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I understand the irritation behind the amendment, but on its substance, I am afraid that I cannot agree at all, save to say that in Clause 1 we have provided in general terms to lift excessive regulation and have set out a procedure and method to ensure that that is the case. While I sort of understand the noble Lord’s argument, this is not the way to achieve it.
Lord Jenkin of Roding: I intervene only briefly simply to say that I do not understand why the Minister keeps on referring back to Clause 1 as the means of solving all these problems. Clause 2 purports to set out the principles on which regulation should be carried out. The Minister said exactly the same thing to my noble friend Lady Wilcox in response to her amendments as he has to my noble friend Lord Howard of Rising. Yet the fact is that this is in Clause 2. Where in Clause 1 are the issues that he has said should be dealt with there actually dealt with? That happens in Clause 2, which sets out the principles—what my noble friends have been talking about. I find it very puzzling.
Lord Bassam of Brighton: When we talk about relieving burdens, Clause 1 is the route. When we talk about the exercise of regulatory functions, that is addressed in Clause 2. I cannot see how the actions of regulators interfere with traditional products or the way of life of British people in the different regions of the United Kingdom. In so far as the actions of regulators should capture aims similar to those expressed by the noble Lord, I believe that requiring regulators to be proportionate in the exercise of their functions will happily achieve that. That is exactly what we are trying to achieve in the legislation.
9.30 pm
Baroness Carnegy of Lour: Perhaps I can invite the Minister to come with me one day to the town of Arbroath in Angus, where the tradition had always been that you made Arbroath smokies by tying two smokies together with tarred string and putting them over a pit full of woodchips and smoke. They were delicious. A European directive came out and, as a result of that, Parliament directed that you were not allowed to light the fire except in a pit lined with white tiles, and the smokies had to be tied together with wire. The whole tradition has gone. But in other countries in Europe that was not the case: you could smoke fish tied with string in a pit if you wanted. That is what my noble friend is talking about. I hope the Minister will come to Arbroath one day and I will show him exactly what happened.
Lord Bassam of Brighton: Arbroath smokies are replicated in a similar, if different, form in Whitby, where Whitby kippers are smoked. I think there is some fish-smoking on Brighton seafront as a newly revived tradition. So, much as I am taken by it, the invite to Arbroath may have to wait.
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Lord Howard of Rising: It is obviously a red letter day; the Minister did not know what to say. That has never happened before and will probably never happen again, but I am going to enjoy the brief moment of glory.
The amendment is needed for the reason given by my noble friend Lady Carnegy. Every day we find instances where the traditions and practices that people enjoy are torn to pieces.
The Minister said that he had no problem when he was a district councillor, but I imagine the noble Lord must have been a district councillor before the Standards Board came into existence. The Standards Board’s set of rules has gone a long way towards destroying democracy because it has put in the hands of the local compliance officer the ability to say to district councillors, “I am terribly sorry, you cannot speak on this because it is a matter that concerns your ward”. I am sorry that the Minister looks amazed and horrified; I am horrified as well.
Lord Bassam of Brighton: I have heard the allegation before. I am not sure that it is a persistent and widespread problem, but the noble Lord is currently a district councillor and I am no longer one so I stand advised. However, these matters are kept under review by the relevant department and I am not entirely convinced. I know that we have had this debate before because I can recall when the regulations were laid and the point being made at that stage. It seems to me that district councils seem to work fairly well with the framework as it is.
Lord Howard of Rising: The noble Lord commented on moving away from imperial measures and said that we have been doing so for the past 30 years. I do not dispute that. My only complaint is: why make it a criminal offence? It surely is not necessary for elderly people to face imprisonment for selling goods in imperial measurements. My understanding is that soon it will not be allowed to put imperial measurements on goods that are sold; measurements will have to be metric only. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33G to 35B not moved.]
Lord Bassam of Brighton moved Amendments Nos. 36 to 38:
(a) to create a new body to which, or a new office to the holder of which, regulatory functions are transferred; (b) to abolish a body from which, or office from the holder of which, regulatory functions are transferred.(4B) The provision that may be made under subsection (1) does not include provision conferring any new regulatory function or abolishing any regulatory function.”
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
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Clause 3 [Power to implement Law Commission recommendations]:
Lord Goodhart moved Amendment No. 40:
The noble Lord said: I shall also speak to Amendments Nos. 46, 57 and 60.
The arguments on all these amendments are in fact irrelevant because there has been consensus on all sides that Clause 3 should not stand part of the Bill. I support the removal of Clause 3 from the Bill; I am a very strong supporter of the Law Commission and its work, which has been admirable ever since it was introduced by Lord Gardiner when he was Lord Chancellor.
I very much hope that it will be possible to find different methods of enacting Law Commission draft Bills which will enable them to be enacted much more quickly when they are not controversial. There is far too big a backlog of Law Commission Bills which have been approved in principle by the Government but for which no legislative slot has been found.
Although I am a strong supporter of the Law Commission, I do not think that Clause 3 is the right way of achieving the objective that I believe most, if not all, of us want. Clause 3 has a number of defects for its purpose. First, there is an unrestricted power to amend, abolish or codify common law. Codifying common law is extremely difficult and needs a far more detailed study than could have been given under the procedure in Part 1. Secondly, Clause 3 gives Ministers the power to enact Law Commission recommendations with changes not necessarily approved by the Law Commission. Thirdly, there is an absence of any system for parliamentary amendment of the Law Commission Bills during their process through both Houses of Parliament. These defects have led to objections to Clause 3 by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.
I understand that the Government are working on new plans which we hope will be brought forward in time for Report. I look forward with great interest to seeing them. It is important that Law Commission Bills should be capable of being amended in the course of their passage through Parliament. It is important that government involvement in the process should be kept to a minimum. If these conditions can be satisfied and if the new proposals are acceptable to the Law Commission, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, I look forward to supporting further amendments to the Bill. Meanwhile, I am content to see Clause 3 go. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I agree with the noble Lord, Lord Goodhart, and other Members of the Committee who have put their names to amendments to delete Clause 3. It should not stand part of the Bill. I have listened with great care to all who have expressed a view on Clause 3. In particular, I have read the report of the Delegated Powers and
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As ever, I am grateful to the noble Lords, Lord Kingsland and Lord Goodhart, because it is clear that there is support, as the noble Lord, Lord Goodhart, indicated, for a process to get Law Commission reports through Parliament and on to the statute book. The noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, have been generous with their time and I hope to exploit them further in talking through ideas that could lead to a process that commands the full support of your Lordships' House and another place.
I will say a little about why this is important. The Committee will agree that the Law Commission has provided a remarkable service over the years since 1965. It has produced 177 law reform reports. Its remit, as the Committee will be well aware, is to modernise and simplify the law. Some 123 reports have been implemented in whole or part since 1976 and 14 currently await implementation. Some reports have led to substantial legislation—The Mental Capacity Act 2005, the Children Act 1989 and the Land Registration Act 2002. Regulatory reform orders dealt with two reports relating to business tenancies and execution of deeds and documents. Other smaller reforms such as the Landlord and Tenant (Covenants) Act 1995 brought relief to particular sectors; in that case, the small business sector.
The range of the Law Commission's work spans criminal law, administrative law, commercial law, common law, company law, contractual law, family law, housing and tort law, land law, the law of wills and successions, private international law, and I could go on. However, as the Committee will recognise, in a world of competing priorities, it can be difficult for legislative time to be found for these reports. It is a problem for this Government, and it was a problem for the last Conservative Government and Governments outside the UK who have their own law commissions.
It is right to try to find a solution that would enable uncontroversial reports to find their way through a parliamentary process. The elements of such a process that I plan to explore would be: ensuring that the reports were genuinely uncontroversial; that they commanded support in principle, therefore, from across your Lordships' House and another place; that the choice for such a procedure would be endorsed by Parliament; that a suitable process of scrutiny could be found; and that both Houses of Parliament would have the opportunity to debate them with the possibility of amendment—to deal specifically with the point made by the Delegated Powers and Regulatory Reform Committee.
I am grateful to noble Lords on both opposition Benches and the Cross Benches who have offered to continue this dialogue with me. I am also grateful to the honourable Mr Justice Toulson, the chairman of the Law Commission, for the time that he has spent
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Baroness Carnegy of Lour: The Minister did not mention the Scottish Law Commission and what is going on there. She will have noticed that the amendments in the name of my noble friend Lord Jenkin of Roding and me, Amendments Nos. 41 and 43, refer to the position there. The Scottish Law Commission suggested these amendments.
I understand that there is also undesirable delay in Scotland in the implementation of Scottish Law Commission proposals, although the queue is not quite as long as in England. There is a feeling that this process should be speeded up. Clause 3 is no more desirable for Scotland than it is south of the border. I am sure that what the Minister said will be greatly welcomed. I have a couple of points. The first is the business of deciding what is and what is not controversial. The evidence of the Delegated Powers and Regulatory Reform Committee is that quite often an order is thought to be uncontroversial and turns out on consultation to be controversial—perhaps not politically in Parliament, because that has probably been tested before the order was drafted, but because the people affected by it discover what it is and find that they would not like it at all. So when the Minister comes back with her new clause, I suggest that a way is found in which to have a late decision about whether a Bill is controversial, as well as the initial one. If a committee is going to make that decision, it will have to have a chance after consultation, especially if the Minister has changed the order from when the Law Commission initially consulted on it. I think that is very important and I hope that the Minister takes that point.
The other point is—no, I have lost the other point. I am sorry; it is too late for me.
9.45 pm
Lord Norton of Louth: I very much welcome the stance taken by the Government on Clause 3. It is absolutely right, for the reasons that the Minister has outlined, that it comes out in the form in which it was included in the Bill. As she indicated, the discussion is about means rather than ends. We are in agreement about the importance of Law Commission reports and being able to get them as appropriate on to the statute book. She is right in recognising that it is important that this House has the opportunity to discuss properly the reports emanating from the Law Commission and has a chance to amend them. But would she concede that it is equally important that the House has the opportunity to consider properly proposals for getting Law Commission reports through?
The Minister speaks of having discussions and coming back in time for Report—but, presumably, there will be the possibility if necessary of recommitting the Bill, so we can discuss these proposals in some
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Lord Jenkin of Roding: One surprising point about Clause 3 is that it was never in the original Bill at all; it was added at Report in the Commons on 15 May. One wonders what the process of thought was that went on in the Department for Constitutional Affairs that suddenly brought this matter forward. There were other major amendments introduced on Report in the other place, but what brought this one forward? The only possible thing that one can imagine was that somebody said that they should get the business on to the agenda of how to legislate for Law Commission reports, so let us put something into the Bill. It may not be right—it may be something that we will have to withdraw. Indeed, the Minister has earned high praise. But it must be a little embarrassing, having put it into the Bill only two months ago, to have to take it out again—like Putney to Mortlake, “in, out, in, out”. That is the only reason I can think of for it. It was a way in which to get discussions going on an all-party basis on how one could devise a procedure.
I share the hopes of my noble friend Lord Norton of Louth that the proposal will produce something that has support in all parts of the House—a procedure whereby the implementation and legislation of Law Commission reports can be speeded up. But there seems precious little to be said for the clause as it stands in the Bill, and I share everybody’s delight that it is being withdrawn. But I have to say again—it is a pretty funny way to legislate!
Baroness Carnegy of Lour: If the Committee permits me, I have come upon my other point, which is quite important. If a Minister wants to change a recommendation from the Law Commission, it seems very important that he has to go back to the Law Commission and get its agreement before tabling the order. It is dangerous if the Minister can simply change a recommendation and implement it by order. He would have to go back to the relevant Law Commission and get its formal agreement before tabling it, or he would have to introduce primary legislation. That is an important point, and I did not want it to be missed.
Lord Kingsland: From these Benches we share the degree of importance that both the noble Lord, Lord Goodhart, and the noble Baroness attach to the work of the Law Commission.
In the early 1990s your Lordships’ House fashioned a system called the Jellicoe committee, which we all thought would solve the problem. Indeed, three or four pieces of legislation went through comfortably before we came up against a proposal on domestic violence—a proposal that proved so controversial in another place that it had to be withdrawn. Thereafter, the Jellicoe committee procedure was abandoned.
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The noble Baroness is right to try and find some new way of expediting good Law Commission proposals, without undermining their credibility by preventing them being properly analysed in Parliament. The building blocks she suggested seem to form a potential foundation for whatever edifice is ultimately constructed.
Like the noble Baroness, I believe there should be three fundamental mechanisms. The first should be a way of excluding any proposal that is controversial. Taking into account the observations of my noble friend Lady Carnegy of Lour, we should bear in mind that “controversial” refers not only to party political controversy but to other sorts as well. The suggestion that we have a process of consultation built into the procedure is a good one.
Secondly, regarding the parliamentary stage, my view—which may well not prove to be the ultimate solution—is that a joint committee of both Houses should be set up, in which no political party has a majority, and given the power to amend. Thirdly, I believe the noble Baroness’s political instincts to be extremely sound in her suggestion that whatever emerges amended from the joint committee should then go to both Houses for final consideration, probably giving both Houses the power to amend further but at one stage only—perhaps Third Reading.
If we can all agree on those principles, then given a fair wind—and that is perhaps the most unpredictable element of all in trying to do something novel—we may well end up with a procedure that will re-accelerate that marvellous idea of a former highly distinguished Labour Lord High Chancellor, so long ago in the 1960s.
Baroness Ashton of Upholland: There are a number of points noble Lords have raised that it is worth my responding to. It is wonderful to watch the noble Lord, Lord Kingsland, designing this procedure. I am quite sure that with the abilities of the noble Lords, Lord Kingsland and Lord Goodhart, and other noble Lords, we will be able to find a solution.
I say to the noble Lord, Lord Jenkin, that we did not put the clause in to start discussions. The Law Commission proposals were in the original Clause 1. I am quite happy to eat humble pie and say we got this wrong, which is why I am deleting the clause. I am delighted that in conversations I have had with noble Lords across the House, they have tried to find a solution. Like the noble Lord, Lord Kingsland, I believe that with a fair wind we might be able to do that. If that is the case, I have no problems about the amount of humble pie that I might eat between now and then.
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