Deregulation Bill

Lord Sharkey Excerpts

Thursday 5th February 2015 Lords Chamber

Moved by

[Lord Sharkey]

41: Clause 87, page 70, line 19, at end insert—
“(2) Subject to subsection (7), the provisions of Schedule 21 other than paragraph 43 may not come into force until the Secretary of State has requested the Law Commissions to review the legislation to be repealed by those provisions and the three conditions set out in subsections (3) to (5) are met.
(3) The first condition is that the Law Commissions have reported on whether each item of legislation to be repealed by paragraphs 1 to 42, 44 and 45 of Schedule 21 is, or may be, of practical use; or is no longer of practical use.
(4) The second condition is that the reports of the Law Commissions under subsection (3) have been laid before each House of Parliament.
(5) The third condition is that the Secretary of State has, by regulations made by statutory instrument, removed from the list of legislation to be repealed in Schedule 21 any provisions which the Law Commissions have reported are, or may be, of practical use.
(6) A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(7) The provisions of Schedule 21 come into force, notwithstanding that the conditions in subsections (3) to (5) have not been met, 12 months after the Secretary of State has requested the Law Commissions to review the legislation if the Law Commissions have failed to make a report within that period.
(8) In this section the “Law Commissions” means the Law Commission of England and Wales and the Scottish Law Commission.”

[Lord Sharkey (LD)]

My Lords, I note briefly that Amendments 67 and 72 are essentially technical and consequential.

With one significant difference, Amendment 41 is a repeat of an amendment discussed at some length in Committee. It deals with Clause 87 and Schedule 21, which bring about the wholesale repeal of a huge and hugely varied set of items of legislation, asserting that this legislation is no longer of any practical use. The Government have produced no evidence that these pieces of legislation are in fact no longer of practical use; they simply make that assertion.

There are 84 pieces of primary legislation to be repealed, including seven whole Acts. There are also eight pieces of secondary legislation, making 92 repeals in all. These numbers will rise in a moment when the Minister moves Amendment 42. At this very late stage in the Bill, government Amendment 42 repeals three more pieces of secondary legislation. It is clear that these new repeals will not be subjected to proper parliamentary scrutiny. Like all the other 92 items in Schedule 21, they were not, and will not be, discussed substantively either here or in the Commons, and that is the heart of the matter.

We have before us a proposal to repeal a very large number of items of legislation without any real parliamentary scrutiny and without access to the Government’s evidence that these items really are no longer of practical use. This seemed to the Joint Committee on the draft Bill, chaired by the noble Lord, Lord Rooker, and of which I was a member, to be unsatisfactory. In fact, the Joint Committee recommended that the items in what is now Schedule 21 be referred to the law commissions for independent confirmation that they were in fact genuinely no longer of practical use. We did that because we felt that:

“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 Commission Bills”,

including statute law repeal Bills.

Amendment 41 proposes exactly what the Joint Committee recommended. It refers all the items in Schedule 21 to the law commissions for a safety check before they can be repealed. The Government disagreed with this proposal in Committee. To their credit, at no point have the Government attempted to argue that it is clear, on inspection, that all the legislation proposed for repeal is no longer of practical use; instead, they advance three main arguments.

Their first argument was that Schedule 21, in its original form, had gone through pre-legislative scrutiny. This is the case only if simply being in a draft Bill counts as scrutiny. The Joint Committee was required to work to a quite unnecessarily tight timetable. We did not have time to discuss the items in the schedule and nor did the Commons. The Government’s second argument was that many of the provisions in Schedule 21 came out of the Red Tape Challenge. It is not clear why this is an argument against referral to the law commissions. Leaving aside any scepticism about the rigour of the Red Tape Challenge, the truth is as the Minister acknowledged in Committee. The items chosen for repeal via the Red Tape Challenge had a political origin. This illustrates the point made by the Joint Committee.

Scrutiny by the law commissions has the advantage of being, and of being seen to be, absolutely independent. There can be no suggestion of political interest in any of the judgments about what is safe to repeal and what is not. The Government also argued that,

“government departments are key consultees for the Law Commission in seeking to make these kinds of repeals”.—[Official Report, 18/11/14; col. GC 146.]

So they should be. Again, this is not in itself an argument against referral to the law commissions. It simply emphasises the rigorous, wide-ranging and transparent analysis and consultation that the law commissions employ in assessing the case for repeal.

The Government made one other comment about the version of this amendment that we discussed in Committee. They rightly pointed out that it did not impose a duty on the law commissions to do anything with a referral to them and that it imposed no timescale for action. This amendment rectifies these defects. It says that if the law commissions have not reported on the items referred to them 12 months after referral, the repeals may go ahead anyway.

None of the Government’s arguments against this amendment in Committee seemed at all compelling. I do not for a moment doubt that the 95 items for repeal have been examined by the departments concerned. I do not doubt that in some cases there will have been consultation, but we do not know the depth or the rigour of these examinations and we do not know the arguments put forward in consultation. Critically, we do not know how these arguments were weighted by Ministers.

In Committee, I asked the Minister whether we could see any written reports on these proposed candidates for repeal before Report stage. I did not get that but I did get a detailed description of how departments assessed candidates for repeal and identification of some items that have been consulted on. I also got a detailed list of why the Government believe each item in Schedule 21 is safe to repeal. I did not get evidence, just summary reasons. That must have taken a considerable amount of work and I am very grateful to the Minister and his officials for that.

However, the problem with this information is that it is narrative. It is useful narrative and a useful summary but it is not evidence and cannot be properly interrogated. It also does not settle the worries about consultation. We still do not know how many consultations took place and with whom. We do not know the quality of these consultations, which is an issue of wider concern than just this Bill. Only a few days ago, your Lordships’ Secondary Legislation Scrutiny Committee published a report called Inquiry into Government Consultation Practice. The report looks at secondary legislation and some of its conclusions seem to have a more general context. In particular, the report notes that,

“a number of our concerns about the Government's approach to consultation are not allayed: and we are most troubled by an apparent absence within Government, in the Cabinet Office and in individual Departments, of a commitment to monitor consultation practice and to draw lessons of general application”.

There are reasons to worry about government consultations especially when we have no access to them.

The issue here is essentially one of principle. When it comes to wholesale repeals, who can we best trust to tell us that legislation is really no longer of any practical use? Is it the Government, via not only wholly transparent internal processes and a ministerial decision? Or should it be the independent law commissions set up by Parliament to do precisely this and which have a statutory duty to apply the three tests of external expertise, impartiality and independence? The Joint Committee thought it should be the law commissions.

We asked the law commissions how long they would take to certify whether or not the items in Schedule 21 were safe from repeal. They told us it would take between four and 12 months. The Government say that they are confident that it is safe to repeal the items in Schedule 21; they are confident that they are in fact of no practical use. So what exactly is the risk? What is the problem with a four to 12 month delay? What is lost by referral to the law commissions? Nothing is lost, but a considerable amount is gained. What is gained is trust, independent transparent scrutiny, and giving Parliament the confidence that repeal is safe via the mechanism that Parliament set up for that very purpose. Amendment 41 does what the Joint Committee recommended. I beg to move.

[Baroness Andrews (Lab)]

My Lords, as a Member of the Joint Committee I support the amendments of the noble Lord, Lord Sharkey, and commend him for the indefatigable way he has brought this issue back on Report. I can confirm that the Joint Committee was exercised about this failure, this deliberate resistance, by the Government to consider the Law Commission for all the reasons the noble Lord set out—transparency, reduction of risk and uncertainty and the opportunity to consider the repeals which were being recommended.

Let me take the House back to the first stages of this Bill, when there was something in the spirit of the original clause which was dropped from the eventual Bill, whereby the Minister was going to take upon himself the power to decide which legislation was or was not redundant and to recommend that a whole swathe of legislation should actually disappear from the statute book. Such was the reaction to that that the clause was wisely dropped.

As to the attitude towards the Law Commission, I do not quite understand the difficulty. As the noble Lord, Lord Sharkey, said, the Law Commission was absolutely clear that it would be able to deal with and expedite the passage of judgment on the repeals and it would give everyone the security of knowing that whatever was moved for repeal would have that additional scrutiny. That is not to cast aspersions on the ability of departments to make a judgment about what is or is not redundant legislation, but as we have got the Law Commission and that is part of its job, we should take advantage of that expertise and the scope to do that. On that basis, I certainly support the amendment.

--- Later in debate ---

[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.

Amendment 41 withdrawn.