Lord Garden: My Lords, four themes have been addressed from the various sides of the House. We have talked about the history of the Bill and the way in which it developed, the need for deregulation, the constitutional implications and the procedures in the Bill. I shall not spend long on the history; the Bill has had a controversial genesis. My noble friends Lord Goodhart, Lord Holme of Cheltenham and Lord Maclennan of Rogart, and the noble Baroness, Lady Wilcox, described the passionate feelings about the Bill as it was. I am afraid that the comparison by the noble Lord, Lord Lipsey, of Cambridge professors and those cast as Salem witches did not help us to understand the real difficulties with the former Bill. I am grateful that the Government have drawn back from that.
All noble Lords who have spoken have agreed that we want to facilitate better regulation, to deregulate where we can and to reduce unnecessary administrative burdens. Those views are shared by those on these Benches and by the organisations that the Minister listed in his opening remarks.Nevertheless, any proposals that weaken the role of Parliament in legislation must be scrutinised very carefully, as we heard from the noble Lords, Lord Jenkin of Roding and Lord Norton of Louth, who reminded us of the importance of parliamentary procedure in all of this.
One difficulty with our debate is that a number of legislative proposals are wrapped up in a single Bill. One of those deals with better regulation, another covers dealings with the Law Commission and a third deals with the regulations; and then there is the European Union, of which we have not heard that much this afternoon. I shall deal with each of those in turn, starting with the regulatory reform proposals.
The Regulatory Reform Act 2001 was designed to reduce burdens affecting persons in the carrying on of any activity. We are now looking at an update to that Bill. As a member of the Delegated Powers and Regulatory Reform Committee, I have seen the somewhat limited outcome of the 2001 Act. We have had various numbers quoted at us: 27 by the end of 2005. I think that we are up to 32 RROs now, which is about half of the Government's target.
The Cabinet Office has apparently concluded that the reason for that low achievement is primarily because the 2001 Act was at fault. I have not this afternoon heard an argument that really convinces me that that is the reason. The noble Baroness, Lady Wilcox, and the noble Lord, Lord Norton of Louth, argued that the reason is probably more likely to have been a lack of effort by departments to use the Act's provisions. That is surprising, given that the Minister explained to us that if we did better in deregulation, we could increase GDP by 1 per cent. That appears to be a reasonable incentive for the Government to do a bit more. They should be able to do so within the terms of the legislation. The trouble is, as we all know, that there are always more urgent and more interesting things to do in Whitehall in terms of making new legislation rather than getting rid of or consolidating old legislation or reducing burdens.
I understand from the briefing—I am grateful to the Minister for arranging for that to reach us before the debate—that there will be a new government-wide initiative to encourage departments to meet higher better-regulation targets. However, having heard the experience of the noble Lords, Lord Macdonald of Tradeston, Lord Sainsbury of Preston Candover and Lord Haskins, perhaps we had better not hold our breath in the hope that this will make an enormous difference—things may continue as they have done. If we put that effort in, we should be able to achieve things under current legislation or perhaps, as my noble friend Lord Goodhart argued, we could amend the 2001 Act in view of whatever shortcomings are perceived. However, it is hard to see, when one compares the 2001 Act with this Bill, what the dramatic changes are that will make special things happen.
The noble Lord, Lord Desai, and the noble Baroness, Lady Carnegy of Lour, talked about the time involved. However, the chart that the noble Baroness showed us suggests that the time at which the delays happen is a problem not of law or of the committee but of the process. We can all support the idea that we need to reduce burdens and to improve the process but it is not clear that there is anything in the Act that will do that. The new definitions of burdens are sort of helpful, although I agree with the points made by my noble friend Lord Goodhart and the noble and learned Lord, Lord Lloyd of Berwick, about subsection (3)(d) not being terribly appropriate. However, we can consider that in Committee.
The one area that has not been discussed this afternoon by your Lordships is that of raising the two-year time ban. The Constitution Committee considered this and thought that a buffer zone of two years was a good idea. I am not sure that I necessarily agree with that; there may be cases where we want to move more quickly and we could amend the current Act in order to do that.
With regard to the specifics of the regulatory reform orders under the Bill, I have a significant concern on the question of sub-delegation in Clause 1(7)(a). I think that the Minister offered to look at that point in Committee, but we cannot accept that we can sub-delegate to any unspecified person.
In general on the regulatory reform part of the Bill, the noble Viscount, Lord Goschen, got it right: we have not seen any evidence that we need a new Bill. We could just amend the 2001 Act to get whatever was necessary, but I think we accept that we will go through the process and that we will end up with some legislation which ultimately, I trust, will be all right.
That brings me to the second area of the Bill on which we have much greater concerns—that is, the area of the Law Commission. Again, the proposal that we should be looking at ways to facilitate Law Commission proposals and get them into law has general support in your Lordships' House. But, as with the regulatory reform part of the Bill, the question is: what is stopping that? Is it that we do not have those processes? Why do Law Commission proposals languish? Presumably, as several noble Lords have said, the problem is partially that the Government do not give them sufficient priority in the legislative programme.
Greg Knight, chairman of the Commons Procedure Committee, reminded Members of the other place that there is already an accelerated procedure to enact Law Commission recommendations, but that has not been used since 1999. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee reports give us helpful reminders on fast-track procedures for consolidation and simplification, which offer better models. In any event, controversial Law Commission recommendations would not be suitable to be dealt with under this Bill, and I very much support the line taken by the noble and learned Lord, Lord Lloyd of Berwick, on the question of the Law Commission area. When one thinks of the constitutional aspects, it is a very serious cause for concern that Clause 3(2) allows Ministers to change Law Commission recommendations when making an order, as that opens up the legislation to be whatever the Government decide. Effectively, it is a power to make any laws without primary legislation if the Law Commission produces a recommendation in that area.
To sum up on the Law Commission reports, I draw the House's attention to paragraphs 62 and 63 of the Delegated Powers and Regulatory Reform Select Committee report. They are clear about why a statutory instrument is not an appropriate vehicle for implementing Law Commission recommendations and the report is crystal clear in concluding that,
In summary, the Clause 3 proposals sit badly in a Bill which should be about better regulation. The clause would confer powers on Ministers to bypass Parliament in amending common law. Given that many Law Commission recommendations are likely to prove controversial when they come to be debated, the utility of this section of the Bill is very difficult to see, even at the practical level.
With regard to the regulatory functions under Part 2, I do not see any major concerns. However, I noted the concerns expressed by the right reverend Prelate the Bishop of Coventry, and I think that we will have to look at those in Committee. In Part 3, which covers the EU, the legal instruments have not generated a great deal of debate today, and I think that in general they will prove to be acceptable.
Finally, I turn to the procedures. It seems to me that four main issues concern us here: the level of parliamentary scrutiny; the timing available for the scrutiny; the so-called veto by the committees; and the specific powers of the committees. I turn, first, to the level of parliamentary scrutiny. We have had some debate today about whether it should be an automatic super-affirmative procedure, as is currently the case, or whether, as is recommended in the Bill, lower levels should be available. My noble friend Lord Goodhart argued against negative procedures. Given that Parliament will retain the power to decide on the proportionate procedure, we will probably be able to come to some compromise in that area.
The noble Lord, Lord Norton of Louth, expressed concern about the time available for scrutiny. It seems to me that 30 days is sufficient for either House or committee to consider the proposed procedure and to amend it if necessary. If there is any doubt, there can always be the default of opting for the super-affirmative procedure. The 60 days for the super-affirmative proposals may not always be sufficient, as some noble Lords have said, but it is a reasonable target time to set. Unavoidable delays sometimes arise but the committees could always exercise their veto if Ministers tried to use the 60-day time limit to push forward legislation that had not been reported on.
The veto power is an interesting innovation. It is called a veto power of a committee of either House, and the noble Lord, Lord Jenkin of Roding, questioned how it would work. It seems to me that it is not that different from what happens now, although it is put into the Bill. It is not a veto such as that exercised by the permanent members of the UN Security Council, given that each House of Parliament can overrule it. Currently, the committees operate well with Ministers undertaking that they will not force through an order in the face of opposition from a committee. Of course, as we all know, those undertakings are only good for as long as the Ministers or the Government last, and this gives us a little more assurance in that regard. But it still leaves the power ultimately with each House, and that seems to me to be important. Putting the undertakings on a statutory basis through the device of the veto is therefore welcome. However, we must be clear that the committees will take all the relevant factors into account in considering the appropriateness of any given order. I was delighted to hear the Minister assure us in his opening speech that he is to remove the various caveats on that under Clauses 17(5), 18(4) and 19(6) in the Bill. The committees must be able to look at all aspects of an order in deciding whether it is an appropriate procedure.
The noble Lord, Lord Macdonald, suggested that we consider having a single committee. That idea needs to be thought about quite carefully to see whether it would reduce the degree of control, but it can be explored in Committee.
It seems to me that the Government have moved considerably to meet the concerns expressed about the original Bill, and we have even had some movement today on some of the concerns about the new Bill. Although I believe that we could have solved the perceived problem of deregulation without this controversial legislation, I am sure that the areas dealing with better regulation can be made to work.
The proposals for dealing with Law Commission recommendations are inappropriate, and I trust that we shall not see Clause 3 when the Bill has finished its Committee stage; or perhaps, given that he has been so flexible today, the Minister would like to withdraw it when he replies to the debate.