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The new clause is necessary because there should be a certain discipline among Ministers and civil servants. When they introduce a regulation under primary legislation, they should consider whether the regulation needs to be permanent, or whether it deals with a temporary problem that will pass as a result of new technologies.
Mr. Steen: We are on to an important point, and I would not like my hon. Friend to leave it without further consideration. Many of the rules and regulations coming out of the House apply to social services, supplementary benefits and so on. They must constantly be repealed and
Mr. Clifton-Brown: I had intended to make a five-minute speech, but I have been speaking for almost a quarter of an hour. I shall try to keep my remarks concise and in order, for which I am sure you would commend me, Mr. Deputy Speaker.
My hon. Friend the Member for Totnes (Mr. Steen) brings me to my next point, which concerns the culture among civil servants and Ministers with regard to the making of orders. The new clause will cause them to consider whether the orders that they propose to introduce are of a long-term or a short-term nature. Including a sunset clause in a regulation introduced under clause 1 will make everyone think hard whether the order needs to be introduced in the first place, and whether it should be reviewed and revoked after five years.
My hon. Friend the Member for Totnes cites the example of social security legislation. The other area in which orders are continually made and remade is criminal justice legislation. We seem to have a criminal justice Bill in the House almost every year, and certainly every other year, and many such Bills contain order-making powers. The House is often required to alter what it has done in the past, by amending primary legislation.
If everyone who introduces legislation would think more carefully about it before they introduced it, which would be the impact of new clause 1, it would do us all a huge favour. Who knows?--perhaps we would not need to sit so many days in Parliament, because we would introduce fewer regulations, have fewer Committees considering statutory instruments, and fewer debates on the Floor of the House. That would be a good day for everyone.
Secondary legislation is introduced upstairs, sometimes by way of affirmative procedure and sometimes by way of negative procedure. There seems no good reason why a particular set of regulations should be introduced under the affirmative or the negative procedure. By ensuring that
As you know from your many years in the House, Mr. Deputy Speaker, it is much more difficult to overturn secondary legislation made by negative resolution. Secondary legislation made by affirmative resolution can be debated and amendments can be tabled, whereas that is not the case under the negative resolution procedure. Under the latter, it is not possible to introduce amendments; it is simply a matter of voting for or against the statutory instrument in question.
When the Government have as large a majority as the present Government have, the new clause becomes even more important. It prevents an overbearing Executive from introducing regulations that subsequently turn out to be faulty. Democracy is about trying to introduce better legislation and better regulations.
Mr. Fabricant: I am grateful to my hon. Friend for giving way again. He heard our hon. Friend the Member for South Cambridgeshire (Mr. Lansley) speak about the need for a cost-benefit analysis to be undertaken as part of the review of regulations. Does my hon. Friend share my concern that so many statutory instruments effectively give the Secretary of State a blank cheque to impose levels of fines, and to increase or decrease the power of a regulation, thus making a cost-benefit analysis so much more difficult, precisely because of the imprecision of the statutory instruments?
Mr. Clifton-Brown: My hon. Friend is right. I always thought that it was enshrined in legislation, but perhaps it was merely a convention of the House, that when a Bill--primary legislation--was introduced, its cost implications had to be stated. That is rarely the case with orders--statutory instruments that we discuss upstairs. Almost always, the Opposition of the day have to probe the Government about the cost implications. That is where the gravamen of the new clause lies. If people have to decide whether an order should remain in place five years after it was introduced, circumstances may have changed considerably, and they will have to think in terms not only of risk assessment, but of cost-benefit analysis.
Mr. Bercow: My hon. Friend reminds me of a further reason and justification for our insistence on the new clause. He rightly referred to statutory instrument Committees. Will he confirm, drawing on his personal experience as a member of the Opposition Whips Office, that it is becoming increasingly common in Standing Committees on delegated legislation for the Minister winding up the 90-minute debate deliberately and calculatedly to refrain from answering the questions asked by the principal Opposition Front-Bench spokesman, and simply and limply to say, "I will write to the hon. Gentleman, but will he approve the measure in the meantime?"
Although cost-benefit analyses have an important role, an even bigger part is played by risk analysis. Orders and regulations are often introduced to try to prevent a particular disaster or risk. A risk analysis is, therefore, important to us as legislators and also to the public, who will want to see that we are introducing good legislation. Politicians are often not very good at putting orders in perspective. BSE is a good example. The previous Government were criticised for not implementing properly the regulations that the Labour Government drafted in 1979. However, we were implementing the regulations in accordance with the best scientific evidence that was available at the time. Scientific evidence often has to be interpreted on a risk-analysis basis. A human has less chance of catching Creutzfeldt-Jakob disease from a cow with BSE than he has of being killed by lightning.
Perhaps regulations should more often be reviewed on the basis of risk analysis. To put such analysis in context, politicians must often distil difficult and complex arguments into relatively simple concepts, so that the public can understand what we are doing. If the public do not understand what regulations seek to achieve, but are suddenly inadvertently caught out by them, we will, in my terms, have introduced bad regulations. Those are precisely the regulations that should be dealt with by the new clause.
Mr. Lansley: I draw my hon. Friend's attention to the fact that the new clause would require a review to be made in relation to the statement required by clause 6. It would, therefore, cover a post facto review of costs and benefits. He makes an important point, as clause 6 does not require any risk assessment to be made in relation to regulatory reform orders. Interestingly, however, one of the five consultation papers issued in anticipation of provisions in respect of the letting of business premises under section 57 of the Landlord and Tenant Act 1954 includes a risk assessment, although that requirement is not set out in the Bill and the other four consultation papers do not refer to it.
Mr. Clifton-Brown: I am grateful to my hon. Friend, who has a great deal of experience in these matters, for raising that issue. His comments reinforce the points that I am making. Not only do we need to include a risk analysis in the quinquennial review, but we need to ensure that it is presented in terms that ordinary members of the public can understand. It seems to me that regulations are often drafted in such convoluted terms that it is difficult for anybody except a lawyer to interpret their precise meaning. That is another reason why we need the new clause. The regulations should be drafted in terms that ensure that they are effective. If they are seen not to be effective, that is a very good reason why they should be reviewed after five years.