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Lord Henley: I thank the noble Lord, Lord Evans of Temple Guiting, for that lucid, thorough and detailed explanation of this deeply important order. The noble Lord assured us that it is the first regulatory reform order that we have seen from the Department for Constitutional Affairs. I hope that he will be able to let us know in due course what other regulatory reform orders we are likely to see emanating from that department. After all this time—I think the Act was originally passed back in 2001, which is four years ago—we have seen what might be described as a mere gnat being produced. We hope to see something more, particularly when one considers the extraordinary burdens and regulations that are being imposed on business, not just by the Department for Constitutional Affairs but by all departments throughout the Government.
The noble Lord also apologised for not being a lawyer. I do not think that that is anything that anyone needs to apologise for. He might consider reporting back to other Ministers in the department—particularly as this is the first time that I remember when we have had two Ministers in that department, the noble and learned Lord the Lord Chancellor himself and the noble Baroness, Lady Ashton, and this is the first regulatory reform order that we have seen from it, although we are hoping to see many more—that it might have been appropriate for the noble and learned Lord the Lord Chancellor, or even his deputy the noble Baroness, Lady Ashton, to have come along and introduced the order. I say that with no disrespect to the noble Lord, Lord Evans. I am sure that he is learning a great deal of law in his work for the department and if and when he returns to publishing I am sure there will be a wonderful career in legal publishing awaiting him, should he wish it.
Earlier this afternoon, we heard from the Office of the Deputy Prime Minister on the order on fire safety. That order was much bigger and went a lot further. But in the process, it also consolidated all the matters being put before business and made the whole process somewhat easier for business to understand. As the statement from the department says, this very small order,
I appreciate that it might simplify the law, but when one looks at the order it is obvious that only for highly skilled lawyers will it do anything to clarify matters.
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Although I do not suppose that it would be possible, a considerable degree of consolidation of all of the various Acts being amended is needed. What is happening in that area? Will there be a degree of consolidation to make this order—welcome though it is—easier to understand for those who have to use it? I hope that the noble Lord will be able to give me answers to some of those questions. Other than that, I have to say that we have no intention of opposing the order.
Lord Goodhart: My Lords, I confess that not only have I been a lawyer but I have also been a member of the Chancery Bar, where technicalities about the execution of deeds and documents are meat and drink. Having said that, I warmly welcome this order, which implements the admirable report of the Law Commission. My only criticism is that the Law Commission reported in 1998 and it has taken seven years to lead to a consequential alteration in the law.
This order deals with highly technical matters, but the consequences of the order, although obviously very far from earthshaking, will be clearly beneficial. I must say therefore that I have no hesitation whatever in approving it. This is the kind of change in the law that the Regulatory Reform Act was designed and intended to bring about, which is very typical of what ought to be done. I hope that we will see other recommendations of the Law Commission brought into force in due course under this Act, which saves it from the generally difficult task of finding time for primary legislation. We are more than happy to support the order.
Lord Evans of Temple Guiting: My Lords, I am most grateful for those two contributions. I will try to answer the questions that I was asked. The noble Lord, Lord Henley, asked whether other and further proposals would come from the department for reform by regulatory reform order. I am pleased to inform the House that the department is promoting better regulation, particularly through the work of the Law Commission, and is looking for opportunities to deliver proposals by regulatory reform order.
The department has tried to promote other Law Commission reports through regulatory reform orders but was prevented by the limits on the powers in the Regulatory Reform Act 2001. The noble Lord, Lord Henley, suggested that it would be more appropriate for the Lord Chancellor to be standing here rather than me. That is fine. The message will be passed on.
One of the problems that I have in understanding this order is that, having been in business all of my life and having signed many deeds and other documents during many years of working practice, I have been trying to relate the contents of this order to the actions that I took, which I always imagined to be correct.
We note and take on board the point about consolidation. If I have anything further to say on that, I will write to noble Lords. That point is made not only on these matters, but also on many other matters that come before your Lordships' House. The noble
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Lord, Lord Goodhart, welcomed the order and drew attention to the seven-year delay in its appearance. I had not realised that, but there we are. I am grateful for the discussion and I thank both noble Lords.
On Question, Motion agreed to.
Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005
7.35 pm
Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 25 January be approved [8th Report from the Joint Committee, Session 2004–05].
The noble Lord said: My Lords, I beg to move that the draft Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005 be approved. It will be convenient, with your Lordships' permission, to consider another instrument being made under the same power in the Scotland Act 1998. This is the draft Education (Additional Support for Learning) (Scotland) Act 2004 (Consequential Modifications) Order 2005. Both of those instruments were laid before the House before the Dissolution.
I thank your Lordships for agreeing to consider these technical pieces of legislation together. Both instruments are being made under Section 104 of the Scotland Act. Perhaps I may remind noble Lords of the implications of a Section 104 order.
Section 104 orders are used when changes require to be made to the law of England and Wales or Northern Ireland, or when modifications of reserved law are required as a consequence of legislation in the Scottish Parliament. Such changes would be outside the legislative competence of the Scottish Parliament.
Section 104 of the Scotland Act provides for subordinate legislation to be made in only this Parliament. When Section 104 orders amend primary legislation, as both before us this evening do, the Scotland Act requires them to be subject to affirmative resolution in both Houses. The instruments will be considered in the other place following our consideration.
Noble Lords may have read the explanatory material that accompanies these orders but I hope that it will be helpful to outline briefly what the orders will do. The Adults with Incapacity (Scotland) Act 2000 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2005 is consequential on the Adults with Incapacity (Scotland) Act 2000 and is a straightforward use of the power at Section 104 of the Scotland Act.
The order amends references in the Child Support Act 1991, the Social Security Administration Act 1992 and the Social Security Administration (Northern Ireland) Act 1992. Those all contain references to "the appropriate person" for various purposes relating to disclosure of information. All of those references include
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a definition of a Scottish mental health custodian, but changes in the Adults with Incapacity (Scotland) Act 2000 mean that the definition requires to be updated.
The Scottish Act amended the definitions in two of those Acts, but the limits on the legislative competence of the Scottish Parliament mean that those amendments could have effect only as a matter of Scots law. The old definitions in those two Acts still exist in the rest of the UK. The order amends the references as regards England and Wales. The definition in the Northern Ireland social security Act is also amended.
I now turn to the draft Education (Additional Support for Learning) (Scotland) Act 2004 (Consequential Modifications) Order 2005. Like the order that I have just described, this order is a straightforward use of the power in Section 104 of the Scotland Act. The Education (Additional Support for Learning) (Scotland) Act 2004 was passed in the Scottish Parliament last year. It replaces the system for assessment and recording of children and young people in Scotland with special educational needs with a framework based on additional support needs.
The 2004 Act places new duties upon education authorities to provide additional support to assist with the school education of children and young persons who need it. Additional support needs are defined more broadly than special educational needs.
There are also other new duties—for example, in relation to planning for children with enduring complex or multiple needs who require support from outside education services; the provision of independent mediation services; and exchanging information with agencies responsible for supporting such children after they leave school. Education authorities also have a power to help children with additional support needs who are not in the public education system.
Section 28F of the Disability Discrimination Act 1995 requires education authorities in Scotland not to discriminate against a disabled pupil—or disabled person who may be admitted to school as a pupil—in carrying out their functions under the Acts listed in subsection 1(b) of that section.
This order amends Section 28F of the Disability Discrimination Act 1995 to ensure that when education authorities carry out their functions under the 2004 Act the prohibition against discrimination in Section 28F will apply.
The order is being brought forward at this time so that it is in place when the relevant part of the 2004 Act is brought into force in November this year.
The orders make sensible use of the powers provided by the Scotland Act. I commend them to the House.
Moved, That the draft order laid before the House on 25 January be approved [8th report from the Joint Committee, Session 2004–05].—(Lord Evans of Temple Guiting.)
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