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Legislative and Regulatory Reform Bill

moved Amendment No. 19: Leave out Clause 4. The noble Lord said: My Lords, Clause 4 has aroused some controversy. Whereas the rest of the Bill envisages amendments, repeals and so on, this clause allows subordinate legislation to be made by this order. The House of Commons First Special Report 2004-05 entitled Operation of the Regulatory Reform Act 2001 said: "““The RRC has suggested that the introduction of a power to sub-delegate will be a constitutionally significant extension of the RRO process. They consider that any proposal to introduce a power to sub-delegate will require very careful consideration by the House and would require significant safeguards for the exercise of that power””." People think it is entirely right that we should have a good hard look at this. There were debates in Committee, but I do not feel that we have resolved the problem. The function of legislating belongs primarily to Parliament. This clause gives the power to sub-delegate so that other bodies can use the provisions of the Bill to legislate. I wonder whether that is correct. Subordinate legislation usually operates under a specific Act of Parliament; Parliament sub-delegates for specific subordinate legislation, and that subordinate legislation is within the framework of a specific Act, for a specific task, within a specific timeframe. If that specific task is not carried out, the subordinate legislation would be ultra vires and therefore void. However, the danger in this enabling legislation is that such a general power is being given. Let me use the analogy of a key: if, in the ordinary way, you give the Minister a key to a building and then another key to a specific room inside—that is, the subordinate legislation—you are being very specific about what he has access to. We are being asked under Clause 4 to give Ministers a master key which can be used, as it were, for any room in any building. I understand that the noble Lord, Lord Goodhart, has raised anxieties about this clause with the Minister. I rely for that on the letter which the Minister wrote to all of us on 11 October. Under a passage headed ““Sub-delegation””, he mentioned that the noble Lord had brought to his attention an issue relating to a clause, "““which sets out the conditions that must apply where Ministers, or other appropriate persons, are exercising legislative functions””." I suspect that many noble Lords present have received copies of the letter. The Minister continued: "““I would like to clarify that it is only in the case that a Minister is conferred functions of legislating by order that this condition applies—a provision set out in subsection (3)””." That was added at the Committee stage. The Minister went on to say: "““The provision reflects recognition that it is not always appropriate for other persons or bodies to exercise functions of legislating by making statutory instruments—for example, where a local authority has a power to make local byelaws. However, the procedural requirements in Clause 5 which apply to Ministers should not be taken to mean that no procedural requirements will be attached to a power to legislate conferred on someone other than a Minister. An order which confers a power to legislate will need to set out the procedural requirements for the exercise of that power, which will depend on what is appropriate in the light of the person who is to exercise the power and the nature of the legislation which will be made””." That is all very well, but there is absolutely no indication of what the safeguards will be. The House needs to be told what the additional safeguards are to which the Minister referred in his letter, and which will provide the protection that we would want to see. The clause gives the power for subordinate legislation to legislate. That should not be as, by and large, it appears in this clause. I think that the Minister has recognised that by saying that there will be limits, but he has not set out what they will be. Different limits may be appropriate to different conditions and circumstances. I should be grateful if the Minister could in his reply give us a clearer indication of what the Government have in mind for the conditions they will attach to the power to legislate. I beg to move.