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Legislative and Regulatory Reform Bill

My Lords, this has been a valuable mini-debate on the appropriate level of scrutiny for a draft order. In his brief contribution, the noble Lord, Lord Desai, put his finger on it. It is about having something that is appropriate to the scale and level of the problem. The noble Lord, Lord Jenkin, said that there was a commonality of view but that there were different solutions on offer as amendments, which I shall work through. The first amendment—Amendment No. 28—would prevent any order made under Part 1 from being delivered by the negative resolution procedure, if it amends or repeals existing primary legislation. That is an important caveat. As I said in Committee, the amendment would effectively remove the option of negative resolution for all orders, as most, if not all, made under Clause 1, will include provisions to amend or repeal primary legislation. For this reason, in addressing Amendment No. 28, I also need to consider Amendments Nos. 31 and 32, which would remove Clause 16—the negative resolution procedure—from the Bill altogether. During our previous debate on this issue, I was delighted when the noble Lord, Lord Goodhart, in speaking in support of an amendment that is not dissimilar to Amendment No. 28, agreed—I think that he may have repeated it this afternoon—that there may be draft orders that are suitable for delivery by the negative resolution procedure. That is how I understood the noble Lord to address the issue then. However, the Government believe that for all orders it is appropriate that the level of scrutiny is determined on a case-by-case basis, depending on the content and impact of the proposals in a draft order. Where orders are evidently straightforward, we should—as the noble Lord, Lord Desai, picked up—maintain the option of delivering them by what is, after all, a proportionate procedure. Furthermore, Clause 15 ensures that the final decision on the appropriate procedure for an order is left to the House. In a sense, we satisfy a point raised by the noble Lord, Lord Norton of Louth. Parliament should be the master of the process. It is right that Parliament will determine whether, and on what basis, an order should be subject to the negative, affirmative or super-affirmative procedure; it may decide, in any case, that there will be a more onerous level of scrutiny. It is for these reasons that I urge noble Lords not to press their amendments. The second amendment in this group—Amendment No. 30—removes the provisions set out in Clause 15 for determining the level of scrutiny for a draft order. It replaces these with the condition that all orders are to be subject to the super-affirmative resolution procedure unless both Houses of Parliament require a less onerous procedure. From this and earlier debates on a similar amendment tabled by the noble Lord, I understand that the amendment seeks to ensure that Parliament has a proactive role in determining the level of scrutiny and does not miss the significance of a particular order. As I have just stated, Clause 15 already provides that either House may require that an order proceeds via the more onerous super-affirmative procedure, and the final decision on the level of scrutiny is left to the House to determine. I also should reiterate that I fail to see the value in preventing a Minister from even recommending a level of scrutiny. A Minister’s opinion will not be made in isolation, but will take into account any representations received during the statutory public consultation period. The opinion is there to add some benefit, advice and guidance from the ministerial perspective, but it does not have to be the final determinant. I also question the value of removing the reference to the parliamentary committees’ ability to recommend that a different scrutiny procedure should apply. These committees evidently have considerable expertise in assessing orders under the 2001 Act, and would be well placed to recognise proposals that should be subject to more onerous procedures. Why take that away? Indeed, the Delegated Powers and Regulatory Reform Committee, responsible for scrutinising orders laid under the 2001 Act, stated that it agreed, "““that 30 days is sufficient for either House or a Committee to consider the proposed procedure and if necessary ‘upgrade’ it””." Furthermore, it is not clear from this amendment how the process of determining the procedure would work in practice—specifically, how the noble Lord envisages that an agreement would be reached between the two Houses, and how this process would affect the time periods provided for scrutinising the proposals. I am not sure how any conflict would be resolved in that situation. The noble Lord, Lord Norton, asked whether Parliament might miss the significance of an order. Well, committees have 30 days in which to recommend a more onerous process. During that time, they will be scrutinising the content of the order, so it seems unlikely—very unusual—that they would miss the significance of an order during that timeframe, not least because they have great levels of expertise, as we have discovered over the years. The noble Baroness, Lady Young of Old Scone, probed the offer that we made earlier in the debate. We will give further consideration to that, and I am grateful to her for reminding us not to put it to one side.