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Legislative and Regulatory Reform Bill

moved Amendment No. 14: Page 3, line 33, at end insert- (f) the provision is not of constitutional significance.”” The noble Lord said: My Lords, I shall also address Amendments Nos. 15, 16, 25, 26 and 27 in this group. Amendment No. 14 creates a new precondition, which prevents a Minister from making provision in an order which he considers constitutionally significant. The only exception to this is that orders may restate constitutionally significant provisions, but only where this would make the law more accessible or easily understood. I am sure that noble Lords would agree that that is a highly desirable objective. The order-making powers in Part 1 are clearly focused on delivering better regulation, as we have explained to the House many times before. There are already important safeguards in the Bill, as we have made clear, such as the existing preconditions and restrictions in Clauses 3 to 11, the public consultation required by Clause 13, and the parliamentary procedures provided for in Clauses 12 and 14 to 18, including Parliament’s statutory veto. The Government have also undertaken not to use the order-making powers to make highly controversial changes. Given all these protections, can the order-making powers in Clauses 1 and 2 be used to deliver significant constitutional change? The Government’s view is that they cannot. We are supported in our view by the reports of the Select Committee on Delegated Powers and Regulatory Reform and the Constitution Committee of your Lordships’ House. The committees said that the powers in Clauses 1 and 2 were not inappropriate. However, after our debates in Committee it was apparent that concerns remained that the order-making powers could be used to bring about fundamental constitutional change. The Government are clear that those concerns are misplaced and that the Bill could not be used to make such constitutional changes. We have, however, listened to those concerns and tabled this amendment to put the issue beyond any possible or reasonable doubt. If this amendment is agreed to, it will be added to the other preconditions which the Minister must consider to be satisfied for an order to be intra vires. We consider that a precondition is the most effective mechanism to meet noble Lords’ concerns. It avoids the problems associated with the approach taken by the noble Lords, Lord Goodhart, Lord Norton and Lord Jenkin, in Amendments Nos. 15, 16, 25, 26 and 27. It will also work well in practice. There is widespread agreement on the benefits that cutting red tape can bring to the public, private and third sectors. This Bill aims to improve the process for delivering better regulation by removing the arbitrary technical restrictions which prevented the earlier Act from being an effective tool for delivering better regulation. It is important that we should not create new arbitrary restrictions. Amendment No. 14 is targeted on making clear that the Bill cannot be used for the delivery of significant constitutional reform by order, but will not prevent the use of orders to deliver better regulation. For instance, the precondition in Amendment No. 14 permits the amendment of statutes that might be thought of as ““constitutional”” merely to reform, say, requirements to serve a notice which were administratively inconvenient, where that minor but worthwhile reform was not constitutionally significant and met the other preconditions, including those protecting necessary protections, rights and freedoms. Similarly, the new precondition in Amendment No. 14 will permit trivial or consequential amendments to be made to statutes that are constitutional in nature, for example by allowing the correction of cross references to other Acts or names which have been changed. A further benefit of the precondition is that, as with the other preconditions in Clause 3, it is right for the Minister to have to make this judgment—although the judgment is also rightly subject to various safeguards and checks. It is the Minister who promotes the order, and therefore he who must be satisfied before he does so that what he is proposing is within his powers. But, to comply with the public law duties placed on him, the Minister’s opinion must be reasonable and this may be challenged through the courts. Once the Minister has taken a view on the proposals, they will then go out for statutory public consultation, as required by Clause 13. Consultees will have an opportunity to comment on all aspects of the proposals, which could include whether they believe the proposal is constitutionally significant. The Government have made a commitment not to deliver highly controversial proposals by order, and consultees’ views will form part of the Minister’s assessment on matters of controversy. If, after the consultation, the Minster decides to proceed with the making of the order, he will lay a draft order before Parliament. The Minister must explain why he considers that the constitutional precondition and the other preconditions are satisfied in the explanatory document that must also be laid before Parliament, under Clause 14(2). Parliament will then consider the appropriateness of the order, taking into account whether the preconditions are met and whatever other factors it considers relevant. Parliament has the veto over orders, so ultimately it can reject proposals that it finds inappropriate for delivery by order. I want to go over the amendments in this group that we cannot support. In Committee, noble Lords acknowledged the difficulties with a list of excluded enactments or subject areas. We rejected this approach, which is set out in the various amendments. At Second Reading, the noble Lord, Lord Goodhart, acknowledged that it would be nigh impossible to define a set of constitutional enactments—if such a class of legislation could be said to exist—or constitutional areas. Defining such a list is difficult. One must judge where it might begin and end. Amendments Nos. 25 and 26, which are consequential on Amendment No. 27, show the difficulties of this approach. The list of excluded Acts in Amendment No. 27 is much shorter than those we considered in Committee and differs from the list of statutes and areas in Amendment No. 25. The difference between the lists shows the lack of consensus on the issue. Amendment No. 27 creates a list of excluded Acts regarding devolution. The Government are content that the new precondition would prevent any constitutionally significant amendments to the Scotland Act and the Government of Wales Acts, just as it would prevent constitutionally significant amendments to any other enactment. We are therefore content that orders could not be used to effect significant constitutional changes to the UK’s devolution settlements and that Amendment No. 14 puts that beyond doubt. However, as I mentioned, the new constitutional precondition would allow minor amendments which are not of constitutional significance. The Government believe that we should not prevent orders from delivering useful better regulatory reforms which are not constitutionally significant to statutes, which could include the Scotland Act and Wales Acts. Our Amendment No. 14 is therefore better targeted than Amendments Nos. 25 and 27. I do not understand why the noble Lords, Lord Goodhart and Lord Maclennan, have singled out the right to trial by jury in Amendment No. 16. Clause 3 already prevents Ministers from making orders containing provisions which they consider would remove necessary protections, or prevent a person from continuing to exercise any right or freedom which they might reasonably expect to retain. Therefore, the Government are already of the opinion that the right to trial by jury is a necessary protection, and a right which someone might reasonably expect to keep. I cannot see how an order could be used to effect such change. I give the assurance that the right to a jury trial is already protected in that sense. As I have said before, defining the parameters of an appropriate list of statutes or areas would be cumbersome. It would amount to trying to write or codify the constitution, which is what Amendment No. 15 of the noble, Lord Norton, and Amendment No. 25 of the noble Lord, Lord Jenkin, attempt to do. This is a significant project, as I am sure noble Lords would agree. If we are to debate the parameters of the constitution, this Bill is not the context in which we should do so. The House of Lords Constitution Committee recognised the difficulties with devising a schedule of exempted areas, and states that a schedule would be something of a blunderbuss approach. It notes that not all provisions in Acts with constitutional implications affect our constitutional arrangements, and concludes that, "““it might be thought wrong to exclude such provisions from the general operation of the bill””." This is precisely the problem with Amendments Nos. 15, 25 and 27. The amendment tabled by the noble Lord, Lord Norton of Louth, sets out areas which he thinks should fall within the scope of the ““constitutional significance”” amendment. Not every proposal for change in these areas will necessarily be of constitutional significance; they might be exceedingly trivial. If they are significant, they will fall within the scope of the precondition without further definition. Unless they deal with issues which fall within the general purposes of the Bill, they will be doubly ultra vires. The amendment adds nothing to the protection of rights and freedoms in the Bill, which, of course, include the precondition concerning rights and freedoms. It is already unlawful for a Minister to make an order that is incompatible with convention rights under Section 6 of the Human Rights Act. Clause 9 also prevents amendments to the Human Rights Act itself. Adequate safeguards concerning the Human Rights Act already exist, and so the provision is, in this respect, otiose. Furthermore, the Government consider that it would be foolish to put some Acts off limits when it may be necessary to make minor or consequential changes to them for the purposes of better regulation. I note that the list in Amendment No. 15, tabled by the noble Lord, Lord Norton, would rule out any reform of the Executive, preventing useful better regulation reforms to government departments which act as regulators. Clause 1(4) prevents orders from inappropriately removing burdens which fall only on Ministers or government departments. It provides that burdens falling only on Ministers or departments can only be removed in so far as they are burdens which affect the Minister or department in their exercise of a regulatory function, as we discussed earlier. Fears were expressed that the Bill would somehow allow departments to cease providing public services. Clause 1(4) ensures that, for instance, it would not be possible to make an order stopping the provision of a public service because it was considered a cost and a burden. As Cabinet Ministers have argued on many previous occasions, any substantial policy change to core public services would be utterly unsuitable for delivery by order. However, some amendments to enactments relating to the Executive could be usefully delivered by order. The Government have a number of regulatory functions such as the company law regulatory functions within the DTI and the pesticides directorate, to which we have referred before. The Government believe that orders should be able to remove or reduce burdens from departments where they are carrying out regulatory functions, in the same way as they can for regulators. Amendment No. 15 would seem to permit major reforms to the Civil Service or local authorities. Abolition of local authorities would fall foul of my Amendment No. 14, but Amendment No. 15 seems to define constitutional significance in a way which would no longer rule this out. This shows the strength of the government amendment. The new constitutional precondition rules out the elephant of constitutional significance—which we all recognise when it arrives—while avoiding the difficulties of attempting a definition. Although the Bill could not be used to make significant constitutional change, Amendment No. 14 will put beyond any doubt that the order-making powers could not be used to enact significant constitutional change. It also avoids the difficulties with a list of constitutional enactments or subject areas, which were highlighted by the Constitution Committee. I have explained why the Government believe that their approach is the most appropriate and wholly adequate without further bolstering. I therefore commend Amendment No. 14 to the House, and suggest that, on reflection, noble Lords do not move Amendments Nos. 15, 16, 25, 26 and 27. I beg to move.