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“Any person exercising a regulatory function to which this section applies must have regard to the principles in subsection (2) in the exercise of the function ... Those principles are that ... (a) regulatory activities should be carried in a way which is transparent, accountable, proportionate and consistent; ... (b) regulatory activities should be targeted only at cases in which action is needed.”
Sharp-witted Members will have realised that those words also appear in new clause 20. That measure will require a Minister to secure that regulatory functions are exercised by bodies in such as way as to comply with those precise principles, although certain regulators are excluded from those requirements as the Bill stands. There is thus a group of regulators that apparently does not need to comply with those principles by virtue of clause 23, but is required to do so by virtue of new clause 20, which the Minister will be able to use to ensure that regulatory functions are exercised in such a way that they comply with those principles. That seems to be an anomaly, albeit not an unwelcome one because at least the principles are there somewhere. Nevertheless, the anomaly might need to be sorted out at a later stage.
Mr. Heald: Clause 20(3) says that the duty to follow the principles
“is subject to any other requirement affecting the exercise of the regulatory function.”
As we said in Committee, that would exclude the Financial Services Authority to some extent and other financial regulators if confidentiality is important. However, it may still apply to them subject to that modification. I wonder whether that is what the Minister is saying.
Mr. Heath: The hon. Gentleman rightly draws attention to subsection (3), but it only complicates matters further. We are not clear, because of the way in which procedure works, where the new clause will sit in the Bill. Perhaps the Minister will be able to tell us because it is a basic question. I am assuming that it forms part of part 1, but it may be part of part 2. I think the Minister nods to say that it would be in part 1, in which case we have one provision in part 1 and something that could be construed as a different provision in part 2.
I do not think that that matters so long as everyone understands exactly what applies to them. I fear that there will be confusion unless an explanatory note is produced, so that we all understand how the measure works before it gets to another place. Otherwise, I can foresee at least a day’s debate on the misapplication of the new clause and existing clause 23.
Mr. McFadden: On that note, I am happy to offer the hon. Gentleman an explanatory note.
Clause read a Second time, and added to the Bill.
‘(1) A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2).
(2) That purpose is the implementation of recommendations of any one or more of the United Kingdom Law Commissions, with or without changes.
(3) In this Part “the United Kingdom Law Commissions” means—
(b) the Scottish Law Commission; and
(c) the Northern Ireland Law Commission.
(4) Subject to this Part, the provision that may be made under subsection (1) includes—
(a) provision amending or abolishing any rule of law,
(b) provision codifying rules of law,
(c) provision conferring functions on any person (including functions of legislating or functions relating to the charging of fees),
(d) provision modifying the functions conferred on any person by any enactment,
(e) provision transferring, or providing for the transfer or delegation of, the functions conferred on any person by any enactment,
(f) provision abolishing a body or office established by or under an enactment,
and provision made by amending or repealing any enactment.
(5) An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate.
(6) An order under this section may bind the Crown.
(7) An order under this section must be made in accordance with this Part.'.— [Bridget Prentice.]
Brought up, and read the First time.
The Parliamentary Under-Secretary of State for Constitutional Affairs (Bridget Prentice): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: amendment (a) to new clause 21, in line 4, leave out ‘with or without changes'.
Amendment (b) to new clause 21, in line 4, leave out ‘with or without changes' and insert
‘either without changes or with such changes as are necessary to take into acount any development in the law since the time the recommendations were made.'.
New clause 10— Law Commission recommendations—
‘(1) In section [Power to implement Law Commission recommendations], “recommendations of any one or more of the United Kingdom Law Commissions” means proposals in the form of a draft Bill or draft Order, which do not relate to—
(a) the creation of a new offence that is punishable, or increases the penalty for an existing offence so that it is punishable—
(i) on indictment, with imprisonment exceeding thirty months; or
(ii) on summary conviction, with imprisonment exceeding the normal maximum term or a fine exceeding Level 5 on the Standard scale.
(b) authorisation of forcible entry, search and seizure,
(c) family law and rights of occupation,
(d) landlord and tenant law, in so far as it affects the rights of tenants.'.
Amendment No. 3, in page 1, Clause 1, leave out lines 8 and 9 and insert—
‘(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, either without changes or with such changes as are necessary to take into account any development in the law since the time the recommendations were made.'.
Government amendments Nos. 23, 27, 33, 34, 40 and 59.
Bridget Prentice: New clause 21 provides a power to implement by order recommendations of any of the UK Law Commissions, with or without changes. It makes the same provision for delivering Law Commission recommendations as set out in provisions contained in clauses 1 and 2, as amended in Committee. The preconditions in clause 3 and the restrictions in the following clauses continue to apply, as does the undertaking given in Committee by my hon. Friend the Member for East Renfrewshire (Mr. Murphy), now the Minister for Employment and Welfare Reform, that the power will not be used for highly controversial measures. The new clause is necessary because of the changes made to clauses 1 and 2.
Mr. Greg Knight: The Minister says that the new clause is necessary because of changes to the Bill, but why is it necessary at all in the light of Standing Order No. 59, which makes special provision for an accelerated procedure to take place in the House for Law Commission Bills?
Bridget Prentice: I am grateful to the right hon. Gentleman for his comments. As Chair of the Procedure Committee, has, I know, taken a detailed look at the Bill. I am interested in his remarks and would be prepared to reflect on them. However, it is not always appropriate to do everything by Standing Order. It is better to put some things in a Bill.
It has sometimes taken too long for Governments to implement some of the proposals recommended by the Law Commission. Indeed, its report last year was fairly typical. It revealed that there were 16 accepted but unimplemented reports, with an average waiting time of more than seven years from publication to enactment. Clearly, that is not satisfactory.
Mr. Heath: Why does the hon. Lady feel that there is this long delay in implementation of Law Commission reports? Is it a lack of Bills from the Home Office or the Department for Constitutional Affairs, or is there some other reason?
Bridget Prentice: I am amazed that the hon. Gentleman was able to say that with a straight face. As he knows very well, parliamentary time for Bills from a variety of Departments is likely to be precious and it is difficult for space to be made for them. That is one reason why it is important that the Bill allows for the opportunity for Law Commission recommendations to
be brought before Parliament in a speedier fashion. That is the very purpose of new clause 21. After all, Law Commissions are by their nature generally apolitical, so it is not that easy to win parliamentary time. That is one reason why proposals might otherwise not be enacted for very many years. That is not good, because people and businesses are not able to benefit from the considered proposals that the Law Commissions have made. For those reasons, I recommend the new clause to the House.
If I may, I shall refer to the amendments to the new clause and explain to the House why I must ask it to resist them. The problem with amendment (a), which is intended to restrict the scope of the order-making power to implement Law Commission recommendations by ensuring that Ministers cannot change those recommendations in any way if they wish to use the order-making power, is that it is too restrictive. It would not allow any changes to the recommendations. The words “with or without changes” introduce a degree of flexibility into new clause 21. The new clause would therefore avoid the loss of good measures by reason of quibbling arguments that a change is beyond a particular technical parameter, while still preserving the overall rule that the order in question must implement a Law Commission recommendation and not something different from that.
Mr. David Gauke (South-West Hertfordshire) (Con): I wish to draw the Minister’s attention to subsection (5), which states:
“An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision) as the Minister making it considers appropriate.”
She said that omitting “with or without changes” would permit dealing with quibbling matters, but subsection (5) deals with the very issue to which she refers.
Bridget Prentice: Subsection (5) does indeed go a long way to achieving what we want to achieve, but it is important that we include in the Bill the fact that amendments to Law Commission recommendations may need to be made. The most obvious example of when that might be necessary, which my hon. Friend the Member for East Renfrewshire gave in Committee, is following a time lapse such as we have discussed, during which other things may have taken place that mean that a recommendation no longer fits the purpose for which it was intended. In that case, changes would have to be made. Amendment (a) would stifle that use.
My hon. Friend also said in Committee that the words “with or without changes” are not intended to allow Ministers to make proposals that would turn recommendations into something completely different. If proposals are so far removed from the recommendations that they would not, in fact, implement them, under new clause 21 the proposal should not be proceeded with. I would imagine that the Scrutiny Committee would be quick to ensure that that were brought to the House’s attention under the new veto provisions to be introduced in the Bill.
The 2001 Act included numerous technical restrictions that created arbitrary limits on what could be delivered
by order. The order-making powers created by the Bill should be flexible enough to achieve the effective delivery of beneficial Law Commission recommendations, which are an important part of the better regulation agenda. The correct approach is not to rule out changes but to allow proposals to be considered by the Committees. If they do not agree that the proposals implement Law Commission recommendations or satisfy the pre-conditions in clause 3 that provide important protection for people’s rights, they can veto the order. We may, for example, need a power to make changes before the Law Commission recommendations become legislation. There may be scope for drafting or structural changes if the Government decide to adopt only some of the proposals in a Bill drafted by the commission. It is often necessary to make amendments to reflect changes in the law after a Committee reports. It may be desirable, too, to make material changes to the detail after further consideration or a suggestion from a scrutiny Committee. In response to the question from the hon. Member for South-West Hertfordshire (Mr. Gauke), subsection (5) would not cover all those possibilities. In summary, amendment (a) is unduly restrictive, as it would introduce sterile and time wasting arguments about form and language. We want a procedure that delivers better regulation, not one that absorbs resources in arid legal arguments over technicalities. I therefore cannot support amendment (a), so I hope that the right hon. Member for East Yorkshire (Mr. Knight) will withdraw it.
9.15 pm
Amendment (b) is slightly more generous than amendment (a), and is substantially the same as amendment No. 3. It would allow Ministers to change recommendations if it is necessary to take into account any development in the law since the recommendations were made, as I said earlier. It builds the case for such a change—the longer the delay between the publication of the Law Commission recommendations and the delivery of the order, the more likely it is that the law will have to be changed. In such cases, it is no longer sensible to implement the recommendations without changes, because in certain respects they may be out of date. It is important to be able to implement the recommendations with the changes necessary to reflect changes in the law.
To that extent, I welcome the policy underlying amendment (b). However, it, too, is excessively restrictive. There may be other reasons why changes are necessary or desirable. It may be possible to improve the drafting of the draft legislation proposed by the Law Commission, not least when part of a group of recommendations is to be implemented or several sets of recommendations are drawn together in a single instrument.
David Howarth: I do not want to cast aspersions on the abilities of parliamentary counsel, but I doubt whether they can draft better than the Law Commission. Any conceivable circumstance in which changes need to be made is surely covered by amendment (b) or new clause 21(5). I cannot see that there is room for anything beyond those two measures.
Bridget Prentice: I have no intention of refereeing between parliamentary counsel and the Law Commission to decide who employs the better draftspeople. Any
drafting changes made by the commission to draft legislation would be subject to consultation, and it could reflect on the responses.
A Minister may wish to make a material change. Provided that the order remains an order to implement Law Commission recommendations, they should be able to do so. The change proposed might be as a result of consultation after the publication of the report. It might be that a change is proposed to make the recommendations of the commission more generally accepted. Indeed, as I said earlier, the scrutiny Committees themselves might wish some changes to be made. The correct approach is not to rule out changes, but to allow the proposals to be considered by the Committees. For that reason, I ask the House to resist amendment (b) to new clause 21.
Pete Wishart: Can the Minister confirm that, in new clause 21, the reference to the Scottish Law Commission relates only to issues that are reserved to the Westminster Parliament under the Scotland Act 1998? That is suggested in new clause 21 and in clause 8, but nowhere in the Bill is it specifically stated.
Bridget Prentice: I will reflect on the hon. Gentleman’s question. It is my understanding that the measure will apply to all the UK Law Commissions. They would all be subject to this part of the Bill.
Rob Marris: On my hon. Friend’s answer to the hon. Member for Perth and North Perthshire (Pete Wishart), it is not clear to me, particularly since new clause 22 has not been selected, whether new clause 21 would apply to the Northern Ireland Law Commission, which is specifically not mentioned in subsection (3), although it was mentioned in clause 1 of the original Bill.
Bridget Prentice: New clause 21(3) specifies the Law Commission, the Scottish Law Commission and the Northern Ireland Law Commission. I hope that that answers the questions from both my hon. Friend the Member for Wolverhampton, South-West (Rob Marris)and the hon. Member for Perth and North Perthshire (Pete Wishart).
New clause 10 would rule out the creation of certain new offences and the authorisation of forcible entry, search and seizure. These were possible under clauses 6 and 7. However, Government amendments Nos. 23 and 27 will achieve the same result, so that orders implementing Law Commission recommendations will not have any special treatment in this respect, and the limits in clauses 6 and 7 will apply to these orders, as well as to others. To that extent new clause 10 has been overtaken by events.
Mr. Roger Gale (North Thanet) (Con): The hon. Lady referred specifically to forcible entry, search and seizure. Does her caveat apply to all the other categories covered in the new clause?
Bridget Prentice: I shall come to the Government amendments that apply to those categories in a moment.
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