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Legislative and Regulatory Reform Bill

My Lords, it is to the Prime Minister’s credit that after 10 years in office, his enjoyment of pressing for reform grows no less. The problem seems to be the carelessness with which he and his Government go about it. As a leader in the Guardian said last week, Mr Blair,"““often talks of reform as though it were an invisible atmospheric gas, with unquestionable health-giving benefits for everyone prepared to inhale””." It was reasonable in 2001 to try to find a new way to reform out-of-date legislation. But when the then Regulatory Reform Bill went before Parliament, it caused enormous alarm, diminishing as it did the power of MPs to legislate. In addition, the 2001 Act has not worked as intended; it has been used disappointingly little. So here we are, five years later, with a replacement Bill that is still full of enormous flaws. What a saga this is. First, I want to say a quick word about Scotland. The Law Society of Scotland has a number of anxieties; some are general points, and others specifically relate to Scotland. I flag up three examples, but I will not ask the Government to comment now; they are much better dealt with in Committee. Clause 3 would allow Scottish Law Commission reports on matters reserved to Westminster to be implemented with or without change by order at Westminster. The Law Society has detailed queries about how Clause 3, read alongside Clause 10, will interact with the Scotland Act 1998. Reflecting a concern in the Constitution Committee report, the Law Society of Scotland wonders whether Clause 9, which prevents Part 1 changes being made by order to the Human Rights Act 1998, should not also include other Acts—examples which the Law Society suggests are the European Communities Act 1972, the Supreme Court legislation in 2005 and the Scotland Act 1998, along with other Acts implementing United Kingdom devolution. The Law Society also has questions about Clause 10, which allows changes to be made by order on matters devolved to Scotland, albeit when they are consequential, supplementary, incidental or transitional in purpose. We will return to those and other Law Society points in Committee. I now turn to the workability of Part 1, because I have considerable anxieties based on my experience of four years helping to operate the present system as a member of the Delegated Powers and Regulatory Reform Committee. My thoughts underline some of the points made by the noble Lord, Lord Desai, which he derived from similar experience. I wonder whether Part 1—the lifting of burdens by order and the procedures for so doing—will work any better than the current arrangements. Justifying the new proposals in another place, the Minister seemed to think—and the noble Lord, Lord Bassam, reiterated the point when he opened the debate—that the problem with the current system was simply one of departmental culture on this point. He said that civil servants and their Ministers prefer making changes to regulation in a way that is visible and openly debated, as happens with a Bill in Parliament. The regulatory reform order process is, by contrast, largely invisible. It consists of negotiation behind the scenes with the committees in both Houses, and lengthy public consultation with numerous bodies. The regulatory reform process is not seen in the way that parliamentary discussion is seen. The Minister said that there was a culture in the department of it being better to wait for a Bill, even if that means long delay, rather than take the regulatory reform order route. So, said the Minister, there has to be a cultural change. This Bill is designed to make that change. The dearth of regulatory reform orders may partly be attributable to this culture, but my own experience—and that of the Delegated Powers and Regulatory Reform Committee—makes me believe that there are many other reasons for departmental lack of love for the 2001 Act. First, to fit into an RRO under the current system, a proposed legislative change must be expressed in terms of lifting or reducing a burden. That is often quite a puzzle and results in difficult and convoluted drafting which can itself be criticised. Secondly, it requires full and lengthy debate. After all, public consultation replaces parliamentary examination and discussion of an order. The discussion has to be taken very seriously. It can be extremely tedious for civil servants and result in a lot of queries from the committees behind the scenes. Thirdly, a reform order is required to deal with uncontroversial reform, yet sometimes in the course of consultation, the proposal turns out to be more controversial than at first thought. That presents a great problem. Fourthly, at the end of the day, one of the two regulatory reform committees may decide to stop the order altogether so that it never gets to Parliament. The Delegated Powers and Regulatory Reform Committee’s excellent report shows the length of time it is taking to process RROs. The case of the sugar beet order has been talked about, but it is interesting that, over the four years since the Bill was instituted, the average time between the beginning of consultation and the introduction of an order to Parliament has been 571 days. It is surely not surprising on time and effort alone that at least departments that regularly put forward big Bills prefer to wait for a Bill rather than implement a regulatory reform order. As the House scrutinises Part 1, it is important that noble Lords ask themselves whether the proposed new arrangements will cure the problem. Will departments use RROs more? If the answer is no, is it not better to start again and amend the 2001 Act rather than go ahead with this Bill? A few existing problems have been addressed, but the contortions required for turning a legislative change into a burden to be lifted are still there. The lengthy behind-the-scenes consultations and negotiations with committees are still there. Also, because the Regulatory Reform Committee in the House of Commons will have a chairman on the government side, in effect the ability of that committee to block an order is still there. What is new that will make government departments learn to love reform orders more? We shall see as we get to Committee.