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Legislative and Regulatory Reform Bill

My Lords, the noble Lord, Lord Desai, said that we are all against red tape. If this Bill was confined to the reduction or, still better, elimination of red tape, I would have no problem with it. There is no reference, which I would like to see, in Clause 1 to ““red tape””. Instead, there is a reference to what is called a ““burden”” and sometimes an ““overall burden””. I doubt whether the average person who reads Clause 1 for the first time would understand what the Bill is about. However, I put that to one side. I have no difficulty with Clause 1(3)(a), (b) and (c), which refer to:"““financial cost . . . administrative inconvenience””" and obstacles"““to efficiency, productivity or profitability””," which were covered by the noble Lord, Lord Sainsbury of Preston Candover, in his important speech, with all his experience. I do, however, have considerable difficulty with subsection (3)(d). Surely the power to remove a criminal sanction for doing anything in the course of any activity must be far too wide for a deregulation Bill. That point was made very clearly by the noble Lord, Lord Goodhart. I do not wish to do anything other than to address Clause 3. It appears that that clause has nothing whatever to do with deregulation. As so often happens, it seems to have been tacked on to the Bill almost as an afterthought, although it deals with a subject that seems to be, if anything, of even greater importance than deregulation. The creation of the Law Commission, which was the brainchild of Lord Gardiner when he was Lord Chancellor, was one of the best things that that Labour Government ever did. Lord Scarman, as noble Lords will remember, was the first chairman of the Law Commission, and many other judges have filled that role since then. I like to think that there was an unwritten agreement between the Lord Chancellor and Lord Scarman that if the Law Commission did its job well—I think that everyone accepts that it has done so extremely well since it was set up—successive Governments on their part would provide sufficient parliamentary time to put its recommendations into effect. From the beginning, it is sad to say, successive Governments have fallen down on their part of the bargain so that a backlog has built up of the kind that we see today. In May this year, 26 reports were outstanding, some from as long ago as 1991. Fourteen of those 26 have already been accepted in principle by the Government but still nothing has been done. That is indeed a dismal story—almost as dismal as the story told by the noble Lord, Lord Sainsbury, in relation to his attempt to deregulate all those years ago. Why has nothing been done? There is always the same excuse: that the Government cannot afford the parliamentary time. Here I refer of course to all Governments—let us call them the Executive—and not to one Government rather than another. Yet, although they say that they have no time for these important matters, they have somehow found time, as we all know, to pass 25 criminal justice Bills in the past 12 years. Something has gone wrong with governmental priorities in this respect. Now, the Government have at last decided to do something for which we—and, I am sure, the Law Commission—must be grateful. However, I believe that they have set about it in the wrong way. The views that I am about to express are my own, as noble Lords would expect, but they are views that I formed—here I plead guilty—without having had the advantage of reading the reports prepared under the chairmanship of the noble Lords, Lord Dahrendorf and Lord Holme of Cheltenham. For once I have come to a conclusion without reading all the evidence. Law reform, as Lord Gardiner used to say, is far too important not to be dealt with on the Floor of this House. We cannot leave it to the Law Commission, good though it undoubtedly is, to legislate on our behalf. It is, I think, a job for us. Again, I find myself in complete agreement with the noble Lord, Lord Goodhart. It is interesting that the Government have gone a very long way towards accepting that principle. They have undertaken that Clause 3 will not be used for what they call controversial, or sometimes highly controversial, reports. But what use is that? At once, it raises the question: who decides which of the reports are controversial? When that undertaking has been given, how can it be enforced? Nothing in Clause 3 says that the Minister’s powers under that clause are limited to implementing non-controversial reports. Why not, if that is its meaning? Let us put those words in and, if the Government then have difficulty in defining what they mean by non-controversial reports, that is only because the line they are seeking to draw between controversial and non-controversial reports is simply not a line that can be drawn. Then it is said that there is no need to worry about all this, which I do, because the Select Committee will be able to make recommendations, which must then be accepted. That is the so-called veto, but what sort of veto is it? As the Bill stands, the committee can make recommendations only within very narrow limits. One is that the order does not serve the purpose set out in Clause 3(2), but, again, what good is it? However controversial the Law Commission report may be, it will still contain a recommendation, so that particular safeguard carries one nowhere. That is equally true of the conditions set out in Clause 4(2). As the Bill stands, the committee will have no power to say, ““This is a highly controversial Bill””, and presumably, should it arise, it would be so advised by the Table. Therefore, it is crucial that the Government look again at the committee’s powers to make recommendations. I respectfully suggest that one recommendation it must be able to make is that the Law Commission report is controversial. Even then, that will not do a great deal because the recommendation can always be reversed by a resolution of the House. So, once again, even if it is reversed, who is to say whether it is controversial? The very fact that it is reversed by a resolution of the House must surely mean that it is still a controversial Bill. What is the answer? It can only be that we must exclude from the Bill the parts that refer to Law Commission reports. I am all in favour of Law Commission reports, which are entirely technical in the sense of tidying up legislation. They should be able to go through via a fast-track procedure, but that procedure is surely to be found not in this Bill but in the existing Standing Orders of the House. Those enable such matters to be considered, if necessary, by a body of which I used to have the honour to be chairman—namely, the Joint Committee on Consolidation Bills. That suggestion was made in the other House. It may be that the Standing Orders of the other House are slightly wider than ours but, one way or the other, that is the way to deal with truly non-controversial reports and not the way proposed in the Bill.