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Legislative and Regulatory Reform Bill

My Lords, I think that the noble Lord, Lord Goodhart, in proposing this amendment, seeks strangely to replicate a similar provision in the Civil Contingencies Act. There is a considerable difference between orders made under that Act and orders made under the Bill, in that the former have only a short-term effect, usually for a maximum of 30 days, if I correctly recall that legislation, on which I spent some time. The problems of retrospectivity do not arise if they are struck down. In contrast, orders made under the Bill are intended to make permanent amendments to the law. This amendment would also lead to a situation where provisions of primary legislation would be divided into different categories. Whether or not the courts could strike the provisions down would depend on whether they had been inserted or amended by subordinate legislation. In some cases, it might be very difficult to disentangle what could be struck down and what could not be. This situation does not technically arise under the Civil Contingencies Act because orders under that Act disapply or modify the application of primary legislation, rather than make textual amendments to it. There are of course other powers to make secondary legislation which textually amends primary legislation. For the purposes of the Human Rights Act, none of these is subject to the rule which Amendment No. 33 seeks to impose on orders made under this Bill. I have already explained why emergency regulations made under the Civil Contingencies Act are very different from those made under this Bill and secondary legislation made under other enabling powers. Given the other safeguards in this legislation, I do not accept that it is necessary to change the way in which Parliament has decided in the Human Rights Act that incompatibility with the convention rights should be dealt with. I should reiterate the Government’s clear interpretation that it is already unlawful to make secondary legislation that is incompatible with the convention rights—the issue that we dealt with in the previous debate. Moreover, where primary legislation—including as amended by secondary legislation—has been declared to be incompatible by the courts, the Government have always responded positively to that declaration by proposing appropriate remedial action to Parliament. For those reasons, notwithstanding the noble Lord’s point about the Select Committee on Delegated Powers and Regulatory Reform, I cannot support the amendment. I do not think that it matches the purposes of this Bill.