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Legislative and Regulatory Reform Bill

My Lords, I rise to speak to my Amendment No. 30 in this group. Its purpose is to shift the onus for recommending the procedure to be adopted for considering an order from the Government to Parliament. I pursued this issue in Committee, but I have changed the wording of my amendment to take into account a crucial drafting point made by the noble Lord, Lord Goodhart. The case for my amendment is compelling and twofold. The first argument is a matter of general principle. Parliament should have a far greater say over the conduct of business. As I pointed out in Committee, the House of Commons is remarkable among legislative Chambers in the democratic world for the extent to which the business of the House is determined by the Executive. It is common for other legislative Chambers to have business committees that determine the allocation of time. That practice does not prevent a Government from getting their business; the evidence on that is clear. It is not a blocking procedure, but one that ensures that time is allocated as is deemed to be appropriate by the House, not by the Government. That is wholly appropriate; as far as possible, Parliament should be the master of its own procedure. My second point is specific to this measure. As I argued in Committee, there is a danger of Parliament missing the significance of an order. Under the Bill as drafted, Parliament assumes a reactive role, in which the onus is on the Minister, and there is a danger that a committee may not pick up on the significance of an order that is recommended for the negative resolution procedure but merits more stringent consideration. A great deal rests on the vigilance of the committees and it is not clear how busy they will be. My amendment would place the responsibility on both Houses to check an order as soon as it is laid by a Minister and to decide whether it merits being moved from the super-affirmative to the affirmative or negative resolution procedure. The super-affirmative procedure would be the default. That would ensure that no important order slips under the net of parliamentary scrutiny and it would place responsibility for the procedure where it should be—with Parliament, not the Executive. Because my amendment was grouped with others in Committee, the Minister dealt with it only briefly. He covered it in five sentences, only three of which were substantive. He appeared to consider that losing the reference to a committee in Clause 15(6)(b) removed an important safeguard and that the clause, as drafted, provided the right level of detail to ensure legal certainty. The loss of reference to a committee is not crucial to ensuring parliamentary safeguards. Each House is likely to establish a committee, but that is a matter for each House. The difference between the wording of the amendment that I tabled in Committee and this amendment is crucial in that it requires the agreement of both Houses to decide that the super-affirmative procedure shall not be employed. It is thus not possible for a Government secure in their majority in the House of Commons to utilise that majority to avoid effective scrutiny of an order laid under the provisions of this Bill. This House, under this amendment, would thus have an important role to play. The other point raised by the Minister was an expression of view, but not one that undermines the case for my amendment. There will be legal certainty under the procedure prescribed by this amendment, just as there is under the one proposed by the Government. The Minister appeared to mix a claim about legal certainty with one about whether the procedure would be useable. This amendment produces a procedure that will be useable, but in the context of Parliament determining which procedure is appropriate. I have spent the past quarter-century arguing the case for strengthening Parliament in calling the Government to account and in ensuring proper scrutiny of legislative proposals. I offer this amendment as a small step in the right direction.