1 Introduction
1. The Legislative and Regulatory Reform Bill was
presented on 11 January 2006.[1]
It had been preceded by a consultation document, which had proposed
a far more limited reform of the Regulatory Reform Act 2001 than
has in fact emerged.[2]
Even at that stage the responsible committees considered that
the Government's proposals were highly significant. The Regulatory
Reform Committee and the Procedure Committee both made it clear
they would scrutinise the matter, and the Regulatory Reform Committee
pressed for prelegislative scrutiny of the forthcoming Bill.
Since this was not available, the Committee ensured that its report
was produced before Second Reading.[3]
Similarly, the Procedure Committee has produced its report in
time to be available before the Bill is considered by the House
as a whole.[4]
2. We too have an interest in the Bill. The Minister
in charge, Mr Jim Murphy MP, is the Parliamentary Under-Secretary
of State for the Cabinet Office, over which we keep a watching
brief. We have long been concerned with the balance of power between
state and citizen, and between government and legislature.[5]
This Bill, as our sister committees have said, is of major constitutional
significance. It will inevitably affect that balance. Given the
concerns expressed by many of our colleagues, and the cogent criticisms
from the Regulatory Reform Committee, we had expected that significant
changes would be made in Committee. In fact, although the Government
has given several undertakings which we welcome, the major amendments
will now need to be made at Report stage, the last opportunity
Members have to consider the detail of the Bill. Given that this
is the situation, we thought it timely to put our concerns on
record, and to reinforce the work already done by other committees.
Their recommendations would do a great deal to improve this legislation.
3. We will not attempt to give a detailed history
of the measure, or a close analysis of its provisions, as that
has already been done by our colleagues. But we need to explain
why we think the Bill is, as they have said, "of major constitutional
significance". As currently drafted, the Bill gives ministers
a wide ranging power to "reform legislation" or implement
recommendations of one or more of the United Kingdom Law Commissions
(with or without changes) by order, and to propose the degree
of Parliamentary scrutiny which is to be given to that order.
4. There are some restrictions on these powers, in
that the Minister must consider that the preconditions in the
Bill are met. The powers cannot be used to impose or increase
taxation, to make new provision allowing forcible entry or compelling
the giving of evidence, or to impose penalties heavier than those
specified in the Bill. This limit on penalties does not apply
to orders which implement Law Commission recommendations.
5. The Government has said that the sweeping powers
in the Legislative and Regulatory Reform Bill will be used to:
provide a more proportionate way of delivering
better regulation reforms to legislation. It will help to promote
a real change in the culture of regulation and inspection and
enable the implementation of valuable and non-contentious Law
Commission proposals.[6]
Those aims appear to be universally supported;
and we also commend them.
For that reason, second reading of this Bill was approved without
division. The argument is over the proportionality of the legislation
to those ends.
6. The Regulatory Reform Act 2001 provides that its
procedures can be used to reform law which imposes burdens. There
is nothing on the face of this Bill to limit its use to the stated
aims set out by the Government. The Government rests its claims
that the Bill is proportionate on two factors: the safeguards
contained in preconditions set down by Clause 3, and the Government's
own undertakings not to use the powers to implement highly controversial
proposals.
7. As has been widely noted, it will be hard to sustain
a legal case that a Minister has misused his powers by reference
to the preconditions in Clause 3. They will be justiciable, but
the barrier will only be that the Minister is acting within the
range of what might be reasonable in considering that the preconditions
have been met. In any event, relying on recourse to the courts
to ensure that powers granted by the Bill are used as expected
is itself problematic. Parliament is the legislature of this country,
and should ensure that it has the powers and processes needed
to scrutinise primary or secondary legislation adequately. Judicial
review will always be needed as an additional safeguard, in case
a defective instrument slips through our procedures for scrutinising
secondary legislation, but the primary task must be to ensure
that the powers on the face of this Bill are proportionate to
the Government's aims, and the procedures for scrutinising orders
brought forward using those powers are proportionate to the constitutional
importance of what is proposed.
8. The Government has rested much of its case on
repeated undertakings that the power will be used to further its
deregulatory policies, and will not be used in unexpected or controversial
ways. Whitehall has a liking for such undertakings and in fact
records them carefully and takes them seriously. The undertakings
given during the passage of the Regulatory Reform Act 2001 have
not, so far, been breached. But Parliament has no means of enforcing
those undertakings. We are not satisfied by the emphasis on
Government undertakings as a means of limiting the use of powers
given by the Bill. Over the long term, it is all too easy for
absolute undertakings to be broken, first because circumstances
are exceptional, then because they are unusual, and finally because
the undertaking itself has become obsolete. There are similar
disadvantages to relying too much on Parliamentary procedure—for
example, all prayers against negative statutory instruments used
to be debated on the Floor of the House; but it then became routine
for them to be referred to Committee (although Members could force
debate on to the Floor of the House). Last session, 660 negative
statutory instruments were laid—8 of the 13 prayers against
them were debated in time for the House to take effective action.
9. The Regulatory Reform Committee and the Procedure
Committee have provided comprehensive surveys of the provisions
of the Bill, and of the procedures which might be needed to ensure
those provisions are operated in a balanced way. They have put
forward many valuable recommendations, which we believe the Government
and the House should consider extremely carefully. This report
concentrates on what we consider to be the key defects in the
Bill, and the absolute minimum that needs to be done to make it
proportionate to its aims.
1 Bill 111 (2005-06) Back
2
A Bill for Better Regulation: Consultation Document Back
3
Regulatory Reform Committee, First Special Report of Session 2005-06,
Legislative and Regulatory Reform Bill, HC 878 Back
4
Procedure Committee, First Report of Session 2005-06, Legislative
and Regulatory Reform Bill, HC 894 Back
5
The Committee reports regularly on Ministerial Accountability
and Parliamentary Questions. We have also considered the use of
the royal prerogative by the Executive (Fourth Report of Session
2003-04, Taming the Prerogative: Strengthening Ministerial
Accountability to Parliament, HC 422). Back
6
HC Deb, 9 February 2006, col 1048 Back
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