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9.45 pm
Mr. Jenkin: I beg to move amendment No. 303, in page 31, leave out lines 27 to 30.
The Chairman: With this, it will be convenient to discuss amendment No. 307, in clause 67, page 33, leave out lines 21 to 24.
Mr. Jenkin: Clause 64 applies the equivalent of a compliance cost assessment to draft subordinate
legislation that is being considered by the assembly and it requires the executive committee to carry out such an assessment. Clause 67(2), to which our amendment No. 307 refers, requires the equivalent of a money resolution. Clause 64(2) can set aside the provision for a regulatory appraisal
- "if in the particular circumstances it is inappropriate".
Dr. Marek: Surely the provisions to which the hon. Gentleman refers are de minimis. Is the hon. Gentleman serious in suggesting that they should be deleted from the Bill? Amendment No. 307 proposes to delete a reference to small sums but for good and efficient administration that reference ought to remain in the Bill. I urge the hon. Gentleman not to press the amendment to a vote because it would damage the Bill.
Mr. Jenkin: The hon. Gentleman may have noticed that votes are not two a penny in our deliberations. These are probing amendments. Our procedures do not allow primary legislation that would be a charge on the Exchequer to proceed without a money resolution, and we do not think that the assembly should be able to set aside analogous procedures because it considers that convenient. It may find that the subordinate legislation which it expected to have minimal cost is expensive. Unless the matter is examined or debated, depending on the assembly's standing orders, there should be a procedure to guard against the setting aside of such procedures.
Perhaps like the hon. Member for Ceredigion (Mr. Dafis), who moved amendment No. 412, I shall be told by the Government that my amendment is a good one and they will ask me to withdraw it, assuring me that they will table an amendment. That would enable them to say that it was their idea in the first place.
Mr. Letwin:
My hon. Friend has rightly described this as a probing amendment. Perhaps I could use it to probe the Minister on the following chain of logic. It may be false and it would be reassuring to hear that it is. My query arises in relation to the specific issue of regulatory appraisals and more generally to clauses 64, 65 and 67.
The Minister has told us that clause 65(2) in particular limits the nightmare vision of Secretaries and the First Secretary legislating. The Minister has also admitted that that does not prevent the First Secretary and Secretaries from undercutting the need to legislate by using the power of the purse and the method of the circular to achieve results that would otherwise have been achieved by subordinate legislation.
Nevertheless, I and other Opposition Members have to accept that there is a difference between that indirect method of crypto-legislation and genuine subordinate legislation by order or regulation. Therefore, the extent to which the following logic applies is important. Is it true that, in the light of clause 64(2), which amendment No. 303 would remove, and of the phrasing of clause 65(2), which refers to "a resolution" but not necessarily to an affirmative resolution, it would be possible for the
First Secretary or the Secretary concerned to bring forward subordinate legislation without regulatory appraisal, to put it before the assembly only in the sense of asking it not to make a negative resolution, and then to carry that proposition into law through subordinate legislation, which, as a result of there not having been a negative resolution prayed, would never have been debated in the assembly?
That is extremely material because, if there is neither a regulatory appraisal nor a debate, but merely legislation that is prepared and, by that means, so to speak, invisibly enacted by the First Secretary and the Secretaries, we indeed have the prospect of a devolution of power upwards to those persons. They will be able to run an unaccountable legislature in the full sense, with merely the theory of accountability.
Mr. Win Griffiths:
Clause 64 requires that the assembly Standing Orders must contain provision for regulatory appraisals, as we have just debated, and that those must be undertaken before the subordinate legislation is made. The purpose of the appraisals will be to assess the costs and the benefits, particularly as they affect business.
Clause 64(2) provides that, in particular cases, the requirements for a regulatory appraisal can be dispensed with if it would be inappropriate or if it were not reasonably practical to have one. Amendment No. 303 proposes that clause 64(2) be removed so that there should be regulatory appraisal in respect of every proposed order.
I am surprised that the amendment has been proposed because it would subject the assembly to stricter rules than are currently applied in Whitehall. It would involve assembly staff in unnecessary administrative work and take up the assembly's time with examining unnecessary reports.
For example, under the arrangements that exist for Whitehall and Westminster, regulatory appraisals are not required for a range of subordinate legislation: those whose sole impact is on the public sector; regulations that increase a statutory fee by a predetermined formula; changes to the existing regulatory regime that do not impose additional costs or savings on business, charities or voluntary organisations.
Mr. Jenkin:
Would it not have been helpful to have set out those exemptions in the Bill, so that the assembly could be clear about Parliament's intention, instead of having to divine it from the words that the Minister is now uttering?
Mr. Griffiths:
Perhaps we had unfairly assumed that the workings of Whitehall in these matters were fairly familiar and that we did not need to prescribe step by step. These exemptions are not found specifically in primary legislation. Similar exemptions are prescribed in secondary legislation.
Mr. Ron Davies:
The constitutional age for beginners. It is in the book.
Mr. Jenkin:
The Secretary of State is now getting excited from a sedentary position. The point is that it is assembly Members who will have to understand this legislation and how this is going to work. It is clear what
Mr. Griffiths:
Those beginners will be provided with all the briefing and background to those matters when they become Members of the Assembly. If we were to prescribe in detail every little piece of legislation in Westminster and Whitehall that will be applied in principle to the assembly, the Bill would be a thousand times longer.
I am pleased to have brought some enlightenment to the Committee's proceedings. If the amendment were accepted, a situation could easily arise in which a regulatory appraisal of identical subordinate legislation was considered unnecessary in England but had to be carried out in Wales.
Mr. Letwin:
Who is to be the judge of inappropriateness? If it is to be the assembly, is there any guarantee that it will take the view that the Minister has espoused? Could not the assembly decide that all regulatory appraisal was inappropriate?
Mr. Griffiths:
The assembly could not decide that. Some matters are in primary legislation; I shall give the hon. Gentleman a few more examples. Under the present arrangements at Whitehall, a regulatory appraisal is not required for road closure orders or for regulations that amend an existing regulatory regime without imposing any additional costs or savings on business, and so on. All those matters are in secondary legislation.
The assembly will not be able to go beyond the constraints that currently apply under legislation enacted at Westminster. It will not be able to say, "We are going to make an exception." The primary legislation will not allow that to happen.
Mr. Letwin:
Perhaps we are making progress, although I now no longer understand subsections (1) and (2) of the clause. The Minister's line of reasoning seems to be that if, under primary legislation, there is a requirement for regulatory appraisal when the Secretary of State lays an order, that will apply automatically to the assembly. So why on earth are subsections (1) and (2) in the Bill? Why would there be a need to legislate for such procedures that are contained in subsection (1) if they already exist in statute?
Mr. Griffiths:
The powers are being transferred to the assembly. Under primary legislation, Parliament does not have the power to dispense with regulatory appraisal of everything; it is specified in legislation. In that same way, the assembly's powers will be specified in legislation. The legislation that applies to Westminster and Whitehall will be the same legislation that will apply to the assembly. It will not be able to move outside exactly the same constraints as apply at Westminster and Whitehall.
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