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Legislative and Regulatory Reform Bill

My Lords, I add my genuine thanks to the noble Viscount, Lord Colville of Culross, for his diligence and persistence on this issue and for the useful examples of good and bad practice which he brought to our attention in Committee and again today. I readily acknowledge that we did not seek to answer the point that he raised in Committee, but I hope that what has happened in the interim, and what will happen, will demonstrate that the Government take this matter seriously and that there is an effective way forward. The purpose and effect of Amendment No. 36 are very similar to those of the amendment that the noble Viscount tabled in Committee. As he explained then, the amendment would make it possible to tell, by reading UK legislation alone, without the need to cross-refer to the relevant Community legislation, what one is obliged to do and what one must not do to avoid committing a criminal offence. He said that this was a question of transparency and reducing the burden for those who have to deal with statutory instruments that transpose European Community obligations into domestic law. These are issues which the Government take extremely seriously. The Government agree with the intention behind the noble Viscount’s amendment and that every effort should be made to ensure that European Community obligations are transposed into domestic law in a way that is transparent and reduces the burden on those dealing with them. He was also right in saying that Defra tries to address that by including in some statutory instruments a schedule to explain those provisions in the relevant European directive that, should they be breached, will amount to an offence under domestic law. The two examples of SI 2006/1970 on sea fisheries and 2005/3522 on the disposal of older cattle were cited by the noble Viscount in Committee and again today. He also referred to those instruments as examples of good practice. The Government will continue to seek ways to ensure that all statutory instruments that transpose European Community obligations into domestic law are drafted in a manner that is clear, simple and transparent. Although I agree with the intention of the noble Viscount’s amendment, as he has anticipated we cannot support it today. Current drafting guidance does not explicitly state whether a description of an offence should be included in an SI used to transpose a European Community obligation, or how detailed any such description should be. Instead, departments are given the flexibility to decide on a case-by-case basis how best to draft an SI that transposes a Community obligation. Amendment No. 36 would remove this flexibility by requiring all subordinate legislation used to transpose European Community obligations into domestic law to include a description of any activity which, if carried out, would constitute a criminal offence. Although I cannot support Amendment No. 36, I can assure the noble Viscount that the Government will consider the points that he has made today. Clearly, one route is through the guidance given to departmental lawyers who draft the implementing Community obligations, which seems an appropriate way of encouraging best practice. We will certainly look at that to see how it might be strengthened to address the point that the noble Viscount made. There was some discussion about the committee of the noble and learned Lord, Lord Davidson. It is right, as the noble Lord, Lord Kingsland, said, that it focuses primarily on gold-plating issues, which are about directives and not regulations. However, the review is about considering the implementation of EU legislation, and we will ensure that the noble and learned Lord, Lord Davidson, who is undertaking the review of implementation of European Union legislation, receives for his consideration copies of Hansard for the debates today and in Committee, as well as the examples of best practice that the noble Viscount provided. We will also seek to facilitate his own direct engagement with that process, if he so wishes. I hope that, in that manner, we can move the issue forward. I hope that the noble Viscount will accept that the Government are committed to finding means of transposing European Community obligations into domestic law in a way that is transparent and reduces the burden on those required to comply with European Union directives. For example, they are exploring the possibility of making consolidated versions of statutory instruments used to implement Community obligations into domestic law publicly available. The Davidson review has taken note of these representations. It is likely that the review will recommend that consolidated versions of statutory instruments should be made publicly available. The Government also stated in their response to the Merits of Statutory Instruments Committee’s 29th Report of Session 2005-2006 that they will dedicate resources to formally and ““informally””—that is, without making a new instrument—consolidating statutory instruments where departmental Ministers can identify appropriate cases. This intention is consistent with the Government’s simplification programme, which requires departments to consider whether they can reduce the regulatory burdens which fall on business, the voluntary sector and front-line public servants by providing greater clarity on the content or interpretation of legislation. I am conscious that my response has not provided a precise way of dealing specifically with the important point that the noble Viscount has again raised, but I hope that, through the mechanisms and processes that I have mentioned, there is a way forward and that we can achieve the objective he so rightly pursues. On that basis I hope that he will withdraw the amendment.