Deregulation Bill

Lord Sharkey Excerpts

Monday 7th July 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I, too, had the privilege of being a member of the Joint Committee that scrutinised the Bill in draft form. As it turns out, it was very much in draft form. As many noble Lords have said, the Bill is significantly different from the draft Bill. It is inevitable that such a Christmas tree of a Bill will grow as it progresses, but that fact raises significant questions about the role of pre-legislative scrutiny.

When the draft Bill came to us, it was 240 pages long. It was described by Ken Clarke as,

“a slight mountain of a Bill”.

It covered 10 ministerial departments and four agencies. It made changes to more than 70 underlying Acts. Some of these Acts made changes to previous Acts. The committee was given 12 weeks to scrutinise all this. We thought this was inadequate, and we said so. We would have pressed the point more strongly had we known that the Bill was to be carried over. We found this out only when Oliver Letwin, in evidence to us, mentioned it in passing. This seems entirely unsatisfactory. Perhaps when the Minister replies he could commit to a more open discussion with pre-legislative scrutiny committees in future on the question of the time necessary for thorough scrutiny. As it was, with this Bill we had no choice but to restrict ourselves to certain areas and to leave others entirely unscrutinised.

I also ask the Minister to think about helping the process of scrutiny in another way. In a complex Bill such as this, it would help greatly for references to underlying legislation to be given a hypertext link. That is a lot easier than having 70 other Bills open before you. It would have helped your Lordships’ House to have those hyperlinks in the text of the Bill. Could I trust the Minister to commit to doing that well before Committee, which I understand will start after Recess?

As the noble Lord, Lord Rooker, has mentioned, the original draft of the Bill proposed giving Henry VIII powers to disapply legislation. The Joint Committee recommended that these powers be removed. I am very glad that the Government have agreed to do that. In the course of our inquiry into these and similar proposals in the Bill, however, it seemed to us that, as the noble Lord, Lord Rooker, has also said, there was an unhelpful tension between the Government and the Law Commission. The draft Bill contains a schedule containing legislation to be disapplied by order. The Government removed the order power but retained the schedule. It is now Schedule 20 to the Bill. This schedule repeals parts of 28 separate Acts. These range from the Nuclear Industry (Finance) Act 1977 through the Breeding of Dogs Act 1973 to the Town Police Clauses Act 1847. Clause 82, which asserts that all this legislation is no longer of any practical use, will repeal about 119 clauses. Some of these clauses are whole Acts themselves.

Does anyone seriously believe that Parliament will subject these 119 clauses to close scrutiny—or, indeed, any scrutiny at all—as the Bill passes through its stages? The Joint Committee’s report found that the Law Commission was better placed to give detailed scrutiny to this kind of allegedly obsolete statute. We stated:

“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the Law Commissions”.

This is a key point. Whom should we trust to say that legislation is obsolete and may be safely repealed—government departments or the Law Commission? I am in no doubt that the answer should be the Law Commissions. We recommended that Schedule 20 items be referred to the Law Commission for a safety check. We acknowledged that, to meet the growing demand, the Law Commission would need additional resource. We also agreed with the Law Commission’s own proposals for more frequent and responsive SLR Bills. We recommended that the Government consider making such Bills annual, as my noble friend Lord Naseby said.

The Government did not sound very enthusiastic about any of this in their response. They disagreed with our recommendation to give more resource to the Law Commissions—and did not give a convincing reason why—and so the mass repeal proposed in Clause 81 and Schedule 20 remains part of the Bill. I suspect that we will discuss that further as the Bill progresses. The case for subjecting all those proposed repeals to the Law Commission for a safety check remains very strong, as does the case for an annual SLR Bill.

However, there are other controversial matters in the Bill; I will point to just some of those that were investigated by the Joint Committee. We were concerned about the level of consultation undertaken by the Government in preparation for this very complex and wide-ranging Bill. The original Bill had 61 relevant clauses in it, excluding recitations, titles and so on. Only 10 of those clauses were subject to formal consultation, a further 18 had had some kind of consultation under the Red Tape Challenge scheme, and the rest had no formal consultation at all. That raised two questions: was that an appropriate level of consultation, and was it appropriate to rely on the Red Tape Challenge as a means of consultation?

The Joint Committee concluded that in some cases consultation had been insufficient. We were also alarmed by Oliver Letwin’s assertion that pre-legislative scrutiny was part of the Government’s consultation process. It is not. The Government should not rely—as they apparently were—on Parliament to consult on their behalf, but should undertake proper consultation themselves. I wonder whether inclusion in the Red Tape Challenge amounts to proper consultation. It is not clear that it should, and I would be interested to hear the Minister speak to the robustness of the Red Tape Challenge process. In the event, the Government agreed to remove certain clauses pending further consultation and, in particular, to consult further—which is important—on the authorisation of insolvency practitioners.

The committee welcomed the Government’s reasons, when it came to it, for proposing a duty on regulators to have regard in broad terms to “economic growth”. We discussed at some length with our witnesses and among ourselves the question of measuring or judging the success of that requirement. That was an important consideration; we need to be able to assess the effect of any piece of legislation. However, we acknowledged that with the growth objective, that would be difficult. We understood the difficulties involved in attempts to quantify. Nevertheless, we thought that the Government should consider by what criteria the impact of the duty could be demonstrated, and welcomed the Minister’s commitment to reflect further. I am not sure that the further reflection—if that is what it was—in the Government’s response to our report was terribly helpful. It was all rather vague and woolly. That is an important and unresolved issue, to which I expect to return at a later stage.

Also unresolved is the consequence of the application of the growth duty to the EHRC. The commission spoke to us about the,

“intrinsic incompatibility between the growth duty and the duty to promote and protect human rights”.

That incompatibility would risk the “A” status of the commission and the British candidacy on the UN Human Rights Council. The JCHR agreed with this assessment. In their response to our report the Government recognised the need to avoid jeopardising the international standing of the EHRC. They said that they would consider this issue further with the EHRC before finalising the list of regulators to whom the growth duty will apply. In the helpful draft guidance notes I received from the Minister this morning, there was no list and no mention of the issue in the covering letter. Can the Minister tell the House what progress is being made in discussion of whether that growth duty will apply to the EHRC?

There are also some other committee recommendations where the Government response seems to require further discussion. I refer in particular to Clause 2, which removes the employment tribunal’s power to make wider recommendations, to Clause 43, which deals with household waste decriminalisation, and to Clause 70, which deals with gangmasters. I am sure that the list of clauses your Lordships will want to discuss in detail will be much longer than that, and I look forward to those discussions.

The purpose of the Bill is a very good one. It is a very welcome Bill and contains good things. The provisions for apprenticeships and their funding in Clauses 3, 4 and 5 are especially welcome, as is the whole part on “Alcohol and entertainment”. This grew from one rather lonely clause in the draft Bill on the exhibition of films in community premises to the larger-scale liberalisation for local community events.

That part also contains, in Clauses 59 and 60, provisions for review of the penalties for non-payment of the BBC licence fee and powers to decriminalise such non-payment. I welcome the opportunity that gives us to discuss how to balance protection of the BBC’s revenue with the importance of not sending people to prison for non-payment of the licence fee. However, I would have welcomed it even more had we been discussing this in the context of charter renewal.

Finally, I thank the noble Lord, Lord Rooker, for his outstanding chairmanship of our Joint Committee. I would like to thank our truly excellent clerks, Christine Salmon Percival and Geraldine Alexander, for their invaluable work.