of either House as a whole. Therefore the veto would be of very little use indeed in the House of Commons because Select Committees have a government majority and the Government will usually have a majority in the House. The provisions as they stand would be more effective in your Lordships’ House, where the Government do not have a majority on Select Committees or in the House as a whole. But we have to remember that the powers of this House are, and remain, under serious threat and must be discounted for that reason. We need to make sure that the veto of a Select Committee will be effective. If this Bill had come to your Lordships’ House in its original form, we would have proposed that the whole of Part 1 should simply be chucked out, as being totally and constitutionally unacceptable. The Government have moved half way but a lot of work still needs to be done on the Bill before, to use the current cliché, it becomes fit for purpose. We will do our best to achieve that and we look forward to vigorous debates when the Bill proceeds to its further stages in your Lordships’ House.