Deregulation Bill

Debate between Lord Wallace of Tankerness and Lord Sharkey

Thursday 5th February 2015 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend Lord Sharkey for moving this amendment. As the noble Baroness, Lady Andrews, said, my noble friend has indefatigably pursued this issue since beginning his membership of the Joint Committee. Like the noble Lord, Lord Stevenson, I take this opportunity to pay tribute to the committee’s work on the whole range of the Bill. I have been involved in only small parts of the House’s consideration of the Bill, but it is evident that the areas that I dealt with in Committee reflected the continuing interest of noble Lords who served on that committee.

With regard to this part of the Bill, the most controversial element of the original draft Bill concerned the more general order-making powers for the Secretary of State. As a result of the committee’s deliberations and recommendations, those powers were removed from the Bill as introduced into the other place.

I hope that I will have more information on the dogs issue before I sit down, but what I can say to the noble Lord, Lord Stevenson, now is that, following our debates in Committee, I did have a meeting with the noble Lord, Lord Trees. It is certainly my recollection that there is to be a consultation. If I can give fuller chapter and verse before I conclude, I will happily do so.

As my noble friend has indicated, Amendment 41 seeks to add conditions before the various items and provisions set out in Schedule 21 can be repealed or revoked. The main condition, as he indicated, is the need for the Secretary of State to ask the law commissions to review the legislation to be removed by these provisions and to report on whether the legislation to be removed has practical use, following which only those confirmed as redundant could be commenced. Perhaps I may say that the Government see the work of the law commissions as absolutely vital in keeping the law under review and recommending reform where it is needed. However, it is important to put this into context by saying that the statute law repeals work is just a small part of the overall work that is done by the commissions. The Government themselves have an important role to play in updating and tidying up both primary and secondary legislation as they develop policies and make new law. This is the role that they have exercised in relation to Schedule 21. If this work did not take place, the statute book would quickly become very unclear, inaccessible and outdated. There would also be an increase in the time and costs for those who use the law and an increase in the risk of their being misled by redundant legislation masquerading as live law.

If one reflects on this, one sees that in almost every piece of legislation there are repeals which the Government invite Parliament to approve. I was just flicking through the current Bill, and I think I am right in saying that, in Schedule 18, there are omissions from the Licensing Act 2003. Is the principle in the amendment that, before there can be any repeal of primary legislation, the Law Commission has to establish whether, because of what else is occurring in its place, it is no longer of any use? I do not know whether anyone has asked the Law Commission whether it sees that as an important part of its additional workload. To be consistent, the principle would have to be that any consequential repeals under general provisions in a Bill may well have to be referred. I am sure that that is not what my noble friend is proposing, but it is, by extension, the implication of what he is arguing here.

The law commissions were not established in order to replace the Government’s role in this area. The law commissions and the Government both have a valuable contribution to make to legislative housekeeping. Would requesting the law commissions to review legislation listed in Schedule 21 be the best use of their resources? I submit to your Lordships’ House that it would not, for two reasons.

First, we would be requesting the law commissions to duplicate the work already undertaken by government departments, because the actual technical work carried out by lawyers in departments and within the law commissions would be very much the same. The only difference in the general approach is that the law commissions would then conduct an open consultation, whereas government takes a more proportionate approach and tries to identify persons or organisations who would appear to have an interest in the proposal.

Secondly, in practice, the law commissions invite government departments to comment on repeal candidates, as departments have a responsibility for the legislation and policy area in question, as well, of course, as having specific inside knowledge and, no doubt, very good contacts with the various stakeholders and interested bodies. If the law commissions did undertake a review on Schedule 21, then departments which have already determined that the legislation no longer has a practical use would become key consultees in confirming whether the legislation no longer has a practical use. That does not seem to be a useful operation or a good use of resources.

My noble friend asked why the Schedule 21 items should not be referred to the law commissions. As I have indicated, Schedule 21 includes the sorts of items which departments routinely repeal and revoke as part of their legislative housekeeping roles. That complements the law commissions’ repeal work. Schedule 21 also includes secondary as well as primary legislation, while the law commissions’ repeal work has, hitherto, concerned primary legislation.

My noble friend also mentioned the Red Tape Challenge and suggested that items were chosen for political reasons. I accept that there is a political drive to try to tidy up the statute book and to do what we are doing in this Bill and have sensible deregulation but the point is—the heading of the schedule says as much—that these are provisions that are no longer of practical use. This sort of tidying up is an ordinary and useful part of the Government’s work.

When my noble friend proposed a very similar, although not identical, amendment in Committee, I argued that there would be no requirement for the law commissions to report on the legislation contained in Schedule 21, with the result that the obsolete law could simply remain on the statute book. I note that my noble friend has attempted to address this point by introducing proposed new subsection (7), but I have some difficulty in following the pattern through. The amendment requires only that a request be made by the Secretary of State to the law commissions to report on whether the provisions are redundant. The law commissions would in turn accept or decline the request.

If the intent is to provide a safeguard, then I am not quite sure that that will be carried out. If the law commissions either decline the request or fail to report to Parliament on the provisions within 12 months—and no doubt if they decline the request, Parliament will still have to wait for 12 months—the schedule will then simply be commenced. It is unclear exactly when the provisions are to be commenced if a request is accepted and the law commissions report to Parliament that the provisions are redundant. There does not seem to be a very clear way in which these provisions would be commenced.

My noble friend also referred to evidence and consultation, and he acknowledged the work that had been done by officials in going through all the paragraphs in Schedule 21 and indicating why they were there—whether they were redundant, had expired, had served their purpose, had been superseded by other legislation or were no longer relevant because they related to an activity that was no longer taking place. It is difficult to see what more evidence could be needed. For example, in paragraph 7, we believe that the provisions that have been repealed in the Industry Act 1972 no longer serve their purpose and are no longer relevant. That is because the Shipbuilding Industry Board (Dissolution Provisions) Order is not relevant because the board itself has been dissolved. I am not sure what more evidence you can actually get than the fact that the board no longer exists. If it does not exist, whom does my noble friend think we should be consulting? That is the nature of many of these provisions, such as paragraphs 10 to 12, covering the British Steel Act 1988. What was British Steel plc is now wholly owned by Tata Steel, so the Government’s shareholding provisions are redundant. Paragraph 12 repeals a saving provision for four sets of historic iron and steel pension regulations that are now redundant and no longer have any practical effect. That is the nature of these provisions.

Amendment 42 gives further illustration. My noble friend indicated that it had been brought in very late but it relates to three instruments that were identified as being spent during the rail theme of the Red Tape Challenge. The Department for Transport had originally believed that the revocation could be delivered by secondary legislation. However, legal investigation during the drafting of the revocation instrument—and this underlines the thoroughness with which officials go through these matters—identified vires issues which meant that this could proceed only through primary legislation. A number of similar instruments have already been included in the schedule. That is the reason for the proposed insertion into the Bill at this stage.

I will explain. The Railways Act 1993 (Extinguishment of Relevant Loans) (Railtrack plc) Order 1996 extinguished the liabilities of Railtrack plc in respect of specified loans. These loans were initially made to the British Railways Board and subsequently transferred to Railtrack plc as part of the privatisation of the railways. As many noble Lords will recall, Railtrack plc was placed into railway administration in October 2001 and acquired by Network Rail in 2002. The Railtrack Group PLC (Target Investment Limit) Order 1996 fixed, for the first time, the target investment for the Government’s shareholding in Railtrack Group plc. That limit was expressed as a proportion of the voting rights exercisable in all circumstances at general meetings of Railtrack plc. Following the entry into administration of Railtrack plc, Railtrack Group plc was placed into members’ voluntary liquidation in October 2002 and finally dissolved in June 2010. Railtrack Group plc no longer exists and that is the essence of why we are putting these kinds of provisions in.

When I sat on the Benches opposite, both here and in the other place, I was on the receiving end of technical problems with amendments standing in the way, but I think that in this case there are serious technical deficiencies, not least because I am still not certain how, even if a clean bill of health was returned by the law commissions, these provisions would come into effect. More relevantly, it is part of the work of government to keep the statute book in a tidy and orderly fashion. Thorough work has been done. It was presented initially to the Joint Committee and subsequently went through both Houses. It is on the basis of not wanting to duplicate work that has already been done, and of trying to avoid a somewhat odd situation where the law commissions would consult government departments to see whether they agreed that these matters were no longer of practical use when in fact the only reason they would be consulting was because the government departments had said they would no longer be of practical use, that I do not believe it is a good use of resources.

Before I sit down, Defra officials have confirmed that before commencing the particular repeals with regard to the Breeding of Dogs Act, there will be consultation as the issue generates a considerable amount of interest, as the noble Lord indicated. I urge my noble friend to withdraw his amendment.

[Lord Sharkey]

I thank all noble Lords who have spoken in this debate. Earlier in the afternoon, I heard that the Government had referred the laws on busking to the law commissions. When I heard that, my hopes rose, but, clearly, that was the limit of their willingness to refer things to the law commissions.

Having listened carefully to the Minister, I am not quite sure that we were talking about the same thing at times. The point is not that the Government should not repeal legislation; of course they should. The point is that Parliament should be able to scrutinise proposed repeals. The fact is that some of the repeals that are proposed will need scrutiny. The Government were able to trot out examples such as laws on the keeping of pigs or the flying of kites—the usual stuff that, on inspection, appears to be safe to repeal—but they did not mention, for example, item 18, which is the Nuclear Industry (Finance) Act and the implications of that, and the consultations that went on.

As for the duplication of work by government departments and the law commissions, it seems entirely clear that the existing work by the departments will have the effect of speeding the review by the law commissions. It will be extremely helpful to the law commissions to have transparent access to the inner workings of the departments when they make these assessments.

The problem is that it is now very late. If we were working on normal time, it would now be 10 o’clock or so. At this point, with the Chamber fairly empty and the clock registering the normal weekday equivalent of 10 o’clock or quarter past, I feel with some regret that it would be inappropriate at this stage to divide the House.

I end by saying that I believe strongly that Parliament in general should be given every opportunity to examine in a timely way repeals proposed by the Executive. I regret that on this occasion it will not be possible. Having said that, I beg leave to withdraw the amendment.

Deregulation Bill

Debate between Lord Wallace of Tankerness and Lord Sharkey

Tuesday 18th November 2014 Grand Committee

[Lord Sharkey]

I am grateful to all noble Lords who have spoken and to the Minister for his reply, apart from his reply to my noble friend Lord Skelmersdale in the last sentence. It is the case, despite the Minister’s assertions, that the items in Schedule 20 have not really been subject to scrutiny in any meaningful sense. I agree, of course, that we have now taken up more than three minutes of parliamentary time by discussing the items in Schedule 20, but we have not actually discussed or examined the items themselves in any detail. What we have discussed is whether they should be there in the first place, which is of course not the same thing.

The argument that interested parties essentially would have complained if they had found any faults—a kind of way of saying “The dog did not bark, so clearly these are okay”—makes me wonder, in a way, why we need any kind of parliamentary scrutiny or scrutiny by the Law Commission at all. We could just say “The dog has barked” or not and carry on that way. I do not think that that would work. On waiting for interested dogs—or interested parties—to bark there are, of course, interested parties but the difference between them and the Law Commission is that the Law Commission is precisely not an interested party.

In closing, there are some questions that the Minister did not answer. Perhaps I could persuade him to write to me, in particular about departmental processes, which are at the heart of the matter, the processes that these proposals have gone through and how those processes in fact impact with the processes that the Law Commission itself would use. It would be very helpful to know how those compared.

The real question, however, and I do not think that the Minister touched on this at all, is one that I asked twice, which is: “Why the rush?”. I do not understand why we have to rush this when we know that the Law Commissions could do this in between four and 12 months.

[Lord Wallace of Tankerness]

I am grateful to my noble friend for giving way. First, the amendment does not make any requirement on the Law Commissions to do this, so there is no guarantee that it will be done within the next six to 12 months. Secondly, these are matters which have been out in the public domain since the summer of 2013. By the time that this Bill proceeds to Royal Assent, it will be the best part of 18 months, if not longer. I do not consider that a rush.

[Lord Sharkey]

To answer my noble and learned friend’s first point, I will certainly alter the amendment to make sure that the Law Commissions are required to do it in the appropriate time, and I am grateful for that advice. I do not propose to go any further on the issue of rush because I do not think that our minds are meeting on this. I meant the rush to do it without certification, not just getting it done. That seems to me the heart of the matter. Given that we are in Grand Committee, I beg leave to withdraw and may return to this at a later stage.

Deregulation Bill

Debate between Lord Wallace of Tankerness and Lord Sharkey

Tuesday 11th November 2014 Grand Committee

[Lord Wallace of Tankerness]

The points that the noble Lord raises are fair ones. He asks what happens if the Senior President of Tribunals has problems reported to him. We have indicated that there is now a process by which the department, through the drop-down menu scheme, does get regular indications of where there are problems, so they can be addressed. As I also indicated in my remarks, if the senior president thought that the DWP was systematically ignoring all of them, or if he thought that he had written a letter to the department and the department was still ignoring it and was not making it public, there is a separate statutory power available to him in paragraph 13 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 to lay representations before Parliament—before noble Lords and in the other place—of any,

“matters that appear to him to be matters of importance relating … to the administration of justice by tribunals”.

If he thought that there were systemic problems that were not being addressed and that his representations, or those from others within the tribunal system, were being routinely ignored, there is quite an important provision there which allows him to, as it were, leapfrog the Government and come directly to Parliament.

The noble Lord’s second question was about the £20,000 of judicial time that can be freed up. I am sure that it is not the only thing that can be done and that it does not come at the expense of other things. I am sure that there are many ways in which better decision-making through the mandatory reconsideration process should, hopefully, reduce the number of cases that are going forward and therefore allow such cases as are put forward to be dealt with more speedily. I hope that reassures the noble Lord.

[Lord Sharkey]

Obviously the opinion of the Senior President of Tribunals is very important and has a direct bearing on the debate today. However, because it is important—the Minister has prayed it in aid a couple of times—it is slightly surprising that this opinion did not appear in the Government’s response to the joint committee’s report. I wonder whether the Minister is able to tell me when the Senior President of Tribunals was asked for his opinion on repeal and on the workload of the other tribunal presidents.

[Lord Wallace of Tankerness]

If I can I will certainly answer my noble friend’s question. I did ask previously whether it was before we included this clause in the Bill and was advised that that was the case. However, in February 2014, when he published his report, he did say that this particular provision that we are debating was of practical value. Although the Government maybe did not pray that in aid in response to the joint committee, the president did put on the record that he did not think there was much practical value when he reported in February 2014.

Deregulation Bill

Debate between Lord Wallace of Tankerness and Lord Sharkey

Tuesday 28th October 2014 Grand Committee

[Lord Sharkey (LD)]

My Lords, to take up some of the points made by the noble Lord, Lord Rooker, the Joint Committee noted that there appeared to be some confusion about the extent of consultation on this clause. We recommended that there be further consultation on what was then Clause 9. In their response to the Joint Committee’s report in January this year, the Government took the opportunity to repeat the arguments in favour of the clause in some detail. They also stated in paragraph 116 that,

“following the Committee’s recommendation, the Government is inviting any further views on this Clause during the passage of the Bill”.

How did the Government go about soliciting these further views? Who did they invite to give those views and what was the general burden of any of those responses that were made after the Government’s response?

As things stood when the Joint Committee reported, we did not feel that there had been sufficient consultation, as the noble Lord, Lord Rooker, was saying, to enable us to express a firm view on the merits of the clause. I note what the Government have said, but I also note the case put forward by R3. In particular, I note R3’s view that partial licences are not being introduced to fix a problem. It claims that there is insufficient evidence of undercapacity in the market and no evidence that the current regime causes concerns about the quality of the advice given. Essentially, it asserts that the system is not broken and asks why the Government are trying to fix it.

The Government, in their turn, advance two reasons for reform. The first is that the partial licences will benefit insolvency practices of all sizes and the personal insolvency market as a whole. R3 has advanced survey data that it says refutes these claims. Secondly, the Government say that partial licences will increase competition, decrease training costs, lower fees and deregulate access to the IP profession. R3 maintains that there is no evidence of the need for more IPs; in fact, it claims that the market is oversupplied. It also challenges the Government’s other assertions.

All this illustrates the position that the Joint Committee found itself in during December. There are competing claims, somewhat unevidenced, and a narrow consultation base, while the Government have not provided an impact assessment on this clause. It would be easier to make a judgment on the merits of the clause if we knew more and had more evidence. There is a strong case for the Government to agree to further substantive consultation on this issue before we reach a conclusion.

[Lord Wallace of Tankerness]

My Lords, I say first to the noble Lord, Lord Rooker, that I did not mention that the provision had started life under the previous Labour Government because I did not know that until he informed me of it. Of course, not everything that the previous Labour Government did was wrong, as I recall from going through the Lobbies at times in your Lordships’ House. I will take the point that the noble Lord makes and find out just who was behind that, if I might make that inquiry.

There were some specific questions asked and I will certainly respond in writing to those who have contributed to this debate. However, it is also important to make the point that existing insolvency practitioners are, by the very nature of their business and profession at the moment, people who are qualified in corporate and personal insolvency. I understand that my noble friend Lord De Mauley has in the past been an insolvency practitioner and he has indicated that these are two different specialisations. Clearly, however, the practitioners are duly qualified and may well question why everyone coming behind them should not go through the same route that they followed.

It may well be, as we believe, that aspiring insolvency practitioners have shown a desire for some partial authorisation. A survey of members of the Insolvency Practitioners Association showed that non-IP members were in favour of this. It would be wrong to go so far as to say that there is an element of protectionism here. However, one of my arguments is that we are looking at people who want to come into the profession—by their nature they are not already there, giving their views—and there are many benefits to allowing that specialisation.

Since I stood up, I have received a further response to the noble Lord, Lord Rooker. I understand that this clause is a development of a policy started under the previous Government. An earlier version of it was proposed for inclusion in a legislative reform order, although the measure was withdrawn and, in the event, the order did not proceed. I will not to try to decipher this note further in case I get it wrong—I will write to the noble Lord.

With regard to the question from my noble friend Lord Sharkey, on 23 January the Government, on the recommendation of the Joint Committee, launched further consultation on whether any changes were required to what is now Clause 18. Responses were considered and included representations from insolvency practitioners, creditor representatives and others. I am not sure whether the responses have been published or whether there is any intention to do so, but perhaps I could write further to my noble friend and give him a flavour of the responses before Report.

My point is that we are dealing with people who are looking to the future and may aspire to a career as an insolvency practitioner but who do not particularly want to take on the whole gamut of it, preferring to specialise in one form or the other.