Appendix 1: Advanced Research and Invention Agency Bill: Government Response
Letter from Lord Callanan, Minister for Business, Energy and Corporate Responsibility at the Department for Business, Energy and Industrial Strategy, to the Rt Hon. Lord Blencathra, Chair of the Delegated Powers and Regulatory Reform Committee
I am writing in response to the Delegated Powers and Regulatory Reform Committee’s Fourth Report, on the Advanced Research and Invention Agency (ARIA) Bill.
I would like to thank the Committee for their consideration of the Bill, and their acknowledgement of the UK’s history of science and invention on which it seeks to build.
Two of the delegated powers in the Bill were highlighted by the Committee. The Government’s response on each of these points is detailed below.
Clause 8: power to dissolve ARIA
Clause 8 allows the Secretary of State to dissolve ARIA by an affirmative statutory instrument. The power is only exercisable after 10 years and the Secretary of State must have consulted ARIA and any other persons the Secretary of State considers appropriate.
The Committee raised an objection to this delegation of power on principle, stating that since ARIA is to be created by an Act of Parliament, it should be for Parliament alone to dissolve it.
I have carefully considered the Committee’s view on clause 8. This question of principle has arisen previously, and I would like to reiterate the Government’s existing view that whilst such powers must be well justified, considering the body and narrowness of the power in question, they are not always constitutionally unacceptable. With this in mind, I believe there is both a clear policy rationale and precedent for the specific power in clause 8.
Firstly, ARIA will fund high-risk, high-reward research, an approach which has been supported in both houses of Parliament. Recognising this specialised and unique remit, the Commons Science and Technology Committee’s report, A new UK research funding agency, stated that ‘the Government must accept that these projects will take a long time, potentially 10-15 years, to ‘bear fruit’’. It is the Government’s view that to ensure ARIA has the opportunity to succeed, a commitment to its long-term security must be provided by the Bill. Clause 8 only confers the power to dissolve ARIA ten years after the Bill has been granted Royal Assent, to give confidence both to ARIA and to stakeholders across the R&D community.
Secondly, under powers set out in the Public Bodies Act 2011, several bodies established by primary legislation have been dissolved using secondary legislation. The super-affirmative procedure was used in the context of widespread public body reform and broad powers in the Act.
Under these powers, Ministers could abolish certain public bodies, merge them, and change their functions or governance. The intended use of these powers was not clear at the time of the Bill’s passage, and so it was appropriate that their use should be subject to a higher level of parliamentary scrutiny. However, Clause 8 of the ARIA Bill provides a much narrower power for the Secretary of State to dissolve ARIA, not to change any of its functions or governance. I therefore feel that the affirmative procedure remains proportionate and appropriate for this power.
For these reasons, I am not able to accept the Committee’s recommendation in this instance and hope the Committee is able to understand the reasons for this approach.
Clause 10: power to make consequential provision
Clause 10 contains a power to amend primary legislation in consequence of any provision of the ARIA Bill, or regulations dissolving ARIA made under clause 8.
The power was included in the Bill for two reasons, set out in the Department’s Memorandum. Firstly, to apply to ARIA legislation that applies to similar bodies. For example, in consequence of the creation of ARIA by clause 1 of the Bill as a body which does not take the form of a public authority as defined by the Freedom of Information Act 2000, provision could be made for the application to ARIA of provisions that apply to such bodies. Secondly, to enable clause 1 and references to ARIA in other legislation to be repealed if ARIA were dissolved by regulations made under clause 8, to tidy the statute book.
The Committee took the view that clause 10 is inappropriately wide and any consequential provision should be added to Schedule 3.
I have reflected on this section of the Committee’s report. As a result of the recommendation, and drawing on preparatory work for the regulations that would have been made under clause 10, I intend to omit clause 10 from the Bill and narrow the power to make consequential provision. I will therefore table amendments at Committee stage to:
(i)apply to ARIA relevant obligations that would normally apply to ‘public authorities’ through bespoke provision in Schedule 3; and, in line with the Government’s position on retaining clause 8,
(ii)restrict the power to make consequential provision so that it can only be used in consequence of regulations made under clause 8. This entails giving notice of my intention to oppose the motion that clause 10 – containing the existing power – stand part of the Bill, and tabling an amendment to introduce a narrower power to make consequential amendments in clause 8.
The power to make consequential provision in clause 10 is time limited to amendments of Acts made no later than the end of the current session. It could not be used to change references to ARIA in future Acts, or future secondary legislation. Clause 8(4)(e) provides a mechanism to deal with these references, but only by allowing them to be treated as references to another person.
Since I intend to confine the consequential amendment power to clause 8, and at least ten years’ worth of legislation will have been passed or made before it could be exercised, I believe there is a strong rationale for widening it to cover amendments of any legislation passed or made before the regulations are made.
The new power in the amendment I will table to clause 8 has this effect, as a more coherent replacement to both the existing power in clause 10 and clause 8(4)(e).
I recognise the Committee rightly scrutinises such powers to amend future legislation very closely. In this instance I believe there is a very clear case for its inclusion, because of the ten years that must elapse before it could be exercised, and high likelihood that ARIA is referenced in legislation passed or made in that intervening time. Without it, references to ARIA will simply be left in future primary legislation if the power to dissolve ARIA is exercised.
Further details of this revised power are provided in the supplementary memorandum, which I hope is useful to the Committee.
10 November 2021