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Legislative and Regulatory Reform Bill

I am grateful to noble Lords for their contributions to the debate on the further group of amendments and for their points on the amendments that I moved earlier. I intend to take the groups of amendments in order and deal with the points that have been raised. I am grateful, too, to the noble Lord, Lord Maclennan, for his constructive comments on the government amendments. In his comments and commentary he raised some valuable and valid points about process and I shall make one or two observations about that. Perhaps I may deal first with the amendments in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Wilcox. Amendment No. 21 seeks to prevent orders conferring powers to legislate entirely. The Government consider that this would create an unacceptable arrangement for this reason: it would impose an unnecessary restriction on the order-making power and reproduce almost precisely one of the barriers to successful regulatory reform under the 2001 Act. It has seemed to me during the course of today’s debates that there is a fair measure of agreement about the need to regulate, but when it comes down to a particular proposal there is always another argument against it which in itself could create yet another tier of considerations before we finally get round to doing some deregulation. I am anxious to avoid that, but I think this amendment falls into that category. Let me give two examples of how the amendment might have held up, or contributed to holding up, beneficial changes. The inability to confer legislative functions by order under the 2001 Act led to a number of sensible proposed orders being dropped or modified. I have already quoted the fire safety regulatory removal order, as it were, and I shall quote it again now. Under that order we could not widen the existing powers to make regulations relating to fire safety to include risk assessment. I was being urged earlier to include risk assessment on the face of the Bill, and I gave good reasons why we could not do that. We could not put a provision regarding risk assessment into that order; and so, if we go back to the 2001 Act principles, as this amendment suggests, that is something that we would not be able to do. The second example is that a proposal to givethe Secretary of State powers to make statutory instruments to determine the functions of a new public health agency could not be delivered by a regulatory reform order. In many instances, I am sure that that would be uncontroversial and that Members of your Lordships' House and another place would find it entirely agreeable. But we could not do that under the 2001 Act. There is a good case for being able to do it because, in many instances, it would be an uncontroversial and sensible step forward. I hope that Members of the Committee will give some thought to those examples. Amendment No. 22 would prevent orders abolishing bodies or offices established by enactment. I hope that Members of the Committee have had the opportunity to consider points raised concerning the potential of the Bill to deliver mergers of regulators to ease burdens on the regulated sector and to take forward a regulatory environment characterised by the proportionate, risk-based and targeted regulation and inspection process that most of us see as a form of enlightenment. The provision which it is proposed to remove is, in our case, essential to realising those goals; for that reason, I cannot support it. Amendment No. 23 introduces what seems to be a less restrictive formulation, but it seeks to provide that an order can contain provision to abolish a body or office only if it also provides that the functions of those bodies are transferred to another person. I have sympathy with that amendment which, in principle, corresponds with the purposes of the provisions in the Bill. However, I also have reservations about the effect of the amendment in practical terms. The abolition and creation of a regulatory body would clearly necessitate the transferral of regulatory functions. However, the very rationale for undertaking such a merger may be not only to transfer existing functions but to modify, create or abolish certain functions to reduce or remove burdens on the regulated. The amendment would mean that there was doubt as to whether such changes could be made to functions. In this way, the amendment could ultimately negate the value of the Bill as a vehicle for delivering beneficial mergers of regulators. It also seems somewhat unnecessary to petition for the restriction or removal of this provision. I hope that Members of the Committee will take assurance that the safeguards in the Bill, as we have discussed them, will always prevent the inappropriate usage of that power. The noble Lord, Lord Kingsland, made a couple of important points, in particular about the provision that he said would allow Government to create a new body and then give it legislative functions. There needs to be a provision to allow bodies to be created and have legislative powers conferred on them to allow for the implementation of some mergers of regulators, as recommended in the Hampton review, where functions are to be given to a new body. Completing such mergers successfully may involve conferring a range of functions on new bodies, which may include functions of legislating. Without this provision, it would be necessary to use two orders to complete a number of these mergers—one to create the new body and a subsequent one to confer legislative functions on it. That would be unnecessarily bureaucratic and a poor use of parliamentary time. It is right that Parliament has the opportunity to consider the merits of the proposals of that order at one and the same time. The noble Lord, Lord Kingsland, also said he thought there was an inconsistency between Clauses 1 and 2. They have different purposes: Clause 2 is about ensuring that existing regulatory functions are exercised so as to comply with the five principles that have been the thread behind the legislation. Clause 1 is about removing or reducing burdens where a regulatory function is outdated.