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Legislative and Regulatory Reform Bill

This group of amendments concerns the type of provision that can be made by orders under clauses 1 and 2, and particularly the extent to which functions can be conferred by order. The amendments have several effects. Amendments Nos. 14 to 17 concern the power to confer legislative functions by orders. Specifically, they restrict the categories of persons to whom legislative functions can be conferred. They respond to concerns that functions of legislating should be conferred only on appropriate bodies or persons. Amendments Nos. 2, 4, 5 and 6 clarify the purposes for which functions can be conferred and make drafting changes to relevant parts of clauses 1 and 2 to do so. Amendments Nos. 3, 16, 17, 26, 27 and 29 are similarly technical or consequential. In earlier parliamentary stages there was some discussion of this area of the Bill. I hope that the amendments will clarify the situation. We have also sought to listen and respond to the conclusions of the Delegated Powers and Regulatory Reform Committee in another place. That Committee stated that including a power to confer legislative functions by order in the Bill, while not inappropriate, should be limited. In the light of the Committee’s concerns and wider discussions on the issue, the amendments restrict the persons or bodies eligible to be given such powers to three categories. The first category of persons who are most likely to be given powers to legislate as part of future orders is Ministers. The second category is persons or bodies who have had functions conferred on them or transferred to them by an enactment. That will ensure that powers to legislate can only be conferred on persons or bodies already recognised by Parliament as suitable. The third category is the body or holder of an office created by the order itself. That power will be useful, for example, in the case of a merger, where a successful transfer of functions might necessitate the creation of a new body, when that is for the purposes set out in either clause 1 or clause 2. The Government consider that ability essential if the Bill is to provide a workable and effective vehicle for delivering reforms, such as the types of merger proposed by Philip Hampton. I hope that the amendment will deal with some of the off-stage characters who have occasionally appeared in our deliberations. There were accusations that it was possible that President Bush, former Prime Minister Berlusconi or various other characters might end up legislating through the Bill. As discussed previously, while I do not believe that that was ever the case, the amendments now make it pretty clear whom we are talking about in relation to delegation. The Government have also sought to respond to concerns surrounding the ability of bodies or holders of offices, who have been given legislative powers by an order, further to delegate those powers to others. I remember an exchange on that issue in earlier Commons stages. Reference was made to ““Halsbury’s Laws””, which I am happy to quote again:"““In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer on whom it has been conferred, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative power as impliedly authorising sub-delegation””." There was some disagreement about that during our earlier deliberations. The report from the Delegated Powers and Regulatory Reform Committee stated:"““We agree with the conclusion…of the memorandum””" —from the Cabinet Office—"““that a person to whom power to legislate was given by the order could not delegate that function to someone else and that the order could not enable that to be done.””" My briefing uses the phrase ““the better legal view””. It may be contested, but the ““better legal view”” was that such passing on of delegated legislative powers could not happen. The amendments, however, remove the necessity to go over the ground again in arguing about who has the better legal view by making clear precisely to whom legislative powers could be delegated and on what basis that would happen. They also deal with the passing on of such powers. I hope that that clarifies the position and that the House will feel able to accept the amendments.