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I am sorry that the noble Lord, Lord Neill of Bladen, did not like my wording, because I know him to be a distinguished lawyer. I hope that we will be able to come up with acceptable wording. At least this is the first amendment tonight on which we have moved anywhere, so I am grateful for that. At this stage, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 pm
The Deputy Chairman of Committees (Lord Geddes): Before I call Amendment No. 20, I must advise the Committee that if it is agreed to, I shall not be able to call Amendments Nos. 21 or 23 due to pre-emption.
Lord Bassam of Brighton moved Amendment No. 20:
“(a) provision abolishing, conferring or transferring, or providing for the delegation of, functions of any description,3 July 2006 : Column 109
The noble Lord said: This is a complex group of amendments, including both government and opposition amendments. For that reason, I think that I had best address our amendments and then work at some pace through the others in the group. Amendments Nos. 65 and 66 and 68 and 69 concern the power to confer legislativefunctions by order. The ability to confer the function of legislating is important so that orders can be more easily designed to deliver large-scale reforms to entire regimes.
A function of legislating, as the Bill specifies, means to legislate by order, rules, regulations or other subordinate instrument. Bills of an equivalent size often include powers to make secondary legislation, since it is usually not appropriate or necessary for all the detail of a statutory regime to be set out in primary legislation, or because some aspects of a statutory regime may need subsequent amending or updating.
We welcome the conclusions of the Delegated Powers and Regulatory Reform Committee, which stated that including in the Bill a power to confer legislative functions by order to Ministers and other suitable bodies is not inappropriate. The committee evidently has a lot of expertise in this area and we are very grateful for its support.
Amendment No. 65 restricts the persons or bodies eligible for such powers to three categories. The first is Ministers—the category of persons most likely to be given powers to legislate as part of future orders. The second category is persons or bodies who have functions under an enactment. That will ensure that powers to legislate will be conferred only on persons or bodies already recognised by Parliament as suitable. The third category is a body, or the holder of an office, which has been created by the order itself. That power will be useful, for example, in the case of mergers, where the successful transfer of function may necessitate the creation of a new body.
A minor amendment, Amendment No. 66, has been proposed by the Government to further clarify the parliamentary procedures that must apply to the exercise of legislative powers conferred on Ministers. We hope that that minor power will be seen as useful and valuable.
We have also sought under Amendment No. 65 to respond to concerns surrounding the ability of bodies or officers who have been given legislative power by order further to delegate those powers to others. Evidently, that would be an inappropriate use of the power in the Bill and is something that the Government want to protect against. I have already stated that the Government's view is that it would not be possible further to delegate legislative powers conferred by order under the Bill; an express provision in the Bill would be needed in order to allow that. However, to put the issue beyond doubt, Amendment No. 65 explicitly prevents powers to legislate conferred by order being further delegated to someone else.
The purpose of government Amendments Nos. 20 and 36 to 38 is to make clearer the types of provision that it is possible to make under Clauses 1 and 2. In general, they are drafting improvements which are not intended to change the scope of those powers.
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Amendments Nos. 36 to 38 similarly improve Clause 2 to make it clearer what can and cannot be done under the power. In particular, the amendments make it explicit that an order under Clause 2 cannot create or abolish any new regulatory function. Clause 2 is about affecting the way in which regulatory functions are exercised, not about changing those functions. The amendments clarify that it will be possible to create or abolish bodies only in the context of transferring regulatory functions to new bodies, and only then for the purpose of furthering the principles of better regulation set out in subsection (3).
Amendments Nos. 68, 69, 86, 87 and 90 introduce minor drafting changes or consequential amendments to Clauses 5 and 15, and are considered necessary for the purposes of clarity. Amendment No. 68, for example, is purely consequential on Clause 5, which now contains an extra subsection. Amendment No. 69 simply moves the definition of “a function of legislating” from its previous position in Clause 22, as it is better placed in Clause 5. Amendment No. 90 ensures that this definition also applies to Clause 15. For these reasons, I commend the amendments to the Committee.
I would rather address the other amendments in the group when I have heard the range of arguments from noble Lords opposite. I think that will probably be more helpful to the Committee. I beg to move.
Lord Kingsland: I shall speak to AmendmentsNos. 21, 22 and 23 in the group. We, on these Benches, are rather circumspect about the government amendments. The key government amendment is Amendment No. 65, which will insert new subsections (A1) and (A2) into Clause 5. New subsection (A1) limits the conferral or transfer of legislative functions to either a Minister or a person to whom functions are conferred or have been transferred by statute. The Government have therefore, apparently, limited the excessive sub-delegation of legislative functions originally proposed in the Bill. So far, so good. However, the Government have not gone far enough, in our view, to meet our concerns over this vital issue.
New subsection (A1)(c) in Amendment No. 65 allows the Minister, through an order, to create a new body to which functions can be transferred or upon which functions can be conferred. In other words, the Minister may create a new body and simultaneously transfer or confer legislative functions on it. That makes new subsection (A2) rather meaningless, does it not? It is hard to see how establishing a new body and then conferring legislative functions on it is substantively different from delegating a legislative function to someone else.
Amendments Nos. 22 and 23 give rise to a different issue. The Government have retained subsection (7)(d), which allows for provision to be made under Clause 1 to abolish a body or office established by or
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In fact, the government amendments go further. They now allow for a provision that could abolish a body or an office that is not even statutory. That power already exists in Clause 2. But that is more acceptable because it relates solely to the exercise of regulatory functions. Clause 1 provides for an order-making power far wider than the Clause 2 power, and for no apparent reason.
Finally, I would observe that new subsection (4)(b) to Clause 2 states that Clause 2 cannot be used to abolish any regulatory function. It seems extraordinary that, in a Bill which we all hoped to be deregulatory in purpose, the Government are, on the one hand, restricting the scope of provisions that promote sensible regulatory principles, yet, on the other, they are widening the scope of the orders under Clause 1.
Lord Norton of Louth: My Amendment No. 25in this group was prompted by the report fromthe Delegated Powers and Regulatory Reform Committee. It conceded that it did not regard sub-delegation as inappropriate, but at paragraph 35 it argued,
- “that the bill should specify the categories of person ...who, in addition to Ministers, could by order be empowered to legislate”.
My amendment was designed to address that. To some extent, it is now superseded by government Amendment No. 65, but my amendment would limit it to new subsection (A1)(a) and (b). I share my noble friend’s concern about the inclusion of paragraph (c), which extends it to,
To some extent that seems to get around the provision that we are seeking to limit. It seems almost to negate the purpose of bringing this provision forward. While I welcome the move forward that this represents in responding to the report of the Delegated Powers Committee, it would be better if subsection (A1)(c) was not included.
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Lord Maclennan of Rogart: My Amendment No. 24, which is also in the name of my noble friend Lord Goodhart, may to some extent have been addressed by Amendment No. 65. However, I am bound to say that I am extremely concerned about the way in which we are legislating in these provisions. The Government published Explanatory Notes some time ago describing, for example, the effect of Clause 1(7). Before us, in government Amendment No. 20, we have provisions entirely different in formulation from those which their Explanatory Notes purport to describe.
When matters of such complexity and opacity are brought forward, after the committees of this House and another place have considered them, it is not satisfactory that they are bounced on us as these have been today. It seemed to me clear that we ought to consider the limits of delegation systematically. That is not how this has been handled. We have a new provision which appears to recognise what I would have thought was a basic constitutional provision; namely, that only Ministers can introduce legislation to Parliament. That is confused in the original language of subsection (7), which did not confine legislation to activities which were the responsibility of Parliament. It is recognised in the definitions set out in subsection (6) that they might include,
- “rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to”.
If it is the Government’s intention to clarify these matters for the benefit of the general public in the process of accelerating deregulation, I believe that they could have done a much better job with this series of amendments. Indeed, I am led to ask whether there is not some pretty profound defect in the Government’s approach to the Bill. When there is such widespread agreement about the need for deregulation, I wonder—and I do so out loud—why we are being presented with these proposals in a semi-adversarial fashion when we could conceivably have instigated procedures under which the best minds could have been brought to bear. The task could even have been delegated to a body such as the Law Commission.
It baffles me that we are sitting here at this hour of the night logic-chopping about the precise appropriateness of these complex subsections introduced by the Government at the last minute. Candidly, I do not feel sufficiently strongly that Amendment No. 24 is necessary in the light of what the Government have tabled at broadly the same time to commend it as a better enunciation of the principle of the limits to delegation—but that there should be limits to delegation seems clear, and they certainly were not clear as defined in the original Bill. The most appropriate response to what we are faced with tonight is that of caveat emptor: let us consider carefully and in the round what the Government have brought forward before we commit ourselves. I say that particularly noting that although the noble Lord, Lord Bassam, has attempted to explain on behalf of the Government what the effect is, and has done so perfectly reasonably if in a semi-abstract fashion, how are these provisions,
- “abolishing, conferring or transferring, or providing for the delegation of, functions of any description”,
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intended to be used? It is an extraordinarily wide statement which obviously includes the function of legislation. I look forward to hearing of some practical examples and I hope that the Minister will think it worthwhile to communicate with those of us interested in the Bill and keen to see it work effectively.
10 pm
Lord Jenkin of Roding: I have anxieties about one of the government amendments, Amendment No. 38 which, as the Minister described it, refers to the ability,
- “to create a new body to which, or a new office to the holder of which, regulatory functions are transferred ... to abolish a body from which”,
et cetera. I shall give an example. When we were debating the Human Tissue Bill a couple of years ago, which resulted in the creation of the Human Tissue Authority—certainly a regulatory body with powers to make regulations—it came out almost by accident that in the Government’s cull of non-departmental public bodies, the department had it in mind to merge the roles of the Human Tissue Authority with the Human Fertilisation and Embryology Authority. The result in the Committee—I do not think the patronage secretary was there at the time—was that the very experienced and knowledgeable medical Members who sit in many parts of this House were immediately alerted and outraged. They said—and I joined in the debate because, as a former Secretary of State for Health, perhaps I had some standing—that these were two entirely different bodies and it would be absurd to merge their functions into a single body.
The Minister in charge of the Bill, the noble Lord, Lord Warner, was immediately aware that he had trodden on a snake in the long grass and hastened to assure the Committee that no such merger could possibly take place without primary legislation. So we subsided and said that that would be an opportunity to lay to rest what was seen by many of us as an absurd proposal. One has only to think for a moment to realise that they are two entirely different bodies with entirely different functions.
After reading government Amendment No. 38, and in particular subsection (4A)(a) and (b), it seems to me clear beyond peradventure that, if it goes into the Bill in this form, the Government could achieve their aim of merging those two regulatory bodies into one by transferring the functions of both to a new body and then abolishing the old ones. I do not expect the Minister to be fully au fait with the intricacies of what was discussed in the Human Tissue Bill—now the Human Tissue Act—but it is a concrete example of what appears to be the possibility that is opened under this new clause and that ought not to be opened at all.
I hope the Minister will be able to give us some reassuring words that he will be able to consult his colleagues and say, “Of course, this will not happen”. If necessary, we can look for amendments at a later stage which would make it perfectly clear that that, or anything like it, would require primary legislation and could not be achieved by an order under this Bill.
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Lord Bassam of Brighton: I am grateful to noble Lords for their contributions to the debate on the further group of amendments and for their points on the amendments that I moved earlier. I intend to take the groups of amendments in order and deal with the points that have been raised. I am grateful, too, to the noble Lord, Lord Maclennan, for his constructive comments on the government amendments. In his comments and commentary he raised some valuable and valid points about process and I shall make one or two observations about that.
Perhaps I may deal first with the amendments in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Wilcox. Amendment No. 21 seeks to prevent orders conferring powers to legislate entirely. The Government consider that this would create an unacceptable arrangement for this reason: it would impose an unnecessary restriction on the order-making power and reproduce almost precisely one of the barriers to successful regulatory reform under the 2001 Act.
It has seemed to me during the course of today’s debates that there is a fair measure of agreement about the need to regulate, but when it comes down to a particular proposal there is always another argument against it which in itself could create yet another tier of considerations before we finally get round to doing some deregulation. I am anxious to avoid that, but I think this amendment falls into that category.
Let me give two examples of how the amendment might have held up, or contributed to holding up, beneficial changes. The inability to confer legislative functions by order under the 2001 Act led to a number of sensible proposed orders being dropped or modified. I have already quoted the fire safety regulatory removal order, as it were, and I shall quote it again now. Under that order we could not widen the existing powers to make regulations relating to fire safety to include risk assessment. I was being urged earlier to include risk assessment on the face of the Bill, and I gave good reasons why we could not do that. We could not put a provision regarding risk assessment into that order; and so, if we go back to the 2001 Act principles, as this amendment suggests, that is something that we would not be able to do.
The second example is that a proposal to givethe Secretary of State powers to make statutory instruments to determine the functions of a new public health agency could not be delivered by a regulatory reform order. In many instances, I am sure that that would be uncontroversial and that Members of your Lordships' House and another place would find it entirely agreeable. But we could not do that under the 2001 Act. There is a good case for being able to do it because, in many instances, it would be an uncontroversial and sensible step forward. I hope that Members of the Committee will give some thought to those examples.
Amendment No. 22 would prevent orders abolishing bodies or offices established by enactment. I hope that Members of the Committee have had the opportunity to consider points raised concerning the potential of the Bill to deliver mergers of regulators
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Amendment No. 23 introduces what seems to be a less restrictive formulation, but it seeks to provide that an order can contain provision to abolish a body or office only if it also provides that the functions of those bodies are transferred to another person. I have sympathy with that amendment which, in principle, corresponds with the purposes of the provisions in the Bill. However, I also have reservations about the practical effect of the amendment. The abolition and creation of a regulatory body would clearly necessitate the transferral of regulatory functions. However, the very rationale for undertaking such a merger may be not only to transfer existing functions but to modify, create or abolish certain functions to reduce or remove burdens on the regulated. The amendment would mean that there was doubt as to whether such changes could be made to functions. In this way, the amendment could ultimately negate the value of the Bill as a vehicle for delivering beneficial mergers of regulators. It also seems somewhat unnecessary to petition for the restriction or removal of this provision. I hope that Members of the Committee will take assurance that the safeguards in the Bill, as we have discussed them, will always prevent the inappropriate usage of that power.
The noble Lord, Lord Kingsland, made a couple of important points, in particular about the provision that he said would allow Government to create a new body and then give it legislative functions. There needs to be a provision to allow bodies to be created and have legislative powers conferred on them to allow for the implementation of some mergers of regulators, as recommended in the Hampton review, where functions are to be given to a new body. Completing such mergers successfully may involve conferring a range of functions on new bodies, which may include functions of legislating. Without this provision, it would be necessary to use two orders to complete a number of these mergers—one to create the new body and a subsequent one to confer legislative functions on it. That would be unnecessarily bureaucratic and a poor use of parliamentary time. It is right that Parliament has the opportunity to consider the merits of the proposals of that order at one and the same time.
The noble Lord, Lord Kingsland, also said he thought there was an inconsistency between Clauses 1 and 2. They have different purposes: Clause 2 is about ensuring that existing regulatory functions are exercised so as to comply with the five principles that have been the thread behind the legislation. Clause 1 is about removing or reducing burdens where a regulatory function is outdated.
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