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indicated, Amendment 41 seeks to add conditions before the various items and provisions set out in Schedule 21 can be repealed or revoked.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 If this work did not take place, the statute book would quickly become very unclear, inaccessible and outdated.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 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 sort 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 would 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 if 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.