House again in Committee.
Clause 2 [Power to promote regulatory principles]:
[Amendments Nos. 33A to 33C not moved.]
Page 2, line 37, at end insert-
“( ) Regulatory activity must respect the principle that in a free society individuals should be allowed to-
(a) take reasonable risks in their own homes and with their own possessions; (b) exchange goods and services; (c) reach agreements; and (d) enter into private contracts as they so judge without interference by the state.”
The noble Baroness said: Amendment No. 33D concerns consumer freedom and the right to choose. I declare an interest: I am president of the National Consumer Federation and past chairman of the National Consumer Council. I speak with some knowledge of what empowers consumers. It is the following: choice, information on which to base that choice, access, safety, equity and redress. Long ago, consumer bodies recognised that life is not risk free and that choice—precious choice—brings risk. However, reasonable risk, which is recognised, should allow people to make their own judgments in their own homes and with their own possessions. Of course, there need to be tests of safety for the goods that consumers buy and consumers must be informed of any risks involved in those choices. Beyond that the Government should not need to tell men and women what they can and cannot do. To do so is to restrict consumers’ freedom to decide for themselves. Amendment No. 33D seeks to encapsulate that. I hope the Minister will accept it.
Amendment No. 33E seeks to challenge the Government on whether they have the balance right when deciding to regulate in a certain field as opposed to merely providing advice and information. No doubt the Minister will say that the idea that regulatory activity should take place only if it is impossible to achieve its purpose through information or advice is contained in the principle at subsection (3)(b). We think that these principles need expanding and clarifying. Over-regulation is a tool of a nanny state; it interferes with our day-to-day existence and is patronising. On the whole, the people of our country should be allowed to choose to take on the risk of something going wrong if they wish to.
The presumption for Government should be that their duty is to provide information and advice, and only in the most exceptional circumstances should they turn to regulation. I beg to move.
I appreciate Amendments Nos. 33D and 33E, tabled by the noble Baroness, Lady Wilcox. The noble Baroness has had tremendous experience of regulatory activity. I have admired her work as chairman of the National Consumer Council and president of the Trading Standards Institute. Both organisations were engaged in proposing consumer protection regulations or, indeed, in enforcing them. So I know she has a feel for regulation. I admire her also for considering in this amendment the need to establish some clear blue water between over-regulation and the need for freedom of activity for people both in business and in ordinary life.
The drafting of this amendment is rather broad. I notice the words,
“take reasonable risks in their own homes and with their own possessions”.
Of course most people live in close proximity to other people’s homes, and what may be a reasonable risk if you live in an isolated area and wish to carry on some potentially dangerous or noisy activity may not be appropriate if you live in a fairly crowded street. But I am more worried about other matters, including the provision that,
“individuals should be allowed to … exchange goods and services”.
That sounds all right, but surely the noble Baroness does not mean all goods and services—drugs, firearms and so on. Where is the line to be drawn?
Enabling people to reach agreements is the basis of the law of contract, and agreements should be adhered to. Like me, the noble Baroness knows that there are businessmen who make agreements which are anti-competitive, unduly restrictive and price-fixing. There are all sorts of agreements which, in the interests of competition and of the free economy, have to be restricted, as they are not only in this country but in many others. I simply suggest, in a mild sort of way, that Amendment No. 33D should not be accepted because, although it represents a principle that I understand the noble Baroness is seeking to uphold, it is too broad.
In spirit, this is an apple-pie amendment, but when you undertake an exercise not dissimilar to that which my noble friend Lord Borrie has just undertaken, you begin to realise that the thing unravels.
I have tremendous respect for the noble Baroness, Lady Wilcox. She has been a strong advocate of consumer rights and the rights of the individual to enter into free contracts and to understand the nature of those contracts for much of her time in public life. During one or two discussions over the Dispatch Box, the depth of her experience from a number of non-departmental public bodies has become clear—I suggest that it is beyond peradventure that very few people have held quite as many positions concerning consumer affairs. Obviously, with that comes a great deal of experience.
However, Amendment No. 33D would so widen the power in Clause 2 that it could be used for securing regulatory functions exercised in a way that complies with the broad principles that regulatory activity must respect, but, in the end, undermines important, possibly fundamental, protective rights that individuals enjoy.
Having read the amendment and heard what the noble Baroness has to say, I am not quite sure what the nature of the problem that she is trying to tackle is. Of course, it must be right that, in a free society, it is open to us to take reasonable risks in our homes but, with that, we must measure the need to protect people who work in our homes and buildings and ensure that, in our dealings with public bodies and organisations who visit us, we offer proper protection.
I am sure that we are all free to exchange goods and services, but the individual consumer, through regulation, must surely be protected from exploitation. I am sure that we are all grateful that we live in a free society where we can enter free agreements, but we also need to be protected by the law so that those who seek to exploit us unreasonably for gain can be held to account through proper legal agreements, and that the terms of those agreements are not easily flouted. We are also all grateful that we live in a free society where private contracts can be entered into without interference by the state.
The noble Baroness and other opposition Members must know full well that targeted regulation is essential in sophisticated societies such as ours. We have been regaled with occasions when regulatory activities may have gone too far. The whole purpose of the Bill and the Government’s better regulation agenda is to tackle bad and excessive regulation. That is exactly what Clause 2 is there for: to tackle how regulators go about their activities to ensure that they are not overzealous and that we do not have overprovision. We make no apologies for targeted regulations. They improve standards in public services, promote competition, ensure fairness at work, help industry and provide protection for consumers and the environment.
Clause 2 will contribute to that better regulatory aim and purpose by allowing a Minister by order to make provision that he or she considers is to ensure that regulatory functions are carried out in a way that is transparent, accountable, proportionate, consistent and targeted only at cases where action is needed. So the thrust of the amendment tabled by the noble Baroness is already matched by Clause 2.
It is hard to disagree with the principle behind Amendment No. 33E, but it is too prescriptive and so does not need to be included in the Bill. The Better Regulation Executive in the Cabinet Office is working closely with departments and regulators, challenging them, as we have said, on their regulatory proposals and ensuring that all non-legislative means are considered in the policy development process. The BRE is also challenging departments and regulators on how they conduct their regulatory activities, which Clause 2 seeks to achieve, as does Part 2, which we shall come to in due course.
All regulatory proposals must be accompanied by a regulatory impact assessment. Major proposals are scrutinised and require approval by the panel for regulatory accountability. RIAs and PRA scrutiny, to use the jargon, ensure that the costs and consequences of regulatory proposals have reasonable and proportionate benefits. The Better Regulation Executive is also working with regulators and other bodies on a code of practice for regulators, which will be made statutory under Clause 24. I am not entirely sure what the noble Baroness wants to achieve with the amendment but, if we have understood it correctly, I believe we are already achieving it through the regulators’ compliance code. A copy of the draft code is available to all who seek it out in the Library and on the BRE website.
If the noble Baroness has further thoughts on the amendment, perhaps having perused it at her leisure and pleasure, we would be very interested in them and in her contributions, given the breadth of her experience. Having heard that, I hope she will feel confident about withdrawing her amendment.
Before my noble friend replies, I shall make just one point in response to the Minister. I think that my noble friend is arguing for a more overt awareness on the part of regulators of the balance that must be held. A phrase that is frequently used by ordinary members of the public who disapprove of something that has happened is, “There ought to be a law about it”. That attitude is to be found in many walks of society, not least in the ranks of the regulators. I have no doubt whatever that my noble friend will take close heed of what the Minister has said and possibly return with something on Report, but a counterbalance needs quite expressly to be put into the Bill so that a question is always asked—I have to confess that I have not seen the guidance note to which the Minister referred—about whether the balance is really in favour of regulation or whether this should be regarded as one of the hazards of life and there is no need to make a law about it. That needs to be stated somewhere in the Bill. Perhaps the amendment is not the right way, but something is missing that we should look at again.
I am at one with the noble Lord in the sense that we want regulators to take a pragmatic approach. I am sure that he is right. We have all heard the expression, “There has to be a law about this. This is an outrage” but when the thing is held up for greater inspection perhaps it is not so outrageous and no law is really needed against it. What is actually needed is a greater appreciation of the nature of the problem and a more hard-headed approach.
Yes, we live in increasingly risk-averse times and perhaps we should all reflect on how far one should let risk run. It is sometimes necessary to get the balance right. The noble Lord, of course, is more expert than I am in these things because in his political life he has put in place legislation that treads that very difficult line. It is not an easy one to follow.
I should know that when the noble Lord, Lord Borrie, gets to his feet and says nice things to me, I should be very careful about what he will say next. He and I have worked together in the past when he was director-general of the Office of Fair Trading. The Minister also said extremely nice things; I should have been wary there too. Basically, I am trying to get the principle accepted, which may not be put down in a way that can be accepted by the Government. I will read what the Minister has referred me to. I am particularly grateful to my noble friend Lord Jenkin of Roding who encapsulated what I was trying to get over at the time. I will not waste any more of the Minister’s or the Committee’s time, but I thank the Minister for taking the trouble to answer me so fully. I will go back and read. If there is any way in which I can come back to press the consumer agenda further, I am sure that the Minister knows that I will. But, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33E not moved.]
Page 2, line 39, after “which” insert “minimises interference with the traditional products and traditional way of life of the British people and the different regions of the United Kingdom”
The noble Lord said: Amendment No. 33F seeks to prevent some of the absurdities and unforeseen consequences of regulation which occur through a lack of respect for the existing way of doing things. Sometimes, it would appear that the Government do not seem to realise that traditional institutions, practices and conventions are a significant element in the glue which holds society together. Tampering with those traditions is upsetting and disrupting, and chips away at the stability of society, frequently for no purpose.
Examples are endless but I would draw the Committee’s attention to the new licensing laws, for example. I should declare a personal interest as the owner of a national monument which has had to apply for a licence. Although in my case the application was simple, for many these laws are causing endless worry and expense. Small local organisations, such as parish councils and branches of the Women’s Institute, which have for years held minor events either for fund raising or for the benefit and jollification of the local community, are now, in many cases, finding these events impossible because of the new expense and associated bureaucracy. I do not suppose that in the case of the Women’s Institute many tears will be shed in No. 10 Downing Street.
The Standards Board, which was introduced to eliminate non-existent corruption in local government, has managed to create a situation where local councillors—I declare an interest as a parish and a district councillor—are no longer able to represent those who elected them. Too often traditional products, such as blue Stilton or church organ pipes—both recently defended by your Lordships—are thoughtlessly harmed by regulation and foolish draft regulations. Ministers should have a duty to protect our traditional industries.
Where is the benefit of making it a criminal offence to supply goods in imperial measurements? How will it possibly benefit the nation for an elderly person, who is unfamiliar with the metric system, to be forbidden to see weights in pounds and ounces—measurements which they understand? I could go on, but Members of the Committee will have come across similar instances of this sort every day. I beg to move.
I am not quite sure where to start. I have a great deal of respect for traditional values in British life. I was brought up in a village community by a mother who was a member of the British Legion and the WI. When she put her jam in pots and sold it at fetes and bazaars on the village green, she did not feel the heavy hand of the regulator leaning on her shoulder. In essence, I see where the noble Lord is coming from. But I do not see why we need an amendment to a Bill on regulation in order to secure the warm beer Nirvana the noble Lord is seeking to reconstruct.
The things the noble Lord is talking about are covered using the powers in Clause 1. If traditional products and our way of life are interfered with in the way the noble Lord suggests, Clause 1 is the appropriate part of the Bill that may be used to lighten any excessively heavy hand. While it is true that from time to time we hear of licensing laws being enforced perhaps too rigorously—and I am aware that for a time in the 1990s the WI felt that food safety legislation was giving it a hard time—the complaints seem to have evaporated over the years. The noble Lord says that district councillors are not able to represent their constituents well. I have been a district councillor, although never a parish councillor, but I did not feel deprived of the opportunity to represent my constituents save where there was a conflict of interest. I think that I dealt with church organ pipes at Second Reading and dispelled that myth.
On blue Stilton cheese, I cannot say anything serious about it because I am not aware of the minutiae of the issue. However, I do not think that regulation is putting blue Stilton cheese makers out of business. Again, this is an issue of local enforcement and the approach taken by local environmental health and trading standards officers. This Government have attempted to protect through Europe the local names ascribed to important British products, and from my own experience I am not aware that it is a big problem. On imperial measurements and criminal offences, we have been moving away from imperial measures for the past 30 years and more. Both the noble Lord’s party when in government and my own party have played their part in that shift. The noble Lord will appreciate that it is to develop a degree of uniformity across the single European market, but it does not prevent people co-describing measurements in most instances. A pinta still appears on my doorstep and my pint in the local pub is protected.
I understand the irritation behind the amendment, but on its substance, I am afraid that I cannot agree at all, save to say that in Clause 1 we have provided in general terms to lift excessive regulation and have set out a procedure and method to ensure that that is the case. While I sort of understand the noble Lord’s argument, this is not the way to achieve it.
I intervene only briefly simply to say that I do not understand why the Minister keeps on referring back to Clause 1 as the means of solving all these problems. Clause 2 purports to set out the principles on which regulation should be carried out. The Minister said exactly the same thing to my noble friend Lady Wilcox in response to her amendments as he has to my noble friend Lord Howard of Rising. Yet the fact is that this is in Clause 2. Where in Clause 1 are the issues that he has said should be dealt with there actually dealt with? That happens in Clause 2, which sets out the principles—what my noble friends have been talking about. I find it very puzzling.
When we talk about relieving burdens, Clause 1 is the route. When we talk about the exercise of regulatory functions, that is addressed in Clause 2. I cannot see how the actions of regulators interfere with traditional products or the way of life of British people in the different regions of the United Kingdom. In so far as the actions of regulators should capture aims similar to those expressed by the noble Lord, I believe that requiring regulators to be proportionate in the exercise of their functions will happily achieve that. That is exactly what we are trying to achieve in the legislation.
Perhaps I can invite the Minister to come with me one day to the town of Arbroath in Angus, where the tradition had always been that you made Arbroath smokies by tying two smokies together with tarred string and putting them over a pit full of woodchips and smoke. They were delicious. A European directive came out and, as a result of that, Parliament directed that you were not allowed to light the fire except in a pit lined with white tiles, and the smokies had to be tied together with wire. The whole tradition has gone. But in other countries in Europe that was not the case: you could smoke fish tied with string in a pit if you wanted. That is what my noble friend is talking about. I hope the Minister will come to Arbroath one day and I will show him exactly what happened.
Arbroath smokies are replicated in a similar, if different, form in Whitby, where Whitby kippers are smoked. I think there is some fish-smoking on Brighton seafront as a newly revived tradition. So, much as I am taken by it, the invite to Arbroath may have to wait.
It is obviously a red letter day; the Minister did not know what to say. That has never happened before and will probably never happen again, but I am going to enjoy the brief moment of glory.
The amendment is needed for the reason given by my noble friend Lady Carnegy. Every day we find instances where the traditions and practices that people enjoy are torn to pieces.
The Minister said that he had no problem when he was a district councillor, but I imagine the noble Lord must have been a district councillor before the Standards Board came into existence. The Standards Board’s set of rules has gone a long way towards destroying democracy because it has put in the hands of the local compliance officer the ability to say to district councillors, “I am terribly sorry, you cannot speak on this because it is a matter that concerns your ward”. I am sorry that the Minister looks amazed and horrified; I am horrified as well.
I have heard the allegation before. I am not sure that it is a persistent and widespread problem, but the noble Lord is currently a district councillor and I am no longer one so I stand advised. However, these matters are kept under review by the relevant department and I am not entirely convinced. I know that we have had this debate before because I can recall when the regulations were laid and the point being made at that stage. It seems to me that district councils seem to work fairly well with the framework as it is.
The noble Lord commented on moving away from imperial measures and said that we have been doing so for the past 30 years. I do not dispute that. My only complaint is: why make it a criminal offence? It surely is not necessary for elderly people to face imprisonment for selling goods in imperial measurements. My understanding is that soon it will not be allowed to put imperial measurements on goods that are sold; measurements will have to be metric only. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33G to 35B not moved.]
Page 3, line 5, leave out “transfer or”
Page 3, line 7, leave out paragraphs (d) and (e).
Page 3, line 11, at end insert-
“(4A) The provision referred to in subsection (4)(c) includes provision-
(a) to create a new body to which, or a new office to the holder of which, regulatory functions are transferred; (b) to abolish a body from which, or office from the holder of which, regulatory functions are transferred. (4B) The provision that may be made under subsection (1) does not include provision conferring any new regulatory function or abolishing any regulatory function.”
On Question, amendments agreed to.
[Amendment No. 39 not moved.]
Clause 2, as amended, agreed to.
Clause 3 [Power to implement Law Commission recommendations]:
Page 3, line 20, leave out “he considers”
The noble Lord said: I shall also speak to Amendments Nos. 46, 57 and 60.
The arguments on all these amendments are in fact irrelevant because there has been consensus on all sides that Clause 3 should not stand part of the Bill. I support the removal of Clause 3 from the Bill; I am a very strong supporter of the Law Commission and its work, which has been admirable ever since it was introduced by Lord Gardiner when he was Lord Chancellor.
I very much hope that it will be possible to find different methods of enacting Law Commission draft Bills which will enable them to be enacted much more quickly when they are not controversial. There is far too big a backlog of Law Commission Bills which have been approved in principle by the Government but for which no legislative slot has been found.
Although I am a strong supporter of the Law Commission, I do not think that Clause 3 is the right way of achieving the objective that I believe most, if not all, of us want. Clause 3 has a number of defects for its purpose. First, there is an unrestricted power to amend, abolish or codify common law. Codifying common law is extremely difficult and needs a far more detailed study than could have been given under the procedure in Part 1. Secondly, Clause 3 gives Ministers the power to enact Law Commission recommendations with changes not necessarily approved by the Law Commission. Thirdly, there is an absence of any system for parliamentary amendment of the Law Commission Bills during their process through both Houses of Parliament. These defects have led to objections to Clause 3 by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee.
I understand that the Government are working on new plans which we hope will be brought forward in time for Report. I look forward with great interest to seeing them. It is important that Law Commission Bills should be capable of being amended in the course of their passage through Parliament. It is important that government involvement in the process should be kept to a minimum. If these conditions can be satisfied and if the new proposals are acceptable to the Law Commission, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, I look forward to supporting further amendments to the Bill. Meanwhile, I am content to see Clause 3 go. I beg to move.
I agree with the noble Lord, Lord Goodhart, and other Members of the Committee who have put their names to amendments to delete Clause 3. It should not stand part of the Bill. I have listened with great care to all who have expressed a view on Clause 3. In particular, I have read the report of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee. I am very grateful to the noble Lords, Lord Dahrendorf and Lord Holme, for spending time talking to me with their customary energy and clarity. They left me in no doubt about the failings of the clause as it stands. I have no hesitation, therefore, in supporting its removal.
As ever, I am grateful to the noble Lords, Lord Kingsland and Lord Goodhart, because it is clear that there is support, as the noble Lord, Lord Goodhart, indicated, for a process to get Law Commission reports through Parliament and on to the statute book. The noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, have been generous with their time and I hope to exploit them further in talking through ideas that could lead to a process that commands the full support of your Lordships' House and another place.
I will say a little about why this is important. The Committee will agree that the Law Commission has provided a remarkable service over the years since 1965. It has produced 177 law reform reports. Its remit, as the Committee will be well aware, is to modernise and simplify the law. Some 123 reports have been implemented in whole or part since 1976 and 14 currently await implementation. Some reports have led to substantial legislation—The Mental Capacity Act 2005, the Children Act 1989 and the Land Registration Act 2002. Regulatory reform orders dealt with two reports relating to business tenancies and execution of deeds and documents. Other smaller reforms such as the Landlord and Tenant (Covenants) Act 1995 brought relief to particular sectors; in that case, the small business sector.
The range of the Law Commission's work spans criminal law, administrative law, commercial law, common law, company law, contractual law, family law, housing and tort law, land law, the law of wills and successions, private international law, and I could go on. However, as the Committee will recognise, in a world of competing priorities, it can be difficult for legislative time to be found for these reports. It is a problem for this Government, and it was a problem for the last Conservative Government and Governments outside the UK who have their own law commissions.
It is right to try to find a solution that would enable uncontroversial reports to find their way through a parliamentary process. The elements of such a process that I plan to explore would be: ensuring that the reports were genuinely uncontroversial; that they commanded support in principle, therefore, from across your Lordships' House and another place; that the choice for such a procedure would be endorsed by Parliament; that a suitable process of scrutiny could be found; and that both Houses of Parliament would have the opportunity to debate them with the possibility of amendment—to deal specifically with the point made by the Delegated Powers and Regulatory Reform Committee.
I am grateful to noble Lords on both opposition Benches and the Cross Benches who have offered to continue this dialogue with me. I am also grateful to the honourable Mr Justice Toulson, the chairman of the Law Commission, for the time that he has spent with me. If we are successful in finding a proposal that commands government support and support throughout your Lordships' House and another place I shall endeavour to return on Report with it. On that basis, I hope that the Committee will find favour with the proposal to delete Clause 3.
The Minister did not mention the Scottish Law Commission and what is going on there. She will have noticed that the amendments in the name of my noble friend Lord Jenkin of Roding and me, Amendments Nos. 41 and 43, refer to the position there. The Scottish Law Commission suggested these amendments.
I understand that there is also undesirable delay in Scotland in the implementation of Scottish Law Commission proposals, although the queue is not quite as long as in England. There is a feeling that this process should be speeded up. Clause 3 is no more desirable for Scotland than it is south of the border. I am sure that what the Minister said will be greatly welcomed. I have a couple of points. The first is the business of deciding what is and what is not controversial. The evidence of the Delegated Powers and Regulatory Reform Committee is that quite often an order is thought to be uncontroversial and turns out on consultation to be controversial—perhaps not politically in Parliament, because that has probably been tested before the order was drafted, but because the people affected by it discover what it is and find that they would not like it at all. So when the Minister comes back with her new clause, I suggest that a way is found in which to have a late decision about whether a Bill is controversial, as well as the initial one. If a committee is going to make that decision, it will have to have a chance after consultation, especially if the Minister has changed the order from when the Law Commission initially consulted on it. I think that is very important and I hope that the Minister takes that point.
The other point is—no, I have lost the other point. I am sorry; it is too late for me.
I very much welcome the stance taken by the Government on Clause 3. It is absolutely right, for the reasons that the Minister has outlined, that it comes out in the form in which it was included in the Bill. As she indicated, the discussion is about means rather than ends. We are in agreement about the importance of Law Commission reports and being able to get them as appropriate on to the statute book. She is right in recognising that it is important that this House has the opportunity to discuss properly the reports emanating from the Law Commission and has a chance to amend them. But would she concede that it is equally important that the House has the opportunity to consider properly proposals for getting Law Commission reports through?
The Minister speaks of having discussions and coming back in time for Report—but, presumably, there will be the possibility if necessary of recommitting the Bill, so we can discuss these proposals in some detail. I appreciate the pressures of time, but it is equally important that we do not rush it, if it is at the expense of getting the provisions right. There is agreement on what we need to do, so it is important that the process is in place to enable that to be achieved. I very much welcome what we have achieved so far.
One surprising point about Clause 3 is that it was never in the original Bill at all; it was added at Report in the Commons on 15 May. One wonders what the process of thought was that went on in the Department for Constitutional Affairs that suddenly brought this matter forward. There were other major amendments introduced on Report in the other place, but what brought this one forward? The only possible thing that one can imagine was that somebody said that they should get the business on to the agenda of how to legislate for Law Commission reports, so let us put something into the Bill. It may not be right—it may be something that we will have to withdraw. Indeed, the Minister has earned high praise. But it must be a little embarrassing, having put it into the Bill only two months ago, to have to take it out again—like Putney to Mortlake, “in, out, in, out”. That is the only reason I can think of for it. It was a way in which to get discussions going on an all-party basis on how one could devise a procedure.
I share the hopes of my noble friend Lord Norton of Louth that the proposal will produce something that has support in all parts of the House—a procedure whereby the implementation and legislation of Law Commission reports can be speeded up. But there seems precious little to be said for the clause as it stands in the Bill, and I share everybody’s delight that it is being withdrawn. But I have to say again—it is a pretty funny way to legislate!
If the Committee permits me, I have come upon my other point, which is quite important. If a Minister wants to change a recommendation from the Law Commission, it seems very important that he has to go back to the Law Commission and get its agreement before tabling the order. It is dangerous if the Minister can simply change a recommendation and implement it by order. He would have to go back to the relevant Law Commission and get its formal agreement before tabling it, or he would have to introduce primary legislation. That is an important point, and I did not want it to be missed.
From these Benches we share the degree of importance that both the noble Lord, Lord Goodhart, and the noble Baroness attach to the work of the Law Commission.
In the early 1990s your Lordships’ House fashioned a system called the Jellicoe committee, which we all thought would solve the problem. Indeed, three or four pieces of legislation went through comfortably before we came up against a proposal on domestic violence—a proposal that proved so controversial in another place that it had to be withdrawn. Thereafter, the Jellicoe committee procedure was abandoned.
The noble Baroness is right to try and find some new way of expediting good Law Commission proposals, without undermining their credibility by preventing them being properly analysed in Parliament. The building blocks she suggested seem to form a potential foundation for whatever edifice is ultimately constructed.
Like the noble Baroness, I believe there should be three fundamental mechanisms. The first should be a way of excluding any proposal that is controversial. Taking into account the observations of my noble friend Lady Carnegy of Lour, we should bear in mind that “controversial” refers not only to party political controversy but to other sorts as well. The suggestion that we have a process of consultation built into the procedure is a good one.
Secondly, regarding the parliamentary stage, my view—which may well not prove to be the ultimate solution—is that a joint committee of both Houses should be set up, in which no political party has a majority, and given the power to amend. Thirdly, I believe the noble Baroness’s political instincts to be extremely sound in her suggestion that whatever emerges amended from the joint committee should then go to both Houses for final consideration, probably giving both Houses the power to amend further but at one stage only—perhaps Third Reading.
If we can all agree on those principles, then given a fair wind—and that is perhaps the most unpredictable element of all in trying to do something novel—we may well end up with a procedure that will re-accelerate that marvellous idea of a former highly distinguished Labour Lord High Chancellor, so long ago in the 1960s.
There are a number of points noble Lords have raised that it is worth my responding to. It is wonderful to watch the noble Lord, Lord Kingsland, designing this procedure. I am quite sure that with the abilities of the noble Lords, Lord Kingsland and Lord Goodhart, and other noble Lords, we will be able to find a solution.
I say to the noble Lord, Lord Jenkin, that we did not put the clause in to start discussions. The Law Commission proposals were in the original Clause 1. I am quite happy to eat humble pie and say we got this wrong, which is why I am deleting the clause. I am delighted that in conversations I have had with noble Lords across the House, they have tried to find a solution. Like the noble Lord, Lord Kingsland, I believe that with a fair wind we might be able to do that. If that is the case, I have no problems about the amount of humble pie that I might eat between now and then.
As ever, the noble Baroness, Lady Carnegy, asked what would happen in Scotland. The new procedure will be available for the Scottish Law Commission, but not for those matters that are within the competence of the Edinburgh Parliament, as I understand it. The noble Lord, Lord Norton of Louth, nods his head. I trust his judgment on all these questions, so I am sure that I have that right. The noble Baroness raised some very fundamental points. Any Law Commission report must go out for consultation, so the Government would consult in any event. I accept that any changes that need to be made would need to involve the Law Commission. At this stage I do not know how we should do that, but I take the point that the Law Commission will have a strong view, and that that needs to be reflected either in what the Government do or in what a committee does and so on. There is no difference between us on that; we are simply debating how we do it.
I also accept the point about the late decision. The noble Lords, Lord Kingsland and Lord Goodhart, the noble and learned Lord, Lord Lloyd of Berwick, who is not in his place, and I have already deliberated what that might look like. Changes may be made which the Government could not accept or the Law Commission or the House did not like. We need to find ways in which changes can be made and properly reflected. I agree that we have to work out how to deal with controversial issues when they might not be controversial in a party political sense or in your Lordships’ House in the broader sense of involving the Cross Benches, but could be controversial for particular stakeholders. Almost inevitably there may be some controversy. I take the point that we have to find a procedure whereby that can be properly reflected and dealt with.
I do not know whether we should recommit the Bill. I am conscious that it needs to complete its passage speedily and safely. I hope that we will find an appropriate mechanism. Your Lordships’ House is extremely good at coming up with a procedure that will enable us to have the debate that noble Lords want. I trust that whatever comes forward will already have had much debate among all interested noble Lords long before it reaches your Lordships’ House. We need something that is acceptable not only to your Lordships’ House but to another place and particularly to the committees that have so rightly criticised what we have done thus far.
As I said, I am very grateful to everybody who has participated in this debate. Having eaten humble pie, I find it reassuring that there is a great deal of good will that we should try to find a way through this matter that will enable some very important work that has been done by the Law Commission to find its way appropriately on to the statute book.
In view of an issue that arose earlier today during a debate on another part of the Bill, I should confess that my party voted with the Government in support of Clause 3 in the House of Commons. Largely as a result of the very detailed studies done by the relevant two Select Committeesin your Lordships’ House, we too have learnt that Clause 3 was not the right answer, although it appeared to be so at that stage.
I am most grateful to the noble Baroness for explaining the line which she intends to take on this matter. It seems that, to a large extent, she, the noble Lord, Lord Kingsland, and I are all singing from the same hymn sheet on this issue. For that reason I hope very much that it will be possible to come up with an acceptable group of amendments. However, I also recognise the force of what the noble Lord, Lord Norton of Louth, said—that it may be necessary to seek at any rate a brief recommitment to consider the amendments that will be forthcoming.
However, I certainly look forward to a successful outcome that will enable something to be achieved which all of us have sought for a long time; namely, the speeding up of the way in which Law Commission Bills are treated. I am well aware that every chairman of the Law Commission ever since it was invented has been seriously concerned about this. The recently published report of the Law Commission for 2005 reports, as I think almost all previous reports have done, a long list of its uncompleted work because the Bills are in limbo.
In view of what is likely to happen in a few minutes, I certainly do not expect to have to bring the amendment back. All that remains for me to do is to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 41 to 47 not moved.]
Clause 3 negatived.