Appendix: Correspondence relating to the
Bill
Letter to Rt Hon Alan Williams MP, Chairman of
the Liaison Committee, from Dr Tony Wright, Chairman, Public Administration
Committee, House of Commons, dated 18 January 2006, with
copies to Rt Hon Greg Knight MP, Chairman of the Procedure Committee
and Andrew Miller MP, Chairman of the Regulatory Reform Committee
As you will remember, last November Andrew Miller
drew the Liaison Committee's attention to the importance of legislation
to amend the Regulatory Reform Act 2001, which would have implications
for almost all select committees. As a result of his intervention,
you wrote to the Leader of the House on our behalf, emphasising
the importance of the Government's proposals, and urging that
the Regulatory Reform Committee should be given time to scrutinise
the Bill between its introduction and second reading.
The Government statements on the Bill emphasise the
potential to use these powers to deregulate, and to simplify the
law, and this would indeed be welcome, but I am concerned that
the constitutional importance of the measure may have been overlooked.
In my opinion, the Legislative and Regulatory Reform Bill, introduced
on 11 January, goes further than the proposals in the consultation
paper. Limitations suggested there have been removed, and replaced
with far lighter restrictions on the use of the powers in the
Bill.
Whereas primary legislation gives individual Members
an opportunity to put forward amendments to part of a measure
which they may feel needs improvement, if changes to the law were
put forward using the procedures in this Bill, individual Members
would be faced with a choice between accepting a measure in its
entirety or rejecting it, rather than seeking to amend particular
parts of the measure. It is also possible that the time available
for them to intervene would be much shortened. There would be
no certainty about how they should intervene, since it would be
for the Minister putting forward a measure to suggest the appropriate
Parliamentary procedure.
While I understand the desire for a quicker and simpler
way of bringing forward law reform proposals, and for ensuring
that the level of scrutiny is appropriate, we must make sure that
Parliamentary scrutiny remains adequate. I am concerned that the
Regulatory Reform Committee, or any other committee charged with
reporting on a proposal, would only have 21 days in which to decide
whether the Government's proposals for the procedure to be followed
were proportionate, and in which, presumably, to undertake at
least first stage scrutiny of the proposals. It would only have
longer to suggest amendments if it recommended super affirmative
procedure was followed. Its ability to consult with departmental
committees, which are likely to have a strong view on many orders,
will be severely limited. It will be extremely difficult to consult
outside Parliament. A recommendation that it was not appropriate
to use delegated legislation to implement a particular proposal
would have no automatic effect.
Although the Bill does contain some restrictions
on ministerial powers to reform legislation, these are far fewer
than in the current legislation, or than I had expected from the
consultation document. The preconditions in Clause 3 are not absolute
tests, but merely requirements that the Minister making the order
considers that the conditions in subsection 3(2) have been met.
As such, they are subject to legal control only by standard judicial
review tests; on a challenge the courts will address the question:
are the opinions the Minister has formed within the range of opinions
that a Minister, acting reasonably, might form? If the answer
is 'yes', the preconditions have been validly met.
In contrast, the powers are wide. Subject to pretty
limited exceptions, orders to reform legislation can replace primary
legislation in any way that an Act of Parliament might. In particular
-
- Orders implementing proposals
from a Law Commission could make changes to common law, whether
or not the Law Commission proposals were implemented without change;
the extent to which other law reform orders could do this is not
clear.
- Orders could create new offences; and although
new offences originating from government would have a limit set
on their penalties, these restrictions would not apply to orders
implementing Law Commission proposals, where penalties would be
unlimited.
- Orders could be used to confer subordinate lawmaking
powers; if such powers were given to Ministers and were novel
they would have to be exercisable by affirmative or negative statutory
instrument; that limit is however only applicable to orders bestowing
powers on Ministers. It is understandable that there may be a
need to give councils and others rights to make bylaws without
going through Parliament, but there appears to be no express restriction
on the conferring of a power to by-pass Parliament on any official,
or for that matter, any trade organisation or private citizen.
Insofar as orders amend or repeal primary legislation
or apply it to other circumstances (with or without modifications),
the courts will not be able to strike them down if they breach
the European Convention on Human Rights, as they can other secondary
legislation; this limitation would apply even where a law reform
order had been subject to negative procedure. The most
the courts could do would
be to declare the legislation incompatible with the Human Rights
Act, and leave it to the Government to bring forward amendments.
Where the power is used to reform the law, the proposals
would certainly make changes simpler and save Parliamentary time,
but I think the provisions for scrutiny will need to be considered
extremely carefully.
I believe the proposals offer significant advantages
where the intent is to restate the law in a way which is more
readily understood; Parliament has accelerated procedures for
Consolidation Bills, but unlike law reform orders, such bills
cannot include all sources of law, such as regulations and even
codes of practice. The question here is whether Whitehall has
the resources to produce such user-friendly restatements of the
law, which would require a great deal of legal expertise to compile.
I can also see potential advantages in the using
the procedure for Law Commission Bills, although I am not convinced
that the House would wish to impose significant penalties without
proper scrutiny simply because the proposals emanated from a Law
Commission.
This is a matter on which the Liaison Committee may
wish to express a collective view. For example, is it appropriate
for us to request that the Committee stage of at least Part 1
of the Bill be taken on the Floor of the House, given its constitutional
importance? In the short term, I am copying this letter to
the Chairmen of the Regulatory Reform and Procedure Committees,
who have the most immediate interest in the Bill.
Letter to Rt Hon Geoffrey Hoon MP, Leader of the
House, from Dr Tony Wright MP, Chairman, Public Administration
Committee, House of Commons, dated 6 February 2006
Following our meeting last week, I thought it might
be helpful if I sketched out some of the changes which I believe
would make it easier for us to achieve the admirable ends of the
Legislative and Regulatory Reform Bill by making the detail more
palatable.
I have briefly looked at the report from the Regulatory
Reform Committee, and I support the thrust of its recommendations.
Doubtless, your officials will be considering how to draft amendments
to meet that Committee's detailed concerns: for me, the key issues
are the weakness of the limitations on the powers in the Bill,
the lack of any Parliamentary veto over the use of the powers,
the time allowed for scrutiny of government proposals and the
proposition that significant penalties can be imposed on citizens
by statutory instrument simply because they have been recommended
by a Law Commission. I also am aware that the Procedure Committee
is currently undertaking an inquiry and expect that they will
have further comments on the acceptability of the provisions relating
to Parliamentary procedure.
It seems to me that amendments along the following
lines would go a great way to reduce anxiety over this Bill.
Clause 1, line 9, at end insert
"() an order may reform legislation only in
a way that is compatible with and proportionate to the policy
objective of the legislation it reforms"
(The absence of real limits on coverage is clearly
a significant concern. The Regulatory Reform Committee has identified
that issue and suggested a list of off-limits areas as a possible
solution. This amendment aims to deal with the same issue by introducing
an objective general test which might enable any list of off-limits
areas to be reduced in length.)
Clause 6, page 4, leave out lines 17 and 18
(This would remove the provision allowing significant
penalties to be imposed if recommended by a Law Commission)
Clause 13 et seq—replace the 21 and 40 day
periods with 60 day periods and introduce a provision for annulment
of negative instruments in the 40 days after the period ends as
a consequence.
New clause after clause 12
Requirement for Primary Legislation
(1) If within 60 days of the laying of a draft order
under section 12 a committee of either House of Parliament charged
with reporting on the draft order has reported that the subject
matter or policy objectives of the order are such that primary
legislation is appropriate, the Minister shall withdraw the draft
order.
(2) If a report under paragraph (1) is made, no draft
order making similar provision may be laid for a period of two
years from the day such a report is laid before Parliament.
(3) If no report under paragraph (1) is made, sections
13 to 16 shall apply.
I am very grateful for the constructive nature of
our discussions last week; I hope you will take these suggestions
in that spirit.
Letter from Geoff Hoon, Leader of the House, to
Dr Tony Wright MP, Chairman, Public Administration Committee,
House of Commons, dated 13 March 2006
LEGISLATIVE AND REGULATORY REFORM BILL
Thank you for your letter of 6 February concerning
the proposed changes you believe would improve the Legislative
and Regulatory Reform Bill.
As you will be aware, Committee stage was concluded
on 9 March and I thought I would reply to your letter reflecting
the debate in Standing Committee.
A number of amendments were tabled during Committee
stage that sought similar changes to the Bill as you suggest in
your letter. I will deal in turn with each of the points you have
raised.
Concerning Clause 1, amendments were proposed that
would identify areas that should not be able to be reformed by
order. 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.
In Committee, Jim said that the breadth of the power
in itself is not an indication of its intended use. As well as
the key safeguards laid out in Clause 3, the topic specific restrictions
in Clauses 4 to 7, and the provision that orders will be subject
to wide-ranging public consultation, he also gave a Government
undertaking that highly controversial measures would not be proposed
by order.
Clauses 10 to 16 concern the rigorous Parliamentary
scrutiny that will be required for order-making powers. Regarding
your suggestion to replace the 21 and 40 day periods in Clause
13 et seq with 60 day periods, Jim maintains that the procedures
contained in the Bill are intended to provide an effective and,
above all, workable mechanism for scrutinising orders based on
the nature and impact of the reforms. In light of the views expressed
both in the Regulatory Reform Committee's report and the amendments
tabled during the Committee stage, the Government will give careful
consideration to extending the period of determination for the
procedure from 21 to 30 days.
Following discussion at Committee stage, Jim has
undertaken to consider placing on the face of the Bill a provision
that Parliament shall retain a veto over every proposed order.
I believe this addresses your request for a new clause after Clause
12. It will also ensure a balance between appropriate safeguards
for parliamentary scrutiny and the necessary flexibility of the
power to deliver fully the Government's better regulation agenda.
Amendments were tabled at Committee stage in line
with your suggestion to change Clause 6. Jim believes Law
Commission recommendations that would impose criminal penalties
above the levels generally imposed by Clause 6 and suitable for
implementation by order will be rare because they would be controversial.
Accepting the amendment would mean that some well considered and
worthwhile Law Commission recommendations could only be implemented
by primary legislation. Despite these reservations, Jim has agreed
to reflect on removing the provision.
Letter to Rt Hon Geoffrey Hoon MP, Leader of the
House, from Dr Tony Wright MP, Chairman of the Public Administration
Committee, dated 15 March 2006, copied to Jim Murphy MP
Thank you for your letter of 13th March. I have been
following proceedings on the Legislative and Regulatory Reform
Bill, and I welcome the undertaking to give the responsible Committees
of this House and of the Lords a veto on the use of the powers
to reform the law by statutory instrument. As Jim Murphy himself
said in committee, "to get the veto provision correct will
take a great deal of work and thorough consideration"; I
am sure that members of my committee, like myself, will be looking
closely at the amendments the Government produces, to ensure that
they are satisfactory. I also commend the undertaking that the
Government will consider extending the period for determining
which procedure should be used to scrutinise these instruments
from 21 to 30 days, although I note that this is the least significant
of the Regulatory Reform Committee's proposals for change.
I am, however, disappointed that the Government has
resisted all proposals to limit the way in which the powers can
be used, either by specifying that the aims of the reform should
be consonant with those of the underlying legislation, or by exempting
particular subjects, or Acts of Parliament from the provisions
of Part I, and its reservations about excluding Law Commission
recommendations which would impose criminal penalties above the
levels generally imposed by Clause 6.
I appreciate the argument that exclusions might mean
that a reform could not be made under the powers given by the
Bill because it made minor changes to exempted subjects, or legislation,
but it is a question of balance. There may be a few worthwhile
reforms which could not be brought forward using the powers in
the Bill if these exclusions were included, but those powers fundamentally
change the relationship between Parliament and the Executive.
If Parliament is willing to give the Government new
powers to reform legislation, then the Government may have to
accept that those powers should be limited by statute, not by
an undertaking that the powers will not be used for "highly
controversial" measures. Such undertakings may well be respected
for a long time, but they are not part of the law of the land.
At the very least, it is hard to see why the Bill should not be
amended to prevent its own subsequent amendment through the regulatory
reform process, and there are other obvious candidates for exclusion,
such as the Parliament Acts.
Similarly, although it is theoretically possible
that there could be a Law Commission proposal which was not controversial,
but which imposed heavy penalties, as the Government itself admits,
such cases are likely to be rare. If they have to come forward
through primary legislation, so be it.
I look forward to seeing the Government's proposals
for amendment to the Bill, which I am sure my committee will scrutinise
very closely.
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