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Legislative and Regulatory Reform Bill

I ask the House to agree with the Lords in their amendment No. 9 but to reject the Liberal Democrats’ amendment (a). As was said, amendment No. 9 creates a new precondition. We thought carefully about how to deal with the issue that was raised. As Members know, a list of enactments and a list of areas were suggested, and for various reasons neither suggestion is a particularly helpful way to proceed. One of those reasons is that defining what is constitutionally significant in a system such as ours is not an exact science. Indeed, trying to agree a list of enactments that could be uniformly accepted as constitutional illustrated part of that difficulty. Amendment No. 9 creates instead a new precondition that prevents a Minister from making provision in an order that he considers constitutionally significant. The only exception is that orders may restate constitutionally significant provisions, but only where doing so would make the law more accessible or more easily understood. Despite the substantial safeguards already in the Bill—the preconditions in clause 4, the public consultation requirement and the veto in respect of Committees—concerns persisted that the order-making powers could be used to bring about significant constitutional change. The Government were clear from the start that those concerns were misplaced, but we proposed amendment No. 9 to put the issue beyond possible doubt. We consider the new precondition to be the most effective mechanism in meeting any concerns about the Bill’s constitutional impact, while retaining the supremacy of Parliament as the law-making body in the UK. It provides robust protection by preventing orders from delivering constitutionally significant amendments to legislation, but it will not inhibit the delivery of better regulation. The main effect of amendment (a), however, would be to alter the balance between the judgment of Ministers and Parliament on the one hand, and the power of the courts on the other. If it were accepted, in undertaking a judicial review of an order a court would not only examine whether a Minister acted reasonably in reaching his judgment; it would be able to decide whether the provision of the order was in fact of constitutional significance. In other words, a court could substitute the Minister’s and Parliament’s opinion with its own.