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25 January 2001
Volume 621

(" .—(1) This Act shall continue in force for five years and shall then expire, subject to the following provisions of this section.
(2) The Secretary of State may by order made by statutory instrument provide for all or any of the provisions of this Act to continue in force for a period not exceeding five years from the coming into operation of the order.
(3) No order shall be made under subsection (2) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
(4) Such order shall be accompanied by a report laid before Parliament on the operation of the Act.").

The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 78. Of the two amendments, we prefer Amendment No. 78. I have much sympathy with the view expressed by the noble Lord, Lord Dahrendorf, in the previous debate and that there should be sunset clauses on all regulations.

The Bill has serious constitutional implications. We have considered many of them. As has been said repeatedly, there is considerable concern in this Committee and elsewhere as regards the use that will be made of the Bill if enacted. There was similar concern with regard to the Deregulation and Contracting Out Act 1994, but the proof, or disproof, of the pudding was in the eating. The powers in that Act were not abused in any way. Because of the responsible way in which those powers have been used, this present Bill shows promise.

This Bill and the 1994 Act are very different creatures. The 1994 Act was a mouse of a Bill giving Ministers very limited powers. In contrast, this Bill is a beast; we do not know how it will work in practice. We believe, therefore, that it is sensible to muzzle it. That is why I propose the amendment which will allow us to reconsider the Bill in five years' time. If the beast has behaved, we can allow it to roam free for a few years. If the beast has become uncontrollable, we can deal with it humanely. Whoever may form the government in five years' time, they should have nothing to fear if the powers under the Bill have not been abused. On the other hand, if the Bill has been abused, it should not remain in force.

The proposed amendments also provide for a report on the use of the Bill to be laid before Parliament at the same time as a draft of the relevant order. We believe that that is important. The House will want to decide whether the Bill has been abused in the previous five years. The report should disclose the operation of the Bill over the period. Members of this House and another place can form their own views on whether the Bill has been used wisely and carefully, or has been abused.

The amendments will also go some way towards satisfying the recommendations of the deregulation committees which recommended a five-yearly review of orders made under the order-making powers, but we did not go as far as the recommendations of another place which suggested an annual report.

I understand arguments for an annual report but that is unacceptable to the Government. We are concerned that if we ask for an annual report, we shall not get it. If we ask for a report every five years but are not given one, we shall want a very good excuse.

In response to the Motion,

"to call attention to the Parliaments Acts and the Salisbury convention in the light of recent constitutional developments",

the noble and learned Lord the Attorney-General stated:

"Time and again the Leader has said that the Government accept the broad thrust of the recommendations of the Royal Commission chaired by the noble Lord, Lord Wakeham.— [Official Report, 24/1/01; col. 299.]

That is in contrast to the words of the noble Lord, Lord Borrie, during the course of this debate, when he said that the future of the Wakeham report is speculative. Are the prospects of its recommendations being adopted, were this Government re-elected, real? We could be faced with having on the statute book a Bill with extraordinarily wide powers and no certain opportunity for this House to safeguard its use. For that reason alone, I believe that a sunset clause should be put in place. I beg to move.

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My Amendment No. 80 has been grouped with these amendments; I make no complaint. I tabled that amendment, having listened to the Minister's opening speech and response at Second Reading. He gave reasons why the Government do not like a sunset clause with a time limit. My noble friend's two amendments propose a period of five years. It was said, "That's all very well. We'll work like crazy for three years and in the last two years nothing will happen".

I sought to overcome the problem by putting into the Bill an inbuilt time bomb. It is totally open ended. The Bill continues in force until it is repealed by order with all the safeguards that are already in the previous clauses of the Bill. I am in favour of a sunset clause. I accept that it is a novel way of doing business. I do not think that it has ever occurred in any Act of Parliament, but that is no reason why it should not happen now.

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I believe that the noble Baroness, Lady Buscombe, is an optimist. If so, no doubt she thinks that during that five-year period a Conservative government may be elected. On that basis, will she say whether a Conservative government who introduced a regulatory reform order under the Bill would abide by the opposition of the Delegated Powers and Deregulation Committee in this House or the similar committee in another place?

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I rise with some regret to support the amendment of the noble Baroness, Lady Buscombe. I would much prefer to have the Bill in a satisfactory form so that it could go forward on a permanent basis safe in the knowledge that it could be used for the highly desirable purposes for which it is intended but could not be abused by a government determined to do so.

I have to say that, at the end of the Committee stage, I am not satisfied that we have got the Bill right. I am concerned about the extent of the powers in Clause 1(1), particularly paragraph (c). The noble Lord, Lord McIntosh of Haringey, said that the Bill was intended to be deregulatory in effect, but it contains powers to add extensively to the existing list of regulations. If Clause 1 could be improved, I should be happy for the Act to remain in force until it was repealed. However, as matters stand, I would be willing to support a sunset clause to ensure that the legislation had to be reconsidered periodically by both Houses.

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This is another important issue that has been raised by the Delegated Powers and Deregulation Committee. We should consider it carefully. I start with the same point that the noble Lord, Lord Dahrendorf, made on the previous occasion: we have thought carefully about the issue and we do not think that it is appropriate to insert a sunset clause.

There are sunset clauses in some legislation, but no other Act of Parliament has a sunset clause of this sort. The suggestion is that the provisions should stop after five years unless continued by statutory instrument. Sunset clauses have a role to play in regulations, where their use should be considered on a case by case basis.

The Bill does not impose regulations—quite the reverse; it is intended to deregulate. I am of the firm opinion that there should not be a sunset clause in the Bill. It has been the subject of extensive pre-legislative scrutiny involving the DPDC. The committee was highly praised in the course of that. The Government believe that that process has resulted in a Bill that is based on a tried and tested scrutiny process and includes safeguards that are more than robust enough to prevent possible misuse. The noble Baroness, Lady Buscombe, will correct me if I am wrong, but I assume that the Conservatives will replicate our undertaking to withdraw an RRO if the relevant committee objects to it. The working of the Bill can be dealt with on the basis that if particular RROs are not liked, the Government will have to come back with them in a different form. It would be for the committee to report against a draft order if it felt that it was inappropriate.

It is my firm belief that, for those reasons, there is no need for a sunsetting provision, because the safeguards are adequate. Equally, as I said on Second Reading, if the sunsetting provision were put in, departments would not engage in the amount of work that is required for an RRO—which is similar to the work required for primary legislation and in some cases is much harder—because they would not know whether the legislative basis for their RRO existed. With the greatest respect, there is no benefit in including a sunset clause—in fact, there is a positive disbenefit. We have thought very hard about the issue and if we thought that there was merit in the idea, we would go along with it, but we do not think that there is.

Similar amendments were tabled when the 1994 Act was going through Parliament. The noble Lord, Lord Strathclyde, vehemently objected to a sunset clause then, rightly arguing that the House had to make a decision about whether, having regard to the existence of the safeguards, it was right to go ahead with the Act. The House decided that it was. As the noble Baroness, Lady Buscombe, has said, the House was right.

The arguments of the noble Lord, Lord Skelmersdale, about giving the legislation an in-built ability to swallow itself at any time and under almost any circumstances fall foul of the same argument that it would provide no benefits because the protections are adequate. His amendment would create the additional problem that a department would never know when the legislative basis might be swept from under its feet. With the greatest respect, neither provision stands scrutiny.

The noble Lord, Lord Goodhart, said, legitimately, that if we were prepared to amend Clause 1 a little, he might be prepared to reconsider his position. That may be a sensible negotiating position, but it lacks a bit of logic. For all those reasons, I invite the noble Baroness to withdraw the amendment.

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The noble and learned Lord may have ignored subsection (3) of my amendment. All the consultation provisions are included in the amendment. Any Government that proposed to do away with the Act would be able to use the order-making procedure rather than using primary legislation, which they would have to do under any other circumstances.

The noble and learned Lord cited my noble friend Lord Strathclyde, who is currently the leader of my party in this House, in support of his vehement opposition to the idea. Quite a lot of water has fallen over the weir since 1994. On reflection, perhaps my noble friend and I were wrong on that Bill.

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I have never heard the noble Lord, Lord Strathclyde, referred to as "the weir". I had taken subsection (3) of the noble Lord's amendment into account. That does not deal with our principled objection to the amendment, which is that the a department would never know whether the power existed to make its RRO, because, subject to a 60-day or three-month period, the Act could be repealed at any time by Parliament. That would be worse than providing for the Act to last for five years, because at least the department would know that the power was going to exist for a specified period. Under the noble Lord's proposal, subject to the time required for the consultation process, the department would not know whether the power was going to exist when it embarked on the long task of preparing an RRO.

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I thank the Minister for his response to the amendments. I shall not repeat my arguments at this late hour. I merely reconfirm that we are debating a very different animal from the 1994 Act.

I am sure that the noble Lord, Lord Borrie, knows that I cannot bind any future government, but, as a good parliamentarian, I can confirm that any parliamentary review of legislation would be taken seriously.

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I apologise for interrupting the noble Baroness. Of course she cannot bind a future government, but she could tell us the present intention of the Conservative Party in relation to a recommendation from the committee.

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We would follow the same practice.

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Therefore, the intention is that it would give such an undertaking if it were in government.

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I am unable to give an undertaking. Of course, there is also a question mark, in a bigger sense, over what will happen in relation to the Wakeham report. That is one of my points. I believe that we should give consideration to this matter between now and Report and read carefully what the Minister said. However, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 78 not moved.]

7.30 p.m.

Clause 13 [ Consequential amendments]:

[ Amendment No. 78A not moved.]

Clause 13 agreed to.

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moved Amendment No. 79:

After Clause 13, insert the following new clause—