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Lord Bach: My Lords, I must confess to having feelings of some dismay to see this amendment on the Marshalled List. It concerns a matter that we have debated at least twice. I suppose that there is no harm in debating it a third time. The last time that we did so was in the context of an amendment tabled by the noble and learned Lord, Lord Fraser of Carmyllie, on the second day of Report.
This amendment would require the Treasury to consult on all orders and regulations proposed under the Bill. As I attempted to explain a few minutes ago, it will not always be the Treasury that will make regulations and orders under the Bill. Other departments will have responsibility for making certain regulations. Some powers to do things by order will be exercised by the authority itself or by the court, although, of course, such orders are not orders in the sense of secondary legislation.
But the amendment does not make that distinction, so it is defective in that it requires all such consultations to be conducted by the Treasury. We believe that the Treasury already has a good record. It has regularly consulted on proposals generally in the financial services field in recent years and specifically on Bill-related matters. It has already been consulting on the draft secondary legislation it proposes to make under the Bill.
We have had formal public consultations on a number of draft Statutory Instruments and more informal discussions with industry representatives on some other drafts; for example, amendments to building and friendly societies legislation.
We have also had discussions on the underlying policy in order to inform the drafting process and we consulted on a draft of the Bill, although noble Lords may be forgiven for forgetting that, given the time that has passed since then.
The Treasury proposes to continue to consult where that is helpful. We have even given specific commitments to do so in certain cases. It is, of course, well established Cabinet Office procedure that departments should seek to consult as they consider most appropriate and produce regulatory impact assessments before making any legislation that imposed burdens. The Treasury will always ensure that it complies with relevant guidance of the kind I have just mentioned.
This Bill imposes statutory consultation requirements on the authority. That is right for the authority, given its legal status. But the Treasury is rather different from the authority. The Government are directly accountable to both Houses of Parliament and Parliament rightly scrutinises and questions what the Government do. The Bill does not change that.
So the reality is that if the Treasury should fail to follow the procedures set out in those Cabinet Office guidelines, it will be open to Parliament to question that. It is of course the case that amendments to the best practice promoted by the Cabinet Office will flow through to the exercise of the powers under the Bill. The amendment before us would seem to cast matters in stone.
Finally, we need to look at the amendment in a wider context. There is nothing special about the powers under the Bill for the Treasury or Ministers to make orders and regulations. They are normal arrangements and we have applied the standard procedures.
I remind noble Lords that the Treasury has submitted a number of memoranda to our own Delegated Powers and Deregulation Committee explaining the delegated legislative powers under the Bill. The Government have responded positively to recommendations made by the committee when it considered the consultation draft of the Bill. After the Bill was brought to this House from another place, the Government have accepted every recommendation made by the committee.
I repeat that departments are expected to follow Cabinet Office guidelines, just as they are required to respect parliamentary procedure. There is nothing special about the powers in the Bill. There are a lot of them because it is a big Bill covering a wide subject area and they are also related to matters which are largely technical.
We maintain that this Government have reinforced the procedures for consultation and regulatory appraisal compared with the system that we inherited. If noble Lords opposite believe that those arrangements are still inadequate, that rather begs the question what they must have thought about the rather more lax procedures which the previous government applied. That is perhaps a matter which is best pursued in another context. Indeed, if there are inadequacies in the Cabinet Office guidelines, it would be useful if those issues were raised so that those views could be taken into account when the guidelines are next reviewed.
The logic of the amendment is that all departments should be under a duty to consult on all secondary legislation all the time. We believe that that is unnecessary and, we would argue, positively undesirable. Government departments should consult where it is appropriate for them to do so and it is the responsibility of Parliament to ensure that they do.
Lord Newby: My Lords, I am not sure that I can take much comfort from what the Minister has said. When he started he made an extremely valid point about certain orders under this Bill not being secondary legislation and that, therefore, there was a defect in the drafting, of which I can see the strength. I thought he would suggest coming forward with an amendment that rectified that defect, given that he started off by being so positive about publishing draft regulations and orders that are secondary legislation.
In relation to the phrase "the Treasury would normally consult", as a general rule departments consult when it is helpful or appropriate to do so. That begs the question: to whom it is helpful and to whom it is appropriate? I am not happy simply to accept that the Treasury, when it believes that it is helpful and appropriate to do so, will publish draft orders. However, I accept that the drafting may be defective. Therefore, I shall look at this and I may return to the matter next week.
("( ) it varies a previous order made under section 19(5) so as to make section 19(1) apply in circumstances in which it did not, as a result of that previous order, apply;").
Page 226, line 21, after ("19(9)") insert ("or (9A)").
Page 226, line 23, at end insert ("; or
( ) it adds one or more investments to those which are controlled investments for the purposes of section 19").
Page 227, line 1, leave out subsection (1) and insert--
("(1) The following provisions come into force on the passing of this Act--
(a) this section;
(b) sections 417, 419 and 422;
(c) paragraphs 1 and 2 of Schedule 20.").
|1. The Commission.||Any function of the Commission under Community law relating to competition.|
|2. The Comptroller and Auditor General.||Any function of his.|
|3. A Minister of the Crown.||Any function of his under a specified enactment.|
|4. Director General of Telecommunications.||Any function of his under a specified enactment.|
|5. Director General of Gas Supply||Any function of his under a specified enactment|
|6. The Director General of Gas for Northern Ireland.||Any function of his under a specified enactment.|
|7. The Director General of Electricity Supply.||Any function of his under a specified enactment.|
|8. The Director General of Electricity Supply for Northern Ireland.||Any function of his under a specified enactment.|
|9. The Director General of Water Services.||Any function of his under a specified enactment.|
|10. The Civil Aviation Authority.||Any function of that authority under a specified enactment.|
|11. The Rail Regulator.||Any function of his under a specified enactment.|
|12. The Director General of Fair Trading.||Any function of his under a specified enactment.|
|13. The Competition Commission.||Any function of the Competition Commission under a specified enactment.|
|14. The Authority.||Any function of the Authority under a specified enactment.|
|15. A person of a description specified in an order made by the Treasury.||Any function of his which is specified in the order.|