My Lords, I was very pleased to chair the Joint Committee on the draft Bill between October and December last year, because I was coming to the end of my four years on the Food Standards Agency, so I had not done much committee work in the House. I volunteered to do the job that nobody else wanted to do, and that was the one that came up. However, I must record that in my view and that of members of the committee, the Joint Committee received the most exceptional support from the clerks in both Houses, and we let their respective bosses know about that at the end of our deliberations.
By and large, I am pleased with the Government’s response to the report. The Joint Committee ceased to exist once it had reported on 16 December last year, so I only speak for myself on the Bill. Ministers removed and amended material, and carried out further consultations as recommended by the Joint Committee. The key removal was of the massive Henry VIII clause, which was described as an outstanding example of its type, and which would have caused your Lordships’ House much waste of time. The lawyers and the constitutionalists would have loved it, but it would have been a complete and utter waste of time. It is not there any more. It was a bit cheeky that it was in the
Bill in the first place; Ministers and civil servants need to be on notice not to try to bypass Parliament again in the way they tried in the draft Bill. I do not say that out of any romantic attachment to the House of Commons, as the Minister patronisingly implied the previous time I spoke, but because that is not a good way to do legislation. That is the fact of the matter with Henry VIII clauses.
I will refer to just a handful of matters in this Christmas tree Bill. It is true that, unlike most Bills, the Long Title allows Members to hang any subject they like on this one. If the House of Commons was full of campaigning Members of Parliament at the present time, they could have had a field day on economic, social and constitutional issues that could have lasted for months and months. However, it would be quite wrong for this House to do that, because we are unelected, and I will not give examples of the kind of Bills, because it will only give noble Lords ideas. I would have liked to have done some of that myself, but the opportunity was not taken by the elected House, so the chance has been lost.
The Joint Committee concentrated on areas we had submissions on—several hundred of them, although half were on the rights of way issue, which is a separate issue. Our view was that if that was amended in any way and dealt with again, it should be a separate Defra Bill. We think the package in the Bill should be maintained, because it is an agreed one, which is important.
There should be two procedures to assist our scrutiny as the Bill comes to this House. They are not new; I raised them before the previous general election. First, we should have a list of subjects that have been added to the Bill after pre-legislative scrutiny and which therefore have not been subject to pre-legislative scrutiny, and confirmation that they have been consulted on. I do not think anything should be added to the Bill that has not had a consultation. It is quite right to add things after pre-legislative scrutiny, but they have to be consulted on. Secondly, a list of areas should be set out where the Commons, under the timetable of the Bill, has not done its work. It has not discussed much of the Bill. The draft Bill had 65 clauses; it now has 91. The draft Bill had 132 pages; it now has 204. As I said, I have no problem with extra subjects being added—I know at least one which I fully support that will be added by the Government and which has been subject to consultation. That is a key element.
Although this is not dealt with in the Bill, the Joint Committee had views on the use and abuse of the Law Commission, from which we took evidence. It was crystal clear that there was massive tension between the Law Commission and Ministers in the Cabinet Office. The plain fact is that Ministers in general take no interest at all in the Law Commission’s trawl tidying up Bills every three years. As such, the departments do not take any interest. For example, when the Law Commission did its trawl of departments in 2011, the legislation listed as being “no longer of practical use” in Schedule 20—originally Schedule 16—could have
been offered up by the departments. Not a single subject in that schedule was offered by the departments because of uninterested Ministers and lazy Permanent Secretaries. However, in this case it is the result of Cabinet Office Ministers saying to their colleagues in other departments, “We want three or four subjects that are no longer of use and we want them in a Bill”. When Ministers do that for colleagues, the department then takes an interest because the Ministers are interested. We then end up with Schedule 20. That is not a good way to deal with legislation.
It appeared as though there was an attempt to bypass the Law Commission. I do not say that in a critical way, but that is what it looked like. I plead guilty, by the way, because I have been there, so I know what happens; there is some guilt there. The Law Commission has been doing this work for 60 years, and there is only one occasion when it recommend abolishing a subject that it later turned out was still in use. It has a good track record on this; both Houses trust the Law Commission. Can the Minister confirm whether the issues in Schedule 20 have been checked again?
I will briefly mention two or three points from the Bill. I strongly support non-economic regulators having to take growth into account. I accept there will be problems regarding the Equalities and Human Rights Commission, but the growth duty must complement and not override the regulator’s existing duties. That is what we were informed would be the case. At all times it is essential that consumer and public confidence is maintained in the relevant regulator.
I used an example in the committee from when I was at the Food Standards Agency—before the Bill saw the light of day. We constantly pointed out that we regulated on the basis of risk, not size. However, we had no problem embracing a growth duty, simply because the meat industry cannot export to Russia and China, for example, where requirements on abattoirs are greater than in the EU, unless the FSA has regulated and can sign off those businesses. We encouraged growth because we ensured those businesses conformed to the rules and requirements of, for example, the Russian Government. That was an important element. At another time we said no to the idea of stopping regulating kitchens in village halls. Kitchens in village halls can kill people if they are dirty, just as kitchens in large hotels can. It is not a question of size, but of risk. It can therefore be adequately embraced by non-economic regulators.
There are two or three other changes. I am coming to the end of my speech and I will be brief. We did not take any evidence on the clause on marine accident investigations. We ought to look at that a bit more closely as it goes through this House. We should look at removing the automatic duty to reorder a hearing in the light of new evidence. The cases of the “Gaul”, which sank in 1975 and was discovered in 1997, and the MV “Derbyshire”, which sank in 1980 and was found in 1994, are both highly relevant.
I shall not say much about health and safety, although we took a lot of evidence on it. Like the noble Lord, Lord Fowler, I had an interest in this. My maiden
speech in the other place 40 years ago was on industrial safety. All my experience had been in manufacturing industry, with people doing things wrong, guards not working and so on. I realise that that is not necessarily covered here but it is the culture that is important. I remember that I sat as a member of the Standing Committee on the health and safety Bill, which resulted from the work of the Robens committee. Industry in this country had a disastrous record on safety in general. It has vastly improved over the years and we do not want to turn the clock back.
I do not think that the Government have got the legislation right on insolvency practitioners. Clearly there was a massive difference in the evidence from Ministers and from the insolvency profession. I do not think that the Bill should be left as it is, with three choices. In most cases, practitioners told us that they cannot work out what kind of case it will be until they start working on it. It might look like a private case but, at the same time, it might also be corporate. Therefore, there is a real problem and it will lead to confusion. This needs to be cleared up. I think that the Government have got it wrong here.
The Government have also been stubborn in Clause 61 in abolishing the powers of the Senior President of Tribunals to report on standards. Frankly, I think that tribunal standards ought to be reported on by the senior president so that Parliament knows whether the tribunals are up to the job. That work is not burdensome. Likewise, as has already been referred to, the Government have persisted in getting rid of the power of employment tribunals to make wider recommendations. I think that that is a mistake and that it ought to be looked at again.
As for the new material, the Government have only themselves to blame here. I am not complaining about the new material, but we have to do our job properly. This legislation will affect millions of people in their daily lives in very diffuse ways that cannot be pinned down because it is not just one piece of legislation that is relevant here. As we have heard, a massive amount will affect at least a dozen departments.
This House has to be given the opportunity and the time to do its job, particularly on the clauses not dealt with by the House of Commons due to the timetabling of legislation. That is not a complaint; it is the reality and it is what we are here for. We are a revising Chamber—we are not here to start this Bill—and this will be a really good test of whether we do our job properly. Whether we are elected or unelected does not make any difference.
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