---

Legislative and Regulatory Reform Bill

My Amendment No. 64 is included in the group, as the noble Lord, Lord Goodhart, has already said. My proposed new clause is my contribution to the attempt to ensure that the Bill is as narrowly drawn as possible and cannot be used to infringe on the basic arrangements of our constitution. Ministers have reiterated that that is not the Bill’s intention but, as we keep pointingout, ministerial assurances cannot bind future Governments. The attempt to put the basic tenets of the constitution beyond the reach of the Bill may be done by reference to specific measures of constitutional law, generically through reference to the basic framework of our constitution, or through both. The two approaches are not mutually exclusive, which is an important point to stress. In his response to the Constitution Committee and to what my noble friend Lord Kingsland said on Second Reading, the noble Lord, Lord Bassam, argues in his letter of 27 June that the Bill is designed to achieve better regulation and that the amendments made in the other place put it beyond doubt that the Bill could not be used for any other purpose. He argues, therefore, that it could not be used, as he puts it, ““for inappropriate constitutional change””. The problem with this argument is that he assumes that better regulation and constitutional change are mutually exclusive. That they are not may even be inferred from his use of language when he refers to ““inappropriate”” constitutional change, which implies that appropriate constitutional change may be permissible. The Minister’s contention that constitutional change is already beyond the provisions of the Bill is not sustainable. If the Bill is to be confined to reducing regulatory burdens that are not contentious, it needs to be as tightly drawn as possible, with the provisions of the constitution put clearly beyond its reach. As I have said, this may be done using a specific or a generic approach, as the noble Lord, Lord Kingsland—I am sorry; I mean the noble Lord, Lord Goodhart, who is in danger of being confused with rather a lot of other noble Lords or former noble Lords—has said. The Constitution Committee offered a list of measures that might be excluded. As it recognised, that may not be an entirely straightforward exercise. The noble Lord, Lord Bassam, picked up on this in his letter in arguing against such an approach. However, his arguments are not persuasive. He draws on the Constitution Committee in saying that there may be difficulties in identifying which Acts are constitutional and which are not, and that there may be provisions in Acts of constitutional importance that are not in essence constitutional. My response would be to note that one can have a list of measures clearly recognised as constitutional, as demonstrated by the Constitution Committee in paragraph 53 of its report and as embodied in Amendment No. 75A, and that any gaps in coverage may be dealt with by utilising the generic approach. As I have said, the two are complementary. Doubtless there will be provisions of the Acts adumbrated in Amendment No. 75A that are not of constitutional importance, but one has only to look at the statutes listed to realise that relatively few of them are likely to contain provisions that need to be amended for the purpose of better regulation. The noble Lord, Lord Goodhart, indicated some that may, but I see no reason why the Acts listed should not in their totality be excluded from the provisions of this measure. As the noble Lord has already indicated, my new clause is not dissimilar in aim to Amendment No. 62, but seeks to achieve it through a somewhat different route. Under Amendment No. 62 it would be for the Speaker of either House to determine whether a proposed order covered a matter of constitutional importance; under my amendment the courts would have to make such a determination by reference to a broad definition of the constitution. As is the case for Amendment No. 62, my amendment could be agreed in addition to rather than instead of Amendment No. 63. It draws on and modifies some existing definitions of a constitution and seeks to provide an overarching one. However, as the noble Lord, Lord Goodhart, indicated, it could be argued that it does so at the expense of precision. That does not matter unduly because if the Bill is designed to remove burdens that are not overly contentious in the furtherance of better regulation, no orders are ever likely to come close to being challenged for infringing the terms of the proposed new clause, so I argue that the Government have nothing to lose by accepting the amendment. Incorporating this provision will ensure that the measure cannot be abused by future Governments. What we are discussing is absolutely crucial in terms of ensuring that the Bill is ring-fenced and capable of achieving only the purpose for which the Government say it is intended. If the Minister argues that my amendment or those advanced by the noble Lord, Lord Goodhart, are deficient in their drafting, the onus will rest on him to come back with an amendment that meets the very real concerns that have been expressed, not only inside but outside Parliament. We cannot allow this measure to go through with what is in effect still largely a blank cheque approach for future Governments.