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Legislative and Regulatory Reform Bill

My Lords, I have listened with considerable interest to the speeches of those who support the Bill. They proceed on the basis that there is a problem with achieving deregulation. This Bill is designed to achieve deregulation. It replaces the 2001 Act, which has not been used inappropriately to carry through great controversial changes. Therefore, they say, this Bill should be supported. But making the case for deregulation does not make the case for this particular Bill. The Bill not only offers the wrong solution but is premised on a questionable view of where the problem lies. The noble Lord, Lord Whitty, says that we should look at alternatives to existing procedures. I do not disagree with the point that he makes—this Bill is an alternative. I do not believe that it is a desirable alternative. The noble Lord, Lord Lipsey, has misunderstood fundamentally the protection that parliamentary procedure provides against a government majority in the other place. He proceeds on the basis that Parliament can decide to do what it wants; in other words, the majority view will prevail. However, if the Government have a majority in the other place, what is to constrain them other than the procedures of the institution itself? That is the fundamental point that he completely fails to grasp. This Bill is remarkable for what it was and what it is. It is remarkable for what it was at the time of introduction—the comments of the noble Lord, Lord Lipsey, notwithstanding. As Barry Winetrobe, reader in law at Napier University, wrote in the March issue of the SCOLAG Legal Journal, echoing the views of other legal experts, the Government’s proposal"““is a constitutionally lethal combination of a skeletal, framework or enabling Act and ‘Henry VIII’ powers to amend existing legislation by ministerial order. No amount of ministerial assurances or ‘concessions’ on scope or parliamentary scrutiny can get away from the central point that the job of making the law is being transferred from the Legislature to Ministers””." What is of considerable concern is not just the contents of the Bill as originally introduced but the reaction of the Government to criticisms of the measure. It appeared to take them by surprise. That it did so should give us pause for reflection. It reflects, in my view, a problem not just with the attitude of government but also the structure of government. There is a Department for Constitutional Affairs that is, in effect, still a Lord Chancellor’s Department. There is, I fear, no department with a fundamental understanding of the basic tenets of our constitution and the role of Parliament within our constitutional arrangements. That is apparent from the letters from the noble and learned Lord the Lord Chancellor and Jim Murphy reproduced in Appendix 1 to the report of the Constitution Committee. We need at some stage to address this wider issue. I turn to the problem with the Bill as it is. It remains fundamentally flawed. Amendments made to the Bill in the other place have provided some restriction in scope and strengthened parliamentary scrutiny, but they do not go far enough. The provisions remain inadequate for three principal reasons—those of time, institutional scrutiny and powers. As such, the Bill replicates the problems with the 2001 Act, but on a greater scale. Each House will now have the potential to consider every order made under the Bill; there is a mechanism to increase the level of parliamentary approval and also to block the order. On the face of it, that is a major improvement. The problem is that, whatever the level chosen, the process is time limited and institutionally constrained. An essential resource in Parliament’s arsenal in relation to government is not simply the vote, crucial though that is, but time and institutional mechanisms for debate. Measures are considered over a period of time through structures designed to probe, to force government to justify the particular provisions as well as the principle of the measure, and if necessary to amend it. As we have heard, Clause 1(7) permits an order to amend or repeal any enactment. The only measures exempted are Part 1 of the Bill and the Human Rights Act. Leaving those aside, an order may—and it is the potential that is important—make a fundamental change to our constitutional arrangements. Even under the super-affirmative resolution procedure, as under the 2001 Act, there will be a maximum of only 60 days to consider it. That may seem sufficient time, but bear in mind that the normal institutional mechanisms of scrutiny, deliberation and probing are not engaged. The scrutiny will be by a designated committee, which can be overridden by a vote in the Chamber. The House having the ultimate say is justifiable on constitutional grounds but in this instance that is vitiated by the fact that it is a single vote, divorced from any sustained scrutiny by the House itself. With Bills, the House can consider and make amendments. Under the procedure in this measure, as with the 2001 Act, neither House can amend an order. A Minister may reconsider a draft order as a result of representations made to him, but it is ultimately up to the Minister as to what is included. Under Clause 19(2), the Minister ““must have regard to”” representations as well as resolutions or recommendations emanating from Parliament, but—as we have variously discussed in this House—the requirement to ““have regard to”” is a soft one in law. The Minister can choose to proceed with the order as originally introduced. A government secure in their majority in the Commons may then seek the approval of the other place, in a single Division, to an order making a draconian change to the law of the land. As such, the provisions of the Bill undermine the basic equilibrium of legitimacy that underpins the parliamentary process. The Government have a right to get their business, but the Opposition have a right to be heard. This measure could be used to undermine the rights of the Opposition. The Government claim that the orders made under this measure will not cover anything of major constitutional significance—cited in aid is the fact that the 2001 Act has not been used in any sense in that way; that these will be dealt with by the normal legislative process; and that Ministers will consider very carefully all representations made to them when orders are brought forward. Indeed, the noble and learned Lord, Lord Falconer, said it about the 2001 Act and he and other Ministers have said so in respect of this Bill. The problem with this, as we have heard this afternoon and as the Constitution Committee has observed, is that an assurance by a Minister in a letter or at the Dispatch Box does not bind Ministers in the future—be they Labour or Conservative Ministers—and, as long as the words of the Bill are unambiguous, the courts will not look at what the Minister has said. When the Hunting Bill was going through and was then enacted through the provisions of the Parliament Act, various people took umbrage and said, ““That’s not what the Parliament Act was designed for””. My response was that it is not relevant what it was designed for; it is the words of the measure that matter. That is it. It is quite possible that this Bill in, say, 20 years’ time could be a godsend to a government who might be intent, say, on leaving the European Union.