Limitations on the use of the
powers in the Bill
12. There have been a number of suggestions about
ways in which the powers given by the Bill might be restricted,
since the current concept of reforming burdens no longer applies.
The Regulatory Reform Committee proposed that certain subject
matter should be reserved from the Bill. Amendments were moved
in committee to this end. The Standing Committee also considered
an amendment which would exempt particular enactments from modification
using the Legislative and Regulatory Reform procedures. In correspondence
with the Leader of the House, our Chairman suggested that the
Bill should be modified so that legislation could only be reformed
in a way that was consonant with its original purpose.
13. On 12 April the Minister wrote to Mr Andrew Miller
MP, the Chairman of the Regulatory Reform Committee, saying
I am now looking into making the power more clearly
focused on delivering better regulation objectives. But I am determined
that the power is framed in such a way that we still are able
to deliver real change, including the initiatives that departments
will be proposing in their forthcoming simplification plans and
the benefits of our ambitious admin burdens reduction programme.[11]
The commitment is extremely welcome, but the Minister's
letter gives no indication of the nature or extent of the amendments
the Government will bring forward, and it is clear that the Government
still seeks wide powers. We will not be able to judge the adequacy
of any additional safeguards until we see precisely what is proposed.
14. It is not clear whether the Government will take
a general approach in its amendments, perhaps by introducing something
like the earlier concept of a burden, or whether it will exclude
certain Acts or subject matter from the Bill. The Government has
consistently argued that putting specific restrictions on the
uses of its powers might mean that it was prevented from bringing
forward useful and uncontroversial reforms simply because they
touched reserved matters or enactments. We recognise that this
is the case. Nonetheless, the Government seeks an unprecedented
power to amend almost any legislation in almost any way. This
is disproportionate to its stated aims. If Government wants broad
powers, it must accept that some matters should be off-limits.
15. The Minister was against a prescriptive list
because it would restrict "the ability to reduce bureaucracy,
form filling and information sharing".[12]
However, there are a large number of Acts, such as the Parliament
Act, which contain important constitutional principles, and which
impose no burden on business. We cannot see why they should not
be excluded entirely from the provisions of the Bill. The Minister
himself said:
I do not accept that the Bill could be used to
reform itself, for all sorts of reasons. Not least of those are
the Government's assurance in 2001, which has been generally accepted,
that they should not introduce highly controversial proposals,
and the Select Committees' power to reject any proposals by order.
Those are important powers that would protect Parliament from
such a suggestion.[13]
If that is the case, then we can see no argument
for not putting the restriction on the face of the Bill.
16. The Bill needs to be amended so that it contains
real restrictions on the Government's power. Valuable suggestions
about reserving certain subject matter or certain enactments have
already been made. Minimally, the Bill needs to be amended to
ensure that the powers it contains cannot be used to amend the
Legislative and Regulatory Reform Act itself, or any enactment
which deals in substance with either House of Parliament.
17. The Government rejected an amendment moved in
committee which would have had the effect of limiting the orders
which could be made under the Bill by introducing "a notion
of purpose or scope which is derived from the legislation that
the order would purport to change. No order for any purpose substantially
different from the purpose of the legislation that is being changed
would be allowed".[14]
The Minister's reason for rejecting this was not entirely clear:
We must reduce bureaucracy, and an ability to
do that to all sorts of different Acts which themselves are highly
controversial—the Government do not propose to introduce
amendments to the policy but to amend the bureaucracy attached
to them—is the right way to progress.[15]
The position was clarified by the Leader of the House,
who wrote to our Chairman that:
Amendment 46 provided that orders could not reform
legislation for a purpose substantially different to that for
which the original legislation was passed. Jim Murphy resisted
this on the basis that such a definition could prevent the Government
from delivering its wider better regulation agenda in a similar
way that the narrow definition of legal burden in the 2001 Act
has done.[16]
The acceptance of a Parliamentary veto may perhaps
make it unnecessary for the Bill itself to specify that reforms
should be compatible with the underlying legislation, but we trust
that any committee scrutinising such orders will reject those
which make radical changes to the policy underlying existing law.
Law Commission proposals
18. Throughout proceedings on this Bill, Members
have expressed concern about the breadth of the powers to implement
Law Commission proposals. Orders to implement Law Commission proposals
can make changes to common law (possibly in a way which is not
in accordance with recommendations from the Law Commission), and
are not subject to limits on the penalties they can impose. The
Procedure Committee has already drawn attention to the weakness
of the Government's argument that there is not sufficient time
to implement Law Commission recommendations through the normal
legislative process, given that the House has expedited procedures
for such bills. We welcome the fact that the Minister has undertaken
to think again about the absence of limits on penalties when Law
Commission recommendations are implemented. It is Parliament's
responsibility to make new law, and significant proposals for
such law should be made as primary legislation, however eminent
and expert the body which recommends them.
7 Stg Co Deb, Standing Committee A, Fourth Sitting,
2 March 2006, col 141 Back
8
Ibid., col 142 Back
9
See Regulatory Reform Committee, Legislative and Regulatory
Reform Bill, HC(05-06)878, Table 2, para 26 Back
10
Procedure Committee, Legislative and Regulatory Reform Bill,
Session 2005-06, para 37 Back
11
http://www.cabinetoffice.gov.uk/regulation/documents/bill/letter_am.pdf Back
12
Stg Co Deb Standing Committee A, 2 March 2006, col 129 Back
13
Ibid. Back
14
Ibid., col 113 Back
15
Ibid., col 129 Back
16
See Appendix Back
