My Lords, my noble friend Lady Thornton would have preferred to have been in her place on this matter, but unfortunately she has suffered an unexpected bereavement. I am sure that your Lordships’ House would wish to send her their commiserations and hope that she is in good spirits at this difficult time.
The question of whether the Government have the relationship with the EHRC correct has featured on a number of occasions in this Bill and the Deregulation Bill. The Minister will be aware that the EHRC enjoys an A status as a national human rights institution. It is therefore right that on all occasions the Government are crystal clear that it is not appropriate to apply general regulations to the EHRC. The A status is awarded by the United Nations International Coordinating Committee of National Human Rights Institutions, which regularly reviews the EHRC’s compliance with the United Nations’ Paris principles, which require the EHRC to be an independent body.
We have to avoid the reality, or indeed the perception, of interfering with the commission’s ability to perform its regulatory functions and ensure that they are always and at all times independent. If that were jeopardised, it would in turn jeopardise the A status, which is generally agreed to be of importance to the UK’s international standing and reputation. For example, it enables the UK to influence the protection of fundamental rights globally and gives us a voice at the United Nations Human Rights Council. Any downgrading of the commission’s status would have a significant negative impact on the UK’s global influence.
The amendment also deals with regulators in other departments unspecified, which suggests that there may be regulators within each or any of the departments that might have the same characteristics as those applying to the EHRC. In some senses, that is a reflection of the fact that we are still in discussions within the Deregulation Bill about exactly how this process will be developed.
We understand—the Minister may be able to confirm—that it has now been decided to exclude at least one regulator in the Department of Health. If that is the case, the exclusion should also appear in the Bill, as that of the EHRC will if the amendment is accepted.
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When she replied to this debate in Committee, the Minister said that this amendment was not necessary, primarily because the list of regulators to which the
small business appeals champion provisions can apply will be set out in regulations and that, because these will be taken under the affirmative procedure, there would be adequate control of the process. It is well established within this House, and Parliament generally, that it is not possible to amend secondary legislation. Therefore, this is not really the answer to the question of whether it is appropriate to bring forward a list of specified regulators in secondary legislation. There are three main reasons why the Government should accept this amendment, which would provide clarity.
The first, which has already been mentioned, is the need to protect the EHRC from any possible imputation that it is not independent. Secondly, the noble Baroness herself argued that financial regulators should be excluded from the Bill because they already have an extensive statutory framework for engaging with business stakeholders. This makes it easier for other regulators in the other departments mentioned to be excluded. Following the line taken on financial regulators, it would be appropriate to think about whether there are specific regulators to which similar arguments apply and they should also be listed in the Bill. Thirdly—and more generally—it provides the opportunity for regulators to have uncertainty about their position removed, because they will not have to wait for secondary legislation to come forward to know whether they will be included in a future regulatory provision. As we all know, uncertainty is very bad for business.
The Minister said in Committee that she agreed that there may be regulators for which the growth duty—an issue that is for the Deregulation Bill, not this one—is not appropriate, but she did not think it would be appropriate to start excluding certain regulators within the Bill because,
“regulators may change over time and it is important that there is flexibility to amend the list accordingly”.—[Official Report, 12/1/15; col. GC 100.]
As I have tried to explain, the opportunity for flexibility is not given, because the secondary legislation process does not provide it. Real flexibility would be to determine now which regulators go into the Bill and which do not. That is why the amendment would be important in making sure that there is clarity. I hope the Minister will accept that there is at least a case for looking at this issue again and, perhaps, coming back to it at Third Reading. I beg to move.