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Lord Borrie: I have listened with considerable interest to the noble Baroness. She will have noticed that shortly the Committee will turn to Amendment No. 45 in my name. Some of the remarks that I might have made then can be made now in opposition to the noble Baroness's observations. The noble Baroness suggests that there no basis for that part of Clause 4 which deals with subordinate provisions. She takes to extreme the views of the House of Commons, which up to a point are well justified; indeed, I flagged them up during Second Reading. The main argument against the case advanced by the noble Baroness is that in a regulatory reform Bill there are likely to be details relating to administrative forms and fees which a subsequent government may wish to alter. To suggest that that should be done by the super-affirmative resolution procedure to preserve the very proper parliamentary accountability which we desire is an exaggerated precaution. When the Committee comes to Amendment No. 45 I shall argue that that is adequate to deal with the variation of possibilities as to how important the special provisions are. I believe
Lord Campbell of Alloway: The Bill is bedevilled with derogations from the unwritten constitution and, put simply, the way in which we have been traditionally governed. These amendments point to yet another such derogation. The recommendations of the committee have been ignored. The process has not yet hardened into a convention that such recommendations should be observed by government, but it is moving in that direction and these provisions are a derogation from it. For that reason I support the amendments.
Lord Skelmersdale: For the past eight years of my parliamentary life I have been part of a fairly flimsy bulwark against an increasingly over-powerful executive in the shape of my position on the Joint Committee on Statutory Instruments where the orders dealt with in the two amendments would fall to be considered. It is all very well for the original orders which pass through the super-affirmative procedure outlined in the Bill to allow supplementary orders to be made by negative resolution, and to that extent I disagree with my noble friend on the Front Bench. The problem is that the vetting procedure in the Joint Committee is not, and never has been, good enough. I have lost count of the times I have been told that I cannot pursue through our legal advisers questions to a department of state because their view is that the questions relate to policy.
There will be policy matters in these subordinate orders. Therefore, there will be no proper vetting. Until the system is changed--and I should like to hear from the noble and learned Lord whether he has any proposals to change the system--these orders will be plain unsatisfactory.
Lord Falconer of Thoroton: This is an important area of the Bill. I am grateful to the noble Baroness, Lady Buscombe, for giving us the opportunity to discuss whether it is appropriate, first, that there should be provision for subordinate legislation under regulatory reform orders; and, secondly, what the correct procedure is to deal with them.
I understand the question of the noble Lord, Lord Skelmersdale, to be directed not just at RROs but at subordinate legislation generally. It is not a narrow question focused simply on the subordinate provision here.
Lord Falconer of Thoroton: I am sure it is. Perhaps I may deal with the Bill. Orders under the Bill would be able, and indeed should be able, to make widescale reform to outdated, overcomplex and overburdensome regimes. These are reforms that would otherwise have to wait for a slot in the legislative programme. I am sure that the noble Baroness agrees
For example, it will frequently not make much sense for the precise level of a fee, the layout of a written licence or other procedures to be frozen in time on the face of an order. We need the flexibility to be able to change such provisions. The accepted parliamentary route for this--this touches on the point of the noble Lord, Lord Skelmersdale, about its inadequacy--is via subordinate provisions. It would be wrong to require the super-affirmative procedure when what one wanted to do, for example, was to change the level of a fee or change the layout of a licence.
The technical case, therefore, for including such orders as subordinate provisions to RROs is practical, clear and strong. However, I fully understand that the objection of the noble Baroness is based on the appropriateness of having such a provision in what is secondary legislation. Her point is that it is secondary legislation on secondary legislation. While I understand that point, I do not agree with it. I feel strongly that the Bill as it stands contains sufficient safeguards to ensure that delegated power under RROs is, first, used appropriately, and, secondly, for reasons I will turn to in a moment, is done only in the appropriate form; for example, employing either the negative or affirmative procedure where appropriate.
Under Clause 4, an order would have to show clearly what was to be included as a subordinate provision order. Subsection (4) lays down that Parliament must see exactly what is proposed. There is no way that the Government could put forward a "skeleton" order whereby all the details were laid down in subordinate provision. The Bill calls for transparency and clarity. Again, it would be for the committees in both Houses and each Chamber of Parliament to decide what is and what is not appropriate to be included as a subordinate provision. The Government do not have a free hand to do as they like.
A separate issue was raised by my noble friend Lord Borrie, which he previewed in his speech on Second Reading. Like him, I look forward to the power in the Bill being used to enact many worthwhile and wide-ranging reforms. However, both he and the noble Baroness have raised the issue which was raised by the committee in another place.
The Government have considered carefully the arguments that have been put forward in the issue. We are persuaded that we should make the change that my noble friend Lord Borrie proposes in relation to subordinate provisions in regulatory reform orders. That means that they can be approved either by the negative or affirmative procedure, which means that the committees in both Houses would be able to express views about the matter. As noble Lords know, it is invariably the case that the Government accept the view of those committees.
Perhaps I may deal with the much broader point raised by the noble Lord, Lord Skelmersdale. He is right that the Joint Committee on Statutory Instruments does not deal with policy. However, if the House decides to subject subordinate provisions to the JCSI it will consider the statement to which the noble Baroness, Lady Buscombe, objects. That does not provide much of an answer. In terms of the principle, I cannot take the matter much further forward. It is for both Houses separately to consider whether or not they think the Joint Committee on Statutory Instruments requires reform or change in the way it operates. We are rightly considering in considerable detail whether or not the procedures that we propose which flow from the Bill will be adequate to provide protection in relation to regulatory reform orders. I am not in a position to take the matter much further forward in relation to the Joint Committee on Statutory Instruments.
Lord Skelmersdale: I understand the noble and learned Lord only too well. But, with the greatest of respect, that is more than a little of a cop-out. The problem is that although the Joint Committee reports to both Houses on--I am glad to say--an increasingly regular basis, and therefore usually within the 40 days praying time for individual instruments, the reports are seldom acted upon. Indeed, all the Joint Committee can do is to express doubt as to, for example, the vires. I suspect that is where the noble and learned Lord's real answer comes in. It is whether or not the negative resolution order which goes to the Joint Committee is within the vires of the super-affirmative order proposed under the Bill.
The position is unsatisfactory. But if we do not keep niggling away at the matter, we will never do anything about it. I hope that the noble and learned Lord will give some consideration to talking about this very serious matter within government because it desperately needs to be dealt with.
Lord Falconer of Thoroton: I take the point made by the noble Lord, Lord Skelmersdale. It applies, as he readily acknowledged earlier in the exchange, to all statutory instruments. He is much better equipped than I to judge the extent to which the problem needs to be addressed. While it is important for government to consider the problem, it is ultimately a matter for Parliament to decide how it is dealt with. In the meantime, I do not think the conclusion from the general point he raises is that it would be wrong to have subordinate provisions in RROs if the arguments otherwise supported that. I regard it as a legitimate opportunity for him to raise the matter.
Having dealt with the points raised by the noble Baroness and having regard to our acceptance of the amendment proposed by my noble friend Lord Borrie, I hope the noble Baroness will withdraw her amendment.
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