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Lord Jenkin of Roding moved Amendment No. 7:
Page 2, line 15, at end insert “and does not include any legislation (whether or not in force) which was passed at least one year before the day on which the order is made”
The noble Lord said: My Lords, the amendment seeks to bring back a provision from the 2001 Act—that an order cannot be made too soon after the Act or regulation has been passed. The argument is that time should be given to see whether the order is effective or burdensome. The 2001 Act stated that an order could not be made for two years and I can understand that that may well have been considered too restrictive. Therefore, in the amendment I suggest that a period of one year would be sufficient.
It takes time after Parliament has passed a Bill, created an Act and approved regulations to assess what the effects actually are. Is the order over-burdensome, in which case it should be amended, or does it achieve its purpose without imposing unreasonable or disproportionate burdens? My amendment would give the Government an opportunity to take stock for a short time. It seems absurd to be able to pass a regulation and then, within a few weeks or months, say, “Oh well, we got it all wrong and we now want to make an order to amend it or remove it”. That would not smack of good government and a year seems to be a reasonable period to allow the Act or order to have an effect. If it then appears to impose an unreasonable or disproportionate burden, as set out in the Bill, an order can be brought forward. I beg to move.
Lord Bassam of Brighton: My Lords, I shall deal with both amendments in the group together. The noble Lord has described them well. They would move the order-making power in Part 1 of the Bill back in the direction of the 2001 Act by providing for a similar provision to the two-year rule. While the 2001 Act has enabled some 30 worthwhile reforms, it has proved ineffective for a number of reasons. This is why we are discussing this new Bill, which moves away from the prescriptive nature of the 2001 Act,
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One example of the negative effect of the two-year rule in the 2001 Act was in relation to the Regulatory Reform (Gaming Machines) Order 2003. This order was originally expected to save that industry £9.5 million annually. Unfortunately, part of the proposals had to be dropped because it was prevented by the two-year rule, as the relevant provisions had been amended by a prize uprating order, which is occasionally necessary to increase the maximum amount that certain gaming machines can pay out. Dropping this part of the proposals reduced the estimated savings to the gaming machines industry by £1.85 million annually.
I recognise that the amendment would be less restrictive than the two-year rule in the 2001 Act, but we do not wish the Bill to prevent businesses, the public and voluntary sectors from benefiting fully from the Government’s regulatory reform proposals. As I am sure the noble Lord is aware, every order under Part 1 is subject to statutory consultation, and the results of that consultation will influence both the Minister and Parliament in coming to a decision on the content of the draft order that is laid and on the appropriate level of parliamentary scrutiny for that order. The results will also influence whether Parliament wishes to approve the order or whether it exercises its right to veto it. Surely that is a satisfactory degree of scrutiny for any potential proposal that might seek substantively to amend legislation that is less than a year old.
12.30 pm
I recognise that the noble Lord is seeking to ensure that the amendments encourage the Government to produce well thought-out legislation that should not need to be amended within a year of it being enacted. However, although he is as eager as we are to improve the way that we make policy, I do not believe that this amendment is the appropriate mechanism for doing so. I remind the House that the Government continue to review the way that policy is made and that the Better Regulation Executive is currently developing proposals to improve the effectiveness of the regulatory impact assessment process. We continue to review legislation, and we have given an undertaking to review this Bill no more than five years after it is enacted.
I am sympathetic to the noble Lord and understand that he does not wish to encourage sloppiness in the drafting of measures or in the way in which they are brought forward or introduced. However, we all have to accept that from time to time a law of unintended consequences is at work in legislation. Although the noble Lord does not seek to impose as rigorous an approach as was contained within the 2001 Act, nevertheless, I continue to hold that the amendment would be an unnecessary restraint on improving the process and ensuring that we have a genuinely deregulatory approach. For those reasons, I hope that the noble Lord will withdraw his amendment.
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Lord Jenkin of Roding: My Lords, no opposition Back-Bencher can hope to dredge up examples of the detailed effect of the earlier legislation in the way that the collective memory of a government department can. I heard what the noble Lord said. We will obviously need to think about this but, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McKenzie of Luton moved Amendment No. 9:
The noble Lord said: My Lords, I shall speak also to the other amendments in this group. Amendment No. 9 is a minor and technical drafting amendment, which merely deletes an unnecessary paragraph in Clause 1(7). Noble Lords will see that paragraph (c) repeats a provision already made by paragraph (b).
Amendment No. 35 is also a minor and technical drafting amendment. It would align the definition of “EEA agreement” to be inserted into the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999—the Scotland Act order—by Clause 26(3) of the Bill with the definition of “EEA agreement” to be inserted into the Interpretation Act 1978 by Clause 26(1) of the Bill. That would simplify the definition to be inserted into the Scotland Act order and make it less cumbersome to use in practice. The amendment has of course been agreed with the Scottish Executive.
The purpose of subsections (1) and (3) of Clause 26 is, among other things, to amend the Interpretation Act and the Scotland Act order respectively by inserting a new standard definition of “EEA agreement”, which means that references in domestic legislation to the EEA agreement will automatically be to the most up-to-date version of that agreement. The definition of “EEA agreement” to be inserted into subsection (1)(a) will allow Acts of Parliament, and subordinate legislation made under them, to refer automatically to the most up-to-date version of the EEA agreement. The definition of “EEA agreement” to be inserted into the Scotland Act order will allow Acts of the Scottish Parliament and Scottish subordinate legislation to refer automatically to the most up-to-date version of the EEA agreement.
As currently drafted, the definition of “EEA agreement” to be inserted into the Interpretation Act by Clause 26(1) refers to that agreement as,
However, the definition of “EEA agreement” to be inserted into the Scotland Act order by Clause 26(3) refers to the EEA agreement as,
Amending the definition of “EEA agreement” to be inserted into the Scotland Act so that it also refers to that agreement as,
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will prevent any confusion that may have resulted from the existence in domestic legislation of two differently worded definitions of “EEA agreement”. The amendment would remove the phrase,
from the definition to be inserted into the Scotland Act order and would replace it with,
That would simplify the definition of “EEA agreement” to be inserted into the Scotland Act order and align it with the definition to be inserted into the Interpretation Act 1978.
The current definition to be inserted into the Scotland Act order refers to the agreement on the EEA signed at Oporto, together with the protocol signed at Brussels, as from time to time modified or supplemented by or under the Community treaties. That definition works because any modification of the agreement that is not a Community treaty can be designated as one under Section 1(3) of the European Communities Act 1972. However, this is cumbersome, as it requires the making of an Order in Council. The amendment would make the definition simpler and would remove the need for an Order in Council by removing the reference to “Community Treaties” and allowing the definition of “EEA agreement” to capture all amendments and modifications to the agreement without the need for an Order in Council.
I now turn to two final minor and technical amendments—Amendments Nos. 38 and 41—which have been agreed with the Department for Social Development in Northern Ireland. They are intended simply to update a reference in the Deregulation and Contracting Out (Northern Ireland) Order 1996 so that it refers to Sections 1 or 2 of the Legislative and Regulatory Reform Act 2006, rather than Section 1 of the Regulatory Reform Act 2001. Article 17(1) of the order refers to Section 1 of the Regulatory Reform Act 2001. As the LRRB is repealing and replacing that Act, the reference in Article 17 will need to be updated to refer to Sections 1 or 2 of the 2006 Act.
Article 17 enables the Department for Social Development in Northern Ireland to maintain parity with the DWP in the field of child support, social security and pensions. These amendments would simply enable that to continue to be the case. The principle of parity in the field of social security, child support and pensions is enshrined in Section 87 of the Northern Ireland Act 1998. In effect, that means that benefits should be available throughout the UK at the same rate and be subject to the same conditions of entitlement. An example of where the power in Article 17 was used to maintain parity in this way was the Deregulation (Carer’s Allowance) Order (Northern Ireland) 2002. This order renamed the invalid care allowance and made a number of other changes to the renamed carer’s allowance in line with the changes made by the Secretary of State for Work and Pensions in the Regulatory Reform (Carer’s Allowance) Order 2002. I ask noble Lords to accept these technical amendments. I beg to move.
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Baroness Young of Old Scone: My Lords, I am in a quandary in relation to Amendment No. 9. I apologise for my late involvement in the Bill, which was caused by ill health. Generally, I applaud the intention of the Bill, but it is poorly served by the sweeping nature of some of its contents. I declare an interest as chief executive of a regulatory body—the Environment Agency—although the Bill goes much wider than simply environmental legislation and regulation.
I had hoped that when the Minister rose to explain the dropping of subsection (7)(c) he would say that it indicated the Government’s commitment to not using this legislation to substantially alter the powers of statutory regulators—or, indeed, to abolish statutory regulators—through secondary legislation when they had been set up by primary legislation, often after considerable debate. I know that the Government have given assurances both in another place and in this House at earlier stages of the Bill about not using this legislation to abolish regulatory organisations set up by statute. I was pleased to see a letter from the Parliamentary Secretary at the Cabinet Office to the chairman of the Food Standards Agency, which states:
“You will be aware that the Government has stated during the passage of the Bill that it is not our intention to erode the independence from Government of those regulators set up by statute”.
I know that the Government have also given assurances about full consultation if proposals significantly alter—
Lord McKenzie of Luton: My Lords, will the noble Baroness give way?
Baroness Young of Old Scone: My Lords, I wish the Minister will give me some indulgence, as I have not had the opportunity to speak before.
Lord McKenzie of Luton: My Lords, I apologise for intervening, but I wonder whether the noble Baroness is speaking to the amendment that I moved. There is a later amendment, which I think covers the issue that she seeks to address.
Baroness Young of Old Scone: My Lords, the point that I want to make is that, in spite of assurances about full consultation, the Government have not been willing to specify that secondary legislation that would significantly alter the powers of the statutory regulator would be subject to the super-affirmative procedure. This is the only opportunity on Report to ask the Minister to humour me and to give further assurances that the legislation is not intended to be a means by which a regulatory body set up by primary legislation can be significantly altered in its role and powers, or indeed be swept away by secondary legislation.
12.45 pm
Lord McKenzie of Luton: My Lords, we shall come to that issue, which I imagine will be debated extensively after the break. I hope to deal fully with the issues raised by the noble Baroness. I note, in particular, that she raised the issue of the super-affirmative procedure, which we shall return to shortly.
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Clause 2 [Power to promote regulatory principles]:
[Amendments Nos. 11 and 12 not moved.]
Lord Bassam of Brighton moved Amendment No. 14:
(f) the provision is not of constitutional significance.”The noble Lord said: My Lords, I shall also address Amendments Nos. 15, 16, 25, 26 and 27 in this group.
Amendment No. 14 creates a new precondition, which prevents a Minister from making provision in an order which he considers constitutionally significant. The only exception to this is that orders may restate constitutionally significant provisions, but only where this would make the law more accessible or easily understood. I am sure that noble Lords would agree that that is a highly desirable objective.
The order-making powers in Part 1 are clearly focused on delivering better regulation, as we have explained to the House many times before. There are already important safeguards in the Bill, as we have made clear, such as the existing preconditions and restrictions in Clauses 3 to 11, the public consultation required by Clause 13, and the parliamentary procedures provided for in Clauses 12 and 14 to 18, including Parliament’s statutory veto. The Government have also undertaken not to use the order-making powers to make highly controversial changes.
Given all these protections, can the order-making powers in Clauses 1 and 2 be used to deliver significant constitutional change? The Government’s view is that they cannot. We are supported in our view by the reports of the Select Committee on Delegated Powers and Regulatory Reform and the Constitution Committee of your Lordships’ House. The committees said that the powers in Clauses 1 and 2 were not inappropriate.
However, after our debates in Committee it was apparent that concerns remained that the order-making powers could be used to bring about fundamental constitutional change. The Government are clear that those concerns are misplaced and that the Bill could not be used to make such constitutional changes. We have, however, listened to those concerns and tabled this amendment to put the issue beyond any possible or reasonable doubt.
If this amendment is agreed to, it will be added to the other preconditions which the Minister must consider to be satisfied for an order to be intra vires. We consider that a precondition is the most effective mechanism to meet noble Lords’ concerns. It avoids the problems associated with the approach taken by the noble Lords, Lord Goodhart, Lord Norton and Lord Jenkin, in Amendments Nos. 15, 16, 25, 26 and 27. It will also work well in practice.
There is widespread agreement on the benefits that cutting red tape can bring to the public, private and
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For instance, the precondition in Amendment No. 14 permits the amendment of statutes that might be thought of as “constitutional” merely to reform, say, requirements to serve a notice which were administratively inconvenient, where that minor but worthwhile reform was not constitutionally significant and met the other preconditions, including those protecting necessary protections, rights and freedoms.
Similarly, the new precondition in Amendment No. 14 will permit trivial or consequential amendments to be made to statutes that are constitutional in nature, for example by allowing the correction of cross references to other Acts or names which have been changed. A further benefit of the precondition is that, as with the other preconditions in Clause 3, it is right for the Minister to have to make this judgment—although the judgment is also rightly subject to various safeguards and checks. It is the Minister who promotes the order, and therefore he who must be satisfied before he does so that what he is proposing is within his powers. But, to comply with the public law duties placed on him, the Minister’s opinion must be reasonable and this may be challenged through the courts.
Once the Minister has taken a view on the proposals, they will then go out for statutory public consultation, as required by Clause 13. Consultees will have an opportunity to comment on all aspects of the proposals, which could include whether they believe the proposal is constitutionally significant. The Government have made a commitment not to deliver highly controversial proposals by order, and consultees’ views will form part of the Minister’s assessment on matters of controversy. If, after the consultation, the Minster decides to proceed with the making of the order, he will lay a draft order before Parliament. The Minister must explain why he considers that the constitutional precondition and the other preconditions are satisfied in the explanatory document that must also be laid before Parliament, under Clause 14(2). Parliament will then consider the appropriateness of the order, taking into account whether the preconditions are met and whatever other factors it considers relevant. Parliament has the veto over orders, so ultimately it can reject proposals that it finds inappropriate for delivery by order.
I want to go over the amendments in this group that we cannot support. In Committee, noble Lords acknowledged the difficulties with a list of excluded enactments or subject areas. We rejected this approach, which is set out in the various amendments. At Second Reading, the noble Lord, Lord Goodhart, acknowledged that it would be nigh impossible to
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