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Lord McIntosh of Haringey: My Lords, if I had said only what I am quoted as having said by the noble Lord, I would have been dissatisfied with it. However, I said a great deal more, which I shall try to repeat as efficiently and with as little time-wasting as possible. What I said then was that the power of amendment was achieved by the power of a Member of this House to table a companion Motion to the Motion seeking approval of the order. The companion Motion could propose an amendment. If the amendment was agreed the Minister would have to take up the order and lay it in amended form, abandon it, or start again and decide to use primary legislation. Those are the three options which the noble Lord, Lord Phillips, fairly set out in his speech.

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The special parliamentary procedure for regulatory reform orders involves a greater degree of parliamentary scrutiny than the ordinary affirmative resolution procedure and, in the way that I describe, affords the opportunity for amendment. The amendment does not add anything to what we already have.

The point about taking it away and re-tabling it is that, if there is general disapproval of the regulatory reform order, the Minister would have to take it away and start the whole process again right from the very beginning. He would have to go through the consultation process, produce the results of that consultation and go before the committees of both Houses. In that way, certainly, there would be the equivalent of a fatal Motion; in other words, exactly what happens to an affirmative resolution now or a Prayer to annul a negative resolution.

However, there is an alternative option. If an amendment is proposed and carried in the House on a companion Motion to the Motion to approve the Delegated Powers and Deregulation Committee report, then, because at this stage the order has not been formally laid, the Minister could take up and incorporate the amendment. He need not go through all the earlier procedures. He could come back to the House rather quickly with an order which incorporated the order that had been approved in the House. That is an improvement on a fatal order. Therefore, I argue that the House has the power to amend an order. I know that that is not in quite the formal sense that the noble Lord, Lord Phillips, looks for, but it achieves the same effect.

Lord Phillips of Sudbury: My Lords, with respect to the Minister, it achieves the same effect, which is to kill off effective parliamentary scrutiny. The proof of the pudding is in the statistics. It is no accident that only one annulment order has ever been ever passed in this House. That is precisely because it is such a laborious procedure, which half the Members of the House do not understand. The Government wish to have greater executive freedom, but it is unsustainable from the parliamentary point of view to continue down this route. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Lord Goodhart moved Amendment No. 28:

    Page 3, line 45, at end insert--

("( ) Sections 1(2A) and 3(2)(b) do not apply to a subordinate provisions order.").

The noble Lord said: My Lords, this is another amendment relating to the new protection that is given through Clause 3(2)(b). The amendment was not included in the original group because it goes somewhat outside the field covered by those groups. It therefore seemed appropriate to deal with the amendments separately.

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The position here--a point raised by the Government--was that in the case of a subordinate provisions order it is possible that although the order as a whole will satisfy all the conditions in the now amended Clause 3(2), there may be certain circumstances in which a subordinate provisions order merely imposes, let us say, a transitional burden without containing any offsetting transitional removal or reduction. It will probably happen relatively rarely, indeed, if at all, but the subordinate provisions orders seem to play a useful part as orders which do not require the full treatment. It would be unfortunate if, merely because some minor provision increased a burden without any offsetting reduction or removal of burdens, the subordinate provisions order procedure could not be used and it had to be included as part of a full order going through the full and really rather elaborate consultative procedure. I beg to move.

6.15 p.m.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Goodhart, for pulling the amendment out of his earlier group. I can see the reasons for doing that. Not only does it deal with a related but different point, but also it refers to new Section 1(2A) which was introduced by the noble Lord's amendment earlier today.

It is sensible to exclude subordinate provisions orders from the new limitations. If we were to insist that a subordinate provisions order cannot only impose burdens, we would be preventing fee increases. Those are exactly the kind of examples that we considered in Committee and on Report. We do not want to burden Parliament with a full regulatory reform order every time we seek to increase a fee. Again, the scrutiny committees will have recommended in their reports to each House on the main order what could be included in a subordinate provisions order. They have that power. On that basis, we are happy to accept the amendment.

On Question, amendment agreed to.

Clause 5 [Preliminary consultation]:

[Amendments Nos. 29 and 30 not moved.]

Lord Norton of Louth moved Amendment No. 31:

    Page 4, line 45, at end insert--

("( ) In fulfilling the requirements of subsection (1), the Minister shall comply with the provisions of the code of practice for written consultation in force at the time at which the Minister decides to consult on his proposal.").

The noble Lord said: My Lords, in moving Amendment No. 31, I shall speak also to Amendments No. 35 and 43 which are grouped with it. In Committee, I moved an amendment to provide that the Minister should publish an invitation to all interested parties to make submissions. The intention was to ensure a more open process. Instead of empowering the Minister to consult certain specified bodies and those that he thought appropriate to consult, the amendment sought to permit all those who wished to make submissions to do so. In so doing, I sought to bring the provisions of the Bill into line with

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the Government's draft code of practice on written consultation. The code states, as one of its criteria, that documents should be made widely available and effectively drawn to the attention of all interested parties.

On that occasion the noble Lord, Lord McIntosh, made clear that it was the Government's intention to publish the fact that consultation was being carried out and he outlined ways in which the announcement could be made. I have no objections to what he proposed. On the face of the Bill I would like to see some requirement for that to happen.

At that stage, the Minister's objection to my amendment was twofold. The first was that it was difficult to decide what was meant by a "general announcement". It may well be difficult to define what we mean by a general announcement but as my amendment did not use those words it is not a crucial objection. The second was that the code of practice could change over time and therefore its wording should not appear on the face of the Bill. As I pointed out, my amendment imposed a requirement to publish an invitation and it was difficult to see how that might change over time.

The Minister resisted the amendment. He nonetheless conceded that there might be a case for specifying that the Minister should comply with the code of conduct issued from time to time. Amendment No. 31 therefore provides for that. The Minister said that he would consult with other departments because the requirement would apply more widely than the Bill. Strictly speaking, it would not as the provision is specific to the Bill, but it would doubtless make it difficult for Ministers not to comply with it in consulting on proposals brought forward under the provisions of other Acts. That, I should have thought, is an argument for the amendment. I suspect the Minister probably thinks so too. If he is not able to accept the amendment, with which he has indicated some sympathy, then the House may wish to help the Minister to get his way in his dealings with departments by pressing it. So I believe that there is a strong case for the amendment.

I turn now to Amendment No. 35, which is logically grouped with Amendment No. 31. I appreciate that in bringing forward this amendment as well it may appear that I am now wanting my cake and eating it. At Committee stage I proposed an amendment stipulating that there must be a minimum period of eight weeks for consultation. I recognised then that there were possible objections to the proposal. I outlined them and the Minister, the noble Lord, Lord McIntosh, kindly repeated them. I also indicated that an alternative was to stipulate a 12-week norm, with the Minister having to make a special case for shortening the period. My amendment today embodies that alternative approach. In so doing, it also meets the points raised by the Minister.

The 12-week requirement is in line with the provisions of the code of practice for written consultation. As I mentioned a few moments ago, I know that the Minister does not want the precise

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provisions of the code to appear on the face of the Bill. However, I think that there is a case for a period to be stipulated--that is, independent of a requirement to abide by the code.

The case for some specified period appearing in the Bill was made rather well by the Minister himself, albeit in another context. He advanced the case that those who wanted to make representations should have priority and that they should have some certainty in knowing how long the period of consultation should be. He made that argument (at col. 400 of the Official Report on 25th January) in respect of the 60-day period for parliamentary consideration of a draft document. I am sure that the Minister would not wish to argue that there should be one rule for parliamentary consultation and another for government consultation. There is thus a case for having a specified period. Those who are being consulted, those whom the Minister says should have priority, will know the time that there will be for consultation.

In Committee, the Minister argued that there would also need to be some flexibility. There may be occasions when rapid consultation is necessary; for instance, as a result of a court judgment. My amendment allows for that. The Minister may provide for a shorter period, but he will need to make a case for it. He will have to report to Parliament his reasons for judging the circumstances to be exceptional. He will need to be in a position to justify his actions.

My amendment thus provides for both flexibility and transparency. Stipulating a norm on the face of the Bill makes it difficult, but not impossible, for Ministers to reduce the period. I believe that this creates a more powerful discipline than that imposed by the code of practice. It should therefore appear on the face of the Bill, in addition to a general requirement to comply with the code of practice.

I turn to Amendment No. 43, which can be seen as complementary to my earlier amendment, stipulating a period for consultation. However, I wish it to be treated as a free-standing amendment. It requires the Minister, in supplying details to Parliament of the consultation he has undertaken, to state the period allowed for consultation.

We have discussed already the recommendations embodied in the draft code of practice. The norm is 12 weeks and the minimum is eight weeks. I think that there is a simple and straightforward case for the Minister to tell Parliament how long the period for consultation was. The Minister, one presumes, will usually state that it was 12 weeks. If he says that it was a shorter period, then Parliament will be alerted to that fact and can require the Minister to explain the reasons for reducing it.

In responding to the amendment, the noble Lord may well say that, if the consultation period is eight weeks, then the Minister will normally explain the reasons for it being that short. The circumstances are likely to be exceptional and therefore will form part of the Minister's report to Parliament. That may well be the case, but it is not an argument against the

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amendment. I want to ensure that the use of the eight-week period is kept to a minimum. Knowing that the period will have to be included in the information supplied to Parliament acts as a useful discipline. Ministers are less likely to go for a shorter period, except when the case clearly justifies it, if they know that the period will be drawn to the attention of Parliament.

The amendment itself stipulates no norm or minimum period. It merely requires that the period of consultation is notified to Parliament. That strikes me as sensible and unobjectionable. One knows when it is one of those days and nothing goes right. So far, it has been one of those days. I am hoping that, on this occasion, the Minister will make my day. I beg to move.

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