---

Legislative and Regulatory Reform Bill

I want to deal with the amendments as a group, but I shall deal with each in turn. Amendment No. 17 relates to the ability to consolidate legislation by order, but I shall turn to Amendments Nos. 67, 71 and 73, which relate to the provisions in Clauses 5, 6 and 7 for orders that restate legislation. I shall then turn to Amendment No. 55, and Amendment No. 61. Orders under Part 1 will be able to cut red tape by removing or reducing unnecessary burdens and ensuring that regulatory activities are exercised in a way that is proportionate, accountable, consistent, transparent and targeted in line with our policy. As well as providing that orders can remove or reduce burdens, such as financial costs or obstacles to productivity, Clause 1(5) makes it clear that orders could be used to consolidate or restate the law without changing its meaning, where to do so would itself be reducing or removing a burden. That might be where, for example, the legal rules on a particular subject were scattered through numerous pieces of legislation or where legislation was drafted in a way that was very inaccessible. Amendment No. 17 would remove Clause 1(5) and cast doubt over whether orders could be used to remove burdens resulting from the form of legislation. Amendment No. 18 would remove the words, "““for example, where legislation is hard to understand””." That would make it less clear what is meant by ““a financial cost or administrative inconvenience resulting from the form of legislation”” and may cast doubt over whether changes that make the law easier to understand can be delivered under Clause 1. I assure the Chamber that it is not the Government’s intention to deliver orders that solely consolidate legislation—such measures would be more appropriately delivered by consolidation Bill procedures. By definition, orders could only consolidate or restate legislation where to do so was removing or reducing a burden relating to the form of the legislation. Indeed, consolidating legislation is recognised as a worthwhile form of simplification. The Better Regulation Task Force’s 2005 report Regulation: Less is More emphasised the importance of simplification in terms of cutting red tape. The report identified consolidation as a key part of simplification. Consolidation involves bringing together different regulations into a more manageable form and restating the law more clearly. The beneficial effects of reducing burdens by consolidating or restating legislation might, for example, mean that small businesses did not need to resort to expensive lawyers to access or interpret the law: they might also improve compliance—for example, with health and safety regulations—as small businesses will find it easier to understand what is required of them. However, I note that the Delegated Powers and Regulatory Reform Committee recently questioned whether orders should be able to alter the law without changing its meaning. We believe that the power to consolidate legislation by order is a useful one. As was pointed out by the Delegated Powers Committee, there are fast-track Bill procedures for consolidation. I reiterate: it is not the Government’s intention to deliver pure consolidation by order. I am happy to give an undertaking on behalf of the Government that orders under Clause 1 will only consolidate or restate legislation as part of wider reforms. That would mean that the ability to remove or reduce burdens in the form of a financial cost or administrative inconvenience resulting from the form of legislation would be exercised only when burdens that did not result only from the form of legislation were being removed or reduced. I accept that some noble Lords may have concerns that restatement or consolidation delivered by order is more vulnerable to being quashed by the courts in a judicial review than when that is done in a Bill. Perhaps they believe that this may cause problems for legal certainty or may change the standard roles of Parliament and the judiciary in relation to primary legislation. The issue is that primary legislation is not subject to judicial review, but secondary legislation—including secondary legislation that amends or repeals primary legislation, as with orders under this Bill—can be reviewed by the courts and quashed if it is found to be unlawful for some reason. Before making an order under Part 1 that restates provisions, the Minister must in any event consider that the restatement of the provisions would make the law more accessible or more easily understood.The Minister must give evidence for his opinion on both issues in the Explanatory Notes laid before Parliament and any impact assessment, if appropriate. The parliamentary committees will then come to a view on whether the criteria have been satisfied and may veto an order if they do not find convincing the evidence that the Minister provides. In acting on the issues, the Minister must be under a public law duty to act reasonably. It is also true that it is reasonably common for primary legislation to amend secondary legislation. That is done regularly, for example, through the useof powers under Section 2(2) of the European Communities Act 1972 when implementing Community obligations in domestic law. Some 29 regulatory reform orders have now been delivered under the 2001 Act, all amending primary legislation by secondary legislation, and none of them has been judicially reviewed. So I would argue that, to that extent, it has been a successful process. When it comes to reforming an entire regime by order, it may be efficient to consolidate or simplify legislation in the same order. I cannot support Amendment No. 17, as I believe that it would create an arbitrary limit, providing a disincentive for using the order-making powers for proposals that would sensibly include restatement or consolidation. Amendments Nos. 67, 71 and 73 would amend Clauses 5, 6 and 7 and could limit the Bill’s ability to restate legislation. I emphasise that in this case we may well be dealing with the restatement of individual provisions rather than wide-scale consolidation. Amendment No. 67 would remove an exemption with the effect that, if an order restated provisions that conferred a power to legislate on a Minister, it would have to require the power to be exercised by the making of a statutory instrument subject to the negative or affirmative procedure. Where currently there is a power for a Minister to make a statutory instrument that has to be laid before Parliament but is not subject to negative or affirmative resolution procedures or does not have to be laid before Parliament at all, the mere fact that the provisions were being restated but not changed in any way by an order would mean that in future they would have to be subject to negative or affirmative resolution procedures. Amendment No. 67 could therefore make the process for exercising powers to legislate in the future far more onerous, even though the powers themselves were not being changed by the order. That could prove a disincentive for using the order-making powers, particularly for large reforms, which are more likely to already include powers to legislate. Amendment No. 71 would remove the provision that orders may not impose or increase taxation. Clause 6(2) provides that the restrictions do not apply to provisions that merely restate existing taxation. The amendment would have the effect that it might not be possible to restate any provisions that in themselves imposed or increased taxation. I should make it clear that the Government have no intention of replacing their successful Tax Law Rewrite Project with reforms delivered by order, but the effect of the amendment would be that orders might restrict the useful provision that orders could make in the area of taxation, even where no changes were being made to the substance of the provisions. Therefore, I cannot support Amendments Nos. 67, 71 and 73, as they would limit the ability of orders to restate legislation without changing its meaning, which may be worthwhile including in a wider package of reform to be delivered by order, as is obviously the case with the now oft-quoted Fire Safety Regulatory Reform Order. Amendment No. 55 relates to orders that restate legislation and to those that codify the common law—that is, orders that put rules of the common law provisions on to a statutory footing without changing their meaning. The Government have tabled amendments removing the power to codify the common law, consequential on our amendments to remove Clause 3, which provided a power to implement Law Commission recommendations. Clause 4 sets out preconditions that orders must satisfy. The preconditions in Clause 4(2), which safeguard such things as necessary protections, do not apply to orders that only restate enactments or codify the common law. That is because, when making the legislation containing the provisions that are to be restated, Parliament will already have decided that they are desirable. Where orders simply move the provisions from one piece of legislation into an order without changing their meaning, it does not seem appropriate for orders to open up a debate on the principle behind provisions that have already been agreed by both Houses and which the Government are not attempting to change. However, a different precondition applies to orders that restate enactments or codify the common law. The restatement of the provisions must make the law more accessible or easily understood. We argue that this is a useful precondition on the use of the power to restate the law, as it ensures that restatements will be made only when they will have genuine better-regulation benefits. Amendment No. 55 would remove that separate precondition and would provide that all orders, even those merely restating or codifying the law, must meet the preconditions in Clause 4(2). This forms part of one of the recommendations of the recent DPRRC report, but the DPRRC’s recommendation seemed to be based on the fact that it believed that orders should not be able to consolidate or restate the law, which would be the effect of Amendment No. 17—I have already discussed this amendment. If the power to consolidate was removed, the DPRRC rightly believes that there would be no need for a separate precondition covering orders that restated the law. There may be two concerns underlying the amendment. The first might be that subsections (3), (4) and (5) of Clause 4 could be used to avoid orders having to meet the preconditions in Clause 4(2). That is not the case. The definition of restatement in the Bill is replacing provisions with alterations only of form or arrangement, which does not include removing an ambiguity or making an alteration other than one of form or arrangement. If any substantial change were being made, it would not be a restatement, and the other five preconditions would apply instead. AmendmentNo. 61 is a minor drafting amendment, which moves the definition of restatement from Clause 22, which the Government seek to remove, to Clause 4 which, in view of the change, is a more logical place for it to rest. The other concern may be that orders could be used to restate existing provisions that themselves might not satisfy the preconditions in Clause 4 that rights and freedoms and necessary protections, and so on, must be maintained. It is my view that, if Parliament has already agreed to such provisions, it is right that orders should be able merely to restate the provisions without changing their meaning. Amendment No. 55 would merely make the process of making orders that do not seek to change the meaning of existing provisions more laborious. Departments would have another range of processes to go through, providing a disincentive for the use of the order-making powers and slowing down the delivery of regulatory reform by order. Amendment No. 55 would mean that departments would have to justify how provisions restating the law met the tests in Clause 4(2), rather than the more relevant test in Clause 4(5) that orders can restate the law only where to do so would make the law more accessible or more easily understood. Amendment No. 55 would, therefore, have the disadvantage of hindering the delivery of better regulation and would bring little, if any, benefit. For those reasons, I ask noble Lords to consider carefully Amendments Nos. 17, 18, 55, 67, 71 and 73, and, for the purpose of good order in the Bill, I commend Amendment No. 61 to the Committee.