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Lord McIntosh of Haringey: I am grateful to both noble Lords for their contributions. I am grateful in particular to the noble Lord, Lord Phillips, for
explaining his concerns in such detail. Quite reasonably, a large part of his speech addressed the issue of secondary legislation in general rather than the secondary legislation which is proposed in the Bill. I thought that that formed a helpful contribution to our debate and I hope that he will submit his remarks to a journal such as the New Law Journal so that it can achieve a wider circulation than would usually be achieved by Hansard in this House. However, my response will not be anything like the one he anticipates. My answer will remain confined to the issue of the super-affirmative process. What I shall say to the noble Lord, Lord Phillips, and to the noble Lord, Lord Norton, is that the super-affirmative process already permits the amendment of regulatory reform orders.I agree entirely that it is right that both the House and individual Peers should have the power to propose amendments that are thought necessary to a particular draft regulatory reform order. That is essential to proper parliamentary scrutiny. In fact, the special parliamentary procedure proposed in the Bill for regulatory reform orders affords a greater degree of parliamentary scrutiny than that which ordinary affirmative resolution orders receive. Furthermore, it affords the opportunity for amendment.
Perhaps I may take the Committee through the procedure as regards what happens during the committee-based scrutiny stages and after the committees have reported. First, the Minister lays his deregulation proposal before Parliament "in the form of" a draft order; by that I mean that it has not been formally laid before Parliament. Following the 60- day period of parliamentary consideration, the two deregulation committees make their first reports to their respective Houses. The words I have just quoted have been taken directly from the 1994 Act. They are important because they establish that the document is not at that stage a formally laid instrument and therefore does not attract any conventions as regards how such instruments are handled.
If the reports are favourable, the next stage is for the Minister formally to lay a draft order in each House, along with an explanation of any changes made compared to the earlier proposal. The committees can also report that the proposal would be acceptable only if certain amendments were made. Indeed, the committees may also make different recommendations for amendment. If the Minister is minded to accept any changes put forward by the committees in relation to the proposal between this stage and the final vote on the order, he will not lay the proposal until it has been amended, otherwise he would have to take it up and then re-lay it with amendments.
The ability to make changes, minor or otherwise, to the draft order while it is being scrutinised, and in response to the scrutiny, is a key feature of the order-making power. It is not available to statutory instruments made in the usual way. Ministers in charge of past deregulation orders have, on several occasions, taken the opportunity to change their draft orders in line with recommendations from the committee. On
no occasion has a Minister ignored an adverse report from either committee. The proposed order has always been recast or withdrawn accordingly.That procedure represents amendment by the committee rather than by the House. I shall now move on to the next point. The final procedures for parliamentary scrutiny of draft deregulation orders are set out in Standing Orders. The Commons committee procedure produces a report on the draft order within 15 days; the Lords committee has no set time period, but usually reports within the same period.
We then come to the stage where the House as a whole takes a view on the Minister's proposals. Both Houses vote on the relevant committee report on the draft order, but follow different procedures. In this House, following the publication of the committee's second report, the Minister tables a Motion that the House should approve the draft order. That is the procedure for ordinary orders as well as for regulatory orders. However, there is also an opportunity for debate, if any Peer wishes it, on an accompanying Motion at the same time as the Motion to approve a draft order. The companion Motion is moved first and can be amended and voted on. This means that any Peer has the ability to propose amendments to the draft order. As my noble and learned friend Lord Falconer pointed out in our debate on Tuesday last, there is a government undertaking that, in the event of a Motion amending a draft deregulation order being agreed by the House, the Motion for the draft order would not be moved. That was agreed by the previous government on 20th October 1994 and this Government have confirmed it.
As the noble Lord, Lord Phillips, remarked, in its 15th report, last Session, the Delegated Powers and Deregulation Committee drew,
- "attention to the Government undertaking that, in the event of a motion hostile to a draft deregulation order being agreed to by the House of Lords, the motion for the draft order would not be moved. In oral evidence Lord Falconer accepted that ... if a motion hostile to a draft order were agreed to the Government would have to start the order-making process again from scratch (Q 64). This is clearly the strongest ultimate safeguard".
The noble Lord, Lord Phillips, went on to draw attention to the possibility of disagreements. Of course, at this stage different amendments could be put forward from this House or from another place. It is true that no parliamentary procedure is provided for reconciling any differences between the two Houses;
they are co-equal in this matter. The key point here is that, contrary to the thrust of the argument put forward by the noble Lord, Lord Phillips, if a Minister cannot come up with a compromise acceptable to all concerned, he will lose the order. The Government have no defence against an impasse as they have with primary legislation through the Parliament Acts. Those Acts do not apply here. We need to reach agreement. I agree with the Delegated Powers and Deregulation Committee that that is a powerful safeguard against the possibility of abuse by a wicked Minister--even a Minister so wicked that he refused to honour the commitments given by my noble and learned friend Lord Falconer.I hope that this explanation will satisfy both the noble Lord, Lord Phillips, and the noble Lord, Lord Norton, as regards the robustness of what we propose. It does not address the wider issues to which the noble Lord, Lord Phillips, referred as regards secondary legislation, but it does address them in so far as they are concerned in the Bill.
4.15 p.m.
Lord Phillips of Sudbury: I am grateful to the Minister for that full explanation. My remarks were addressed exclusively to the Bill. I am well aware of the position as regards statutory instruments as a whole. However, as I have said, I addressed the matter only as it concerns the Bill because the effect of an amendment to a draft order in this House is to kill the order. That is the end of it. The matter is then left to the Government to decide whether they wish to take it away and amend the order or to negotiate with the House of Commons. They may then bring back an amended order, not bring it back at all, or bring it back in its original form.
All the points I made are, in substance, true; namely, that this House is in the position of being able only to reject the whole of an order or to do nothing. As I have said, the effect of attempting to amend the order is to kill the order, as the noble and learned Lord, Lord Falconer, pointed out in his evidence.
Lord McIntosh of Haringey: Of course the order would have to be re-laid, but if the Minister had any sense and felt that he had any chance of getting it through, it would need to be re-laid incorporating any amendments. I agree that there might be some delay in this process, but the ability to amend an order cannot be in doubt.
Lord Phillips of Sudbury: Again, with respect, I disagree with the Minister when he says that if the Minister has got any sense he will re-lay the order in accordance with the amendment. That is the whole point. It is only too frequent that governments, when defeated in this House with regard to an amendment to a Bill, bring back the Bill unamended and have a second go at it. My point is that we will never get to the position we are talking about unless Back-Benchers are allowed the prospect of amending a piece of delegated legislation without all this hoo-ha over defeating it, bringing it back or not bringing it back, amending it or not amending it. That is my first point.
Secondly, we all know very well the reality of secondary legislation. The chances of a government, with a much more Whipped force behind them, bringing back the piece of secondary legislation in unamended form and getting it through are almost overwhelming. But, I repeat, we will not even get that far.
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