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Lord Skelmersdale: My Lords, before the Minister sits down perhaps he can answer one simple question. Does the noble Lord consider that the present structure of the Select Committees in this House is adequate for the consideration of super reform orders, such as those under the fire safety and the weights and measures legislation? Alternatively, does he believe, as I do, that some changes will need to be made?
Lord McIntosh of Haringey: My Lords, it would be presumptuous for me to express a view on the matter from this Dispatch Box. However, as a Member of the House, I can, like the noble Lord, express a view. If the noble Lord is suggesting that there will be an increase
Lord Campbell of Alloway: Yes, my Lords, this amendment would impose restrictions; indeed, that is the object behind it. The whole object of this proposal is to preserve the traditional constitutional position. If you want to amend all the fire regulations or those relating to weights and measures, you would do so in the manner in which it has always been done--namely, by primary legislation. That is the traditional way in which matters have been dealt with, and that is how matters should continue to be dealt with. My amendment would ensure that the traditional system is observed.
As to the other question about the House having sovereignty over its own procedures, I think the noble Lord would agree that on more than one occasion I have asserted that such should be the case. However, this does not in any sense derogate from that concept. In the circumstances, I should like to consider the matter further. I beg leave to withdraw the amendment.
The noble Lord said: My Lords, we are concerned that the Bill permits any legislation whatsoever, whether or not in force, to be amended on the basis of a two-year rolling timetable. We on these Benches do not understand why a two-year rolling timetable is necessary. If legislation is found to be misconceived, inconsistent, anomalous or generally in need of regulatory reform, why should it be necessary to wait for two years before doing something about it? Why not act immediately?
It is no answer to say that legislation needs time to bed down, because if the hypothesis is correct no amount of bedding down will do any good. Conversely, if bedding down may do some good, and that can be seen to be so, why impose a time limit? Those who are tasked for the job of regulatory reform are perfectly well able to judge whether or not the initial legislation is bedding down satisfactorily; and
We are acutely aware of the view of many of your Lordships that the introduction of a two-year rolling period is an invitation to legislative slackness. I hope I shall be able to demonstrate that that is a separate point. I am here concerned with the establishment of legislative safeguards against an abuse of the powers granted by this Bill. That is why we are proposing an alternative in this amendment.
The 1994 Act provided a clear measure of protection. No legislation was to be subject to regulatory reform unless it was already on the statute book when the 1994 Act was passed. This Bill abandons that safeguard entirely, yet replaces it with none. In our submission, the absence of any such safeguard makes the Bill open to abuse. It would be possible to pass primary legislation with a view to its amendment in the name of regulatory reform. In two years' time, what ought to have been the subject of primary legislative scrutiny will be passed by secondary means. Indeed, under the terms of Clause 1(2)(a) what was passed the first time around will not even have had to come into force.
We therefore propose that two safeguards should be introduced, although it will not have escaped your Lordships' attention that I have sought to retain the two-year rolling period as well. The first safeguard requires that we be told here and now what are regarded as proper candidates for regulatory reform. We have been provided by the noble and learned Lord, Lord Falconer, with an informal shopping list of current legislation which is deemed worthy of regulatory reform. It appears on the Cabinet Office website and is to be seen as a list of categories rather than as a list of statutes or orders.
I must admit that is a start and, in deference to the noble and learned Lord, had it been possible I should have proposed an amendment whereby the list should go into this Bill in the form of a schedule. I am unable to propose such an amendment because, although the list is a long one, it comprises no more than a list of categories and not one of specific provisions. However, I should make it clear that I would not oppose a proposal that, instead, this Bill should contain a provision similar to that contained in the 1994 Act; so that all antecedent legislation is subject to these reforming powers. I therefore invite the noble and learned Lord to consider such a provision.
Secondly, in order that some measure of control can be kept upon the use of this Bill, all future legislation which contains what is regarded as regulatory content should identify itself as such. The Government have repeatedly stressed, as I understand it, that this Bill will not be used for politically controversial measures. Therefore it must follow that the inclusion of such a provision in primary legislation will itself be non-controversial.
This provision also meets the objection from the noble Lord, Lord McIntosh of Haringey, that legislation may be passed after the passing of this Bill which is part of a pattern of legislation passed before it, all of which will need to be reformed as a package. This requirement will therefore serve a two-fold purpose, without undermining the purpose of the Bill. It will prevent abuse of the system and, given the passage of time, it will define that which the elephant test cannot; namely, the type of legislation to which the power granted by this Bill is intended to apply. I beg to move.
Lord McIntosh of Haringey: My Lords, I confess to being in a difficulty which has occurred to me on a number of occasions in the last few years. I do not know whether to speak to the amendment or to the speech, because they are so different. I think that I shall have to do both--
Lord McIntosh of Haringey: My Lords, let me explain what the amendment would do and then I will turn to the argument of the noble Lord, Lord Kingsland. The amendment would limit the scope of reform to legislation which specifies that it is eligible. That would rule out all legislation passed before this Bill receives Royal Assent because no legislation that has been passed says that this legislation is eligible under the Regulatory Reform Act 2001--
Lord Kingsland: My Lords, I am grateful to the noble Lord for giving way so swiftly once again; but I recall either the noble Lord or his noble and learned friend saying this afternoon that the task of the 1994 Act was now exhausted, so that it should not matter whether or not the Bill applied to that class of legislation.
Lord McIntosh of Haringey: My Lords, of course it matters. I will have to turn to the speech rather than to the amendment now, because the noble Lord, Lord Kingsland, admitted that the 1994 Act was restricted in the sense that it only covered legislation up to and including the 1993-94 legislative Session and did not include legislation afterwards. Therefore we are all agreed that it has ground to a halt, albeit an honourable halt, because very little of the legislative burden is going to consist almost entirely of legislation not subsequent to the 1993-94 legislative Session. This amendment does quite the opposite. It states that nothing before the passage of this Bill, and, indeed, given the two-year rolling period, nothing for two years after the passage of the Bill, will be considered for inclusion in the powers of the Bill. The legislation would have to state that a matter is eligible for consideration under the Regulatory Reform Bill--no legislation states that--and that when the Bill is passed it cannot be considered for two more years. Therefore, no provision can be included for two years after the passage of this Bill.
The noble Lord, Lord Kingsland, said that he had considered putting the 51 examples on the face of the Bill. This amendment would rule out all of the 51 examples. We have a problem with the amendment. I have great difficulty in addressing the speech of the noble Lord, Lord Kingsland, because it is based on a misunderstanding of what his amendment means and does.
I appreciate his concern about the two-year period. We debated that matter in Committee. He expressed the view at that time that the provision would encourage sloppy drafting because the draftsmen and the Government would say, "It does not matter if we get it slightly wrong because we can put it right in two years' time using a regulatory reform order". Our response to that was--and I stick by that response--that we would be astonished if that were to be the case. It would be a poor way to proceed given the difficulties of getting a regulatory reform order through. The obstacles to be overcome and the safeguards in the Bill would result in primary legislation being preferred in any circumstances that were at all dubious.
The noble Lord, Lord Campbell of Alloway, who is no longer present, considers that primary legislation ought to be used all the time. He really does not believe in regulatory reform at all and he made that entirely clear in his previous speech. However, we consider that the cut-off point which we propose here; namely, that one cannot alter a measure until two years after it has been passed, is entirely reasonable. When we consulted on the matter in 1999, there was general agreement that it was reasonable. The Delegated Powers and Deregulation Committee supported the view. The noble Lord, Lord Goodhart, as a member of the committee, expressed that view in Committee. The rolling cut-off which the noble Lord, Lord Kingsland, addressed in his speech is an important part of the provisions of the Bill ensuring continuity and consistency between it and the 1994 Act. Therefore, even if the amendment did not mean what it does mean, we would oppose the arguments that the noble Lord, Lord Kingsland, advanced.
Lord Kingsland: My Lords, I am most grateful to the Minister for his reply. I must say I do not see the problem that he sees in this amendment. The 1994 Act will remain on the statute book until this Bill becomes law, if it does become law. The 1994 Act will apply to everything up until that Act is repealed. Thereafter, this Act will take over.
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