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Legislative and Regulatory Reform Bill

In response to the noble Baroness, Lady Carnegy of Lour, I certainly was not laughing at the plight of farmers. I fully accept that many farmers are struggling to make ends meet and to conduct their businesses as we would all wish them to. I have no doubt that, because of its deregulatory spirit, our legislation is designed to make easier the regulatory regime for farming businesses. We seek a regulatory regime that is in balance and that works in everyone's interests. I see no mirth in that. The amendment is rather different. In pure drafting terms, I must tell the noble Lord, Lord Waddington, that its inclusion would add nothing to the Bill, as orders validly made under Clause 1 are already binding in any legal proceedings in the UK, by virtue of their being UK legislation. However, the intention behind the amendment, however carefully argued, seems to be to underline that the power in Clause 1 could be used to enact legislation that is inconsistent with Community obligations—hence the words, "““notwithstanding the European Communities Act 1972””." Indeed, it would appear that the new clause is intended to provide for an express order-making power to override Community law. Despite what I have heard, I think that the new clause would pretty speedily lead to infraction proceedings, and would be likely to be found in breach of Community law by the European Court of Justice. That is not just my view; it is also that ofMr William Cash, who tabled a similar amendment on Report in the House of Commons. In promoting his amendment, he conceded that if orders were passed that were incompatible with Community law: "““Predictably, there would be ... infraction proceedings.—[Official Report, Commons, 15/5/06; col.757.]" Furthermore, if the power provided by the new clause were used to make an order incompatible with Community law, the Minister responsible would be in breach of the Ministerial Code, section 1 of which requires a Minister to comply with the UK’s international obligations. In domestic court proceedings, judges would be required to regard an order made under the power provided by the proposed new clause as binding, notwithstanding the European Communities Act, and thus notwithstanding the usual requirement under the Act for domestic judges to follow the case law of the European Court of Justice. However, that would not prevent the ECJ finding that the order breaches Community law. It is perhaps worth noting that, were an order to be made under the proposed clause that was incompatible with Community law, it could be followed by proceedings seeking either a lump-sum fine or a daily penalty fine until the UK came into compliance with Community law. Furthermore, when a member state is clearly flouting Community law and in so doing causing financial or other harm, the Commission may at short notice seek interim relief—an injunction—from the president of the European Court of Justice, as happened in the now much-cited Factortame case. Damages are also available where a member state infringes a Community rule of law conferring rights on an individual or company where the infringement is ““sufficiently serious”” and a causal link can be shown. It would be extremely difficult to avoid liability for such damages in appropriate cases. I cannot see that the new clause takes us very far; nor do I think that it achieves part of what the noble Lord, Lord Waddington, sought in moving it, which was to prevent over-implementation—the gold-plating of which he and, for that matter, Ministers are wary. I think that I can make the case that the amendment is unnecessary to deal with gold-plating. Clause 1 can already be used to remove it—a point already made by the noble Lord, Lord Goodhart, in opposing the amendment. On gold-plating, as I think I explained at Second Reading, and I am sure I have done since, we have also put in place the Davidson review, which is considering the over-implementation of EU legislation. We have called for evidence for that, and the review will report to Government in the autumn. No doubt that will stimulate wide public debate, which is right and will be very helpful to us and the regulatory framework. The noble Lord, Lord Goodhart, made the points that I have made: that the power is already in the Bill, the legislation would be contrary to Community obligations and it would make the Bill and its order-making power highly controversial. In absolute terms, Parliament could revoke the 1972 Act if it wanted to because ultimately it is supreme. I see no need for the amendment. It would not achieve what the mover wants it to achieve—an end to gold-plating. Ultimately, Parliament is sovereign. If we were to adopt the amendment, it would run us into difficulties when working with our European partners and would be likely to lead to infraction proceedings, which could be equally damaging for our reputation in the European international community. For all those reasons, I must resist the amendment.