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Viscount Goschen: Of the two words that my noble friend Lord Kingsland objects to, I find "supplemental" the most objectionable. I must have said, "This is a consequential drafting amendment. I beg to move", several thousand times during the course of legislation when I spoke from the Benches opposite in a previous administration. However, I am not sure that that meant anything other than the sentence, "I hope that the House will not take too
much time over this matter because we have already discussed the issues". Nevertheless, I am sure that my noble friend is utterly correct to point to the lack of meaning within the law.I have difficulties with the word "supplemental". I notice that the Minister smiled when my noble friend drew attention to supplementary questions. Surely "supplemental" just means in addition to. Like so many other provisions of the Bill which we are assured are tightly drawn strictures, it is quite the opposite. If we are being offered the assurance that nothing can be done unless it is either consequential, transitional or supplemental, I believe that that is no stricture at all. I cannot see that the word "supplemental", undefined and unqualified, has any position within the subsection we are discussing.
Lord Falconer of Thoroton: The noble Lord has not addressed Amendment No. 44 which is in the same group and concerns the National Assembly for Wales.
Lord Falconer of Thoroton: I apologise; that is incorrect.
As regards the term "consequential", I deal with the point that the noble Lord quite correctly made; namely, that the Bill as presently drafted permits only supplemental provisions to a regulatory reform order to be approvable by the negative procedure. The noble Lord is right to address his argument on that basis, but the effect of Amendment No. 45, in the name of the noble Lord, Lord Borrie, if it were passed--we have indicated that we are prepared to accept it--would mean that there would be a choice as to whether it would be the negative or the affirmative procedure. While the noble Lord is absolutely right to address his argument on the basis that he did, if the Borrie amendment--if I may, with respect call it that--were to be accepted, there would be a wider choice. We intend to support that provision.
As regards the word "consequential", when reforming a large and complex regulatory regime, it is inevitable that some provision will have to be made that is merely consequential on the original order. Changing the licensing regime for small shops, for example, might involve some consequential changes to consumer legislation to make sure that the legislation still made sense and was consistent. Such changes are usually made to make the legislation make sense; for example, a change in a schedule number or a reference to a section. But, as always, the parent regulatory reform order would have to include the principles. There is nothing sinister here, as the noble Lord knows. It is a common word used in this kind of provision. It is a sensible, practical provision. I hope that the example I have given, which indicates the nature of the change, indicates the width of the word.
As regards the word "supplemental", the noble Lord objects to the ability of a subordinate provisions order to make supplemental provision. Again, I say with respect to the noble Lord that these fears are misplaced. As he knows, this is a perfectly normal
legislative provision. It would simply make it possible to make necessary supplemental changes that flowed directly from the provisions of the order. Let me give an example. The Competition Act 1998 states that notice must be made "in writing". But it does not say how that notice is to be served. Supplemental provision was made for this. That is a provision that is plainly supplemental to the requirement for there to be a notice made in writing. We also made supplemental provision to ensure that the land and vertical exclusions should have the same status as other exclusions in relation to the end of the transitional period.Again I repeat, the principles governing such supplemental provisions would have to be set out in the parent order. There is no chance of slipping things in on the quiet. I believe that the noble Lord gave the example of hunting and fishing. One could not possibly treat those matters as supplemental provisions.
The wording in the Bill contains nothing surprising. I am on confident ground on this occasion when I say that it is perfectly standard legislative drafting. In those circumstances I invite the noble Lord to withdraw his amendment.
Lord Kingsland: I am much obliged to the noble and learned Lord for his response. In fact, I think that I used hunting and shooting as an example of a consequential rather than a supplemental matter.
Lord Falconer of Thoroton: Clause 4(4)(b) refers to "consequential". The reference is totally beyond the ambit of the word "consequential"
Lord Kingsland: I expected the noble and learned Lord to say that and to express it in the robust manner that he did at the Dispatch Box.
My concerns about the paragraph were expressed in the context of the negative resolution procedure. I have been at least partially reassured by what the noble and learned Lord said about his attitude to the amendment of the noble Lord, Lord Borrie, and by the prospect of his adopting it. I should like to reconsider my amendment in the light of the amendment of the noble Lord, Lord Borrie. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland moved Amendment No. 44:
- Page 4, line 1, leave out subsection (5).
The noble Lord said: This subsection opens the gateway for the National Assembly for Wales to become involved in making subordinate provisions orders. I understand that an order may provide that the power to make subordinate provisions orders in Wales can be made only by a Minister with the agreement of the Assembly. That would be a privilege denied to your Lordships' House.
The acceptance by your Lordships' House of these provisions--they will permit subordinate provisions orders to be subject only to the negative resolution procedure--may be affected by the noble and learned Lord's comments on my previous amendment and his acceptance of the amendment in the name of the noble Lord, Lord Borrie. I beg to move.
Lord Falconer of Thoroton: I understand what the noble Lord says about the effect of the Borrie amendment. With regard to the Welsh Assembly, we framed the Bill to reflect and respect the devolution settlement. Under that settlement the Assembly is given the power to make its own subordinate provisions if the parent legislation so decrees. We do not see why regulatory reform orders--they have the effect of changing primary legislation--should not confer on the Assembly the same powers. In effect, we are putting the Assembly into the same position as it would be in relation to primary legislation: it cannot make primary legislation but it can make subordinate provisions; so, equally, it should under the regulatory reform orders.
Amendment No. 44, which I take to be a probing amendment, would deprive the Assembly of that power. That looks strange in the devolution settlement. We want to ensure that the devolution continues to be a success and is reflected in the legislation which forms the basic settlement.
The parent order would have to state clearly for what areas the Assembly could make its own provisions and, as always, the committees and Parliament would have the opportunity to scrutinise and approve those powers. I hope that that answer helps the noble Lord in his considerations.
Lord Kingsland: I am obliged to the noble and learned Lord for his explanation. I understand that in the context of devolution it is right that the National Assembly should have that power. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Borrie moved Amendment No. 45:
- Page 4, line 11, leave out from ("order") to end of line 13 and insert ("if--
The noble Lord said: Perhaps I may shorten my remarks because I spoke on the matter in debate on the earlier amendment of the noble Baroness, Lady Buscombe. The Minister indicated that the Government were likely to support the amendment. However, the amendment requires a little explanation.
Clause 4(6) states that a subordinate provisions order would be subject only to the negative resolution procedure. My amendment is designed to achieve a little more flexibility. It allows for the subordinate provisions order--the amendment refers to it as "the main order"--to provide either for the subordinate provisions order to be subject to the negative resolution procedure; or that it be subject to an affirmative resolution procedure which is described in detail in the amendment.
The purpose of the amendment is to give Parliament power, when examining the regulatory reform order, to determine which procedure should apply if the Government at any time wish to amend subordinate provisions.
I mentioned earlier that an obvious example of subordinate provisions would be the changing of the details on an administrative form. In most cases it may be suitable for that to be subject simply to the negative resolution procedure. However, sometimes more detailed parliamentarian scrutiny, even of subordinate provisions such as forms to be used under a regulation, may be desirable. I cite the Deregulation (Deduction from Pay of Union Subscriptions) Order 1998. That reform hinged on getting that important form exactly right. So, unusually, a mere form was of some importance. There may be other instances.
The flexibility would be most useful. The Government and the parliamentary scrutiny committees should be able to say not only whether the matter is appropriate for the subordinate provisions procedure but also which procedure would be the most appropriate for parliamentary accountability. I beg to move.
Lord Skelmersdale: I am sure the Committee believes that the proposed amendment is a welcome addition. It is even more welcome that the noble Lord's Front Bench has accepted it. It gives more power to the deregulation committees of both Houses in respect of these orders.
However, perhaps I may ask the noble Lord a somewhat technical question. New subsection (6A) of the amendment defines the relevant period. The noble Lord has chosen 28 days. The super affirmative
(a) it is not made by a Minister of the Crown,
(b) the order designating the subordinate provisions concerned ("the main order") provides that the subordinate provisions order shall be subject to annulment in pursuance of a resolution of either House of Parliament, or
(c) the main order provides that the subordinate provisions order--
(i) is to be laid before Parliament after being made; and
(ii) is to cease to have effect at the end of the relevant period unless before the end of that period it is approved by a resolution of each House of Parliament (but without that affecting anything done under it or the power to make a new order).
(6A) In subsection (6)(c) "relevant period" means a period of twenty-eight days beginning with the day on which the subordinate provisions order is made.
(6B) In reckoning the period of twenty-eight days referred to in subsection (6A), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6C) For the purposes of section 5(1) of the Statutory Instruments Act 1946, provision falling within subsection (6)(b) is to be treated as provision made by an Act.").
4.45 p.m.
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