House again in Committee on Clause 1.
[Amendment No. 16 not moved.]
Page 2, line 4, leave out subsection (5).
The noble Lord said: Amendment No. 17 stands in my name and that of my noble friend Lord Maclennan. I am glad that we have not had another debate about your Lordships' House going into Committee and that we can get straight on with this.
Clause 1(5) states:
“For the purposes of subsection (2), a financial cost or administrative inconvenience may result from the form of any legislation (for example, where the legislation is hard to understand)”.
When law is difficult to understand is an uncertain question, but, in any event, this subsection should be left out. Its intent seems to be to revise legislation so that it is easier to understand. Of course, all of us say, “And a good thing, too”. However, if one looks into this a bit more deeply, one will find, first, that the main problem with understanding legislation is not the difficulty in understanding the words, but the difficulty in finding out what and where the relevant legislation is. There is an endless scattering of provisions among a number of different statutes. Some of the provisions are incorporated as amendments into the original legislation; others are free-standing and not part of the original legislation. Putting statutes in their current form on to an internet database that is accessible to the public would do far more than anything that this Bill authorises to make it easier for people to find out what the law is—so would more frequent consolidation Bills, which already have a simple procedure, as we have seen in the case of a couple of consolidation Bills with which your Lordships' House is now dealing.
It is easy to say that existing provisions can be rewritten to make the law simpler and more accessible. That can be done. An example is the tax law rewrite programme—I have been involved with that for some years now. The tax law rewrite Bills go through the ordinary Bill procedure nominally, but they have the consent of all parties and are enacted after very brief debates.
However, my experience with the tax law rewrite programme shows that it is extremely difficult to rewrite legislation without to some extent changing it. In fact, many minor changes to the law have been incorporated in the tax law rewrite Bills, which are supported by detailed notes that explain what the changes are; if there is any significant change, it cannot be included. The orders that are to be made under this Bill are unlikely to have anything like such detailed notes and, further, they will probably be drafted by the departmental lawyers and not by the extremely able and highly specialised Parliamentary Counsel Office.
One might also ask why it is that legislation is so difficult to understand. If it is difficult for lay people but not for lawyers, that is because of the use of technical language, excessive cross-referencing—so you have to chase up the cross-reference in different legislation—and so on. All those things make it difficult for lay people to follow, but they do not mean that the legislation itself is ambiguous or uncertain. The problem is that, with these technical Bills, which are sometimes drafted in old-fashioned language, you cannot put new wine into old bottles; you have to use consistent language throughout any particular area of legislation. That is why the tax law rewrite programmes have rewritten whole sections of the tax law. You have to use consistent language throughout, and the law needs a full rewrite.
If the problem is that it is difficult for lawyers to understand what the legislation means, that is almost inevitably because the legislation has been badly drafted or has failed to take into account what might happen in future, with the result that the legislation is uncertain and ambiguous and the courts have not solved the problem by giving a ruling on what it actually means. In those circumstances, I believe that solving the uncertainty or ambiguity is in practice really making new law, because what you are doing is converting something that has two possible meanings into something that has only one of those meanings.
This provision has nothing to do with deregulation; it is simply making the case for better drafting, and so should not be in this Bill. It is entirely different from the kind of deregulation that is clearly intended to be here. A considerable burden rests on the Government to establish a justification for this provision in the Bill. I beg to move.
My Amendment No. 18 is grouped with the amendment that the noble Lord, Lord Goodhart, has spoken to. The noble Lord has far more expertise in this field than I could ever muster. I was brought up to believe that there could be no better Act of Parliament than the Sale of Goods Act 1893, which is completely clear, is totally understandable by everybody and has stood the test of time. Would that there were more legislation like that these days—but sadly, as the noble Lord has reminded us, that is not the case.
On the whole, I would not wish to remove the whole subsection, despite the strong arguments that the noble Lord has advanced. It seems to me that it should be possible to use the order-making power under this Bill to make sense of, and to reconcile, what might be a number of different statutory provisions without significantly altering their sense. I understand entirely the problem of rewriting Bills that may have been acted on, have had judicial interpretation and have stood the test of time, obscure though they may be. Nevertheless, in the interests of keeping the law up to date, this is a perfectly proper thing to do.
I take issue with the last few words of Clause 1(5),
“(for example, where the legislation is hard to understand)”.
With the greatest respect, I do not see that that adds anything of value to the preceding words. All the preceding words are saying is that,
“a financial cost or administrative inconvenience may result from the form of any legislation”.
Adding the words in parenthesis makes the subsection more obscure.
The courts may well have understood the measure in the past and, as has been said, have given their interpretation of it, and parties up and down the country may have acted on that interpretation. If one is arguing that the measure should be changed on the ground that lay people find the law difficult to understand, one will run into difficulties. I would not vote against the noble Lord’s amendment, which seeks to remove the subsection. If the Committee takes that view, I would certainly agree with it. But if the subsection is to remain in the Bill—I suspect that the Minister will argue that it should—I would argue very strongly that the words,
“(for example, where the legislation is hard to understand)”,
should be deleted. They add a note of informality that is inappropriate in legislation of this kind. If I may say so, it is a bad example and would be better left out.
I rise to reinforce the point made by my noble friend and to express sympathy with the argument advanced by the noble Lord, Lord Goodhart, of which I see the force. However, I agree with my noble friend Lord Jenkin about the words in parenthesis in particular, as they confuse the picture. My noble friend’s argument is that saying legislation is hard to understand renders the subsection itself hard to understand. But I am concerned about who finds it hard to understand. The relevant words may inject almost an element of mischief by inciting people to claim that something is difficult to understand as a way of avoiding a burden that may be placed on them. The measure creates more problems than it solves. Certainly, the words in parenthesis should come out, but I agree with my noble friend Lord Jenkin that not too much would be lost if the whole of subsection (5) came out of the clause.
I am an enthusiast for the Sale of Goods Act 1893 and its wonderful clarity, at least as much as the noble Lord, Lord Jenkin of Roding, is. I was a little puzzled by the argument advanced by the noble Lord, Lord Goodhart. I thought that he was saying that we did not need to worry about law that was hard to understand because there were other more important problems—for example, the proliferation of laws, the need for consolidation and other such matters.
But if law is “hard to understand”, to use the words in the Bill, that seems to me an example of administrative inconvenience that it might be desirable to change by regulatory order under the Bill. I understand Members of the Committee saying—I would join them—that there are other more important things to do, but the measure is concerned with getting rid of burdens and administrative inconveniences, and one example is given here. If Members of the Committee are saying that they do not like an example being given, and that that is unnecessary, it is rather like the argument advanced earlier by the noble Lord, Lord Peyton of Yeovil, in which he wanted to get rid of certain words because he thought that they were not essential. I refer to the words in the Bill following the word “sanction”. But if it adds clarity, why get rid of the measure?
I would say one small thing. I have been in your Lordships' House for 15 years and I have never yet understood a Bill on my first reading of it. I am not illiterate—I have many degrees—but it is very hard to understand laws. If I have difficulties, people who have to abide by those laws have lots of difficulties. We should do whatever we can do to reduce those difficulties.
I will respond to both noble Lords. The logic of what the noble Lord, Lord Desai, has just said is that all legislation is a burden. That brings us back to the problems inherent in this Bill. Regarding the comments of the noble Lord, Lord Borrie, I thought that the argument was not that the words are superfluous, but that they might inject an element of ambiguity into the provision and that that was why they should be removed.
I shall speak to Amendment No. 55 in this group. Amendments Nos. 67, 71 and 73 are consequential on that amendment.
Amendment No. 55 reflects a recommendation of the Delegated Powers and Regulatory Reform Committee to remove subsections (3) to (5) of Clause 4. Those subsections exempt provisions that restate statute or which codify a rule of law from the protections contained in subsection (2). Subsection (5) of Clause 1 enables a power to be used to consolidate and rewrite primary legislation. So, subsections (3) to (5) of Clause 4 should be read with subsection (5) of Clause 1 in mind.
I agree with everything said by the noble Lord, Lord Goodhart, in speaking to his Amendment No. 17. As the committee pointed out, the definition in subsection (5) of Clause 1 allows the power to be used for rewriting and consolidating primary legislation. In other words, it is a paving power. The question for the Committee is whether the order-making powers are appropriate for the consolidation of statutes.
The Delegated Powers and Regulatory Reform Committee interprets “restates”—the word used in the Bill—as meaning “consolidation”. The committee set out, in paragraph 66 of its report, how Parliament has already set up by statute and standing order fast-track mechanisms to deliver primary legislation for certain purposes, including consolidation. The committee cites, as an example, the Education Act 1996, which was passed in four minutes on the Floor of your Lordships' House and in one minute on the Floor of another place.
The committee goes on to note:
“That Parliament currently requires a bill for such restatement is significant in considering whether to delegate to Ministers the more substantial power to simplify the law”.
The point made by the committee is constitutional. It is saying that primary legislation, not secondary legislation introduced by an order made by Ministers, should be used to simplify the law.
Government Amendment No. 61 attempts to redefine the meaning of “restates”. It is helpful, in as much as it clarifies that restating an enactment relates only to matters of form and arrangement. But it still does not address the principle at stake here, that primary legislation is the appropriate way for legislation to be consolidated or rewritten. The fact that there are already adequate procedures in place to achieve that aim, coupled with the constitutional principle of the inappropriateness of attempting to use the order-making powers in this way, should, I hope, make the Government reconsider what they are trying to do with subsection (5) of Clause 1.
I want to deal with the amendments as a group, but I shall deal with each in turn. Amendment No. 17 relates to the ability to consolidate legislation by order, but I shall turn to Amendments Nos. 67, 71 and 73, which relate to the provisions in Clauses 5, 6 and 7 for orders that restate legislation. I shall then turn to Amendment No. 55, and Amendment No. 61.
Orders under Part 1 will be able to cut red tape by removing or reducing unnecessary burdens and ensuring that regulatory activities are exercised in a way that is proportionate, accountable, consistent, transparent and targeted in line with our policy. As well as providing that orders can remove or reduce burdens, such as financial costs or obstacles to productivity, Clause 1(5) makes it clear that orders could be used to consolidate or restate the law without changing its meaning, where to do so would itself be reducing or removing a burden. That might be where, for example, the legal rules on a particular subject were scattered through numerous pieces of legislation or where legislation was drafted in a way that was very inaccessible.
Amendment No. 17 would remove Clause 1(5) and cast doubt over whether orders could be used to remove burdens resulting from the form of legislation. Amendment No. 18 would remove the words,
“for example, where legislation is hard to understand”.
That would make it less clear what is meant by “a financial cost or administrative inconvenience resulting from the form of legislation” and may cast doubt over whether changes that make the law easier to understand can be delivered under Clause 1.
I assure the Chamber that it is not the Government’s intention to deliver orders that solely consolidate legislation—such measures would be more appropriately delivered by consolidation Bill procedures. By definition, orders could only consolidate or restate legislation where to do so was removing or reducing a burden relating to the form of the legislation. Indeed, consolidating legislation is recognised as a worthwhile form of simplification. The Better Regulation Task Force’s 2005 report Regulation: Less is More emphasised the importance of simplification in terms of cutting red tape. The report identified consolidation as a key part of simplification. Consolidation involves bringing together different regulations into a more manageable form and restating the law more clearly.
The beneficial effects of reducing burdens by consolidating or restating legislation might, for example, mean that small businesses did not need to resort to expensive lawyers to access or interpret the law: they might also improve compliance—for example, with health and safety regulations—as small businesses will find it easier to understand what is required of them.
However, I note that the Delegated Powers and Regulatory Reform Committee recently questioned whether orders should be able to alter the law without changing its meaning. We believe that the power to consolidate legislation by order is a useful one.
As was pointed out by the Delegated Powers Committee, there are fast-track Bill procedures for consolidation. I reiterate: it is not the Government’s intention to deliver pure consolidation by order. I am happy to give an undertaking on behalf of the Government that orders under Clause 1 will only consolidate or restate legislation as part of wider reforms. That would mean that the ability to remove or reduce burdens in the form of a financial cost or administrative inconvenience resulting from the form of legislation would be exercised only when burdens that did not result only from the form of legislation were being removed or reduced.
I accept that some noble Lords may have concerns that restatement or consolidation delivered by order is more vulnerable to being quashed by the courts in a judicial review than when that is done in a Bill. Perhaps they believe that this may cause problems for legal certainty or may change the standard roles of Parliament and the judiciary in relation to primary legislation. The issue is that primary legislation is not subject to judicial review, but secondary legislation—including secondary legislation that amends or repeals primary legislation, as with orders under this Bill—can be reviewed by the courts and quashed if it is found to be unlawful for some reason.
Before making an order under Part 1 that restates provisions, the Minister must in any event consider that the restatement of the provisions would make the law more accessible or more easily understood.The Minister must give evidence for his opinion on both issues in the Explanatory Notes laid before Parliament and any impact assessment, if appropriate. The parliamentary committees will then come to a view on whether the criteria have been satisfied and may veto an order if they do not find convincing the evidence that the Minister provides. In acting on the issues, the Minister must be under a public law duty to act reasonably.
It is also true that it is reasonably common for primary legislation to amend secondary legislation. That is done regularly, for example, through the useof powers under Section 2(2) of the European Communities Act 1972 when implementing Community obligations in domestic law. Some 29 regulatory reform orders have now been delivered under the 2001 Act, all amending primary legislation by secondary legislation, and none of them has been judicially reviewed. So I would argue that, to that extent, it has been a successful process. When it comes to reforming an entire regime by order, it may be efficient to consolidate or simplify legislation in the same order. I cannot support Amendment No. 17, as I believe that it would create an arbitrary limit, providing a disincentive for using the order-making powers for proposals that would sensibly include restatement or consolidation.
Amendments Nos. 67, 71 and 73 would amend Clauses 5, 6 and 7 and could limit the Bill’s ability to restate legislation. I emphasise that in this case we may well be dealing with the restatement of individual provisions rather than wide-scale consolidation.
Amendment No. 67 would remove an exemption with the effect that, if an order restated provisions that conferred a power to legislate on a Minister, it would have to require the power to be exercised by the making of a statutory instrument subject to the negative or affirmative procedure. Where currently there is a power for a Minister to make a statutory instrument that has to be laid before Parliament but is not subject to negative or affirmative resolution procedures or does not have to be laid before Parliament at all, the mere fact that the provisions were being restated but not changed in any way by an order would mean that in future they would have to be subject to negative or affirmative resolution procedures.
Amendment No. 67 could therefore make the process for exercising powers to legislate in the future far more onerous, even though the powers themselves were not being changed by the order. That could prove a disincentive for using the order-making powers, particularly for large reforms, which are more likely to already include powers to legislate.
Amendment No. 71 would remove the provision that orders may not impose or increase taxation. Clause 6(2) provides that the restrictions do not apply to provisions that merely restate existing taxation. The amendment would have the effect that it might not be possible to restate any provisions that in themselves imposed or increased taxation. I should make it clear that the Government have no intention of replacing their successful Tax Law Rewrite Project with reforms delivered by order, but the effect of the amendment would be that orders might restrict the useful provision that orders could make in the area of taxation, even where no changes were being made to the substance of the provisions.
Therefore, I cannot support Amendments Nos. 67, 71 and 73, as they would limit the ability of orders to restate legislation without changing its meaning, which may be worthwhile including in a wider package of reform to be delivered by order, as is obviously the case with the now oft-quoted Fire Safety Regulatory Reform Order.
Amendment No. 55 relates to orders that restate legislation and to those that codify the common law—that is, orders that put rules of the common law provisions on to a statutory footing without changing their meaning. The Government have tabled amendments removing the power to codify the common law, consequential on our amendments to remove Clause 3, which provided a power to implement Law Commission recommendations.
Clause 4 sets out preconditions that orders must satisfy. The preconditions in Clause 4(2), which safeguard such things as necessary protections, do not apply to orders that only restate enactments or codify the common law. That is because, when making the legislation containing the provisions that are to be restated, Parliament will already have decided that they are desirable. Where orders simply move the provisions from one piece of legislation into an order without changing their meaning, it does not seem appropriate for orders to open up a debate on the principle behind provisions that have already been agreed by both Houses and which the Government are not attempting to change.
However, a different precondition applies to orders that restate enactments or codify the common law. The restatement of the provisions must make the law more accessible or easily understood. We argue that this is a useful precondition on the use of the power to restate the law, as it ensures that restatements will be made only when they will have genuine better-regulation benefits.
Amendment No. 55 would remove that separate precondition and would provide that all orders, even those merely restating or codifying the law, must meet the preconditions in Clause 4(2). This forms part of one of the recommendations of the recent DPRRC report, but the DPRRC’s recommendation seemed to be based on the fact that it believed that orders should not be able to consolidate or restate the law, which would be the effect of Amendment No. 17—I have already discussed this amendment. If the power to consolidate was removed, the DPRRC rightly believes that there would be no need for a separate precondition covering orders that restated the law.
There may be two concerns underlying the amendment. The first might be that subsections (3), (4) and (5) of Clause 4 could be used to avoid orders having to meet the preconditions in Clause 4(2). That is not the case. The definition of restatement in the Bill is replacing provisions with alterations only of form or arrangement, which does not include removing an ambiguity or making an alteration other than one of form or arrangement. If any substantial change were being made, it would not be a restatement, and the other five preconditions would apply instead. AmendmentNo. 61 is a minor drafting amendment, which moves the definition of restatement from Clause 22, which the Government seek to remove, to Clause 4 which, in view of the change, is a more logical place for it to rest.
The other concern may be that orders could be used to restate existing provisions that themselves might not satisfy the preconditions in Clause 4 that rights and freedoms and necessary protections, and so on, must be maintained. It is my view that, if Parliament has already agreed to such provisions, it is right that orders should be able merely to restate the provisions without changing their meaning.
Amendment No. 55 would merely make the process of making orders that do not seek to change the meaning of existing provisions more laborious. Departments would have another range of processes to go through, providing a disincentive for the use of the order-making powers and slowing down the delivery of regulatory reform by order. Amendment No. 55 would mean that departments would have to justify how provisions restating the law met the tests in Clause 4(2), rather than the more relevant test in Clause 4(5) that orders can restate the law only where to do so would make the law more accessible or more easily understood. Amendment No. 55 would, therefore, have the disadvantage of hindering the delivery of better regulation and would bring little, if any, benefit.
For those reasons, I ask noble Lords to consider carefully Amendments Nos. 17, 18, 55, 67, 71 and 73, and, for the purpose of good order in the Bill, I commend Amendment No. 61 to the Committee.
I thought that I had addressed Amendment No. 18. I take the rebuke of the noble Lord seriously. I shall find my notes and see what more I can add on that issue.
As I understood it, the amendment would delete the elucidation on consolidation in Clause 1(5). Amendment No. 18 would remove the words,
“for example, where legislation is hard to understand”.
That is intended to be a helpful explanation of what is meant by a burden arising from the form of legislation. We argue that the effect would be to make it less clear what is meant by financial cost or administrative inconvenience resulting from the form of legislation. I think that I argued earlier that we thought that that would cast unnecessary doubt over what types of changes to legislation could be made that would remove or reduce burdens. I apologise for an element of repetition there. That is the explanation.
I entirely agree with the noble Lord, Lord Jenkin, that the Sale of Goods Act 1893 is a masterpiece of parliamentary draftsmanship. There was a golden period of parliamentary draftsmanship, which ran roughly from about the late 1880s until the First World War, when the parliamentary draftsmen were brilliant at producing quite simple, easily understandable Bills, dealing with issues like the sale of goods and the Partnership Act 1890, which was extremely clear and, effectively, lasted for over a century.
To get a bit closer to business, I must say that I was grateful to the noble Lord, Lord Kingsland, for his support of my amendment. I return the compliment by expressing support for his.
We are ending up in a thoroughly untidy situation here. It is increasingly clear that Clause 1(5) and subsections (3) and (5) of Clause 4 are themselves hard to understand. If they go into the Act, as it will become, they may well be prime targets for the necessary orders.
The position on consolidation is extremely complex. We all agree that consolidation enormously helps lawyers and lay people to understand what the law is. We have a situation where, if it is pure consolidation, you must have a consolidation Bill because the definition of “restatement” makes it clear that you cannot restate legislation unless it does more than merely restating it. If you are consolidating with a few changes, you can use a restatement procedure. You cannot consolidate with more substantial changes because you are doing something more than restating the law. We are getting into a great state of confusion.
There are undoubtedly serious problems with the provisions that this group of amendments looks at. I intend to take this away, and I expect that we shall come back; not necessarily with Amendment No. 17 in its present form, although I would not rule that out. Alternatively, we will come back with something else, taking into account the nature of tonight’s debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
Page 2, line 6, at end insert—
“( ) For the purposes of subsection (2), where a Minister of the Crown considers that a rule or regulation is causing a burden or burdens on the ground that it is hard to understand, he must lay an order within no more than three months revoking or clarifying that rule or regulation.”
The noble Baroness said: The amendment will bring an impetus to the deregulatory process, imposing a duty on a Minister to initiate the order-making process within three months when he or she considers that a regulation is causing difficulties through its complexity or confusing language. It will toughen up the process.
There is nothing in the Bill that forces a Minister to get a move on and drive his department forward in getting regulations removed or clarified. I can see procrastination creeping in at every stage of the process. We need a firm commitment in the Bill to swift and aggressive deregulation. It is no use having the means to get burdens removed but no means to get the Minister to go ahead with the process. I beg to move.
My noble friend has approached the problem from a different angle from that which we have done thus far. Generally, the burden of the cases made has been whether this is appropriate to an order-making power or should be left to full-scale legislation. But I have also been considering that, so far as I can see, the Bill lacks any procedure to oblige Ministers to deregulate. I wonder whether we ought seriously to consider that. My noble friend’s amendment is limited to where the burden arises because the legislation is hard to understand, but there surely ought to be some procedure whereby a citizen or firm that is aggrieved by the failure of a Government to deregulate can do something about it. We have lots of procedures to stop a Government using the powers in the Bill for improper purposes, and we must welcome them, but where in the Bill is there a procedure that a citizen could use to draw attention to a case that could benefit from deregulation in any of the forms that the Minister has described and to ask the Government to deregulate? At the moment, all a citizen can do is write to his Member of Parliament, who may be persuaded to raise the matter by Question. There is no legal procedure whereby a citizen can oblige the Minister to deregulate and, if there is a dispute, to have it determined in some appropriate way. The Committee ought to return to this; in the mean time, my noble friend has offered a valuable road ahead.
While I have considerable sympathy with what I take to be the purpose of this amendment, I do not think it has solved the conundrum to which the noble Lord, Lord Jenkin, referred. The amendment does not effectively impose any enforceable obligation to act. It requires the Minister to,
“lay an order within no more than three months”,
but does not tie that obligation to any period in time. It would be open to the Minister to say that he had not observed any difficulty or burden and thus avoid the obligation. It is helpful to have identified the problem, but we need to consider this further.
Those of us who read the report of the Delegated Powers and Regulatory Reform Committee will remember that the problem is not that Ministers have not been eager to have regulatory reform but that the consultation procedures that the 2001 Act requires slow things down. The problem is not hurrying Ministers on but is getting clarity in the legislation so that the little things that the Minister wants to carry out do not take 1,900 days, as the abolition of the beet-sugar research corporation did. I sat in the committee and considered this reform and the problem is never the Minister’s eagerness but that we have created a structure that is extremely hard to dismantle.
I hope that the Government are not in effect building an extremely nice car and keeping it in the garage. The aim, with which nobody disagrees, is to push for deregulation and there must be something other than ministerial good intentions to make sure that it happens. I completely agree with the noble Lord, Lord Desai, that deregulation is hard because of old working habits, Civil Service inertia and ministerial inertia. All those problems are completely foreseeable. I should think that the Minister has experienced them in detail, and frequently. Somehow we should get this Bill right and not allow Ministers too much power. They should do what they have to do quickly and well, and provision should be built into the Act that they have to do it. I do not say that this is necessarily the ideal way of doing it but the principle and the thought behind the amendment are completely right.
I hope that the Government will consider favourably the idea underlying this. I can see that there is a problem with the exact language adopted. It appears to refer to cases where a Minister of the Crown considers that a rule is causing a burden and so on. Ministerial indolence will be a complete answer to that. Ministers form no view whatever. So, as drafted, the provision allows for a very indolent ministerial reaction. Could not the Government find favour with the idea of putting some energy into the Bill at this point, and could they—no doubt in collaboration with the other side—produce a text to provide what many of us want?
In a way, I am delighted that the noble Baroness has moved this amendment because it tells me that certainly part of the Chamber—and that has been echoed in the past few minutes—is keen to see deregulation and the use of this order-making process actually happen. My noble friend Lord Desai put his finger on the point by saying that it was not due to ministerial inertia that the 1994 Act did not do the business—I have no doubt that it was the same when the Conservatives were in government—but it is because the procedures binding the order-making procedure have so inhibited Ministers that we have not been able to make better use of the 2001 Act.
I agree with what the noble Lord, Lord Neill of Bladen, and the noble Earl, Lord Onslow, say about how this proposal would work. I am not sure that it is necessarily the right approach. The Minister may not want to use the order-making process to deregulate; it may be better to put it in primary legislation or deal with it in guidance. To try to impose a three-month timetable could end up being counterproductive. I certainly like the enthusiastic spirit behind the amendment.
I am not going to give a commitment that we will come back with something similar. I certainly want to reflect on the argument because it is undoubtedly of value. I am grateful to the party opposite for beginning fully to engage with what we are trying to achieve. In those terms I have to say that I reject the amendment because I do not think that it will achieve what it seeks.
There are mechanisms for the public to propose regulatory simplification, as I explained, through the portal process, which has had a measure of success to date. We are committed to responding to those proposals within 90 days. That mechanism has worked quite well. But I like the spirit behind the amendment. I will reflect on whether there is some merit in it. I doubt whether I shall table an amendment that moves it forward in the way the noble Baroness seeks. I do not think it would work as she would like, and in some senses it would be counterproductive, particularly where there are other mechanisms for achieving what the noble Baroness seeks to do through the amendment.
I went from hot to cold and cold to hot there. I listened to what the Minister said. At first I thought that he was not going to accept this at all. I listened to the noble Lord, Lord Desai, and then to the Minister. What they were saying was the opposite of what the noble Lord, Lord Dahrendorf, said in his report. He said that it is not the parliamentary procedure but the lack of political will for a Minister to drive deregulation programmes through, which makes it unsuccessful. So in actual fact the noble Lord was not in agreement with either noble Lord.
I am sorry that the noble Lord, Lord Neill of Bladen, did not like my wording, because I know him to be a distinguished lawyer. I hope that we will be able to come up with acceptable wording. At least this is the first amendment tonight on which we have moved anywhere, so I am grateful for that. At this stage, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 2, line 18, leave out paragraphs (a) to (c) and insert-
“(a) provision abolishing, conferring or transferring, or providing for the delegation of, functions of any description, (b) provision creating or abolishing a body or office,”
The noble Lord said: This is a complex group of amendments, including both government and opposition amendments. For that reason, I think that I had best address our amendments and then work at some pace through the others in the group. Amendments Nos. 65 and 66 and 68 and 69 concern the power to confer legislative functions by order. The ability to confer the function of legislating is important so that orders can be more easily designed to deliver large-scale reforms to entire regimes.
A function of legislating, as the Bill specifies, means to legislate by order, rules, regulations or other subordinate instrument. Bills of an equivalent size often include powers to make secondary legislation, since it is usually not appropriate or necessary for all the detail of a statutory regime to be set out in primary legislation, or because some aspects of a statutory regime may need subsequent amending or updating.
We welcome the conclusions of the Delegated Powers and Regulatory Reform Committee, which stated that including in the Bill a power to confer legislative functions by order to Ministers and other suitable bodies is not inappropriate. The committee evidently has a lot of expertise in this area and we are very grateful for its support.
Amendment No. 65 restricts the persons or bodies eligible for such powers to three categories. The first is Ministers—the category of persons most likely to be given powers to legislate as part of future orders. The second category is persons or bodies who have functions under an enactment. That will ensure that powers to legislate will be conferred only on persons or bodies already recognised by Parliament as suitable. The third category is a body, or the holder of an office, which has been created by the order itself. That power will be useful, for example, in the case of mergers, where the successful transfer of function may necessitate the creation of a new body.
A minor amendment, Amendment No. 66, has been proposed by the Government to further clarify the parliamentary procedures that must apply to the exercise of legislative powers conferred on Ministers. We hope that that minor power will be seen as useful and valuable.
We have also sought under Amendment No. 65 to respond to concerns surrounding the ability of bodies or officers who have been given legislative power by order further to delegate those powers to others. Evidently, that would be an inappropriate use of the power in the Bill and is something that the Government want to protect against. I have already stated that the Government's view is that it would not be possible further to delegate legislative powers conferred by order under the Bill; an express provision in the Bill would be needed in order to allow that. However, to put the issue beyond doubt, Amendment No. 65 explicitly prevents powers to legislate conferred by order being further delegated to someone else.
The purpose of government Amendments Nos. 20 and 36 to 38 is to make clearer the types of provision that it is possible to make under Clauses 1 and 2. In general, they are drafting improvements which are not intended to change the scope of those powers. Amendment No. 20 re-organises and makes minor changes to some of the provisions in Clause 1(7) and in doing so makes it clearer that orders made under Clause 1 may contain provision abolishing, conferring, or providing for the delegation of functions of any description, and that they may create new bodies or offices.
Amendments Nos. 36 to 38 similarly improve Clause 2 to make it clearer what can and cannot be done under the power. In particular, the amendments make it explicit that an order under Clause 2 cannot create or abolish any new regulatory function. Clause 2 is about affecting the way in which regulatory functions are exercised, not about changing those functions. The amendments clarify that it will be possible to create or abolish bodies only in the context of transferring regulatory functions to new bodies, and only then for the purpose of furthering the principles of better regulation set out in subsection (3).
Amendments Nos. 68, 69, 86, 87 and 90 introduce minor drafting changes or consequential amendments to Clauses 5 and 15, and are considered necessary for the purposes of clarity. Amendment No. 68, for example, is purely consequential on Clause 5, which now contains an extra subsection. Amendment No. 69 simply moves the definition of “a function of legislating” from its previous position in Clause 22, as it is better placed in Clause 5. Amendment No. 90 ensures that this definition also applies to Clause 15. For these reasons, I commend the amendments to the Committee.
I would rather address the other amendments in the group when I have heard the range of arguments from noble Lords opposite. I think that will probably be more helpful to the Committee. I beg to move.
I shall speak to AmendmentsNos. 21, 22 and 23 in the group. We, on these Benches, are rather circumspect about the government amendments. The key government amendment is Amendment No. 65, which will insert new subsections (A1) and (A2) into Clause 5. New subsection (A1) limits the conferral or transfer of legislative functions to either a Minister or a person to whom functions are conferred or have been transferred by statute. The Government have therefore, apparently, limited the excessive sub-delegation of legislative functions originally proposed in the Bill. So far, so good. However, the Government have not gone far enough, in our view, to meet our concerns over this vital issue.
New subsection (A1)(c) in Amendment No. 65 allows the Minister, through an order, to create a new body to which functions can be transferred or upon which functions can be conferred. In other words, the Minister may create a new body and simultaneously transfer or confer legislative functions on it. That makes new subsection (A2) rather meaningless, does it not? It is hard to see how establishing a new body and then conferring legislative functions on it is substantively different from delegating a legislative function to someone else.
Amendments Nos. 22 and 23 give rise to a different issue. The Government have retained subsection (7)(d), which allows for provision to be made under Clause 1 to abolish a body or office established by or under an enactment. Amendment No. 22 leaves out this paragraph altogether—the most satisfactory solution. Amendment No. 23 expresses an alternative approach. A statutory body or office can be abolished only if its functions have been transferred elsewhere. The reason for the amendment is that, under the Bill, bodies or offices can be removed and their functions not replaced. I understand why these powers might be needed in Clause 2. Those powers relate only to regulatory functions, and concern the implementation of the Hampton mergers of regulators; but why do we need the power in Clause 1—a power that is open to abuse? To take an extreme example, on the current drafting, the new Supreme Court could be removed without its functions being replaced. I could cite further examples of bodies or offices that somewhere down the line impose a burden on others which might be removed under this order-making power. Please could the Minister kindly explain why such a broad power is needed? The power in Clause 1 should be limited to reorganisation and administrative changes, rather than the wholesale removal of statutory bodies and offices.
In fact, the government amendments go further. They now allow for a provision that could abolish a body or an office that is not even statutory. That power already exists in Clause 2. But that is more acceptable because it relates solely to the exercise of regulatory functions. Clause 1 provides for an order-making power far wider than the Clause 2 power, and for no apparent reason.
Finally, I would observe that new subsection (4)(b) to Clause 2 states that Clause 2 cannot be used to abolish any regulatory function. It seems extraordinary that, in a Bill which we all hoped to be deregulatory in purpose, the Government are, on the one hand, restricting the scope of provisions that promote sensible regulatory principles, yet, on the other, they are widening the scope of the orders under Clause 1.
My Amendment No. 25in this group was prompted by the report fromthe Delegated Powers and Regulatory Reform Committee. It conceded that it did not regard sub-delegation as inappropriate, but at paragraph 35 it argued,
“that the bill should specify the categories of person …who, in addition to Ministers, could by order be empowered to legislate”.
My amendment was designed to address that. To some extent, it is now superseded by government Amendment No. 65, but my amendment would limit it to new subsection (A1)(a) and (b). I share my noble friend’s concern about the inclusion of paragraph (c), which extends it to,
“a body which, or the holder of an office which, is created by the order”.
To some extent that seems to get around the provision that we are seeking to limit. It seems almost to negate the purpose of bringing this provision forward. While I welcome the move forward that this represents in responding to the report of the Delegated Powers Committee, it would be better if subsection (A1)(c) was not included.
My Amendment No. 24, which is also in the name of my noble friend Lord Goodhart, may to some extent have been addressed by Amendment No. 65. However, I am bound to say that I am extremely concerned about the way in which we are legislating in these provisions. The Government published Explanatory Notes some time ago describing, for example, the effect of Clause 1(7). Before us, in government Amendment No. 20, we have provisions entirely different in formulation from those which their Explanatory Notes purport to describe.
When matters of such complexity and opacity are brought forward, after the committees of this House and another place have considered them, it is not satisfactory that they are bounced on us as these have been today. It seemed to me clear that we ought to consider the limits of delegation systematically. That is not how this has been handled. We have a new provision which appears to recognise what I would have thought was a basic constitutional provision; namely, that only Ministers can introduce legislation to Parliament. That is confused in the original language of subsection (7), which did not confine legislation to activities which were the responsibility of Parliament. It is recognised in the definitions set out in subsection (6) that they might include,
“rules, regulations, scheme, warrant, byelaw or other subordinate instrument made at any time under an Act referred to”.
If it is the Government’s intention to clarify these matters for the benefit of the general public in the process of accelerating deregulation, I believe that they could have done a much better job with this series of amendments. Indeed, I am led to ask whether there is not some pretty profound defect in the Government’s approach to the Bill. When there is such widespread agreement about the need for deregulation, I wonder—and I do so out loud—why we are being presented with these proposals in a semi-adversarial fashion when we could conceivably have instigated procedures under which the best minds could have been brought to bear. The task could even have been delegated to a body such as the Law Commission.
It baffles me that we are sitting here at this hour of the night logic-chopping about the precise appropriateness of these complex subsections introduced by the Government at the last minute. Candidly, I do not feel sufficiently strongly that Amendment No. 24 is necessary in the light of what the Government have tabled at broadly the same time to commend it as a better enunciation of the principle of the limits to delegation—but that there should be limits to delegation seems clear, and they certainly were not clear as defined in the original Bill. The most appropriate response to what we are faced with tonight is that of caveat emptor: let us consider carefully and in the round what the Government have brought forward before we commit ourselves. I say that particularly noting that although the noble Lord, Lord Bassam, has attempted to explain on behalf of the Government what the effect is, and has done so perfectly reasonably if in a semi-abstract fashion, how are these provisions,
“abolishing, conferring or transferring, or providing for the delegation of, functions of any description”,
intended to be used? It is an extraordinarily wide statement which obviously includes the function of legislation. I look forward to hearing of some practical examples and I hope that the Minister will think it worthwhile to communicate with those of us interested in the Bill and keen to see it work effectively.
I have anxieties about one of the government amendments, Amendment No. 38 which, as the Minister described it, refers to the ability,
“to create a new body to which, or a new office to the holder of which, regulatory functions are transferred … to abolish a body from which”,
et cetera. I shall give an example. When we were debating the Human Tissue Bill a couple of years ago, which resulted in the creation of the Human Tissue Authority—certainly a regulatory body with powers to make regulations—it came out almost by accident that in the Government’s cull of non-departmental public bodies, the department had it in mind to merge the roles of the Human Tissue Authority with the Human Fertilisation and Embryology Authority. The result in the Committee—I do not think the patronage secretary was there at the time—was that the very experienced and knowledgeable medical Members who sit in many parts of this House were immediately alerted and outraged. They said—and I joined in the debate because, as a former Secretary of State for Health, perhaps I had some standing—that these were two entirely different bodies and it would be absurd to merge their functions into a single body.
The Minister in charge of the Bill, the noble Lord, Lord Warner, was immediately aware that he had trodden on a snake in the long grass and hastened to assure the Committee that no such merger could possibly take place without primary legislation. So we subsided and said that that would be an opportunity to lay to rest what was seen by many of us as an absurd proposal. One has only to think for a moment to realise that they are two entirely different bodies with entirely different functions.
After reading government Amendment No. 38, and in particular subsection (4A)(a) and (b), it seems to me clear beyond peradventure that, if it goes into the Bill in this form, the Government could achieve their aim of merging those two regulatory bodies into one by transferring the functions of both to a new body and then abolishing the old ones. I do not expect the Minister to be fully au fait with the intricacies of what was discussed in the Human Tissue Bill—now the Human Tissue Act—but it is a concrete example of what appears to be the possibility that is opened under this new clause and that ought not to be opened at all.
I hope the Minister will be able to give us some reassuring words that he will be able to consult his colleagues and say, “Of course, this will not happen”. If necessary, we can look for amendments at a later stage which would make it perfectly clear that that, or anything like it, would require primary legislation and could not be achieved by an order under this Bill.
I am grateful to noble Lords for their contributions to the debate on the further group of amendments and for their points on the amendments that I moved earlier. I intend to take the groups of amendments in order and deal with the points that have been raised. I am grateful, too, to the noble Lord, Lord Maclennan, for his constructive comments on the government amendments. In his comments and commentary he raised some valuable and valid points about process and I shall make one or two observations about that.
Perhaps I may deal first with the amendments in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Wilcox. Amendment No. 21 seeks to prevent orders conferring powers to legislate entirely. The Government consider that this would create an unacceptable arrangement for this reason: it would impose an unnecessary restriction on the order-making power and reproduce almost precisely one of the barriers to successful regulatory reform under the 2001 Act.
It has seemed to me during the course of today’s debates that there is a fair measure of agreement about the need to regulate, but when it comes down to a particular proposal there is always another argument against it which in itself could create yet another tier of considerations before we finally get round to doing some deregulation. I am anxious to avoid that, but I think this amendment falls into that category.
Let me give two examples of how the amendment might have held up, or contributed to holding up, beneficial changes. The inability to confer legislative functions by order under the 2001 Act led to a number of sensible proposed orders being dropped or modified. I have already quoted the fire safety regulatory removal order, as it were, and I shall quote it again now. Under that order we could not widen the existing powers to make regulations relating to fire safety to include risk assessment. I was being urged earlier to include risk assessment on the face of the Bill, and I gave good reasons why we could not do that. We could not put a provision regarding risk assessment into that order; and so, if we go back to the 2001 Act principles, as this amendment suggests, that is something that we would not be able to do.
The second example is that a proposal to givethe Secretary of State powers to make statutory instruments to determine the functions of a new public health agency could not be delivered by a regulatory reform order. In many instances, I am sure that that would be uncontroversial and that Members of your Lordships' House and another place would find it entirely agreeable. But we could not do that under the 2001 Act. There is a good case for being able to do it because, in many instances, it would be an uncontroversial and sensible step forward. I hope that Members of the Committee will give some thought to those examples.
Amendment No. 22 would prevent orders abolishing bodies or offices established by enactment. I hope that Members of the Committee have had the opportunity to consider points raised concerning the potential of the Bill to deliver mergers of regulators to ease burdens on the regulated sector and to take forward a regulatory environment characterised by the proportionate, risk-based and targeted regulation and inspection process that most of us see as a form of enlightenment. The provision which it is proposed to remove is, in our case, essential to realising those goals; for that reason, I cannot support it.
Amendment No. 23 introduces what seems to be a less restrictive formulation, but it seeks to provide that an order can contain provision to abolish a body or office only if it also provides that the functions of those bodies are transferred to another person. I have sympathy with that amendment which, in principle, corresponds with the purposes of the provisions in the Bill. However, I also have reservations about the practical effect of the amendment. The abolition and creation of a regulatory body would clearly necessitate the transferral of regulatory functions. However, the very rationale for undertaking such a merger may be not only to transfer existing functions but to modify, create or abolish certain functions to reduce or remove burdens on the regulated. The amendment would mean that there was doubt as to whether such changes could be made to functions. In this way, the amendment could ultimately negate the value of the Bill as a vehicle for delivering beneficial mergers of regulators. It also seems somewhat unnecessary to petition for the restriction or removal of this provision. I hope that Members of the Committee will take assurance that the safeguards in the Bill, as we have discussed them, will always prevent the inappropriate usage of that power.
The noble Lord, Lord Kingsland, made a couple of important points, in particular about the provision that he said would allow Government to create a new body and then give it legislative functions. There needs to be a provision to allow bodies to be created and have legislative powers conferred on them to allow for the implementation of some mergers of regulators, as recommended in the Hampton review, where functions are to be given to a new body. Completing such mergers successfully may involve conferring a range of functions on new bodies, which may include functions of legislating. Without this provision, it would be necessary to use two orders to complete a number of these mergers—one to create the new body and a subsequent one to confer legislative functions on it. That would be unnecessarily bureaucratic and a poor use of parliamentary time. It is right that Parliament has the opportunity to consider the merits of the proposals of that order at one and the same time.
The noble Lord, Lord Kingsland, also said he thought there was an inconsistency between Clauses 1 and 2. They have different purposes: Clause 2 is about ensuring that existing regulatory functions are exercised so as to comply with the five principles that have been the thread behind the legislation. Clause 1 is about removing or reducing burdens where a regulatory function is outdated.
I am most grateful to the noble Lord for giving way. I think we would be much less concerned about this issue if we were confident that Clause 1 would be used only in the regulatory context. One of the difficulties about accepting what the Minister has said about the amendments is that there is no limiting criterion for Clause 1 which would permit it to operate only within the regulatory context. If the Minister would be prepared to insert the word “regulatory” between “reduce” and “burdens” in the title of Clause 1, Power to remove or reduce burdens, much of what he said would be acceptable.
I shall say no more than that I will give the point fair consideration. I am sure that it is constructively made.
I said earlier that I thought that the noble Lord, Lord Maclennan, was being generous in his comments because he conceded that his Amendment No. 24, if it had not necessarily been superseded by government Amendment No. 65, seemed to address the same range of issues. He said that he would go away and reflect on it further. I am grateful for that because it probably means that I do not have to go through a rather long, and what the noble Lord might consider slightly turgid, explanation of why we reject Amendment No. 24. I hope that, having heard what I said earlier about Amendment No. 65, he will reflect on it further. I am sure that I will happily deal with further concerns that were at the root of his amendment outside the parameters of the Committee. I am grateful for the noble Lord saying that he was minded in any event to withdraw his amendment.
I turn to Amendment No. 25, tabled by the noble Lord, Lord Norton of Louth. I certainly understand its rationale. It seems to stem from a set of priorities that is similar to those of the Government. The amendment provides that the power of legislating can be conferred only on bodies which are themselves set up in statute. I am grateful to noble Lords for their contribution to debates on this issue. I certainly understand the noble Lord’s objective in proposing this amendment, which is to ensure that powers to legislate can be conferred only appropriately. As described, the Government have considerable sympathy with this objective, and we have introduced our own amendment to the Bill to ensure that legislative powers can be conferred only on appropriate persons and bodies.
However, I have concerns that the amendment put forward by the noble Lord would not in practice further this important objective. Most immediately, it rules out the possibility of conferring powers to legislate on Ministers—the category of persons who, as the above examples suggest, are most likely to require such powers as part of a proposal for regulatory reform. It would rule out other bodies or organisations which, while they have important functions conferred under an enactment, were not set up by statute. I conclude that the noble Lord’s amendment is in essence probably too restrictive.
The second part of the amendment provides that legislative powers could be conferred on bodies only to legislate in areas for which they already have responsibility. While I understand the rationale for the proposal—in most cases, of course, a power to legislate would be given to a body only to make legislation in its area of responsibility—my concern is that it may create an overly restrictive arrangement in practice. In the case of orders implementing mergers, as recommended in the Hampton review, or reforming entire regulatory regimes, as with the Regulatory Reform (Fire Safety) Order 2005, sensible modifications to a body’s legislative powers may be integral to the proposal in question. In this case, such a restriction would prevent the delivery of a worthwhile reform.
It is worth reminding ourselves that it is Parliament, not Ministers, that remains the final arbiter of what is an appropriate use of the powers in the Bill. The critical point of which I should remind your Lordships is that Parliament and its committees would never approve a measure giving bodies or persons powers to legislate on matters completely unrelated to their duties or inappropriate for other reasons. Perhaps the noble Lord, Lord Norton, will further reflect on that.
The noble Lord, Lord Jenkin, raised something of a red herring about abolishing bodies to the extent that we would be able to bring into play mergers which were highly controversial and ought to be constructed through primary legislation. The Government have given a very clear undertaking that they will not deliver highly controversial proposals by the regulatory reform order route. The precondition in Clause 4 prevents orders that do not maintain necessary protections and rights. So the noble Lord should be satisfied that that is effectively a protection that rules out controversial mergers by order. There may be mergers that are not in the least bit controversial—which are dead boring and nobody is at all interested in but which are sensible and make a lot of administrative and organisational sense and would reduce burdens on business, which is what we are all trying to archive. Ultimately, of course, there is a statutory right of veto enshrined in the legislation.
I am partially reassured by what the Minister has said, but I wonder whether he could undertake to make a few inquiries and perhaps write to me and reassure me on this matter. That letter could be available to the people who are very concerned about this proposal, which, so far as I know, is still a live one in the Department of Health. It could assure them that there was no possibility of the issue being dealt with under this Bill and that it could be dealt with only through primary legislation. If he could write to me on that, I would very much appreciate it.
I am happy to write to the noble Lord on the issue. Of course, I would share that correspondence with other noble Lords. The only difficulty that I foresee in that correspondence is that it is not always easy to define “controversial”, although we all probably understand what it might be.
I shall certainly write to the noble Lord on that point. I have dealt in fair measure with the points that were raised. I hope that noble Lords will not feel it necessary to press the amendments in the same group.
On Question, amendment agreed to.
[Amendments Nos. 21 to 25 not moved.]
Page 2, line 26, at end insert—
“( ) Provision may not be made under subsection (1) to amend or repeal primary legislation unless the Minister has presented to Parliament proof that the same objectives cannot be achieved by amending or revoking secondary legislation.”
The noble Earl said: First, I thank the Chief Whip for agreeing to take this amendment slightly later than we would normally debate an amendment. I thank the Government for giving me some more time—and I shall attempt to be short. Note that I said “short”, not brief, as everybody else says.
What has been exercising me, as noble Lords know, throughout the whole of this legislation is the power that Government Ministers are taking to use and change primary legislation. On the past amendment or two, we have had speeches from my noble friends Lord Kingsland and Lord Norton of Louth and from the noble Lord, Lord Maclennan, who described how frightfully complicated the effort to deregulate is and the complexity of the legislation itself. So one is between the Scylla of excessive government power and the Charybdis of over-regulation—and it is extremely difficult to get through those two stones.
I am trying to suggest to the Committee that the primary way of deregulation must be through deregulation and not “delegislation”. Of course, I am not going to divide the Committee on this amendment, as I am sure that the wording is wrong, but I hope that the Government will give an undertaking that we shall always go down the deregulatory regulation route rather than attempt to amend primary legislation. It is in the power of Governments to amend primary legislation easily, but that is something that should be resisted by all of us most of the time. As parliamentarians, we should not allow Ministers to have this power unless it is absolutely vital. I beg to move.
At this hour, I will be both short and brief. We certainly support my noble friend’s amendment and we look forward to hearing what the Government have to say on it. I hope that, if my noble friend feels that the answer is not satisfactory, he will be more than happy to bring the amendment back at a later stage.
As the hour is late, I shall edit my speaking notes, for which I am sure the noble Earl, Lord Onslow, will be grateful. I shall not criticise the drafting of the amendment; it is a credit to the noble Earl that he has tabled the amendment in the form in which he has.
If my recollection is right, at Second Reading the noble Earl questioned fairly repeatedly why changes to primary legislation would be needed to get rid of regulation. There may be confusion over the word “regulation”, since regulations are a type of secondary legislation. However, the order-making power in Clause 1 is a power to remove or reduce burdens or regulation by amending or repealing either primary or secondary legislation. The power to amend or revoke secondary legislation is less important, as departments will always have a power to do this in any event. All Governments have benefited from that, or enjoyed the disbenefits of it. The main benefit of this power is the ability to amend primary legislation. It is unlikely that a department would propose to use an order under this power unless it needed to amend or repeal provisions in primary legislation, and it may wish to amend or revoke secondary legislation at the same time.
The noble Earl may be reading more into the language of this provision than he needs to. I understand his caution. I have heard him say on many occasions that he does not like giving Ministers too many powers. However, we have tried to balance as best we can the deregulatory drive that underpins the legislation—clearly, that objective is shared across the parties to a greater or lesser degree—with the need to ensure that there are adequate procedures and proper means to hold the Executive to account in bringing forward regulatory reform orders. I know that the noble Earl does not trust any Government to do that, but so far the evidence regarding the 2001 Act is that progress can be made in that regard. There have not been any judicial reviews of regulatory reform orders brought forward through that process. However, there have been constraints on it, which have defeated some of the better intentions of the Government and of officials as they highlight some of the less useful aspects of certain regulations.
I hope that that response helps the noble Earl. It is certainly designed to do so. I understand why he has tabled the amendment, but I argue that it is not necessary because there are adequate protections.
I am immensely grateful to the noble Lord for that answer, because he referred to something about the Bill that I had not grasped. He said that the Bill will be used only to amend primary legislation because it will not be necessary in order to amend regulation. That admission and that admission alone has made my whole intervention worth it. Of course, I will not divide the Committee, as I said, and, of course, I will withdraw my amendment. However, what the Minister said on that point leaves me with an enormous amount of thinking to do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]