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I assure the Chamber that it is not the Government’s intention to deliver orders that solely consolidate legislation—such measures would be more appropriately delivered by consolidation Bill procedures. By definition, orders could only consolidate or restate legislation where to do so was removing or reducing a burden relating to the form of the legislation. Indeed, consolidating legislation is recognised as a worthwhile form of simplification. The Better Regulation Task Force’s 2005 report Regulation: Less is More emphasised the importance of simplification in terms of cutting red tape. The report identified consolidation as a key part of simplification. Consolidation involves bringing together different regulations into a more manageable form and restating the law more clearly.
The beneficial effects of reducing burdens by consolidating or restating legislation might, for example, mean that small businesses did not need to resort to expensive lawyers to access or interpret the law: they might also improve compliance—for example, with health and safety regulations—as small businesses will find it easier to understand what is required of them.
However, I note that the Delegated Powers and Regulatory Reform Committee recently questioned whether orders should be able to alter the law without changing its meaning. We believe that the power to consolidate legislation by order is a useful one.
As was pointed out by the Delegated Powers Committee, there are fast-track Bill procedures for consolidation. I reiterate: it is not the Government’s intention to deliver pure consolidation by order. I am happy to give an undertaking on behalf of the Government that orders under Clause 1 will only consolidate or restate legislation as part of wider reforms. That would mean that the ability to remove or reduce burdens in the form of a financial cost or
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I accept that some noble Lords may have concerns that restatement or consolidation delivered by order is more vulnerable to being quashed by the courts in a judicial review than when that is done in a Bill. Perhaps they believe that this may cause problems for legal certainty or may change the standard roles of Parliament and the judiciary in relation to primary legislation. The issue is that primary legislation is not subject to judicial review, but secondary legislation—including secondary legislation that amends or repeals primary legislation, as with orders under this Bill—can be reviewed by the courts and quashed if it is found to be unlawful for some reason.
Before making an order under Part 1 that restates provisions, the Minister must in any event consider that the restatement of the provisions would make the law more accessible or more easily understood.The Minister must give evidence for his opinion on both issues in the Explanatory Notes laid before Parliament and any impact assessment, if appropriate. The parliamentary committees will then come to a view on whether the criteria have been satisfied and may veto an order if they do not find convincing the evidence that the Minister provides. In acting on the issues, the Minister must be under a public law duty to act reasonably.
It is also true that it is reasonably common for primary legislation to amend secondary legislation. That is done regularly, for example, through the useof powers under Section 2(2) of the European Communities Act 1972 when implementing Community obligations in domestic law. Some 29 regulatory reform orders have now been delivered under the 2001 Act, all amending primary legislation by secondary legislation, and none of them has been judicially reviewed. So I would argue that, to that extent, it has been a successful process. When it comes to reforming an entire regime by order, it may be efficient to consolidate or simplify legislation in the same order. I cannot support Amendment No. 17, as I believe that it would create an arbitrary limit, providing a disincentive for using the order-making powers for proposals that would sensibly include restatement or consolidation.
Amendments Nos. 67, 71 and 73 would amend Clauses 5, 6 and 7 and could limit the Bill’s ability to restate legislation. I emphasise that in this case we may well be dealing with the restatement of individual provisions rather than wide-scale consolidation.
Amendment No. 67 would remove an exemption with the effect that, if an order restated provisions that conferred a power to legislate on a Minister, it would have to require the power to be exercised by the making of a statutory instrument subject to the negative or affirmative procedure. Where currently there is a power for a Minister to make a statutory instrument that has to be laid before Parliament but is not subject to negative or affirmative resolution procedures or does not have to be laid before Parliament at all, the mere fact that the provisions were being restated but
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Amendment No. 67 could therefore make the process for exercising powers to legislate in the future far more onerous, even though the powers themselves were not being changed by the order. That could prove a disincentive for using the order-making powers, particularly for large reforms, which are more likely to already include powers to legislate.
Amendment No. 71 would remove the provision that orders may not impose or increase taxation. Clause 6(2) provides that the restrictions do not apply to provisions that merely restate existing taxation. The amendment would have the effect that it might not be possible to restate any provisions that in themselves imposed or increased taxation. I should make it clear that the Government have no intention of replacing their successful Tax Law Rewrite Project with reforms delivered by order, but the effect of the amendment would be that orders might restrict the useful provision that orders could make in the area of taxation, even where no changes were being made to the substance of the provisions.
Therefore, I cannot support Amendments Nos. 67, 71 and 73, as they would limit the ability of orders to restate legislation without changing its meaning, which may be worthwhile including in a wider package of reform to be delivered by order, as is obviously the case with the now oft-quoted Fire Safety Regulatory Reform Order.
Amendment No. 55 relates to orders that restate legislation and to those that codify the common law—that is, orders that put rules of the common law provisions on to a statutory footing without changing their meaning. The Government have tabled amendments removing the power to codify the common law, consequential on our amendments to remove Clause 3, which provided a power to implement Law Commission recommendations.
Clause 4 sets out preconditions that orders must satisfy. The preconditions in Clause 4(2), which safeguard such things as necessary protections, do not apply to orders that only restate enactments or codify the common law. That is because, when making the legislation containing the provisions that are to be restated, Parliament will already have decided that they are desirable. Where orders simply move the provisions from one piece of legislation into an order without changing their meaning, it does not seem appropriate for orders to open up a debate on the principle behind provisions that have already been agreed by both Houses and which the Government are not attempting to change.
However, a different precondition applies to orders that restate enactments or codify the common law. The restatement of the provisions must make the law more accessible or easily understood. We argue that this is a useful precondition on the use of the power to restate the law, as it ensures that restatements will be made only when they will have genuine better-regulation benefits.
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Amendment No. 55 would remove that separate precondition and would provide that allorders, even those merely restating or codifying the law, must meet the preconditions in Clause 4(2). This forms part of one of the recommendations of the recent DPRRC report, but the DPRRC’s recommendation seemed to be based on the fact that it believed that orders should not be able to consolidate or restate the law, which would be the effect of Amendment No. 17—I have already discussed this amendment. If the power to consolidate was removed, the DPRRC rightly believes that there would be no need for a separate precondition covering orders that restated the law.
There may be two concerns underlying the amendment. The first might be that subsections (3), (4) and (5) of Clause 4 could be used to avoid orders having to meet the preconditions in Clause 4(2). That is not the case. The definition of restatement in the Bill is replacing provisions with alterations only of form or arrangement, which does not include removing an ambiguity or making an alteration other than one of form or arrangement. If any substantial change were being made, it would not be a restatement, and the other five preconditions would apply instead. AmendmentNo. 61 is a minor drafting amendment, which moves the definition of restatement from Clause 22, which the Government seek to remove, to Clause 4 which, in view of the change, is a more logical place for it to rest.
The other concern may be that orders could be used to restate existing provisions that themselves might not satisfy the preconditions in Clause 4 that rights and freedoms and necessary protections, and so on, must be maintained. It is my view that, if Parliament has already agreed to such provisions, it is right that orders should be able merely to restate the provisions without changing their meaning.
Amendment No. 55 would merely make the process of making orders that do not seek to change the meaning of existing provisions more laborious. Departments would have another range of processes to go through, providing a disincentive for the use of the order-making powers and slowing down the delivery of regulatory reform by order. Amendment No. 55 would mean that departments would have to justify how provisions restating the law met the tests in Clause 4(2), rather than the more relevant test in Clause 4(5) that orders can restate the law only where to do so would make the law more accessible or more easily understood. Amendment No. 55 would, therefore, have the disadvantage of hindering the delivery of better regulation and would bring little, if any, benefit.
For those reasons, I ask noble Lords to consider carefully Amendments Nos. 17, 18, 55, 67, 71 and 73, and, for the purpose of good order in the Bill, I commend Amendment No. 61 to the Committee.
Lord Jenkin of Roding: Does the Minister have anything to say about Amendment No. 18, dealing with the last few words of the subsection?
Lord Bassam of Brighton: I thought that I had addressed Amendment No. 18. I take the rebuke of the noble Lord seriously. I shall find my notes and see what more I can add on that issue.
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As I understood it, the amendment would delete the elucidation on consolidation in Clause 1(5). Amendment No. 18 would remove the words,
That is intended to be a helpful explanation of what is meant by a burden arising from the form of legislation. We argue that the effect would be to make it less clear what is meant by financial cost or administrative inconvenience resulting from the form of legislation. I think that I argued earlier that we thought that that would cast unnecessary doubt over what types of changes to legislation could be made that would remove or reduce burdens. I apologise for an element of repetition there. That is the explanation.
Lord Goodhart: I entirely agree with the noble Lord, Lord Jenkin, that the Sale of Goods Act 1893 is a masterpiece of parliamentary draftsmanship. There was a golden period of parliamentary draftsmanship, which ran roughly from about the late 1880s until the First World War, when the parliamentary draftsmen were brilliant at producing quite simple, easily understandable Bills, dealing with issues like the sale of goods and the Partnership Act 1890, which was extremely clear and, effectively, lasted for over a century.
To get a bit closer to business, I must say that I was grateful to the noble Lord, Lord Kingsland, for his support of my amendment. I return the compliment by expressing support for his.
9.30 pm
We are ending up in a thoroughly untidy situation here. It is increasingly clear that Clause 1(5) and subsections (3) and (5) of Clause 4 are themselves hard to understand. If they go into the Act, as it will become, they may well be prime targets for the necessary orders.
The position on consolidation is extremely complex. We all agree that consolidation enormously helps lawyers and lay people to understand what the law is. We have a situation where, if it is pure consolidation, you must have a consolidation Bill because the definition of “restatement” makes it clear that you cannot restate legislation unless it does more than merely restating it. If you are consolidating with a few changes, you can use a restatement procedure. You cannot consolidate with more substantial changes because you are doing something more than restating the law. We are getting into a great state of confusion.
There are undoubtedly serious problems with the provisions that this group of amendments looks at. I intend to take this away, and I expect that we shall come back; not necessarily with Amendment No. 17 in its present form, although I would not rule that out. Alternatively, we will come back with something else, taking into account the nature of tonight’s debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Wilcox moved Amendment No. 19:
“( ) For the purposes of subsection (2), where a Minister of the Crown considers that a rule or regulation is causing a burden
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The noble Baroness said: The amendment will bring an impetus to the deregulatory process, imposing a duty on a Minister to initiate the order-making process within three months when he or she considers that a regulation is causing difficulties through its complexity or confusing language. It will toughen up the process.
There is nothing in the Bill that forces a Minister to get a move on and drive his department forward in getting regulations removed or clarified. I can see procrastination creeping in at every stage of the process. We need a firm commitment in the Bill to swift and aggressive deregulation. It is no use having the means to get burdens removed but no means to get the Minister to go ahead with the process. I beg to move.
Lord Jenkin of Roding: My noble friend has approached the problem from a different angle from that which we have done thus far. Generally, the burden of the cases made has been whether this is appropriate to an order-making power or should be left to full-scale legislation. But I have also been considering that, so far as I can see, the Bill lacks any procedure to oblige Ministers to deregulate. I wonder whether we ought seriously to consider that. My noble friend’s amendment is limited to where the burden arises because the legislation is hard to understand, but there surely ought to be some procedure whereby a citizen or firm that is aggrieved by the failure of a Government to deregulate can do something about it. We have lots of procedures to stop a Government using the powers in the Bill for improper purposes, and we must welcome them, but where in the Bill is there a procedure that a citizen could use to draw attention to a case that could benefit from deregulation in any of the forms that the Minister has described and to ask the Government to deregulate? At the moment, all a citizen can do is write to his Member of Parliament, who may be persuaded to raise the matter by Question. There is no legal procedure whereby a citizen can oblige the Minister to deregulate and, if there is a dispute, to have it determined in some appropriate way. The Committee ought to return to this; in the mean time, my noble friend has offered a valuable road ahead.
Lord Maclennan of Rogart: While I have considerable sympathy with what I take to be the purpose of this amendment, I do not think it has solved the conundrum to which the noble Lord, Lord Jenkin, referred. The amendment does not effectively impose any enforceable obligation to act. It requires the Minister to,
but does not tie that obligation to any period in time. It would be open to the Minister to say that he had not observed any difficulty or burden and thus avoid the obligation. It is helpful to have identified the problem, but we need to consider this further.
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Lord Desai: Those of us who read the report of the Delegated Powers and Regulatory Reform Committee will remember that the problem is not that Ministers have not been eager to have regulatory reform but that the consultation procedures that the 2001 Act requires slow things down. The problem is not hurrying Ministers on but is getting clarity in the legislation so that the little things that the Minister wants to carry out do not take 1,900 days, as the abolition of the beet-sugar research corporation did. I sat in the committee and considered this reform and the problem is never the Minister’s eagerness but that we have created a structure that is extremely hard to dismantle.
The Earl of Onslow: I hope that the Government are not in effect building an extremely nice car and keeping it in the garage. The aim, with which nobody disagrees, is to push for deregulation and there must be something other than ministerial good intentions to make sure that it happens. I completely agree with the noble Lord, Lord Desai, that deregulation is hard because of old working habits, Civil Service inertia and ministerial inertia. All those problems are completely foreseeable. I should think that the Minister has experienced them in detail, and frequently. Somehow we should get this Bill right and not allow Ministers too much power. They should do what they have to do quickly and well, and provision should be built into the Act that they have to do it. I do not say that this is necessarily the ideal way of doing it but the principle and the thought behind the amendment are completely right.
Lord Neill of Bladen: I hope that the Government will consider favourably the idea underlying this. I can see that there is a problem with the exact language adopted. It appears to refer to cases where a Minister of the Crown considers that a rule is causing a burden and so on. Ministerial indolence will be a complete answer to that. Ministers form no view whatever. So, as drafted, the provision allows for a very indolent ministerial reaction. Could not the Government find favour with the idea of putting some energy into the Bill at this point, and could they—no doubt in collaboration with the other side—produce a text to provide what many of us want?
Lord Bassam of Brighton: In a way, I am delighted that the noble Baroness has moved this amendment because it tells me that certainly part of the Chamber—and that has been echoed in the past few minutes—is keen to see deregulation and the use of this order-making process actually happen. My noble friend Lord Desai put his finger on the point by saying that it was not due to ministerial inertia that the 1994 Act did not do the business—I have no doubt that it was the same when the Conservatives were in government—but it is because the procedures binding the order-making procedure have so inhibited Ministers that we have not been able to make better use of the 2001 Act.
I agree with what the noble Lord, Lord Neill of Bladen, and the noble Earl, Lord Onslow, say about
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I am not going to give a commitment that we will come back with something similar. I certainly want to reflect on the argument because it is undoubtedly of value. I am grateful to the party opposite for beginning fully to engage with what we are trying to achieve. In those terms I have to say that I reject the amendment because I do not think that it will achieve what it seeks.
There are mechanisms for the public to propose regulatory simplification, as I explained, through the portal process, which has had a measure of success to date. We are committed to responding to those proposals within 90 days. That mechanism has worked quite well. But I like the spirit behind the amendment. I will reflect on whether there is some merit in it. I doubt whether I shall table an amendment that moves it forward in the way the noble Baroness seeks. I do not think it would work as she would like, and in some senses it would be counterproductive, particularly where there are other mechanisms for achieving what the noble Baroness seeks to do through the amendment.
Baroness Wilcox: I went from hot to cold and cold to hot there. I listened to what the Minister said. At first I thought that he was not going to accept this at all. I listened to the noble Lord, Lord Desai, and then to the Minister. What they were saying was the opposite of what the noble Lord, Lord Dahrendorf, said in his report. He said that it is not the parliamentary procedure but the lack of political will for a Minister to drive deregulation programmes through, which makes it unsuccessful. So in actual fact the noble Lord was not in agreement with either noble Lord.
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