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Legislative and Regulatory Reform Bill

My Lords, today’s debate has something of a Groundhog Day feel about it. Five years ago in debates on the then Regulatory Reform Bill, I noticed such characters as my noble friends Lord Norton and Lord Kingsland, the noble Lord, Lord Phillips of Sudbury, and many others making very similar points. Those concerns hold as good now as they did then. I refer to the remarks made by the noble and learned Lord, Lord Falconer, the Lord Chancellor, when he was the Minister of State at the Cabinet Office. He said in opening the debate on the Regulatory Reform Bill:"““The Bill will provide a major tool for this and future governments to reform entire regulatory regimes and to tackle unnecessary, overlapping, over-complex and over-burdensome legislation. It builds on the acknowledged strengths of the deregulation order-making procedure, including the rigorous parliamentary scrutiny of proposed orders, and provides additional safeguards. It facilitates reducing the burden of regulation””.—[Official Report, 21/12/00; col. 850.]" It seems that obsolescence in current Government legislation stands at approximately five years before there needs to be a total review of what a Bill is designed to achieve. That is precisely the effect of this Bill. On that occasion, Parliament was asked to hand over a constitutional blank cheque—a skeleton key to the statute book—with the objective of making a substantial change to the regulatory environment. To what effect? The Minister now says that the number of orders has fallen short of our hopes, that there have been fewer orders than expected, and that the arrangements are now not fit for purpose. What has gone wrong? My first concern is that the Government are looking for cover—for another initiative to point to when in reality the burden of legislation continues to grow apace. Most noble Lords who have spoken have referred to the fact that the statute book becomes fuller and fuller every year. We have seen 25 criminal justice Bills, as an example of the level of legislation that we have to cope with. Much of it is ill thought-out. The central argument advanced by the Minister is that the Government lack the legislative tools to do their job of deregulation. That is the same argument that we have heard in respect of failures in crime, education, health and many other areas. As my noble friend Lady Wilcox said, the answer lies in better administration and better use of existing powers, rather than in more laws. I have concerns about giving a general ““get out of jail”” card to the Government. I do not feel that is the answer, and I am concerned that it would be used as an excuse in Parliament during the consideration of legislation where, perhaps, the exact right answer had yet to be found. Just as in my day one occasionally got a note from officials saying, ““Don’t worry; there is always judicial review””, which I thought was a weak argument, we may hear the argument, ““Don’t worry; it will all get swept up later in the Legislative and Regulatory Reform Act procedure, so we do not need to get it exactly right in primary legislation””. That is dangerous. My principal worries, like those of many other noble Lords, lie with the major transfer of powers from Parliament to the Executive, which is both unnecessary and dangerous. Like the noble Lord, Lord Goodhart, I have not heard a convincing explanation of why the aims of the Bill could not be achieved by a modest and targeted amendment to the 2001 Act, if the purpose is truly deregulatory. I hope that the Minister will find time to address that point. Given the Government’s somewhat chequered history towards constitutional legislation, as demonstrated by the piecemeal approach towards the reform of your Lordships’ House, there is very little reason to give them the benefit of the doubt when we are asked to sign over wide-ranging powers and to allow primary legislation to be amended by order. Even if there was the benefit of the doubt, we should ignore it, because ministerial assurances are virtually worthless over a long period of time, and they cannot bind successor Administrations. Like many other noble Lords, I believe that our standard parliamentary procedures of primary legislation, not ministerial order, should be the mechanism through which the law of the land should be changed. Given the long and serious similar controversy that raged during the passage of the 2001 Act, it seems quite inconceivable that the Government would have believed that the original Bill would have been accepted by this House, or even that the heavily amended version would not be highly controversial here. The central problem with the Bill, and any like it that seeks to achieve the same aim, is that it attempts to cater for every eventuality and in so doing its scope is made much too broad. It must be much too broad in order to cope with all the unforeseen circumstances. When we were considering the 2001 Act, the Government were loath to bring forward many examples of the sort of situation that they wanted to address and of course, as my noble friend Lord Onslow remarked, the same is true here. My strong preference would be for something very much more straightforward, perhaps a single deregulation Act each Session which swept up any deregulatory measures and small changes to legislation that were needed. Yes, that would be an additional Bill, but one out of 40 or so Bills—2 per cent or thereabouts—would be well worth while. We would not have to change our procedures and allow a dangerous expansion of the powers of Ministers by order.