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Lord Borrie: There is not a great deal of difference between 28 and 21 days. It allows for the procedure where approval can be up to such a period, not counting Recess, after the order was made. That is to deal with matters which are sufficiently important to require Parliament's positive approval which arise during, or shortly before, a Recess when it is not possible to arrange a prior debate. So the matter can be dealt with fairly speedily but still leave Parliament the ultimate right to approve.
Lord Goodhart: In neither the 15th report of the previous Session, nor its second report of the present Session, did the Delegated Powers and Deregulation Committee of your Lordships' House feel it necessary to draw to the attention of your Lordships' House the powers in relation to subsidiary orders and subordinate provisions orders under Clause 4. That was not an oversight. Nevertheless, the Deregulation Committee in the other place raised the issue, so it is clearly a matter for concern.
The Delegated Powers and Deregulation Committee in your Lordships' House has not had an opportunity to consider the amendment, because it is not the Committee's practice to consider Back-Bench or Opposition amendments, even if they would affect delegated powers. I cannot say what view the Committee might take, but the amendment appears to be a useful step. It would improve parliamentary scrutiny of regulatory reform orders, so I welcome it. I am glad that the Government are apparently to accept it.
Lord Falconer of Thoroton: I accept my noble friend's arguments. I am pleased that everybody else who has spoken welcomes the amendment, subject to the point raised by thenoble Lord, Lord Skelmersdale. I think that I understood him to say that he welcomed the amendment in principle.
Lord Skelmersdale: My point was a simple interrogation.
Lord Falconer of Thoroton: I understood that. We support the amendment.
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Preliminary consultation]:
[Amendments Nos. 46 and 47 not moved.]
Lord Norton of Louth moved Amendment No. 48:
- Page 4, line 26, leave out paragraph (e) and insert--
The noble Lord said: The amendment would give effect to something that the Government are committed to. The case for it can be put briefly.
Clause 5 imposes a requirement to consult. The Minister has to consult certain specified bodies, depending on the nature of the order, as well as such other bodies,
The amendment is designed to provide for more open consultation, ensuring that those who wish to make submissions can do so without having to be recognised by the Minister as a body that he wishes to consult. That would benefit those bodies that wished to make a submission but whose existence or work was not known to the Minister. It would also benefit the Minister because it could result in him receiving more informed comments than would otherwise be the case. It would also mean that, when laying his report before Parliament, as required under Clause 6, he would not be open to the accusation that he had conducted his consultation with only a small group of organisations sympathetic to his cause.
Furthermore, the amendment would bring the provision for consultation into line with the Government's draft code of practice on written consultation. The Explanatory Notes say that the Government intend to apply the code to all their consultation exercises. The code lists seven consultation criteria. Criterion 4 says:
All that is eminently sensible. I have no quibbles with it--indeed, quite the reverse. I want to bring the clause in line with the code. I believe that my amendment would achieve that goal. It is clearly the Government's intention that the code should apply. I have already quoted the Explanatory Notes to that effect. The amendment would give the Government the opportunity to meet their intention. I beg to move.
Lord Phillips of Sudbury: I do not know whether it is permitted, but I suggest that we deal with my Amendment No. 57 now, although it is due to come up after an amendment to be moved by the noble Baroness, Lady Buscombe. That would save the time of the Committee because it is on the same theme. My amendment is to Clause 6, which details the matters
Lord McIntosh of Haringey: I shall be delighted to deal with the two together if the noble Lord, Lord Norton, does not object.
Lord Phillips of Sudbury: I am obliged. I concur with everything that the noble Lord, Lord Norton of Louth, said. It is commonplace for us all to bemoan the state of democracy and the lack of public involvement with politics. There is a low-level cynicism among the public about the nature of consultations. The Committee on Standards in Public Life urged us to avoid the "pretence of consultation", which simply "causes cynicism and mistrust".
The committee also drew attention to the need to break out of the usual circle of privileged consultees and to get as wide a cross-section as possible. It is fair to say that the Government have made consultation a pillar of the process. The Explanatory Notes constantly refer to it. The noble and learned Lord, Lord Falconer, slightly over-egged the pudding on Tuesday when he said:
I should be happy with either the amendment of the noble Lord, Lord Norton, or mine. Mine would make life easier for the overburdened Delegated Powers and Deregulation Committee by specifying that it should consider the crucial issues of timescale and means in addition to the five other important criteria.
Viscount Goschen: I shall briefly support my noble friend Lord Norton. Consultation is key to the validity of the process that we have discussed this afternoon and on Tuesday. As well as being wide and appropriate, it is important that the consultation should be seen to be open. Bodies that feel that they have a view on an order should be able to respond to the Government and make their view known. No doubt, if such a body were shown to have no knowledge of the matter in hand, its views would be discounted. If it was seen to be a vexatious correspondent, which occasionally happens, its views would be cast aside.
My noble friend's amendment would give the Minister more protection, because it would not be possible for a body to come forward at a later stage claiming that it had a valid view but the Minister did not feel it appropriate to consult it. Rather than putting the burden on the Minister to consider what is appropriate--a phrase for which I have some
Given that Clause 5 goes to some length to describe the bodies which should be consulted, I certainly support making the provision very much wider by removing paragraph (e) and inserting a general invitation for consultees to respond.
Baroness Buscombe: At the risk of repetition, I rise simply to support my noble friend Lord Norton of Louth. I also support the amendment in the name of the noble Lord, Lord Phillips of Sudbury. As has already been said, consultation is not merely a good idea; it is an essential part of the legislative process. During the course of this Parliament, the Government have made much of their activities in relation to consultation. That being the case, and if they are serious about this matter, they would accept in particular my noble friend's Amendment No. 48 and publish an invitation to all interested parties to make submissions.
("(e) publish an invitation to all interested parties to make submissions").
"as appear to him to be representative of interests substantially affected by his proposals".
Under subsection (1)(e), he may also,
"consult such other persons as he considers appropriate".
Apart from the bodies specified by the clause, it is up to the Minister to decide which bodies to consult.
"Documents should be made widely available, using electronic means as far as possible (though not to the exclusion of others), and effectively drawn to the attention of all interested groups".
The first paragraph under that heading begins:
"Every effort should be made to ensure effective communication with all groups who are, or potentially are, interested".
Paragraph 2 opens with the words:
"That will generally mean publicising the consultation by a press release or similar announcement, and making the document available on the department's web site".
Paragraph 3 says,
"But those methods alone may not effectively reach all interested groups".
It goes on to identify other methods to be considered.
"There is then an obligatory consultation period that will probably last for 12 weeks".--[Official Report, 23/1/01; col. 207.]
There is no obligatory consultation period in the Bill. The noble Lord, Lord Norton, is trying to insert one. I am sure that that was a slip of the Minister's tongue, but it is interesting because it may betray a state of firmness in his own mind about the consultation arrangements that is not carried through into the Bill.
5 p.m.
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