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Legislative and Regulatory Reform Bill

This is an important group of amendments which, as the noble Lord, Lord Henley, said, range far and wide in their cover. There is a thread pulling them all together in that they deal with the Bill’s procedural requirements for making orders, including the statutory veto provided to parliamentary committees. In the interests of clarity, I shall address the government amendments first, as noble Lords would expect. Government Amendments Nos. 94, 95, 101, 106 and 109 deal with the statutory veto that the Bill provides to relevant parliamentary committees. In the light of concerns that have been expressed during the Bill’s passage through Parliament, including those of the Delegated Powers and Regulatory Reform Committee, the Government resolved to remove the criteria to which the statutory veto is currently tied—a measure to which government Amendments Nos. 95, 101, 106 and 109 give effect. A number of noble Lords have supported Amendment No. 95, which removes from the Bill the criteria for exercising the veto for orders subject to the negative resolution procedure. I assume that noble Lords would agree that, if the conditions for exercising the veto should be removed, it is right that that be the case for all orders, irrespective of the procedure to which they are subject. An alternative arrangement would be inconsistent and is likely to be unacceptable to Parliament and its responsible committees. On that basis, I hope that noble Lords are satisfied by the government amendments on the issue. Government Amendment No. 94 also makes a minor drafting change to Clause 17 to clarify that the effect of exercising the veto, where orders are subject to the negative resolution procedure, is that the Minister cannot make the order. I commend both sets of amendments to the House. Government Amendment No. 110A is minor and technical, and mirrors a similar provision in the 2001 Act. Clause 15(2)(f)(ii) requires the disclosure of details in the explanatory document laid before Parliament of representations received as a result of the consultation required by Clause 14. However, that is subject to Clauses 15(4) and (5). The first provides that the Minister must not disclose information which the consultee asked not to be disclosed, if the disclosure of it would amount to an actionable breach of confidence, were it not for parliamentary privilege. The second provides that where the consultee provides information about another person, the Minister need not disclose that information if it appears to the Minister that the disclosure could adversely affect the interests of the other person, and the Minister has not been able to obtain the third party’s consent to disclosure of the information which could affect them. Clause 15(6) makes clear that neither of these restrictions prevents disclosure to a committee charged with reporting on the draft order which asks for the information. Clause 19—the super-affirmative procedure—requires the Minister to disclose details of representations made during the 60-day period of scrutiny about the draft order. There is, however, no provision restricting that obligation similar to the provisions in Clause 15. So the Minster would have to disclose that information even if the disclosure would involve a breach of confidence or would adversely affect the interests of a third party. Amendment No. 91, moved by the noble Lord, Lord Norton of Louth, provides for all orders to be subject to the super-affirmative resolution procedure unless either House of Parliament requires a less onerous procedure. I understand why the noble Lord moved the amendment and I am grateful to him because, in doing so, he accepted my point when we were debating Amendment No. 79, which is that it is Parliament, rather than the Minister, who is, if you like, in control of the process. I remind noble Lords that the Bill already provides that Parliament can, in all cases, request that an order proceed via the more onerous super-affirmative procedure. As an example of that, I cite the example of the Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005. That demonstrates how this works. Some orders are straightforward, and in such cases there seems little value in preventing a Minister from even recommending that an order should proceed by the affirmative or negative procedure. Amendment No. 91 provides that the method for determining the appropriate level of parliamentary scrutiny should be left to the House to determine, thus removing explicit reference to the committees’ ability to recommend a more rigorous procedure. I understand that the noble Lord wishes to remove that detail from the Bill. Our view is that, following government amendments tabled on 27 June, the Bill contains the right level of detail to ensure legal certainty about the order-making process. The inclusion of detail is necessary, as it clarifies the procedural requirements for delivering proposals via the order-making powers and ensures that the procedures in the Bill present a useable mechanism for delivering reforms by order. For that reason, I cannot support the noble Lord’s amendment. Amendments Nos. 92, 97, 103, 108 and 110 seek to remove the ability of a House of Parliament to overturn recommendations made by its responsible committee. Amendment No. 92 would make a committee recommendation for the level of scrutiny indisputable, and Amendments Nos. 97, 103, 108 and 110 would make a veto exercised by the committee final. Like the noble Lord, Lord Borrie, I express my concerns about the effects of the amendments. Making provision that a committee decision could override the opinion of the rest of the House and bind it, would be an unprecedented step that may be unworkable in practice. Ultimately, it is a matter for the House to decide whether and how often it might want to overrule the recommendations of one of its committees. However, the Government do not consider it appropriate to rule this out entirely and leave no flexibility for the House to decide. The recent Delegated Powers Committee report supported this view. It found that, "““it is right that a Committee’s recommendation that an order should not proceed…should have the consequence of preventing further proceedings unless and until the House says otherwise.””" So it must be for either House of Parliament, or perhaps both of them, to make that final determination. That must be right. In saying that, we respect the right and proper parliamentary process and, for that reason, I cannot accept the amendments. Amendments Nos. 93, 98, 100 and 104 seek to remove the time restrictions on when committees can exercise their statutory veto over orders. As a result, the parliamentary scrutiny committees could veto an order as soon as it was laid before Parliament. The time restriction for exercising the veto is in place to encourage committees to explore all the options before fully rejecting an order, to consider increasing the level of procedure to which the order is subject, to undertake full scrutiny and, in the case of the super-affirmative procedure, to undertake further consultation and recommend amendments to the order. The civil registrations regulatory reform order is a good example of what we consider to be thebest approach. Here, parliamentary committees recommended that the order should not proceed, but only after extensive and careful consideration. We simply want to build on this experience, which is an invaluable guide to how matters should develop in the future. Amendments Nos. 99, 105 and 111 seek to clarify that if an order is vetoed under the negative, affirmative or super-affirmative procedures, the Minister may return to the consultation process and subsequently re-lay the same draft order before Parliament. By contrast, Amendments Nos. 94A, 103A, 108A, and 110B specify that if Parliament vetoes an order, no order may be tabled in the terms of the original draft for a period of two years. On Amendments Nos. 99, 105, and 111, there are no restrictions in the Bill concerning the resubmission of a draft order, so the amendments are unnecessary. Both sets of amendments, however, although approaching the issue from different perspectives, give rise to an important question about the future of a proposal that has been vetoed by Parliament. My response to the amendments is that this Government and any future Government would not be inclined to reintroduce a proposal in exactly the same form after it had been vetoed by Parliament. Parliament would obviously be liable to veto the order again, and a Government would be unlikely to allocate the time or resources required to restart the process. Equally, however, it is right and proper that if, following additional consultation, evidence exists to substantiate a proposal, it should be possible to re-lay an order before Parliament, perhaps in a slightly amended form and at a later date. In other words, if it can be improved, if there is time to improve it, and if there is evidence, it seems unreasonable and inflexible to prevent that from happening. One would expect the order to be an important element of the deregulatory programme. We are not trying to create a situation where the Government might try with a minor amendment to slip something through on which they failed the first time; it is a matter of making a substantial improvement to the proposal and ensuring that the evidence is there to substantiate it. The noble Lord, Lord Henley, gave notice of an intention to oppose the Question on whether Clause 19 should stand part of the Bill. This clause sets out the requirements for making orders subject to the super-affirmative procedure. As I am sure noble Lords are aware, it is a well tried and tested process which has proved suitable for more complex regulatory reform orders. In its recent report, the Regulatory Reform Committee commented that a strength of the process is that regulatory reform orders received more detailed scrutiny than they would if they had been included in a large Bill. The Government anticipate that the super-affirmative process will continue to provide appropriately in-depth scrutiny for those more complex orders. I admit that the rationale for removing the most onerous level of parliamentary process from the Bill is not clear to me. As a Government we are committed to ensuring that orders receive effective and proportionate levels of parliamentary scrutiny. Central to that, however, is ensuring that, where orders require more comprehensive scrutiny, they can be made subject to the super-affirmative procedure. For that simple reason, which I should have thought is one to which we could all sign up, we wish to retain the provision for orders to be made under this procedure. I therefore propose that Clause 19 should stand part of the Bill. The noble Lord, Lord Henley, made the point that the super-affirmative procedure was withdrawn from the Company Law Reform Bill. It was withdrawn when the order-making power was removed from the legislation. As I am sure noble Lords are aware, the procedure is a part of many different pieces of legislation, including the Human Rights Act 1998. The noble Lord also asked an important question about the nature of the committees the Government consider should be responsible for scrutinising orders under the powers in this Bill. We had considered that the Regulatory Reform Committee and the Delegated Powers and Regulatory Reform Committee would continue to perform that role, but we have absolutely no objection in principle to other committees such as departmental Select Committees becoming involved in the process. It would be a very appropriate way for them to ensure that the process is thorough, and they would bring to these considerations their specific, detailed knowledge. We want to continue a constructive dialogue with the chairs of those committees on this issue.