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Legislative and Regulatory Reform Bill
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House again in Committee on Clause 1.
Lord Goodhart moved Amendment No. 17:
The noble Lord said: Amendment No. 17 stands in my name and that of my noble friend Lord Maclennan. I am glad that we have not had another debate about your Lordships' House going into Committee and that we can get straight on with this.
- “For the
purposes of subsection (2), a financial cost or administrative
inconvenience may result from the form of any legislation (for example,
where the legislation is hard to
understand)”.
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It is easy to say that existing provisions can be rewritten to make the law simpler and more accessible. That can be done. An example is the tax law rewrite programme—I have been involved with that for some years now. The tax law rewrite Bills go through the ordinary Bill procedure nominally, but they have the consent of all parties and are enacted after very brief debates.
However, my experience with the tax law rewrite programme shows that it is extremely difficult to rewrite legislation without to some extent changing it. In fact, many minor changes to the law have been incorporated in the tax law rewrite Bills, which are supported by detailed notes that explain what the changes are; if there is any significant change, it cannot be included. The orders that are to be made under this Bill are unlikely to have anything like such detailed notes and, further, they will probably be drafted by the departmental lawyers and not by the extremely able and highly specialised Parliamentary Counsel Office.
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One might also ask why it is that legislation is so difficult to understand. If it is difficult for lay people but not for lawyers, that is because of the use of technical language, excessive cross-referencing—so you have to chase up the cross-reference in different legislation—and so on. All those things make it difficult for lay people to follow, but they do not mean that the legislation itself is ambiguous or uncertain. The problem is that, with these technical Bills, which are sometimes drafted in old-fashioned language, you cannot put new wine into old bottles; you have to use consistent language throughout any particular area of legislation. That is why the tax law rewrite programmes have rewritten whole sections of the tax law. You have to use consistent language throughout, and the law needs a full rewrite.
If the problem is that
it is difficult for lawyers to understand what the legislation means,
that is almost inevitably because the legislation has been badly
drafted or has failed to take into account what might happen in future,
with the result that the legislation is uncertain and ambiguous and the
courts have not solved the problem by giving a ruling on what it
actually means. In those circumstances, I believe that
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This provision has nothing to do with deregulation; it is simply making the case for better drafting, and so should not be in this Bill. It is entirely different from the kind of deregulation that is clearly intended to be here. A considerable burden rests on the Government to establish a justification for this provision in the Bill. I beg to move.
Lord Jenkin of Roding: My Amendment No. 18 is grouped with the amendment that the noble Lord, Lord Goodhart, has spoken to. The noble Lord has far more expertise in this field than I could ever muster. I was brought up to believe that there could be no better Act of Parliament than the Sale of Goods Act 1893, which is completely clear, is totally understandable by everybody and has stood the test of time. Would that there were more legislation like that these days—but sadly, as the noble Lord has reminded us, that is not the case.
On the whole, I would not wish to remove the whole subsection, despite the strong arguments that the noble Lord has advanced. It seems to me that it should be possible to use the order-making power under this Bill to make sense of, and to reconcile, what might be a number of different statutory provisions without significantly altering their sense. I understand entirely the problem of rewriting Bills that may have been acted on, have had judicial interpretation and have stood the test of time, obscure though they may be. Nevertheless, in the interests of keeping the law up to date, this is a perfectly proper thing to do.
I take issue with the last few words of Clause 1(5),
With the greatest respect, I do not see that that adds anything of value to the preceding words. All the preceding words are saying is that,Adding the words in parenthesis makes the subsection more obscure.The courts may well have understood the measure in the past and, as has been said, have given their interpretation of it, and parties up and down the country may have acted on that interpretation. If one is arguing that the measure should be changed on the ground that lay people find the law difficult to understand, one will run into difficulties. I would not vote against the noble Lord’s amendment, which seeks to remove the subsection. If the Committee takes that view, I would certainly agree with it. But if the subsection is to remain in the Bill—I suspect that the Minister will argue that it should—I would argue very strongly that the words,
should be deleted. They add a note of informality that is inappropriate in legislation of this kind. If I may say so, it is a bad example and would be better left out.3 July 2006 : Column 99
Lord Norton of Louth: I rise to reinforce the point made by my noble friend and to express sympathy with the argument advanced by the noble Lord, Lord Goodhart, of which I see the force. However, I agree with my noble friend Lord Jenkin about the words in parenthesis in particular, as they confuse the picture. My noble friend’s argument is that saying legislation is hard to understand renders the subsection itself hard to understand. But I am concerned about who finds it hard to understand. The relevant words may inject almost an element of mischief by inciting people to claim that something is difficult to understand as a way of avoiding a burden that may be placed on them. The measure creates more problems than it solves. Certainly, the words in parenthesis should come out, but I agree with my noble friend Lord Jenkin that not too much would be lost if the whole of subsection (5) came out of the clause.
Lord Borrie: I am an enthusiast for the Sale of Goods Act 1893 and its wonderful clarity, at least as much as the noble Lord, Lord Jenkin of Roding, is. I was a little puzzled by the argument advanced by the noble Lord, Lord Goodhart. I thought that he was saying that we did not need to worry about law that was hard to understand because there were other more important problems—for example, the proliferation of laws, the need for consolidation and other such matters.
But if law is “hard to understand”, to use the words in the Bill, that seems to me an example of administrative inconvenience that it might be desirable to change by regulatory order under the Bill. I understand Members of the Committee saying—I would join them—that there are other more important things to do, but the measure is concerned with getting rid of burdens and administrative inconveniences, and one example is given here. If Members of the Committee are saying that they do not like an example being given, and that that is unnecessary, it is rather like the argument advanced earlier by the noble Lord, Lord Peyton of Yeovil, in which he wanted to get rid of certain words because he thought that they were not essential. I refer to the words in the Bill following the word “sanction”. But if it adds clarity, why get rid of the measure?
Lord Desai: I would say one small thing. I have been in your Lordships' House for 15 years and I have never yet understood a Bill on my first reading of it. I am not illiterate—I have many degrees—but it is very hard to understand laws. If I have difficulties, people who have to abide by those laws have lots of difficulties. We should do whatever we can do to reduce those difficulties.
Lord Norton of Louth: I will respond to both noble Lords. The logic of what the noble Lord, Lord Desai, has just said is that all legislation is a burden. That brings us back to the problems inherent in this Bill. Regarding the comments of the noble Lord, Lord Borrie, I thought that the argument was not that the words are superfluous, but that they might inject an element of ambiguity into the provision and that that was why they should be removed.
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Lord Kingsland: I shall speak to Amendment No. 55 in this group. Amendments Nos. 67, 71 and 73 are consequential on that amendment.
Amendment No. 55 reflects a recommendation of the Delegated Powers and Regulatory Reform Committee to remove subsections (3) to (5) of Clause 4. Those subsections exempt provisions that restate statute or which codify a rule of law from the protections contained in subsection (2). Subsection (5) of Clause 1 enables a power to be used to consolidate and rewrite primary legislation. So, subsections (3) to (5) of Clause 4 should be read with subsection (5) of Clause 1 in mind.
I agree with everything said by the noble Lord, Lord Goodhart, in speaking to his Amendment No. 17. As the committee pointed out, the definition in subsection (5) of Clause 1 allows the power to be used for rewriting and consolidating primary legislation. In other words, it is a paving power. The question for the Committee is whether the order-making powers are appropriate for the consolidation of statutes.
The Delegated Powers and Regulatory Reform Committee interprets “restates”—the word used in the Bill—as meaning “consolidation”. The committee set out, in paragraph 66 of its report, how Parliament has already set up by statute and standing order fast-track mechanisms to deliver primary legislation for certain purposes, including consolidation. The committee cites, as an example, the Education Act 1996, which was passed in four minutes on the Floor of your Lordships' House and in one minute on the Floor of another place.
The committee goes on to note:
- “That Parliament
currently requires a bill for such restatement is significant in
considering whether to delegate to Ministers the more substantial power
to simplify the
law”.
Government Amendment No. 61 attempts to redefine the meaning of “restates”. It is helpful, in as much as it clarifies that restating an enactment relates only to matters of form and arrangement. But it still does not address the principle at stake here, that primary legislation is the appropriate way for legislation to be consolidated or rewritten. The fact that there are already adequate procedures in place to achieve that aim, coupled with the constitutional principle of the inappropriateness of attempting to use the order-making powers in this way, should, I hope, make the Government reconsider what they are trying to do with subsection (5) of Clause 1.
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Lord Bassam of Brighton: I want to deal with the amendments as a group, but I shall deal with each in turn. Amendment No. 17 relates to the ability to consolidate legislation by order, but I shall turn to Amendments Nos. 67, 71 and 73, which relate to the provisions in Clauses 5, 6 and 7 for orders that restate legislation. I shall then turn to Amendment No. 55, and Amendment No. 61.
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Orders under Part 1 will be able to cut red tape by removing or reducing unnecessary burdens and ensuring that regulatory activities are exercised in a way that is proportionate, accountable, consistent, transparent and targeted in line with our policy. As well as providing that orders can remove or reduce burdens, such as financial costs or obstacles to productivity, Clause 1(5) makes it clear that orders could be used to consolidate or restate the law without changing its meaning, where to do so would itself be reducing or removing a burden. That might be where, for example, the legal rules on a particular subject were scattered through numerous pieces of legislation or where legislation was drafted in a way that was very inaccessible.
Amendment No. 17 would remove Clause 1(5) and cast doubt over whether orders could be used to remove burdens resulting from the form of legislation. Amendment No. 18 would remove the words,
That would make it less clear what is meant by “a financial cost or administrative inconvenience resulting from the form of legislation” and may cast doubt over whether changes that make the law easier to understand can be delivered under Clause 1.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 draftsman 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.
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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.
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