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Legislative and Regulatory Reform Bill

My Lords, we on these Benches accept that the deregulatory aims of the Bill are commendable, with benefits to businesses, charities and the voluntary sector. However, we share the widespread belief that, despite the Government’s amendments in another place, the means to achieve these aims continue to pose certain threats to proper parliamentary scrutiny of legislation and could all too easily give rise to a number of unintended consequences. Among those are some that bear specifically on the role of the established Church, which has already been mentioned by the Minister and to which I will return in a moment. First, however, I want to comment on the broad issues raised in Part 1. Arguments about the procedures authorised in Part 1 have centred on two main areas: the specifying of legislation that is properly eligible for fast-track treatment and the safeguards against misuse of the procedures. I welcome the new Clause 1 as a great improvement on the original, with its focus on the removal or reduction of burdens, although the relation between reducing the overall burden and particular burdens remains a matter of dispute. I welcome, too, the clarification afforded by the new Clause 2 on regulatory functions. The previous two speakers have already referred to Clause 3 on the power to implement the Law Commission recommendations. Whatever the final decision, Clause 3(2) contains the apparently innocuous phrase ““with or without changes””. I suggest that this needs to be thoroughly explored to ensure that controversial measures are not slipped through. Anxieties have to some extent been allayed by the removal of the possibility of using this part of the Bill to amend itself or the Human Rights Act. On all these matters, it is good that the Government have heeded their critics. That said, some substantial worries remain. On the face of it, the preconditions laid down in Clause 4 provide an important filter for measures not subject to the full power of scrutiny. However, Clause 4(1) requires only that the Minister should consider that the conditions are satisfied in the particular case—a highly subjective test, if I may say so. It has been said in another place that Ministers have an established duty to act reasonably, but your Lordships need to be assured that the preconditions would provide an objective set of restrictions and would not allow Ministers to act without being able to show good reason. It can also be imagined that the interpretation of the phrase ““necessary protection””, which is not to be removed, could be highly contentious. One person’s protection could easily be regarded as another’s burden, not least in the field of employment. These definitional restrictions are rightly reinforced by procedural safeguards. I am encouraged that the Government have responded to the views not only of individuals but of committees, which expressed grave concerns about the looseness of the original proposals. The provision in Clause 17 for either House to require the super-affirmative or affirmative procedure in preference to the Minister’s choice of the negative resolution procedure is clearly right. The most difficult point at issue is now whether the statutory power of veto given to the committee of either House is adequate—again, a point mentioned by the two previous speakers. It seems reasonable that either House should have the power to override the veto of one of its own committees, but the grounds in Clauses 18 and 19 on which the committee may exercise the veto seem very narrowly drawn and do not permit the discretion for which one would look in preventing inappropriate use of the procedure. I am aware that the Government argue that the definition of the veto is related to the powers conferred on Ministers, but it troubles me that some Members of the Procedure Committee in the other place remain dissatisfied with these proposals and I hope that this matter will be pursued in Committee in this House with the aim of ensuring that an effective veto is in place. Turning to Part 2 of the Bill, we on these Benches support the general aim of ensuring that regulatory functions are carried out, as Clause 23 requires, in accordance with the principles of accountability, transparency, proportionality and consistency, and that they are targeted at cases only where action is needed subject to other duties and requirements. We accept the provision for Ministers to issue revised codes of practice, subject to parliamentary approval, but we suggest that the duty in Clause 25 to consult on codes of practice should specifically extend to representatives of those carrying out activities subject to regulation, as well as representatives of those regulating. I here declare an interest as an office holder of a regulatory body potentially subject to the provisions of Part 2—namely, the Church of England. The Government have stated that these provisions give effect to the recommendations of the Hampton review on reducing administrative burdens on businesses and are not intended to apply to institutions such as the Church of England. However, it appeared to us that the Bill as drafted could apply to the activities of bishops, church courts and disciplinary tribunals and indeed to the legislative role of the General Synod. Since the Government have assured us that they do not intend that Part 2 should apply to the Church of England, we seek a suitable amendment to the definition of regulatory functions in Clause 34, which would exclude from its scope the regulatory activities of the Church. I am grateful for the Minister’s assurance on this matter and for the constructive conversations that we have already had. While this ecclesiastical issue seems headed for a happy outcome, it illustrates the dangers that arise when a measure with far-reaching constitutional and practical consequences is introduced without adequate consultation and preparation. The Government have, rather late in the day, listened to their critics, but it seems that your Lordships’ House still has much work to do before the Bill is, in the words of the noble Lord, Lord Goodhart, fit for purpose.