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Legislative and Regulatory Reform Bill

My Lords, I congratulate the noble Lord, Lord Kingsland, fulsomely on a very canny amendment that would make the transposition guide an add-on. However, I shall take noble Lords through the issue and explain why we cannot accept it. As the noble Lord explained on Report, the purpose of his original amendment was to ensure that, in implementing Community obligations into domestic law, the Government did not go beyond the minimum required by the Community obligation. This would have created a legislative barrier to gold-plating European Community obligations when they are transposed into domestic law. On Report, the noble Lord stated that the requirements of the Cabinet Office guidance to the effective transposition of European directives into domestic law gave him pause for thought on the absolutism of his amendment. I suspect that Amendment No. 11 is a response to that. As my noble friend Lord McKenzie explained on Report, the transposition guide makes it explicitly clear that, only in certain exceptional circumstances and where it is justified by a robust cost-benefit analysis and extensive consultation with stakeholders, should departments consider implementation that goes beyond the minimum required by a European directive. The transposition guide also makes it clear that any over-implementation must be made public. For example, to ensure transparency, all UK legislation laid before Parliament that gives effect to any European directive must be accompanied by a transposition note, which must contain an explicit statement on any over-implementation that has taken place during the transposition process. The guide also makes clear that the Select Committee on the Merits of Statutory Instruments can report to this House on any statutory instrument that it considers to have inappropriately implemented a European directive, including where there has been unjustified over-implementation. Although the requirements of the transposition guide are an essential part of ensuring that all legislation used to give effect to a European directive is thoroughly scrutinised and that any over-implementation is justified robustly, referring to the guide in the manner proposed in Amendment No. 11 would present problems. For example, as the transposition guide is guidance, it is written in terms appropriate to that status. It is not on the statute book and therefore is not written in statutory language; it therefore lacks the legal clarity and certainty required of legislation. This lack of clarity and certainty would cause difficulty for domestic courts. As a result of Amendment No. 11, it would be possible, for example, to challenge the lawfulness of subordinate legislation implementing Community obligations on the basis that it did not conform to the guide. The court would, on occasion, need to inquire into whether any cost-benefit analysis justifying gold-plating was robust. That would create new areas of uncertainty and of legal challenge. Furthermore, as the transposition guidance is not on the statute book, it can be updated and amended without scrutiny by Parliament. As Amendment No. 11 requires that subordinate legislation does not, "““impose or increase any burden on any person which does not conform with the Cabinet Office Transposition Guide””," departments would be legally required to comply with any amendments to the guidance, in spite of the fact that they had not been approved by Parliament. A future Government could therefore create a legal requirement that all departments over-implement European Community obligations, simply by amending the transposition guide. While I cannot envisage any Government doing that, it underlines the effect of this amendment, which I am sure the noble Lord had not intended. Given that the amendment would cause uncertainty for the courts and allow for legislative changes without the need for parliamentary scrutiny, we cannot support it, and although I congratulate the noble Lord on its cleverness, I urge him to withdraw it.