Lords Sitting of 23 June 1994

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Portsmouth.): The CHAIRMAN OF COMMITTEES on the Woolsack.

National Parks: Legislation
Lord Norrie Lord Norrie asked Her Majesty's Government:
How they intend to fulfil their pledges to introduce legislation for National Parks.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Arran): My Lords, it remains our firm intention to introduce National Parks legislation as soon as there is an opportunity to do so. We very much appreciate the efforts of my noble friend in promoting his Bill to give the National Parks independent status and recognise the wide support that it attracted.
Lord Norrie: My Lords, I thank my noble friend the Minister for that Answer. However, can he expand upon what the Government propose in the way of future legislation on National Parks?
The Earl of Arran: My Lords, I can tell my noble friend that not only will our legislation include the setting up of new authorities for the 10 National Parks in England and Wales, but we shall also take the opportunity to revise and update National Park purposes. In taking forward our own legislation, we have also undertaken to consider introducing a duty on Ministers to further National Park purposes.
Lord Williams of Elvel: My Lords, given the Government's firm intention to introduce legislation, will the noble Earl accept help from the Opposition? We approve of this particular measure, which was mentioned in the Conservative manifesto of 1992. To that effect, is the noble Earl aware that I tabled amendments this morning to the Deregulation and Contracting Out Bill (under the contracting-out section) which would achieve the purposes of the National Parks Bill, which is now defunct, and those of the noble Lord, Lord Norrie? Subject to drafting, and given the time spent by your Lordships on the matter, will the Government give my amendments a fair wind?
The Earl of Arran: My Lords, I can tell the noble Lord, Lord Williams, that I became aware a very short time ago of the amendments that he has tabled. I do not think that the noble Lord will expect me to give a definitive answer at this time, other than to say that, obviously, we shall look very carefully at his amendments and take them into consideration.
Lord Howell: My Lords, having regard to the welcome nature of the Bill, can the Minister tell the House what arrangements will be contained in it to
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ensure that there is proper liaison between the local authorities concerned and that they will, perhaps, have some right of membership on the new parks authorities?
The Earl of Arran: My Lords, it is certainly our firm intention that two-thirds of the membership of the new authorities shall consist of local authority members, with the remaining one-third being appointed by my right honourable friend the Secretary of State.
Baroness White: My Lords, can the Minister tell the House how the Government intend to deal with the situation which will presumably arise when the Local Government (Wales) Bill returns to this Chamber from another place next week? There are certain provisions in that Bill which directly relate to National Parks in Wales. We shall have a very difficult situation if certain provisions are made in the Local Government (Wales) Bill, while other necessities, including local representation, to which my noble friend referred, will not be addressed at all. What do the Government intend to do about that very unsatisfactory situation?
The Earl of Arran: My Lords, as the noble Baroness knows, the National Parks provisions in the Local Government (Wales) Bill are limited to what is necessary to establish the parks in Wales as joint or special planning boards. The Bill will carry forward the current provisions in respect of National Park membership and local consultation.
Baroness Nicol: My Lords, as usual, my noble friend Lord Williams of Elvel is ingenious. I wait with interest to hear the terms of his amendments. However, can the Minister assure the House that, whether he uses that particular vehicle or whether it is to come in another way, the Government have not lost sight of the proposals in the report, Fit for the Future, which is now known as the Edwards Report? Is it the Government's intention that those objectives remain the same, however they are reached?
The Earl of Arran: My Lords, everything that is contained in the Bill will be carefully considered. I would not want the noble Baroness in any way to think that the Government have lost their commitment, their will or their determination that the Bill should reach the statute book as soon as possible, at the appropriate time.

Jawad Hashim: Legal Aid
3.6 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What was the cost to the taxpayer of the legal aid provided to Jawad Hashim to support his defence against charges brought by the Arab monetary fund.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, to date, the costs in the proceedings between Dr. Jawad Hashim and the Arab monetary fund amount to £4,010,367.95. The proceedings are continuing. Therefore, it is impossible to state at present what the final cost to the taxpayer will be. Costs paid by the Legal

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Aid Board may be recovered at the end of the proceedings through the statutory charge, should Mr. Hashim be successful.
Lord Boyd-Carpenter: My Lords, I thank my noble friend the Minister for that most disturbing Answer. Is he aware that at a time when economy in public expenditure is rightly being pursued across the board —especially on vital matters such as defence—it is very disturbing indeed to know that so much taxpayers' money is being made available to litigious Arabs?
Lord Rodger of Earlsferry: My Lords, as my noble friend will know, where someone is a party to proceedings in the courts in England and Wales that person, irrespective of nationality, is under existing legislation entitled to legal aid. For that reason the person has the right to legal aid. Dr. Hashim has that right to legal aid and he has taken advantage of it.
Lord Irvine of Lairg: My Lords, is the noble and learned Lord satisfied that the existing rules enable the Benefits Agency to uncover the true resources of applicants for legal aid who obviously enjoy the most affluent of life styles?
Lord Rodger of Earlsferry: My Lords, I am aware that there have been press reports relating to the matter. As the noble Lord will be aware, where the supposed assets of a person are the subject of the litigation in question, under the regulations they fall to be disregarded when the matter of legal aid is being assessed. That situation applied in this case. I am satisfied that the powers exist in appropriate cases for investigating people's resources to see whether or not there is concealment. Of course, where there has been concealment, there are proper powers for withdrawing legal aid.
Lord Hailsham of Saint Marylebone: My Lords, do I understand that in the event of Mr. Jawad Hashim succeeding it may be possible to get some money out of him, and in the event of the Arab monetary fund losing, it will have to pay?
Lord Rodger of Earlsferry: My Lords, if the Arab monetary fund were to lose, then of course costs would follow in the normal way. As my noble and learned friend points out, there is of course provision under legal aid legislation for a statutory charge to be applied in favour of the legal aid authorities whereby they may recover the sums put out.
Lord Dean of Beswick: My Lords, is the Minister aware that some weeks ago I referred to this case without using the gentleman's name and that the answers given on that occasion were not well received? Is the Minister also aware that I made the point during those exchanges that it seems strange that sums of such magnitude can be made available to someone involved in alleged high financial dealings to pay for his defence? I made the point that that can only be done at the expense of people at the bottom of the social scale who
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should receive legal aid but who are denied it because of cases such as the one we are discussing. When will the Government put this matter right?
Lord Rodger of Earlsferry: My Lords, the proceedings in this case have been particularly extensive, and that partly accounts for the size of the sums that have occurred. The noble Lord will be aware that one of the proposals of my noble and learned friend the Lord Chancellor is to introduce in civil cases a system of standard fees that already exists in regard to criminal cases. However, under any such system, provision will always have to be made for exceptional cases.
Lord Clark of Kempston: My Lords, if the Arab monetary fund loses the case, does my noble and learned friend think the British taxpayer will have any hope of recovering the money from that fund? Does he agree that this really is a complete and utter waste of taxpayers' money? How soon will the Government change the regulations which seem to operate in favour of these people?
Lord Rodger of Earlsferry: My Lords, I have no reason to believe that, in the eventuality of the Arab monetary fund losing, it would not be possible to recover the costs in the normal way. As to the other matter, one must remember that our provisions are part of a wider system of international provisions which British people may invoke when they find themselves involved in proceedings in other countries. Therefore, it is not simply a unilateral matter.
Lord Molloy: My Lords, is it possible, in view of what has been said on this Question this afternoon, that the department or indeed the Government will wish to reconsider some of the regulations which govern the matter?
Lord Rodger of Earlsferry: My Lords, I have already indicated that my noble and learned friend the Lord Chancellor has proposals for the revisal of the legal aid fees.
Lord Elton: My Lords, quite apart from the merits of the particular case or of particular parties, is it not a matter for grave concern that the costs of one party in a case like this could amount to such an astonishing figure? Can my noble and learned friend assure us that the steps—to which he referred—that the noble and learned Lord the Lord Chancellor is taking will have the effect of making justice less expensive for British citizens?
Lord Rodger of Earlsferry: My Lords, I think that noble Lords on all sides of the House will be well aware of the steps which my noble and learned friend the Lord Chancellor has taken over the years to try to reduce the costs of proceedings. In particular, noble Lords will be aware that the noble and learned Lord, Lord Woolf, has recently been appointed to chair a committee to look into civil procedure precisely to see whether anything can be done to make procedures less complicated and thereby reduce the costs of them.
Lord Kennet: My Lords, will the noble and learned Lord comment on the wording of the original Question? The Arab monetary fund is presumably an intergovernmental organisation. So how can it bring charges against an individual in this country? Are these criminal charges or is this simply loose wording for a civil case?
Lord Rodger of Earlsferry: My Lords, I would not wish at all to criticise the wording of my noble friend's Question, but the proceedings in question are civil proceedings.
Lord Cocks of Hartcliffe: My Lords, will the Minister give an approximate estimate of how much of the £4 million which he has mentioned is involved in counsel's fees and how many counsel are involved?
Lord Rodger of Earlsferry: My Lords, there are two senior and two junior counsel. The fees have not been taxed yet; therefore they are not the final fees. In that situation it would not be appropriate for me to give the figures asked for.
Lord Desai: My Lords, will the noble and learned Lord assure us that there are no pending cases of the BCCI fraud for which the Government may have to pay legal aid?
Lord Rodger of Earlsferry: My Lords, I would love to be able to give that assurance but I regret that I cannot as I do not know the position.
Lord Mackie of Benshie: My Lords, did the noble and learned Lord say that the noble and learned Lord the Lord Chancellor was considering standard fees? If so, how will these lawyers live?
Lord Rodger of Earlsferry: My Lords, such a system has existed in certain parts of the system for some years. So far as I am aware, there have been no recorded deaths from the existence of that system.
Lord Monkswell: My Lords, bearing in mind the huge sums involved—I am sure the Government hope that the individual will be successful and that they will therefore be able to reclaim the money that has been expended—can we have an assurance that, if the money is reimbursed, it will be available to the Legal Aid Fund and will not be used by the Government to give pre-election tax handouts to their rich friends?
Lord Rodger of Earlsferry: My Lords, I am happy to give that assurance. It is a charge in favour of the Legal Aid Fund.

Severe Hardship Provision: Claims Procedure
3.16 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
In the light of their written Answers of 18th April and 5th May, how long the procedures for claiming income support on grounds of unavoidable severe hardship have been under active consideration; and when they expect to be able to announce their conclusions.
The Parliamentary Under-Secretary of State, Department of Social Security (Viscount Astor): My Lords, the procedures for claiming income support under the severe hardship provision have been kept under review since the inception of the policy in 1988 and a number of improvements have been introduced as a result.
Earl Russell: My Lords, I thank the noble Viscount for that reply. Does he understand that for teenagers who have had to leave home through no fault of their own this is a matter of some urgency? Does he think that his department's response—since this problem was described by the noble Lord, Lord Mottistone, on 24th July 1991—shows an equivalent urgency? Would he agree that, under the principles of The Citizen's Charter, payments for severe hardship should rest on the budget of the Department of Employment, which guaranteed a youth training place for the people concerned?
Viscount Astor: My Lords, the last point the noble Earl makes about the budget is an interesting suggestion which I, of course, take note of. The severe hardship provision is a safety net to help those in exceptional circumstances. There are no plans to weaken this benefit. Last year we paid about 118,000 claims and of course housing benefit may be available for those who are not at home.
Baroness Hollis of Heigham: My Lords, will the Minister confirm the statement made by Sir Norman Fowler earlier this month that some 76,000 16 and 17 year-olds were neither in school nor in work, nor in a training place or on benefit? In that case what connection does the Minister think this might have with the rise in street begging?
Viscount Astor: My Lords, the answer to the final part of the question of the noble Baroness is "none at all". The group that she refers to, comprising 70,000 to 80,000 people, does not choose to claim or to remain in education. Those involved are not in need or they would have moved into youth training.

Deregulation and Contracting Out Bill
3.19 p.m.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.— (Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Power to remove or reduce certain statutory burdens on businesses, individuals etc. ]:
Lord Peston Lord Peston moved Amendment No. 1:
Page 1, line 9, leave out from ("enactment") to ("is") in line 10 and insert ("Parliament").
The noble Lord said: In speaking to Amendment No. 1, which stands in the names of my noble friend Lord

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Williams of Elvel, the noble Lord, Lord Rodgers of Quarry Bank, and myself, I shall speak also to Amendments Nos. 9 and 11, which are strictly consequential on that amendment. In addition, I shall speak to Amendments Nos. 24 to 26, 28, 30, 33 to 35, 38 to 41, 48, 51 and 55 to 60.
Perhaps I may also make the point, which is obvious to all Members of the Committee, that if Amendment No. 1 were passed then Clauses 2, 3 and 4 would be meaningless and, as a matter of elementary logic, would have to be dropped from the Bill.
I should like to make one other preliminary remark, which may be unnecessary. I do not regard these amendments as other than extremely serious. I certainly do not regard them as what are sometimes called wrecking amendments—if we even knew what wrecking amendments were. I therefore assume that when the Minister eventually speaks on the amendments he will address the substantial points that I am about to raise, and which I am sure other Members of the Committee will raise, rather than run for cover under the cloak of references to wrecking amendments.
The main amendment has been put down to enable the Committee to assert the right of Parliament and to attack Ministers whose desire is to circumvent the parliamentary process. There can be no doubt that that is the intention. That is what the Bill states. What is proposed in this first part of the Bill, which is largely concerned with amending and repealing legislation which has all the validity of having gone through both Houses of Parliament, is an abuse. It is objectionable, and I object to it. I hope to persuade the Committee to stop it at source and give the other place at least one more chance to reconsider the matter.
I take four texts as my underlying theme. The first is:
"the exercise of powers under secondary legislation to amend Acts of Parliament can on occasion be a useful means of effecting consequential amendments or repeals of an entirely subsidiary character without the need to require Parliament to consider yet further primary legislation".—[Official Report, 19/3/91; col. 519.]
Those are the remarks of the noble and learned Lord the Lord Chancellor. In response to various interventions he himself subsequently underlined in particular the phrase "on occasion". I draw the attention of the Committee also to the expression "an entirely subsidiary character".
My second quotation is:
"The Government's view on the use of such [Henry VIII] clauses is that in a limited range of circumstances a power to amend primary legislation by order may be justifiable". — [Official Report, 11/12/91; col. 770]
That was a statement by a much respected former Leader of your Lordships' House, the noble Lord, Lord Waddington.
Thirdly, I draw to the attention of the Committee the remarks of the Hansard Society Commission on the Legislative Process, which last year said:
"Henry VIII clauses are of their nature undesirable. Unless absolutely necessary a single Minister should not be given power to change the law made by Parliament as a whole".
That statement appears in clause 270 of the commission's report. The noble Lord, Lord Rippon, will recognise it, because he was the chairman of the commission and the primary author of the remarks.
Another text refers to the argument that since Parliament, if it passes the Bill, will have granted Ministers the powers to proceed, it need worry no more. Essentially Parliament will have given Ministers those powers and that is all that we need to note. The definitive answer to that argument was given six years ago in the following statement. The noble and learned Lord, Lord Simon of Glaisdale, said that, in that particular case of a Henry VIII clause, it was argued:
"that it could not be considered as an arrogation of the powers of Parliament because it was Parliament which was vouchsafing the powers. That was so with Henry VIII. Indeed, it was so with Hitler and the Reichstag".—[Official Report, 6/2/89; col. 1361.]
That was strong language on the part of the noble and learned Lord in relation to the Children Bill. I am not sure that I would wish to use such strong language, but this Bill and its use of Henry VIII clauses goes to much greater extremes than were considered five years ago.
Let us reflect briefly on the nature of the parliamentary process. It is adversarial, critical and clarificatory. In the modern idiom, transparency—the attempt to expose what is presented as legislation and to demand justification—lies at its heart. While in our country we draw the Executive from the legislature and Ministers require a majority in Parliament largely based on party—although we know that that is not always the case and in this Chamber majorities seem to consist less and less of single party views, as we saw with the Coal Bill—nonetheless, there is a natural antipathy between the legislature and the Executive which lies at the heart of the parliamentary process. That goes back several hundred years in our history.
In terms of the work that we do, for the most part those of us in the legislature are not experts. Some of us are expert on some subjects, but none of us is an expert on everything. We are advised, or browbeaten, by experts, but it is for us to decide, not them. We all think that our role as laymen—I hope intelligent laymen—is of the essence in what we do. But to sell the pass on Henry VIII clauses, particularly in this case with what one might call the grandmother of all Henry VIII clauses, is to sell the pass on our role relative to that of the experts and the apparatchiks. The Bill may say, if the Minister is "of the opinion", but the Minister is not an expert. It is not an insult to him or her—whoever he or she may be—to say that the proposals that would come forward under such a clause would reflect the views of the advisers and of pressure groups who reach the Minister. It is that extension of their power that we must object to and endeavour to stop.
I would argue that the democratic parliamentary process is efficient, especially in the long run. However, to erode that process is tempting because, as in the present case, it appears and may in fact yield short-term gains; but I am convinced that in the long run it fails to do so. There is a positive correlation between democracy and economic success and not a negative one.
Even if that were not true, this part of the Bill is obnoxious because it does not recognise that parliamentary democracy is valuable in its own right. I cannot read the history of our country in any other way. Indeed, we have just commemorated D-Day and next year we shall celebrate VE Day and VJ Day. It should

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not be forgotten that almost our first decision on victory was to restore Parliament to its normal role. I remind the Committee that Parliament continued to meet and debate throughout the war.
I do not believe that we have to make the choice between democracy and efficiency. I have to tell the Committee that if we were to follow the line that the Government have put forward and I were told that I and my fellow citizens would be marginally richer if we were willing to weaken democracy, I have no doubt in which direction I would vote on that matter.
I remind the Committee of one other matter, which has been raised previously. It is one which is apparent to the Committee because there has been anxiety about it. I refer to the ratchet effect. As Henry VIII clauses encroach more and more into the legislative process, we are becoming increasingly accustomed to them and they are harder to reverse. That fact holds a fortiori for those noble Lords who have been attending for much longer than me. During my years in this Chamber, I have found that less and less does a Bill propose what is actually to happen—whether it be the development of the national curriculum, the working of the Child Support Agency, or the precise form in which coal production is placed in private hands, to cite but three examples. We are offered a broad and frequently vague outline. The detail, which is often what really matters, is determined elsewhere. The time has come to call a halt.
In so far as they have offered any reasoned case, the Government seem to have done so in terms of economic necessity. Noble Lords have quoted, and will continue to quote, the eighth report of the Select Committee on the Scrutiny of Delegated Powers which states:
"The power conferred by Chapter I of Part I of the Deregulation and Contracting Out Bill is unprecedented in time of peace".
We shall return to that remark time and again in the course of our debates.
I ask this question: is the economic problem confronting the economy so serious that an analogy with wartime is appropriate? In other words, if we accept for the sake of argument that industry is held back by excessive regulation —noble Lords will note the "if —and our industry finds it hard to compete, especially in foreign markets, as a consequence, is the problem of such magnitude that it warrants the overruling of normal parliamentary procedures?
Perhaps I may put the point another way. To justify what the Government wish to do, they have to establish the following, none of which have they done: first, that the economy, indeed the country, is in peril; secondly, that the cause is lack of competitivity; thirdly, that the reason for the lack of competitivity is excessive regulation; and, fourthly that that is on a scale to justify the erosion of parliamentary democracy.
I do not believe that the Government have begun to make out the case. It is perfectly obvious why they have not done so —because they could not. I stand second to none in my criticism of economic policy since 1979. I am appalled by the scale of the balance of payments deficit which is a measure of the overall inefficiency of British industry. I believe that much more must be done to increase our productivity and sustainable growth rate.
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But I know of no serious research which demonstrates that all those problems are to do with excessive regulation. Neither can I can think of anything within theoretical economics which leads me to that conclusion.
I agree, on common sense grounds, as I said at Second Reading, that some, even many, regulations are irrelevant or even damaging. My point is that such deregulation must be subject to proper parliamentary scrutiny. By "proper scrutiny" I do not mean the so-called task groups consisting of the Minister's friends which produce reports that often we are unable to see. In other words, if deregulation requires amendment of the legislation, we should amend in the normal traditional parliamentary way. If that means that other useless legislation is not put before us, so much the better.
Perhaps I may repeat this point. The phrase in the Bill that "a Minister is of the opinion" is an invitation to every pressure group to seek to influence Ministers to remove regulations for which they do not care. Some amendments that I have put down—we shall pursue them later—make the criterion for ministerial interven-tion much stronger. I find particularly objectionable the expression, "is of the opinion". My subsequent amendments amend "is of the opinion" to "can demonstrate". That point lies at the heart of the matter.
I now raise another matter which was not raised at Second Reading but which is central to the question. Will the Minister confirm what I am about to say concerning the position of regulations and legislation resulting from our membership of the European Union? The subject is not referred to in Clause 1(5) (c) which discusses enactments to which the Bill extends. Does that mean theoretically that European legislation is subject to this ad hoc process of repeal? It is inconceivable that directives, which are binding, could be subject to the procedure. It is inconceivable that regulations, which are binding and which have general application, could be subject to the procedure. It is inconceivable that legislation, including that on trade marks, could be subject to the provisions of the Bill. If I am right that everything which comes directly or indirectly from Brussels is iron-clad or untouchable, noble Lords who are sometimes referred to as Eurosceptics may care to reflect on the matter. I goaded them at Second Reading but for the most part they failed to respond. I repeat that if noble Lords who hold a Eurosceptical view vote against my amendment and for the Bill, they will be voting for a Bill which enables the Government to intervene ad hoc as regards purely UK legislation while leaving European legislation completely untouchable. Those noble Lords may like to consider that peculiar bias.
If we pass this part of the Bill, with one exception regarding Northern Ireland, no existing legislation is safe from ministerial predators. Indeed, I go further, as I did at Second Reading. Future legislation is in peril too. An amendment to Clause 1(5) (c) at the beginning of any Parliament would enable Ministers to repeal virtually at a stroke any or all of the legislation passed in the previous Parliament. The problem regarding the role of parliamentary democracy seems more serious

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than almost any other point I have raised. Again, we shall look at the issue in detail. However, I ask noble Lords who are concerned with such matters to reflect upon it.
Ministers have argued, and will continue to argue as we discuss the Bill, "Don't worry about this. There can be appropriate safeguards". I shall have much to say about the nature and efficacy of safeguards. However, all I wish to say now is that we have a good safeguard at our disposal. It is not perfect, but it is pretty good. It is that conventional legislation shall pass through another place and through your Lordships' House, including amendments and repeals. We need no other safeguards. I agree that our proceedings are less than perfect. We have already accepted too many Henry VIII clauses. But the solution is not to lie down and say, "In that case, we'll accept a lot more". It is to say, "We really have had enough".
Let me exaggerate a little. I, for one, say that I regard today as an historic moment. Future scholars, future historians of Parliament, will be interested in the way we argue this afternoon. They will be interested in the way we vote. If, as I fear, their task will be to explain the decline in the power and status of the legislature, I believe that they will focus on this Bill. They will focus on noble Lords' response to it and on the damaging consequences of our accepting it. I hope that the Committee can forestall such consequences by supporting my amendment and rejecting this part of the Bill. I beg to move.
Lord Dean of Harptree: Any parliamentarian is bound to be interested in an amendment which takes out,
"a Minister of the Crown",
and substitutes "Parliament". But I believe that in this case the amendments are quite inappropriate because of the procedural safeguards which already exist in the Bill and the amendments which the Government have said they will accept. I understand that we must be wary of the Government bearing procedural gifts. It is not in the nature of government to introduce amendments which are likely to make it more difficult for them to get their business. My experience in another place strongly suggests that most of the procedural amendments to which the Government have given their blessing have resulted in the Government getting their business more easily than they would otherwise.
However, there was one exception in my experience: the reform in another place of the Select Committee procedures which was introduced in 1979 and 1980. That certainly improved the power of Parliament. I suggest to the Committee that Clauses 1 to 4, taken together, could be another exception. They could well be the makings of a powerful new cutting edge for parliamentary scrutiny and for calling the Government to account.
Perhaps I may briefly explain to the Committee why I suggest that. First, there are the changes suggested by the Procedure Committee and our Select Committee on the scrutiny of delegated powers. They have made a number of suggestions for improving parliamentary
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scrutiny still further. I believe I am correct in saying that the Government have accepted all the main recommendations of the committees. Indeed, amendments have been tabled to Clauses 1 and 4 to carry out those undertakings. As I understand it, the Government have also said that they will support the necessary changes in standing orders. That is an example of the Government leaning over backwards to listen to what Parliament has said and accepting the main recommendations.
My second point concerns pre-legislative consultation with Parliament as well as outside interests. That is largely Clause 3, to which we shall come later. At present no regular pre-legislation scrutiny procedure exists in either House of Parliament. There may be Green Papers and there may be White Papers prior to legislation which may or may not be discussed before legislation is introduced. But for the most part, as we know, the first sight Parliament has of the Government's legislative proposals is when a Bill is published or a regulation is tabled. By that stage, the Bill is set in concrete. If we wish to dispute any of the recommendations, we have to persuade the Government to change their mind. That is not an easy process.
Equally, of course, orders can be debated in another place for a limited time but they cannot be amended. So I suggest that we have here a new procedure involving prior consultation. Ministers must lay before Parliament the draft of the proposed order, an explanatory document and details of outside consultations. That is a procedure which does not exist at present. It is a valuable safeguard for parliamentary scrutiny.
The third point concerns the time period for Parliament and the scrutiny committee to digest and scrutinise the draft orders and explanatory documents. A provision for 60 days is to be written into the Bill for that process to take place. I am glad to note government Amendments Nos. 52 and 54 to Clause 4 which carry out that recommendation, so there is very little chance of Parliament being bounced or rushed. Only after that procedure will the Minister decide whether to lay an order which will then be considered once more by the scrutiny committee and by both Houses of Parliament.
The fourth and final safeguard, as I see it, is what I call a parliamentary road-block. If the House passes a resolution against an order, the order will not be moved. We have an undertaking about that from the Minister and I hope that he intends to accept Amendment No. 13 in the name of the noble Lord, Lord Rodgers of Quarry Bank, when we come to it. That amendment would carry out the undertaking. So Parliament would have stopped the Government in their tracks, and the Minister would go back to square one. Therefore, I suggest that those are some of the reasons why the fears expressed by the noble Lord, Lord Peston, are misguided and why the amendments which we are now discussing are wholly inappropriate.
3.45 p.m.
Lord Rodgers of Quarry Bank: I listened with great care to the noble Lord, Lord Dean, and welcome his expression of hope that the Government will accept Amendment No. 13 standing in my name. But either I misunderstood what he said or the Government have

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already indicated a view and I have simply not heard it. I think that we are bound to discuss the amendment in the name of the noble Lord, Lord Peston, in the terms of the Bill as printed. I certainly have not heard the Government commit themselves to accepting the recommendations of the 9th Report of the scrutiny Committee. If they do so and make this clear later, that might be better than nothing. But for the moment, I believe that we have no alternative but to discuss the Bill as printed.
I have to say that I thought that the noble Lord, Lord Peston, gave proper weight to the extreme seriousness of the issue. We are not discussing a trivial matter; it is something which is more important than the Bill as a whole. The noble Lord, Lord Peston, said that the parliamentary system is efficient and then went on to qualify that rather clear statement. I agree. I think that the parliamentary system is more or less efficient, but surely that is the point—that there is nothing better. We must always, therefore, come down on the side of democracy. If we do not in Parliament, who will? It may be that interests outside Parliament will press us to adopt procedures which might speed our business, but the duty of Parliament at all times is to concern itself with the public interest and, for that reason, to put democracy before efficiency if it is a short-term—and I argue that it is never more than that—advantage to do so.
On Second Reading, the noble Lord, Lord Mackay of Ardbrecknish, made a remark in, if I may say so, his spirited and engaging way. He was present, but seems to have left the Chamber. He suggested that I had expressed a view in favour of small businesses, but then was very much against what the Government proposed to do in the Bill. I wish to draw his attention and that of Members of the Committee opposite to what I said in Hansard on 6th June at col. 965 during the course of the debate. We on this side of the Committee are very much in favour of the principle embodied in the other parts of the Bill. But as I said then and must say now, the fact that Clauses 1 to 4 are tacked on to the Bill and deal with much broader issues vitiates the advantages that we would find in the remaining parts of the Bill.
It is for that reason that the amendment standing in the names of the noble Lord, Lord Peston, and others cannot be a wrecking amendment because there is a large further part of the Bill. Indeed, one of the things which I find so puzzling about the Bill is that Clauses 1 to 4 are there to enable the Government, by order, to get rid—as they would put it—of the red tape. But having put those clauses in the Bill, they proceed to show how changes which they believe to be necessary can be accomplished through the normal procedures of the House and primary legislation. I do not believe that Clauses 1 to 4 of the Bill stand up, given the remaining part of the Bill, which shows what can be done in the view of the Government by means of primary legislation.
Perhaps I may ask a perfectly straightforward question but one that is germane to my further comments. On 6th June the noble Lord, Lord Strathclyde, referring to measures that he regarded as appropriate to Chapter I, said that 55 such measures
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were described in the document Deregulation: Cutting Red Tape. I have done my best to find 55, but I can find only 29. I would be grateful if in due course the noble Lord would explain where the other 26 have gone to.
These measures are set out—I believe it is right that we should look at them—in paragraphs B.1 to B.29 in the middle part of the document. They are described as measures that the Government have already identified as suitable for the new procedure that we are discussing in relation to this amendment.
Leaving aside whether there are 29 or 55, it is very instructive to look at the issues that the Government regard as suitable to be dealt with under the procedures that we are now discussing. Some of the proposals I would find it very easy to say yes to: B.8, B.11 and B.22 were ones that I noted down. But I was far from sure about B.13, B.19 and B.24; and I would not dare to have an opinion on paragraph B.27, which concerns the opening of hairdressers' and barbers' shops in Scotland. I mention that simply to indicate that, by the Government's own criteria, looking at these 29 (perhaps 55) proposals, it is possible to have an opinion on whether they are major or minor issues and whether or not they are likely to be controversial. That is simply a matter of judgment. For that reason, even given the provisions in the Bill that make for some additional scrutiny, it is not sufficient simply to assume that issues of this kind will be suitable for the procedure that is at present proposed. Indeed, if the Government were to take the view—and that is the heart of the matter in regard to other amendments—that the House does not want to proceed by the procedures that are set out in Clauses 1 to 4, then the Government will always be setting its own judgment on what is weighty, large and controversial against that of the House.
Of course Ministers see it as a matter of convenience to have the powers that are proposed in the first part of this Bill. But Parliament exists to advance the public interest. It must be the public interest, and not the convenience of Ministers, that is the concern of this House.
I nevertheless appreciate the importance that the Government attach to the Bill. I have said—indeed I have protested —that we on this side believe that there is a strong case for removing regulations which impose an unreasonable burden on small businesses. I want to be helpful to the Government in suggesting how this matter might have been dealt with.
In the foreword to the document Deregulation: Cutting Red Tape, the President of the Board of Trade says, in language that is appropriate to it, that:
"Departments are working through ALL regulations affecting business to see where beneficial changes can be made. This is a huge, arduous and time-consuming task. The detailed work of decades cannot be dealt with in a day … We are systematically working to bring our regulatory system within bounds and up to date … Deregulation"—
and this is hyperbole—
will be a liberating and invigorating force—we will make it a permanent feature of Government".
Perhaps I would not support and indeed I would never put my name to language of that kind, but let us take the final phrase,
"we will make it a permanent feature of Government".

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That is perfectly reasonable. Those of us who complain that the Government have had 15 years to do it, do not want to be mealy-mouthed about this. Let the Government, in the short time that is now left to them, undo some of the damage with which they might have dealt in the past. But perhaps I may make a suggestion. I address this to all parties, including my own, which hopes at one time to have the responsibility for government: would it not be far better to approach deregulation in the following way? We know what a discipline the Finance Bill is on all departments. We know what a discipline the Prime Minister, through the Department of Trade and Industry, wants to put on all departments in these matters. Why do we not have an annual deregulation Bill? It would be normal for a trawl to be done of all departments by Easter, and there would be no better way of enabling Ministers to put pressure on their officials than by saying: "For God's sake, we've got another trawl on. Find us something to deregulate". That is the way in which officials respond to Ministers. There would be a package for approval by the appropriate Cabinet committee by the end of July; parliamentary counsel would brief through August and September. As we know, in this Chamber there is often a lacuna after the Queen's Speech debate before legislation reaches us from another place. Why should we not, at that stage, have a deregulation Bill every year coming to this Chamber immediately after the Queen's Speech? I make that constructive proposal in order to emphasise the extent to which I believe the whole Committee is in favour of the purpose of this Bill, although we might argue about the different measures. Were the Government to say today or, after a short pause, within the next few weeks that they will not proceed with Clauses 1 to 4 but will introduce an annual deregulation Bill, they would do something for parliamentary democracy. They would also do something for the respect in which they ought to be held.
Lord Barnett: First, I apologise for the fact that I was not able to be present at Second Reading. But I read what was said, and I very much agree with the Minister, the noble Lord, Lord Strathclyde, in his desire to reduce the burden on industry, and particularly on small companies. Indeed, I have probably introduced a fair amount of legislation and a fair number of regulations in my time that remain a burden on industry. I would be glad to see them removed. I cannot now remember what they are; it was some time ago.
But the question is, how does one do it? I was taken by the point that was made by the noble Lord, Lord Rodgers, that having a Bill every year might be a useful way of doing it. Certainly the question is, how can it be done, and what are the consequences of doing it in the way that is suggested in Clauses 1 to 4 of the Bill?
It was conceded by Ministers at Second Reading that the methods proposed in Clauses 1 to 4 are exceptional. Indeed, not the noble and learned Lord the Lord Chancellor but the noble Lord, (can I get it right?) Lord Mackay of Ardbrecknish, said that because the powers were exceptional he intended to propose exceptional
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ways of avoiding the major damage that those powers would do. The question is not only whether those exceptional safeguards, as he described them, are exceptional but whether they are adequate. That is what we are talking about.
To put it mildly, I am far from certain that the noble Lord, Lord Dean, is right in saying that they are valuable safeguards. I hope to explain why I do not believe that they are as valuable as he suggests—though, let me make it quite clear, when I was Chief Secretary to the Treasury I would have welcomed such powers, not only over the House but over some of my Cabinet colleagues. I must also make it clear that I never suggested that. I do not think for a minute that any of them would have gone along with it, including the noble Lord, Lord Rodgers. I always thought that I would make the most benevolent dictator in the Cabinet, or in the House, but I do not think that it would have been right to do that.
The real issue was well put by the noble Lord, Lord Cockfield, on Second Reading (col. 973) who said that it should be Parliament, not the Executive, that should decide these matters. In practice, under this Bill, it will be the Executive (i.e. Ministers) that will decide. I want to explain exactly why that will be the case.
The problem, as has always been recognised, is that there is too much legislation and too much regulation. As a result, much of it is badly prepared and badly drafted, and it goes through both Houses all too quickly, whether under guillotine or not. This year there has been a 462 page Finance Bill. I doubt very much, to put it mildly, whether the Chancellor has read every page. He has always conceded that he does not read too much. But it is not only the Chancellor who may not have read it; the members of the Finance Bill committee and indeed Members of the other place had no opportunity to scrutinise it. They never do have an opportunity to see whether Bills are properly drafted and are worth taking through all their stages.
That is why I believe that talk of reforming Parliament and having shorter working hours is, frankly, that much pie in the sky. What we need is less legislation and less regulation. If we do not have that, then it is a nonsense to talk about shorter working hours. That cannot happen unless Bills, orders and regulations are to pass through Parliament without proper consideration, even with the benefit of Select Committees.
But leaving that point aside—although I believe that it is very important—the real issue in this debate is whether the safeguards are adequate as well as exceptional. Under the Bill the Government can introduce highly controversial regulations. As is our custom, this Chamber would not or could not vote against them. Effectively, our powers would be to amend them because of the way in which the scrutiny committee would work. Effectively, it would be the same—that is what I understand the noble and learned Lord, Lord Simon of Glaisdale, was told on Second Reading—and there would be 60 days for special scrutiny.
It seems to me that the answer to the question of whether the safeguards are adequate on what is rightly called the Henry VIII provision lies in the wording of

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Clause 1 of Chapter I. As my noble friend Lord Peston pointed out, it all depends on the opinion of a Minister; and I emphasise that, as he did. It does not depend upon what Parliament says. It depends upon the opinion of a Minister. Ministers can amend or repeal an enactment,
"where appropriate, by making such other provision",
which the Minister proposes to the Chamber. That is what is proposed in Clause 1(1) (b). We could accept that the opportunity to amend or throw out the regulation would be sufficient and adequate to enable us to avoid the worst effects of a Henry VIII clause.
I am always reluctant to disagree with the noble and learned Lord, Lord Simon of Glaisdale. He said that he accepted the Bill with three conditions. First, it would be one off. Given the huge powers of the Bill, it may be enough for it to be one off; but no Minister could accept such a condition. There may be other Bills which are even worse—I do not know—but certainly that condition is rather meaningless. The second condition was that we should have an opportunity for close scrutiny of the language of the Bill. I certainly hope that we shall be able to scrutinise it closely. I accept that.
The third and most important condition was that we should have the ability to vote down the regulations. I hesitate to describe the noble and learned Lord as naive —indeed, I am sure that he is not naive—but he totally ignores the political practicalities. We all know what would happen, whatever the scrutiny committee said. There would be a heavy three-line Whip and the Government—that is to say, the Minister's opinion— would prevail. I do not ask the Minister to tell me that that would not be the case because he cannot do so, though I should be happy to hear him say it.
4 p.m.
Lord Strathclyde: Perhaps I may briefly intervene. I understood that the noble Lord said that it was wrong for Ministers to propose legislation. I can think of very few examples in parliamentary procedure when the Minister himself does not propose legislation.
Lord Barnett: I cannot think of any example where a Minister has proposed Henry VIII legislation of this kind. I referred specifically to the three conditions mentioned by the noble and learned Lord. The third condition arose when he said that he could accept the Bill because of the scrutiny committee's requirement that this Chamber, if it so desired, could do the equivalent of voting against the regulation. I believe that that is unrealistic. In practice, it could not and would not happen. Most of the Members of this Chamber, on a heavy three-line Whip, would vote in favour of the Minister's opinion. Again I emphasise the word "opinion", because that is the word in the Bill.
The fact is—we all know it—that the regulation will be bulldozed through, whatever the scrutiny committee says. If we care about democracy, as I am sure this Chamber does, I hope that we shall vote for this amendment and the others in the group, thus ensuring that Chapter I does not appear in the Bill.
Lord Simon of Glaisdale: I do not think that this group of amendments would work as a matter of constitutional mechanics. But the debate has raised very
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valuably—it was impeccably put in motion by the speech of the noble Lord, Lord Peston—a fundamental constitutional situation which the Bill faces; namely, the encroachment on democracy that we have seen in recent years. There has been encroachment on individual liberties, and on parliamentary proceedings. With regard to the proceedings of Parliament, there is the assumption of legislative power in order to legislate by subordinate legislation, which at the moment very largely escapes the effective scrutiny of Parliament.
As for the substance, the committees of the noble Lord, Lord Sainsbury of Preston Candover, identified 3,500 statutory regulations which bore hardly on business. It is perfectly idle to pretend that, without the powers given in Part I, those 3,500 orders or any substantial part of them can be effectively dealt with. Indeed, I go further. Having read the amendment tabled by the official Opposition it seems to me perfectly plain that all but a minute and unspecified proportion of those regulations will survive. The fact remains, distasteful as it may be, that if we rely on primary legislation we shall not get effective deregulation.
Under those circumstances it seems to me that the main question is the one that was raised by the noble Lord, Lord Dean, with whose speech I respectfully agree; have we established suitable safeguards, suitable instruments of scrutiny, facing the problem that we have of deregulating? In my view, this Bill gives us an opportunity to assert parliamentary control and to reaffirm this Chamber's role in the constitution.
The noble Lord, Lord Dean, dealt with the methods of scrutiny by the Delegated Powers Scrutiny Committee. That committee has been a constitutional triumph. No doubt it will need to be strengthened numerically, but it has certainly earned our confidence as an instrument of scrutiny of delegated legislation.
Lord Williams of Elvel: Perhaps I may be allowed to intervene. The noble and learned Lard has been talking very eloquently about the Delegated Powers Scrutiny Committee and safeguards. He is quite right to do so and perfectly entitled to do so. However, I wonder whether he fully understands that the Bill as drafted not only deals with delegated powers but with powers, "to repeal an enactment"; that is to say, it deals with primary legislation and not just delegated powers.
Lord Simon of Glaisdale: I did not hear the beginning of the noble Lord's intervention. The issue with which I was precisely dealing is the fact that primary legislation is being dealt with by secondary legislation. The question I pose to the Committee is: are there sufficient safeguards to replace the normal parliamentary scrutiny in the legislative process?
As I said, in my view the Bill gives us a parliamentary opportunity. There have been consider-able criticisms of Parliament in recent years. The other place seems to have come increasingly under the domination of the Executive and your Lordships have had a disagreeable experience lately in relation to our capacity to deal with and amend legislation under the hours that we are forced to keep. It seems to me therefore that we are well advised to look at the alternative procedure.

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I say that for two reasons. First, secondary legislation is increasing in mass and in importance. Shortly before his lamented death, Mr. Cryer, the admired chairman of the Statutory Instruments Committee, wrote to the Leaders of both Houses complaining that secondary legislation was going far beyond its nuts and bolts function. So, quite apart from this Bill, there is a serious problem to face as to how we can deal with the increasing weight and importance of secondary legislation.
Secondly, as I ventured to point out at Second Reading, what is proposed by the Procedure Committee corresponds to a great extent to what was proposed by the Procedure Committee of the other place when it struggled to face the problem of secondary legislation. We will be well advised to proceed in the way in which the noble Lord, Lord Dean, recommended. I understood that he had correctly interpreted what the Government propose. The noble Lord, Lord Rodgers, took the other view, but that can be cleared up at once when the Minister replies.
Two other things are needed. One is a matter that has been dealt with in a number of the speeches addressed to the Chamber and most recently by the noble Lord, Lord Barnett. I refer to the phrase "In the opinion of the Minister". It is an old bureaucratic formula which puts Parliament and, to a large extent, the courts at a disadvantage and means that the Executive can largely escape from scrutiny. The noble Lord, Lord Peyton of Yeovil, tabled an amendment to deal with that formula which seems to me to merit serious consideration.
A third issue is raised by an amendment tabled by the noble Lord, Lord Rodgers; namely, whether or not we should have the power, finally, in Parliament to vote against a draft order under the Bill. I can see no reason why not. The draft order is submitted for the approval of both Houses and it is perfectly absurd to say that the other House can disapprove but your Lordships cannot because there is a recently invented theory that your Lordships do not vote against secondary legislation. That again should be and can be cleared up in the course of the Bill.
Provided that those three safeguards are instituted —namely, the system of scrutiny by a select committee, which will initially be the scrutiny committee in this House; the excising of the objectionable phrase "in the opinion of the Minister"; and the undoubted right of your Lordships to vote against any statutory instrument that is submitted for your Lordships' consideration—the Bill, properly considered, is not derogatory of parliamentary democracy, but in fact provides an access of strength to Parliament.
4.15 p.m.
Lord Beloff: As on Second Reading, I find myself obliged to disagree with the remarks of the noble and learned Lord, Lord Simon of Glaisdale. But in order to explain why I do so, I must begin by explaining why, coming from the opposite end of the political spectrum to the noble Lord, Lord Peston, I nevertheless find it impossible to assent to the first clause of the Bill.
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My reason is one which I have perhaps enunciated before when we come to legislation conferring new powers on Ministers; that is, that my criterion is always not whether I would be prepared to hand those powers to the present incumbent of the relevant office, but whether I would be equally happy to see those powers in the hands of someone occupying that office from another political party. To my mind that is the most serious issue of all; that Parliament should not be prepared to enhance the powers of Ministers unless Parliament is indifferent to the Minister who happens to be in a position to exercise those powers.
Perhaps I can give a notable historical example. Many continental institutions have emergency powers enabling the head of state to act under certain given circumstances. I am speaking from memory but I believe it was the notable Article 48 of the Weimar Constitution of the German Republic that caused concern. It seemed a fairly innocuous provision when we remember the first president of the republic who was a rather mild social democrat of some kind. The power passed, with consequences of which we are aware, to an elderly and at times senile Field Marshal, much subject to external pressures. I do not say that we are likely to be confronted in the next government by an elderly and perhaps senile Field Marshal; in fact it seems more likely that some infant prodigy will lead them. But the position remains exactly the same.
Legislation should be legislation irrespective of who is getting the powers. The power, as has been stated, is one to change primary legislation, to amend it and to substitute new provisions for what already exists. That goes a very long way. In the debate at Second Reading the noble and learned Lord, Lord Simon of Glaisdale, said, as I think he repeated today, that it did not matter because it was a particular question of deregulation involving all these things that practically everyone wants to get rid of.
Lord Simon of Glaisdale: The noble Lord misunderstood me. I was dealing with the question of whether conceding the powers, on this occasion, to proceed by way of Henry VIII provisions need not be repeated in view of the vigilance of your Lordships' House.
Lord Beloff: That seems to be exactly what the noble and learned Lord said at Second Reading—that a dangerous precedent was not being created. In my view, anything that Parliament does and any Act that Parliament passes clearly creates a precedent for future Parliaments. That is, after all, how our constitution has developed.
The noble and learned Lord, Lord Simon of Glaisdale, taking up the points made by the noble Lord, Lord Dean, says, "But it does not matter on this occasion because of the safeguards built into the Bill or to which the Government may agree in further discussion". I regard those safeguards, again, as assuming a House of Lords and indeed a Parliament composed roughly along the lines of the present one. I find it difficult to believe, given the stated policies and philosophies of the principal Opposition party, that the House of Lords in the next Parliament, supposing the

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Conservatives to be in opposition, will very readily expose itself to the kind of political attack which would follow if it departed from the precedent of not voting down secondary legislation. It may be that it is a relatively new convention that we do not do that, but, after all, the mass of secondary legislation that we face is relatively new. Although there may well be an occasion—and there have been a couple of occasions in the past—when the House of Lords is prepared, without any ill consequences, actually to vote down a piece of secondary legislation, I find it difficult to believe that this is in itself the safeguard that is required against Henry VIII clauses.
If one wants safeguards, the safeguard is to see that power remains with Parliament acting according to its standard procedures. I find it very difficult to believe —and here I agree with the noble Lord, Lord Rodgers —that the mere existence of the rest of the Bill, which suggests ways in which Parliament could act, does not cast doubt on the necessity of having a part of it which gives the Minister new powers. As I ventured to suggest at Second Reading, if the regulations which were objected to or which were thought to be burdens on business or the professions could be grouped according to the subject matter, one could have a series of Bills which would list them for cancellation. Those Bills could go through in the normal way. Some other legislation might not be found room for, but very few noble Lords believe that we have too little legislation at the moment. That would also answer the question—and here I entirely agree with the noble Lord, Lord Peston —that we are faced with the problem of what we do about the increasing amount of delegated legislation which does not emanate from the internal opinions of Ministers of the Crown but is, as it were, brought to us from above—from Brussels. The ambiguities about how European legislation is to be dealt with, a point raised by the noble Lord, Lord Peston, is a matter to which we shall want to return.
My conclusion is a simple one. To get rid of regulations we do not need to upset the constitution. The constitution is more important even than regulations.
Earl Russell: We owe a great deal of thanks, as usual, to the Delegated Powers Scrutiny Committee, but I should like to draw attention to one small point in its report which is not quite correct. The committee says that these powers have never been used before in time of peace. There is one exception—in 1653 by Oliver Cromwell, in the Instrument of Government, and for a few months only. The noble Lord, Lord Rippon of Hexham, may wish to say that that was not in time of peace and that it simply proves his point. If he does, I shall not join issue with him.
We owe a great debt of thanks to the Procedure Committee. In supporting the amendment of the noble Lord, Lord Peston, I would not wish to imply any criticism of the Procedure Committee's efforts, which I admire. I have spoken many times about Henry VIII clauses and regulations. The point I have always asserted is the need of this House, on something which is highly contentious, to be able to vote and on occasion to secure changes by the right to vote. But if I have
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spoken on that subject, I have also listened. I have listened to the point made many times by the noble Lord, Lord Henderson of Brompton, who I regret is unable to be present today, by the noble Lord, Lord Renton, and by the noble and learned Lord, Lord Simon of Glaisdale, who repeated it today, that the sheer weight of business is making it increasingly difficult to use the full panoply of procedure for every proposal that comes before us.
I saw the hint of a way forward in the memorandum submitted to the First Report of the Delegated Powers Scrutiny Committee by the noble Lord, Lord Skelmersdale. The point is not that this House should use the full panoply on every proposal. The point is that it should be this House and not just the Government which is able to judge which proposal needs the full dress performance of a debate and a vote. We should have some choice in that process.
The Procedure Committee report goes a long way to meet the criticism. But it would be very helpful indeed to have something on the face of the Bill saying that this Government and governments in future will be bound to accept such principles and to have some reassurance, which is of interest to us even if we have no authority in the matter, about the procedure that may be used in dealing with these powers in another place. Although saying that here could be an honourable settlement, I still have misgivings on political grounds. I listened with great interest to what my noble friend Lord Rodgers of Quarry Bank said about an annual deregulation Bill. That fits the good 17th century legal maxim that one should not do by extraordinary means what can be done by ordinary means. What my noble friend proposes was the normal practice of the 17th century Parliament. It used an annual expiring laws continuance Bill and also, of course, a repeal Bill, with a Committee stage upstairs run by the lawyers and the possibility of political control when the Report stage was reached in the House. There was a convention that that right was not lightly exercised.
It has been said to me, quite rightly, that we should be careful of adopting 17th century precedents. But the acid test is whether a 17th century precedent, if put forward now for the first time, would stand a good chance of appearing to be for the convenience of the House. My noble friend has illustrated why that proposal is for the convenience of the House. It would provide a much more suitable way of dealing with what is needed.
My second doubt is about the uncertainty of the phrase "imposing a burden". The Delegated Powers Scrutiny Committee again has hit the nail on the head. It said that Parliament will not have decided the general principles behind these measures and that it will be left to the Minister to take the policy decision. That is a point for some misgiving. Just as beauty is in the eye of the beholder, so it may be said that a burden is on the shoulders of the bearer. What appears to one person to be a burden may not appear to another to be so. In 50 years' time, when we have all had a term in office and all failed, I can imagine a government from the extreme Left holding that the requirement on business to make a

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profit is a burden and that therefore they are entitled to relief under the principles of this Bill. We might all find that worrying.
Perhaps I may take an example which is at the top of my mind because I was in the Chamber on Monday. It is not fanciful. Suppose a further attempt is made—as one day it will be —to reduce the homosexual age of consent to 16. Suppose business argues, as it has already done to an extent about the employment of women, that it is a burden on business to restrict its right to choose to employ whom it will and that therefore the law is imposing a burden on business. Might we get an order under this Bill to change the homosexual age of consent?
Being able to distinguish form from substance I would regard that as an abuse of the powers under the Bill. But can we say for certain that the Bill does not authorise any such thing? I am genuinely uncertain of this and I would like an answer. I share the doubts about the opinion of the Minister …
Lord Hailsham of Saint Marylebone: Would the noble Earl call the age of homosexual consent,
"a burden affecting any person in the carrying on of any trade, business or profession"?
That is in Clause 1 of the Bill.
Earl Russell: That was precisely the point I was trying to argue in terms of the right of industry to employ whom it chooses. Industry has taken the line that measures preventing it from employing women may be a burden on business. So by an extension of that principle I could imagine industry—perhaps in 50 years' time—taking that line also. I agree with the noble and learned Lord that it is not probable, but in giving powers of this magnitude we do not deal only in probabilities, but in possibilities as well. That is part of the principle of eternal vigilance.
As regards the opinion of the Minister, will his opinion under this Bill be liable to judicial review under Wednesbury? That is a question of some importance.
4.30 p.m.
Lord Strathclyde: I said to the noble Lord, Lord Barnett, that I could not think of very many occasions when Ministers did not propose legislation. All that is being proposed here is that a Minister comes to an opinion which he puts before Parliament. Parliament will then reach a decision under the terms of the special parliamentary procedure. That is the review.
Earl Russell: I remind the noble Lord, Lord Strathclyde, of the Wednesbury principle which is that the opinion is so unreasonable that no reasonable Minister could have formed it. I want to know whether that applies. When he replies to the debate I hope that he will give the Committee an answer.
My other misgiving is that I recognise that reducing burdens on business is a laudable objective. In 1992, when I was concerned about expansion under the Further and Higher Education Act, I checked whether the density of teaching being imposed on my college was contrary to the Factories Acts. I found that it had
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been for some time already and that the density required by the Factories Acts was so unreasonable that I did not believe that we could possibly aim at meeting it.
So I understand what concerns the Government. The point is that although reducing burdens on business is a laudable objective, it is not the only one. By giving powers for reducing burdens on business but not for any other objective, we are importing a permanent tilt into the constitution. Reducing burdens on business is good. Health and safety are also good. Something that gives powers for reducing burdens, but not for health and safety, is prejudging an issue before the evidence has been heard. That is a departure from empiricism which comes very near ideology.
Lord Campbell of Alloway: I am much obliged to the noble Earl for giving way. Can he help and clarify the matter? I refer to the concern about opinion which the noble Earl mentioned. Supposing Amendment No. 2 were carried into the Bill and that instead of "opinion" one had the concept of "can demonstrate" to Parliament. Having tried to follow the noble Earl's reasoning, would that not in substance, but not wholly of course, satisfy many of the reservations he has?
Earl Russell: I would not be satisfied by giving the substance to some purposes and not to others. It is the tilt between different purposes which causes me misgivings. In fact, this antipathy to regulation, although it may be justified empirically in many cases, taken by itself comes very close to a step on the road to anarchy. That is another reason for having very considerable misgivings about the Bill.
Lord Stewartby: I have not been a Member of your Lordships' House for very long. It has only recently struck me that your Lordships have this strange self-denying ordinance about voting on statutory instruments. For the life of me I cannot understand why your Lordships' House feels constrained about voting for or against statutory instruments. Those introducing legislation usually give very careful consideration as to where the line should be drawn between changes for which primary legislation would be appropriate and those for which secondary legislation (delegated powers) would be appropriate.
Until very recently I had been under the complete misapprehension that noble Lords felt free to object to statutory instruments if they were not comfortable with them. When I was a Minister in another place I assumed, when agreeing to clauses in legislation which were going forward and which provided that such and such a provision should be subject to an affirmative resolution by each House of Parliament, that that meant what it said and that it would not be a dummy exercise invalidated, so far as your Lordships' House is concerned, by a convention that it should not do that.
The primary legislation, which makes those provisions, specifically suggests that it is the appropriate thing to do. I am baffled by the self-denying ordinance which noble Lords have imposed on themselves. I believe that it goes to the heart of the question about what is proper for statutory instruments and what is necessarily treated only by primary legislation. This

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clause has been dubbed, as has legislation on many previous occasions in your Lordships' House, a Henry VIII clause. I do not believe that that is an appropriate definition. No doubt the noble Earl, Lord Russell, can think of a better analogy. However, if one wants to stay with the Henrys, it is more like a Henry I clause because when Henry I came to the throne, as part of the process of his coronation and review of existing legislation, he deregulated on quite a substantial scale.
There is a fundamental difference between imposing legislation and removing legislation, between placing burdens, constraints and requirements on the people of this country and removing them.
Earl Russell: Would the noble Lord agree that one man's freedom can be another man's burden?
Lord Stewartby: There are always two sides to every coin and that is where value judgments enter into such matters.
Lord Strathclyde: Perhaps I may help my noble friend and the noble Earl. In Clause 1(1) (b) it is stated quite clearly that the power must be used "without removing any necessary protection".
Lord Stewartby: My noble friend is absolutely right about that matter and in my attitude towards the proposals I rely very considerably on that provision.
I was a little take aback by the ferocity of the criticisms made by the noble Lord, Lord Peston. Although it is perfectly valid for noble Lords to consider the constitutional aspects of the proposals, it would be very difficult to see them in the light of an outrage against the constitution on the scale that was suggested by the noble Lord.
In recent years legislation has become successively more complicated. That is not because governments, in their weakness, decide that they want to legislate more and more; it is because the complexity of modern life is such that legislation is required to become more wide-ranging and more technical. The pace of change in communications, techniques, technology and many other areas moves so fast that it is impossible to anticipate at the time primary legislation is introduced how the precise provisions will be applied in five or 10 years' time when circumstances have changed.
I have no doubt, from personal experience, that when trying to plan legislation which would last for a reasonable period and be sufficiently flexible to take account of the potential changes, government will be tempted, for perfectly respectable reasons, to provide for changes to the legislation to be introduced by statutory instruments. That is not because they wish to impose any autocratic Henry VIII-type powers but because of the increasing difficulty of keeping legislation up to date.
In that regard the proposals are a serious and sensible attempt to adjust the process of delegated legislation in a manner which will enable thorough scrutiny to take place and in a field where changes would be more or less universally acceptable.
The only material change that I should like to see in Clause 1 is a provision that the proposed powers should be introduced in the first instance for a limited period
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—for example, three or four years. During that time noble Lords and the other place would gain experience of the way in which the procedure worked. If, as I suspect, at the end of that time the process had not aroused great anxieties of the kind that have been suggested this afternoon, they could be renewed in a way which would command general acceptance.
It is undoubtedly necessary to deal with the growing parliamentary problem of the proper treatment of delegated legislation. Subordinate legislation is not satisfactorily dealt with at the moment. Even if noble Lords felt free to vote against statutory instruments, the fact is that they are unamendable and the process of consideration to which they are subjected is nowhere near as comprehensive or constructive as the process which the Minister suggests should apply under the clauses.
The Bill would introduce a process of different stages of consultation with people outside Parliament, with both Houses, with special committees and assemblies for the purpose, and there would be an opportunity to vote both on substance and procedure here and in another place. That process is likely to enable serious discussion to take place in a more coherent fashion than is the case with much primary legislation today.
I very much hope that noble Lords will approve the proposals. I do not see anything sinister in the initial stage being based upon the opinion of the Minister because it is government departments and the Ministers who represent them who are in the driving seat in dealing with the continuous review of legislation in order to ensure that it remains workable and up to date. That is the most reasonable and practical source of suggestions for deregulation and the reduction of burdens.
Given the safeguards that are built into the clauses and the complex but very thorough series of processes of consultation, discussion and voting that is open to this House and another place, this procedure very much deserves to be given a chance to prove itself.
I conclude by stating that I would be happier if the new process were to be introduced for a period during which the procedure could establish itself or, alternatively, prove unsatisfactory so that the matter could be settled rather than for the matter to be placed on the statute book in an absolute form for the indefinite future. Subject to that reservation I warmly welcome the proposals put forward by my noble friend. I hope that they will achieve the approval of noble Lords.
Lord Jay: Before we decide to give these powers to the Government, we should know how wide they are. As drafted, the powers in the Bill would not be confined to removing burdens from industry or trade, as everyone seems to have assumed. The points that the Minister has to establish before using the powers are set out clearly in Clause 1 and include the words quoted by the noble and learned Lord, Lord Hailsham, although he omitted the essential words, unintentionally I am sure.
The Bill states that,
"a Minister of the Crown is of the opinion that the effect of the provision is such as to impose, or authorise or require the imposition of, a burden affecting any person in the carrying on of any trade, business or profession, or otherwise".

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The words "or otherwise" are absolutely crucial. They remove from the matters the Minister has to establish the provision that the burden has to be suffered in the carrying on of trade. According to Clause 1, two things have to be established: first, that there is a burden and, secondly, that some of the people on whom it is imposed are carrying on a trade, business or profession, which applies to a large section of the population. That is all you have to establish. Therefore, the powers are much wider—
Lord Hailsham of Saint Marylebone: I do not want to interrupt the noble Lord or to take up the time of the Committee, but I do not think that he has given full effect to the ejusdem generis rule of construction.
Lord Jay: I did not altogether hear what the noble and learned Lord said, but he cannot deny that the words "or otherwise" are in Clause 1(1) (a).
Supposing that, as a result of the privatisation of the railways, certain local stations were closed down, the closing of those stations would certainly impose a burden on a great many people in the neighbourhood, some of whom, in all probability, would be carrying on a trade, profession or business. Similarly, if under any proposed "restructuring" of the Post Office—that is the word that we seem to use nowadays—a number of local post offices close down, that would certainly impose a very heavy burden on a large number of people, some of whom also would undoubtedly be involved in a "trade, business or profession".
The imposition of VAT on fuel has unquestionably imposed a very large burden on an even larger number of people, but, as the Bill is drafted, it would be possible for this Government and, as the noble Lord, Lord Beloff, rightly said, for any future Labour Government (who are likely to be less doctrinaire than the present Government) to take action in any of those fields and, by order, which this House could not amend or at present even reject, those provisions could be reversed.
I shall not go on further because such arguments lead one very widely, but that would be the consequence of Clause 1 as drafted, and we should realise that before we take a decision on the amendment.
Lord Peyton of Yeovil: To an extent, I welcome the Bill. It is to me a somewhat surprising but extremely welcome admission on the part of the Government that there is too much legislation, that it imposes burdens and restraints upon those who contribute to the prosperity of our country, and that many of those burdens could and should be done away with. That conversion, somewhat surprising as it is, is greatly to be welcomed, but I wonder whether the way that the Government have chosen is the right one.
I should like to ask my noble friend the Minister some questions. It may be that they are over simple. First, if there is too much legislation, why not, at least as a first measure, take a few tentative steps towards the tap which controls the huge volume of new legislation, primary and secondary, which pours out upon us? Although I do not suggest that the Government turn off that tap—that would be too shocking—why not turn it
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down gently a little? That would be a good start. I wonder why the Government have not so far contemplated that step.
My second question is one of considerable delicacy and I should like to put it as gently as I can. Who created the problem? Who left all those burdens—who put all those burdens and restraints?—upon the statute book in the first place? I beg leave to wonder whether those who make a bit a of a mess in our streets are the primary candidates for consideration to be appointed as refuse collectors. Of course, they could have a role and there could be something of a penalty by way of community service. That might be very appropriate.
My next question is: what is a "burden"? One understands that phrase in general terms, but when it comes to understanding clearly what it means in practice, I think that the Government need to explain a little more.
To go on to my next point, I am seriously worried about the safeguards. They sound all very well until one remembers how much our parliamentary system is creaking from an overload at the moment. The pressures on parliamentary time are huge. Although my noble friend Lord Dean said that the Government would listen to everything that was said—I thought that my noble friend was over confident—I feel that I have to say, and I have said something like this before, that the most natural posture in which one expects to find Ministers is not with their hands to their ears straining to hear what others have to say. I except my noble friend on the Front Bench from that. As I have said, I wonder how effective the safeguards will be.
I echo the question that has been asked by others: what will be the long-term effect upon Parliament? It is axiomatic that politicians generally do not enjoy a very high level of respect in the community. The general feeling is that our institutions do not work all that well. I very much doubt whether it would be an improvement on the present situation if Parliament were seriously to weaken its powers of controlling the Executive. Although as I said at the beginning, I totally applaud the Government's intention to clear away a lot of the tiresome, prolix and incomprehensible regulatory burdens which are imposed upon our citizens, I am doubtful about a measure that could do real damage to a structure of immense value.
5 p.m.
Lord Bruce of Donington: My noble friend Lord Peston drew the attention of the Committee to the position in all this of legislation which is on the statute book but which comes from the European Community. That matter was referred to also by the noble Lord, Lord Beloff. In common with so many others of your Lordships, I have spent most of my political life battling for the supremacy of Parliament.
I most certainly agree with, and will support if necessary in the Lobby, the amendment that has been moved by my noble friend. But I am still bothered about the flood of legislation that has emanated from the European Community. Following the 1972 Act, there must now be significantly over 1,000 items of legislation which are automatically written into or

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directly applicable to our own laws. Whether or not through this Bill Parliament has the power to deregulate, or whether or not, if my noble friend's amendment is not accepted, the Government retain the power subject to all the safeguards of amending legislation, how will the Government deal with legislation that is directly on the statute books from the European Communities itself? The matter is by no means confined to regulations.
Members of the Committee will recall that there are several kinds of regulation. First, there is a regulation which is directed by the Council itself. Secondly, there is a regulation which is issued by the Commission on the express or delegated authority of the Council of Ministers. Thirdly, under certain sections—notably those connected with competition—the Commission itself has powers to enact regulations which are automatically applicable in this country without the intervention of Parliament. Fourthly, decisions are made by the Council of Ministers which require governments to make specific enactments.
Lord Hailsham of Saint Marylebone: I am sorry to interrupt the noble Lord. Surely he is forgetting that this amendment is confined to Clause 1. That clause is limited to enactments as defined in subsection (5) (c).
Lord Bruce of Donington: I am well aware of that. The fact of the matter is that when the Council makes a decision it requires this country to enact primary legislation. Some of our primary legislation, which is covered by this Bill, is enacted on the specific authority and requirement of the European Community itself. In order to clear up the general point, I thought it more convenient to refer to regulations at the same time.
The present position in regard to regulations is very simple. This country unilaterally cannot reverse any regulation imposed by the Community. Any amendment would require to be the result of a specific proposal by the Commission to the Council for that purpose. It would rank as a repeal, as an additional item of legislation.
The whole matter can be shortened immediately if the Minister can say that this Bill enables him to override any regulation that is already in force as a result of Community legislation. If he has that power, God bless him. I shall support any move to transfer that power to Parliament. However, I do not believe it to be so. Indeed, on 15th May the Commission's office in London wrote a letter to the Sunday Times referring to objections to Community legislation. The official concerned wrote:
"It is British ministers and their colleagues, and not Euro officials, who make European policies in the first place. The European Commission has the power only to propose legislation, much of which is drafted at the instigation of the member states themselves, whose officials are actively involved in the drafting process".
I do not know whether in due course the Minister will have any observations to make about that letter. I understand that that is not so, but if it is, the Government have something to answer.
However, the idea is prevalent that all the Government have to do, at Council of Ministers or otherwise, is to drop a hint to the Commission that they would like certain things done. Within that context, and
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still keeping within Clause 1 of the Bill, they might drop a hint that a decision made three years ago ought to be reversed, amended or dropped. However, under the terms of the Edinburgh Conference, the Commission repudiates that possibility and excludes it. In the Conclusions of the Presidency of the European Council in Edinburgh on 11th and 12th December 1992, the Commission added its own comment in the com-muniqué. It stated:
"In more general terms the Commission is intending to use its monopoly of the right of initiative by declining to accept requests made by the Council at informal meetings that it make proposals for Directives".
Nothing could be clearer than that.
There are a number of regulations in force in this country and perhaps I may give one example. Members of the Committee may recall that I raised the case of the firms in Arbroath which produce the smokies because there was a regulation from the Community directing precisely how that should be done. I am not sure whether it is now regarded as a burden on business. I personally doubt whether any Member of this Committee would have the effrontery or would even dare to tell an Arbroathian how to produce smokies— they have been doing it a damn sight longer than most of us have been alive! However, that is one example.
Does the Bill exclude any part of our law that exists as a consequence of Community regulations, directives or decisions? If that is the case, how does the Minister propose to persuade the Commission or the Council of Ministers to put forward proposals and to carry the repeals? Or does he say that he can do it anyway and that he need not bother about the Commission or the Council if the Government consider that a regulation is burdensome? I can think of quite a few but by no means all. I believe that some of the Commission's regulations are excellent and I would like to go on record as having made a general denunciation of them. But in the volume of Community legislation there are bound to be some that ought to be deregulated, modified or abolished. If that is the case, how do the Government propose to go about it?
Viscount Waverley: In wishing to emphasise a point made by the noble Lord, Lord Beloff, I hope that today it will be made perfectly clear what a Labour Government will do if this amendment is carried. Will it be repealed? How will Ministers publicly constrain themselves?
Lord Peston: Perhaps I may reply. It is a difficult question for an obvious reason; namely, that the noble Lord, Lord Beloff, said that one reason he opposed this part of the Bill was that he was fearful that a Labour Government would make use of it. In order to enlist the noble Lord's support, I should like to be able to say that we will keep that part if it is carried and shall use it in the most draconian way. I must tell Members of the Committee the truth; the Labour Party abhors this Bill, as do I. A Labour Government would not make use of the clause and would repeal the Bill at the earliest opportunity. I say that even if it means losing the

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support of the noble Lord, Lord Beloff, in the Lobbies during the next hour. We regard this Bill as obnoxious, full stop!
Lord Aberdare: I apologise that I was unable to be in the Chamber on Second Reading because I was abroad. However, I had the privilege of being the chairman of the sub-committee of the Procedure Committee which put forward the proposals subsequently accepted by that committee and by the House. Its task was to produce a system which would ensure the maximum amount of parliamentary control over these new proposals.
I am in complete agreement with what was said earlier by my noble friend Lord Dean. It is enormously significant that the noble and learned Lord, Lord Simon of Glaisdale, who surely is the doughtiest opponent of Henry VIII clauses, also finds himself able to accept the proposals put forward in the Bill.
All of us dislike Henry VIII clauses. We do so principally because there is no parliamentary control over most delegated legislation. By convention, as most of us know, we are unable to amend such instruments and unable to disagree with them. However, I believe that the proposals in the current Bill are quite different and that they will be a very special class of affirmative instrument.
Perhaps I may briefly mention the four processes which mean added control over those instruments. First, there is the 40 days for consideration by Parliament which I very much hope will be extended to 60 days by Amendment No. 52; indeed, that was one of the proposals that the committee put forward in its report. Secondly, there will be a report on them from the Delegated Powers Scrutiny Committee, which we have already heard highly praised during the course of the debate. Thirdly, during that 60 days it will be open to any noble Lord who has an option to debate the report of the scrutiny committee. Fourthly—and most importantly—when the draft order comes to be moved, it will be open to any noble Lord to move a Motion in respect of such an order and that Motion would be amendable.
Should this Chamber not approve the order as laid as a result of the Motion, we were assured in the committee that the Government would withdraw the order. That assurance was given to us by my noble friend the Leader of the House. We have here a very different situation from that which applies in the so-called Henry VIII clauses. I suggest that it does leave the final decision in the hands of Parliament.
Lord Lester of Herne Hill: I should like to speak briefly in support of the remarks made by my noble friend Lord Russell and the noble Lord, Lord Beloff. During my time in the Home Office as special adviser to the Home Secretary, my noble friend Lord Jenkins of Hillhead, I had the best of intentions. I wished to free women and ethnic minorities from the burdens of sex and race discrimination. In advising the Home Secretary, I sought, I must confess, to introduce a modest Henry VIII clause. However, I was advised that it would be unconstitutional. It was a far narrower
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clause than the one before the Committee today, but I believe that I was correctly advised. I also believe that the clause as it stands marks a radical departure from the best constitutional practice of the mid-1970s. I entirely agree with the noble Lord, Lord Beloff, that it is a dangerous precedent for someone like me if I were ever to enjoy office in the future.
5.15 p.m.
Lord Campbell of Alloway: The question is really whether the powers in Part I of the Bill are requisite and appropriate to achieve an object on which, after having listened to most of today's debate, all Members of the Committee seem to be agreed. Therefore, it is the means and not the end that concern us.
I listened to the speech of my noble friend Lord Dean and to that of the noble and learned Lord, Lord Simon of Glaisdale. I am certainly persuaded that adequate safeguards are afforded for scrutiny. However, I take the point made by my noble friend Lord Stewartby. I do not think that the clause is a Henry VIII clause. If we are to call it anything, I believe that it is a Henry I clause. There is all the world of difference between deregulation on a massive scale and an instance of arrogated power by delegated legislation under the Henry VIII system.
With respect, we have a very special situation which, if we are to achieve the object on which we are agreed, must be dealt with in a special way. In view of the assurances given, as explained by my noble friend Lord Aberdare, surely the ordinary inhibitions which we have about voting against or amending legislation are taken care of in that context. Therefore, as I understand the position, we are no longer inhibited.
On a tangential point, it would be my hope that my noble friend the Minister could accept Amendment No. 2 which is relevant to the proposed regime. I say that because it removes the concept of absolute ministerial discretion subject to judicial review. To "demonstrate" to Parliament is an additional safeguard beyond merely the "opinion" of the Minister. Of course, it is a slightly false point, but it deals to some extent with the fact that the Minister must produce the Bill to Parliament; there is no other way that, so to speak, it can get there. With respect, it seems especially appropriate to carry Amendment No. 2.
I turn now to the other ways that have been proposed to deal with the situation. I listened with care to the noble Lord, Lord Peston, but I did not quite ascertain whether there was any specific way in which he would achieve that end. As the noble Lord said that if a Labour Government were elected they would abolish the whole lot, I take it that this is not how they would deal with the matter. I see that the noble Lord wishes to respond. I give way.
Lord Peston: We can deal later with how else we would deal with such matters. However, perhaps I may give Members of the Committee an example of what I mean. In the second part of the Bill the Government have a great many examples of how we can amend existing legislation, much of which, the noble Lord will

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not be surprised to hear, I support. That is the example of bringing legislation to this Chamber where we vote upon it.
I was also very taken with the views of the noble Lord, Lord Rodgers of Quarry Bank which I should like to consider. I must tell the noble Lord that I believe the Government themselves demonstrate other ways of undertaking such action. The noble Lord is right to emphasise that what we are debating is not the end but the means.
Lord Campbell of Alloway: I am grateful to the noble Lord for his clarification. It must be my stupidity, but I still fail to understand quite what alternative means the noble Lord is proposing. However, if I have missed the point, I hope that I shall be forgiven.
The only other alternative means proposed were put forward by the noble Lord, Lord Rodgers of Quarry Bank, in a most eloquent and interesting speech. The noble Lord proposed that we should have an annual "trawl" for a deregulation Bill each year. With the greatest respect, I do not have the experience of the other place of the noble Lord. However, I am advised by some of my noble friends who sit near me who were in the other place that that simply would not be practicable from the point of view of parliamentary time. In other words, it simply would not be on. Therefore, if we want to achieve the end upon which we are all agreed, how are we to do so other than by the proposals put forward by the Government in Part I of the Bill with, perhaps, the acceptance of Amendment No. 2?
Lord Rodgers of Quarry Bank: Before the noble Lord sits down, I should like to make one point. He said that he has been advised that my proposal would not be possible because of parliamentary time. However, who controls parliamentary time? Of course, it is the government of the day. As the noble Lord, Lord Peyton, said very vividly, it is within the capacity of the Government to turn off the tap. If we are led to believe that deregulation is as important as the Government say, and we share that view, it is within the capacity of the Government so to regulate the flow of legislation that there will be room for an annual deregulation Bill.
Baroness Perry of Southwark: I should like to make just two very quick points. As a Member of the Select Committee on the Scrutiny of Delegated Powers I very much support what the Bill is doing and what this clause is attempting to establish. I believe that this is a very imaginative way of trying to create alternative parliamentary controls over Executive action. This is not an example of delegating powers to the Executive without control by Parliament. The structures which are proposed in the legislation would allow Parliament, as has been said—I do not need to repeat it—to debate and, if necessary, to vote on the powers which have been taken as each individual example came to light.
Unusually, the measure allows for a period of consultation so that the views of the general public who are most affected by any changes in regulations would be taken into account and would have to be taken into account. Very often with legislation that is not the case. I think in many ways we have what we all admit and all
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accept is a new structure. It is, I believe, a structure which should be given a trial, and I hope very much that my noble friend the Minister will consider the Committee's recommendation not only for the longer consultation period, which I believe is a more realistic one, but also for the legislation to be time-limited every three years so that we have a real check and a stop on the way in which the new mechanisms are working and we have an opportunity to say, "It is a good way; it does work; it still allows Parliament its proper role in the regulations that are being made", or to say, "No, you cannot have the powers again. That is the end".
I come to my second point. Many in this Chamber have spoken this afternoon about the importance of deregulation for the commercial and industrial sector. We had a vivid example of this only yesterday in another Select Committee, the Select Committee on Science and Technology. The fourth largest telecommunications company in the world—an American company, which is investing very heavily in this country—invests disproportionately large amounts in research and development in this country. When we asked the witnesses why they invest so heavily in this country, as opposed to the many other countries where they operate, the reply was twofold. They said that they did so, first—the academics present may purr for a moment—because of the high quality of our higher education and our scientific base, but, secondly, because "Your Government are creating a climate of deregulation which is a model for world trade". I rest the case.
Lord Haskel: My noble friend Lord Peston and other Members of the Committee have spoken about the parliamentary aspects of these amendments. I should like to speak briefly about the industrial aspects. I presume that the intention of Clause 1 is for the Minister to act speedily and efficiently. If so, there is a misunderstanding of what business and industry really want. What they really want, and have expressed many times, is speed and efficiency in the enforcement of regulations, not changes in the regulations. Many of us in business have had the disappointment of bringing to the attention of the authorities a breach in regulations and by the time the breach has been rectified the damage which the regulation is meant to have avoided has already occurred. A river has been polluted, misleading claims have damaged the consumer, money has disappeared and it is too late to retrieve it.
Industry's further reason for supporting this amendment, I feel, is that the power to remove regulations by statutory order smacks of the old days of "Whitehall knows best". Certainly the Bill contains clauses obliging the Minister to consult, but we are all busy people and one suspects that there will be only token consultation and, in fact, decisions will be made by anonymous executives in Whitehall. I think that most business people would prefer the regulations to be left as they are. There are enough regulations coming from Brussels to cope with. My noble friend Lord Bruce spoke about that. If there is to be change I think they would prefer the admittedly long parliamentary

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procedure which industry has also learnt to live with rather than the unexpected, unexplained and uninformed decisions of Whitehall.
Lord Monkswell: I had not planned to intervene in this debate but there is one area which I believe needs a little bit of teasing out. We have heard how this particular clause gives powers to Ministers to bring things forward, and how this Chamber will have extra means of scrutiny and amendment of the regulations or the changes that are proposed. But I think we need to look at the practical effect—what is actually going to happen? A number of Members of the Committee have said that because of custom and practice we do not vote against parliamentary orders. That matter has been of some concern to the noble and learned Lord, Lord Simon of Glaisdale, who said that we need some mechanism which enables an input to be made from the House of Lords. That would be nice but one of the things we have to take account of is the relationship between Ministers and the House of Commons and that between the House of Commons and the House of Lords.
As the noble Lord, Lord Barnett, mentioned, when a Minister proposes something to the other place he is backed by his party. There is a three-line Whip and effectively the matter almost becomes one of confidence in that Minister and the measure is agreed by the other place. Up till now we have not seen fit—apart from on one or two very isolated occasions—to have a different view of things from the other place.
In the passage of primary legislation, of course, there is a mechanism as regards disagreement between the House of Lords and the House of Commons and mechanisms for resolving those disagreements. But if a parliamentary order is laid in the other place and here, no matter what scrutiny mechanisms and mechanisms for amendment there are in both Houses there is a high risk, if the House of Lords exercises its apparent powers, that there will be a difference of view articulated between ourselves and the House of Commons.
Lord Simon of Glaisdale: If the noble Lord will allow me, would that not occur similarly in legislation and can it not be resolved in exactly the way that legislative differences between the Houses are resolved?
Lord Monkswell: I do not see a mechanism at the moment to resolve that sort of problem. With primary legislation we have a mechanism. We have the procedures of going through a Bill in this House. It then goes to the House of Commons and they consider our amendments. It then comes back and we consider their amendments. But if there is a situation where the House of Commons and the House of Lords both arrive at a decision at the same point in time, and it is a different decision, and there is no mechanism to resolve that clash of opinion, what we have is a major constitutional problem and that is, I suspect, the main reason why this House, over the years, has not voted against parliamentary orders.
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I pose this problem because it is a problem that can happen at any point in time and it is not relevant to suggest that we need a change in government to have the problem arise. It can arise at any point in time because of the make-up of this place, the interests of its Members and the fact that the Whip system does not always operate in favour of the Government. I am concerned that we might have that clash. It is not up to the Leader of this House to say that it will not happen, because we are masters and mistresses of our own fate.
5.30 p.m.
Lord Strathclyde: I know that the clock says we have only been speaking for an hour and three minutes. However, I gather that the clock has stopped on some occasion and we have in fact been speaking for over two hours. Therefore, it may now be appropriate for me to reply on behalf of the Government.
I was rather puzzled and confused by the way in which the noble Lord, Lord Peston, introduced his amendments. I think that the noble Lord did himself a disservice and in moving his amendments did not come up to his normal high standard. He said that his amendments were not wrecking amendments and then hardly mentioned what they would achieve. He made a far better speech at Second Reading. I suspect that between Second Reading and now he forgot a lot of what he knew.
That was not so with the noble Lord, Lord Rodgers of Quarry Bank. In order that we did not forget what he had said at Second Reading he proceeded to repeat some of it. That was extremely useful. The noble Lord wondered where were the 55 deregulation measures. Under the 29 headings which he correctly found in Chapter Three, section B, of the booklet Deregulation —Cutting Red Tape 55 measures are listed. I shall be more than happy to indicate what those are on another occasion.
The noble Lord, Lord Peston, used a number of quotations. In the best traditions of the political art, he quoted selectively. I can do the same. In the case of the Hansard Society commission report on the legislative process of November 1992, the noble Lord, Lord Peston, referred to a paragraph which indicated that:
"Henry VIII clauses are, of their nature undesirable".
He did not point out that the report also states that such a clause should not normally be used in legislation. However, the society also says that:
"In some cases such a power may be useful and not unreasonable".
The Government believe that the reduction or removal of burdens without removing necessary protection is both useful and not unreasonable.
The Hansard Society commission also urges the use of the affirmative resolution procedure for orders under such powers. In the exceptional case of the deregulation order-making power we have gone very much further with the proposed unique parliamentary scrutiny procedures which I shall outline in a moment.
We heard a speech from the noble Lord, Lord Jay —and I am glad to see the noble Lord in his seat. The

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noble Lord, Lord Haskel, pointed out what the noble Lord, Lord Jay, had said some years ago. The noble Lord, Lord Jay, said:
"The gentleman in Whitehall really does know better what is good for people than the people know themselves".
That goes considerably further than anything we propose under the Deregulation and Contracting Out Bill.
I shall not join in the legal argument proposed by my noble and learned friend Lord Hailsham, except to say that: my noble and learned friend was absolutely correct when he indicated that the noble Lord, Lord Jay, when considering the meaning of "otherwise", should consider the ejusdem generis rule.
Lord Peston: Perhaps I may intervene to reveal my ignorance. I have not the faintest idea what the noble and learned Lord, Lord Hailsham, was talking about at that stage. I still do not have the faintest idea what the Minister is talking about. For those of us who are ordinary grammar school boys, can he explain what all this means?
Lord Hailsham of Saint Marylebone: Perhaps I may interrupt my noble friend to tell the noble Lord that when one has a string of words like the one I quoted followed by the words "or otherwise", the words "or otherwise" mean "of the same kind or class".
Lord Williams of Elvel: I hope the Committee will forgive me for intervening, but I am sure that the noble and learned Lord will be aware that I have taken legal advice from my colleagues. I am advised, by rather younger lawyers than the noble and learned Lord, that the words "or otherwise" specifically exclude the ejusdem generis rule.
Lord Strathclyde: I, too, have taken legal advice. Perhaps this is not entirely the best place to resolve this situation. It may be useful to give the matter further examination.
Lord Jay: I have taken no legal advice, but I should like the Minister to explain what the words "or otherwise" actually mean in the Bill. How will the Bill be altered if we leave them out?
Lord Strathclyde: I shall try to deal with the amendments proposed by the noble Lord, Lord Peston, and explain them in the context of the Bill.
Before I do that perhaps I may touch on another legal principle, which was raised by the noble Earl, Lord Russell —the Wednesbury principle—and how that applies to the powers in Clauses 1 to 4. As the noble Earl said, the Wednesbury principle is the principle applied by the courts in judicial review cases under which they will strike down a decision of a Minister which is so wholly unreasonable that no reasonable Minister, properly advised, could have taken it. That principle applies as much to the powers in Clauses 1 to 4 of the Bill as to any other powers in any other legislation. The strong safeguards that we have provided in the Bill would, I believe, be sufficient to prevent any such question arising.
I can confirm that, in addition, the Wednesbury principle would certainly be a constraint on the use of
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these powers, although not stated on the face of the Bill, because it is already part of the general law that wholly unreasonable decisions taken by Ministers would be struck down by the courts. Therefore, far-fetched notions of how the power could be used should be seen in that light.
As I stated earlier, in introducing his amendments the noble Lord, Lord Peston, said that they should be coupled with Questions that Clauses 1,2, 3 and 4 stand part of the Bill.
Lord Peston: Perhaps I may remind the noble Lord that I said that, if my amendment were carried, Clauses 2, 3 and 4 would have no meaning and therefore, logically, they would have to disappear from the Bill. That was all that I said. It had nothing to do with whether we debate the clauses. It is a matter of logic that they would have no meaning.
Lord Strathclyde: I may have slightly misunderstood the noble Lord, but the effect is the same. If a vote were taken on the noble Lord's amendment, as the noble Lord said, Clauses 2, 3 and 4 would have no meaning and therefore we would have no opportunity to discuss them.
The noble Lord, Lord Peston, misrepresented the way in which the Government plan to operate the powers in the Bill and how this Chamber will deal with them. I felt that the noble Lord's argument was relatively weak, and it was particularly weak when he invoked the Eurosceptics to help him. Perhaps I may deal with that point. Having been asked a question by the noble Lord, Lord Peston, the cry was taken up by my noble friend Lord Beloff and, not surprisingly, by the noble Lord, Lord Bruce of Donington.
European Community legislation coming direct from Brussels is wholly outside the scope of Clauses 1 to 4. It is beyond the powers of this Parliament to amend legislation made in Brussels. Acts of this Parliament which implement our Community obligations are, in theory, within the scope of Clauses 1 to 4, but in practice very little in such Acts could be amended or repealed under the Bill because that could lead to a failure to comply with our Community obligations. Only where we have identified a better, less burdensome, way of implementing obligations would we have cause to use the new power in such a way.
I can confirm to the noble Lord, Lord Bruce of Donington, that we are working actively with other member states to introduce the whole principle of deregulation to the European Commission. It is on that basis that we shall be looking at future legislation emanating from Brussels. That is why I hope that the noble Lord, Lord Bruce, will support the Government to encourage more deregulation as a principle of good government and the examination of past legislation in the same light.
Lord Peston: Perhaps I may interrupt. I know that it sticks in his craw, but the easiest way in which the Minister could have expressed the matter would be to say that what I said about European legislation was right. Why did he not say, "Thank you. What you said was right"? It is not hard to do so.
Lord Strathclyde: I reply to a debate. Several points were made by the noble Lord, Lord Peston, my noble friend Lord Beloff, and the noble Lord, Lord Bruce of Donington. I thought that, simply as a matter of courtesy, I should give the Government's considered view. I am rather hurt that the noble Lord should have accused me of some form of bad faith.
Lord Peston: The noble Lord is not as hurt as I am. I do not accuse him of bad faith. I had stated the position with regard to the Community. I pointed out, exactly as the noble Lord did, that the Bill is not able to become involved with Community measures although many people believe that those are the biggest burden on British industry. The noble Lord used the word "courtesy". We are being friendly with each other across the Dispatch Boxes. I should have thought that he could have said, "Thank you very much for being so helpful. You are entirely right".
Lord Strathclyde: We have many issues about which to disagree in the Bill. I do not think that we should pick an argument when we agree with one another.
Lord Bruce of Donington: I am not upset in the slightest by what the noble Lord said. He is always very kind in these matters. However, perhaps I may still draw his attention to the fact that certain decisions are made by the Council of Ministers; and this country has to make its own legislation in conformity with Community wishes. It is those enactments which we have made as a result of a decision by the Council of Ministers to which I specifically referred. How does the noble Lord propose to amend them?
Lord Strathclyde: I do not wish to continue this debate, but that is exactly the answer that I gave.
Lord Hailsham of Saint Marylebone: Hear, hear!
Lord Strathclyde: I am supported by my noble and learned friend.
I owe a debt of gratitude to many of my noble friends who spoke today—my noble friends Lord Dean of Harptree, Lord Stewartby, Lady Perry and even Lord Peyton—who, basically, was supportive of the Bill.
Lord Peyton of Yeovil: I believe that my noble friend has slightly misconstrued my speech, if I may say so.
Lord Strathclyde: I had thought that my noble friend was about to say a little more. I hope that I did not misunderstand him. There will be plenty of occasions in the future for him to put me straight.
The point is that the Delegated Powers Scrutiny Committee reported to the House that the power that the Government seek is unprecedented in time of peace. The noble Lord, Lord Peston, made that point in his opening remarks. The noble Earl, Lord Russell, said that the powers are not as exceptional as the Delegated Powers Scrutiny Committee think they are, but that is a matter that he can take up with the committee.
We entirely agree that these are exceptional powers. It is for that reason that we have proposed an
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exceptional, indeed unique, procedure for making the orders. It may be helpful if I use this opportunity to take the Committee through the process that we have proposed as it would work in your Lordships' House.
The deregulation order-making process begins with a proposal from a Minister relating to a provision in primary legislation which he considers imposes a burden which can be reduced or removed without removing any necessary protection.
The Minister, being satisfied these conditions are met, will then have to undertake consultation on his proposal with representatives of those who are substantially affected and anyone else he considers appropriate. The Minister will then consider the results of the consultation. He may decide to change all or part of his proposal, or even withdraw it completely. If he changes the proposal he must undertake further consultation in respect of the changes as necessary.
Parliamentary scrutiny would then begin with the Minister laying before the House a draft of his proposed order, with a detailed document describing the proposal, and the form and results of the statutory consultation on that proposal. There would then be a period of 60 days —as indicated by my noble friend, Lord Aberdare—for parliamentary scrutiny. The deregulation committee in this House would start its inquiry into the proposal. The committee would be able to scrutinise the proposal in line by line detail. If it wished, it could examine witnesses (who need not be confined to those already consulted), call for evidence from the relevant department, and consider any other representations made.
Having completed its inquiry, the committee would then report its findings to the House, making whatever recommendations as regards the proposals it considered appropriate. It could recommend that the proposal should not proceed or should proceed only if amended in some way. The Government have made clear that they would take an adverse report from the committee extremely seriously and in normal circumstances would expect either to withdraw the proposal altogether or to submit a revised proposal. The House, if it wished, could at this stage debate the committee's report and let its views be known to the Government, but it might wish to await the Minister's consideration of the committee's report.
The Minister would have to take account of the committee's report and any other representations made before finalising the draft order. He would then lay the draft order together with a statement detailing any changes made.
The deregulation committee would then consider the draft order again and report on it to the House before any Motion to approve the order would be moved. It would be open to any noble Lord to table a Motion on that report. The Motion would be an amendable one. If the House resolved to the effect that the draft order as laid should not be approved, the Motion to approve the order would not be moved. The Government would reconsider and either lay a revised draft, bring forward the proposal as primary legislation or withdraw the proposal altogether.
Earl Russell: I am extremely grateful to the Minister for what he said. He might reassure the House even further if he could give a helpful signal of his intentions towards Amendment No. 13, in the name of my noble friend Lord Rodgers of Quarry Bank.
Lord Strathclyde: I am not exactly certain what the amendment in the name of the noble Lord means in detail because we have not yet reached that stage of the Bill. I shall consider the amendment in more detail when we reach it. However, I have indicated that, where the House voted against a Government in favour of a committee report condemning the Government in one form or another, the Government would withdraw the draft order. That seems to me quite a strong point.
Earl Russell: It is a strong point. I regard it as entirely sufficient for this Government and this Parliament. If he accepts my noble friend's amendment, the provision would then be in primary legislation and binding on future governments. That would be even more reassuring.
Lord Strathclyde: Perhaps I may go a little further in explaining what I mean. This takes us into territory on which I do not pretend to be an expert, but it is important to the House, and particularly important in the light of what the noble and learned Lord, Lord Simon of Glaisdale, said.
We have a convention in this House that we do not vote on secondary legislation. There are a number of reasons for that convention. Some are administrative; some are historic and traditional. But it is a convention, that is all.
Lord Simon of Glaisdale: I am much obliged to the noble Lord. His explanation has been most helpful. However, can he not say this, too? Is there not a further stage at which the other place can vote against the draft order? If it can do that, why cannot we be allowed to do so?
Lord Strathclyde: The noble and learned Lord is quite right; the procedures in the other place are rather different. There, they clearly have the potential to vote on secondary legislation; there is no convention that they should not. In this House we have created that convention. However, to take the example of the noble Earl, supposing the Government were not to withdraw their draft order once the House had voted down a proposal made by the committee. Then, if the Government were to continue bringing the draft order, I suspect that the convention would be suspended by the House who would vote against the draft order in the normal way.
I think that that is a very powerful safeguard against abuse. It also strengthens the rights of this House in a way that I think is suitable, given the powers that are being provided in the Bill. I am not sure that that entirely answers the point on Amendment No. 13, but no doubt we will reach that later.
Lord Monkswell: Can the Minister say what proposals the Government have to resolve the conflict which would be apparent if the House voted down an order and the other House voted for it?
Lord Strathclyde: We are talking about a simultaneous procedure. If either House voted something down, then the House would vote it down. The Minister or the Government would then be obliged to amend it or bring it forward as primary legislation in the normal way. That strikes me as being relatively obvious.
I turn briefly to the amendments. I find this group of amendments rather puzzling. Of course it sounds reasonable, put in general terms, to suggest that changes to legislation are a matter for Parliament. That is self-evident. But when we consider what would be the practical effect of the amendments tabled in the names of the noble Lords, Lord Peston and Lord Williams, I find myself at something of a loss to understand how the procedure which would result could be made to work, because Parliament is not capable of acting as an executive body. That takes me right back to what the noble Lord, Lord Peston, said when he introduced the amendments. He said that they were not wrecking amendments. I have to say that I had not considered that they were wrecking amendments, but then a terrible thought popped into my mind that they were wrecking amendments because they could not possibly work in practice.
The noble Lord, Lord Peston, and his party have talked about the Bill being a constitutional outrage. I can think of few things more outrageous than removing the ability of this House to amend the legislation, clause by clause and line by line. That would be the effect of voting with the Labour Party if noble Lords press the amendments. If this amendment were carried, it would make nonsense of the first four clauses. They would thus be removed and that would remove our ability to amend them. I hope that if the amendments are pressed they will be rejected.
Lord Peston: I do not wish to delay the noble Lord because we have all spoken too much and the ground has been covered, but I simply do not understand what he says. If the amendment is carried, we have to follow through logically what comes from that. We shall have many debates about the detail. I am simply pointing out as a matter of elementary logic that if the word "Minister" is removed from line 2, various other clauses no longer make sense. Our job would be to make them sensible and we would do that.
Lord Williams of Elvel: I do not wish to speak for long but just to reply to one point which the Minister made. It is clear that in what the Government put forward they propose to tilt the balance against Parliament and in favour of the Executive. I do not think that the Minister denies that, which is why he argues so strongly about his safeguards.
The second point is that I agree with my noble friend Lord Barnett that we must live in the real world. I took careful note of the safeguards that the Government propose. If they really think that we shall go through all that rigmarole, that the scrutiny committee will do this, that and the other and it will be marvellous, and that it will all happen in the way that the noble Lord describes, then I am afraid that I am very sceptical. Maybe it will the first time, maybe the second time, but I can see

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orders coming up in the dinner break, people being rolled in to vote through a Motion, and all kinds of problems in practice and in the real world.
Our proposal is quite simple. The alternative is simply to stay with parliamentary procedures as they are, which is satisfactory. That is the alternative. We are in favour of deregulation; most of the rest of the Bill is about deregulating. That is fine so far as we are concerned and, as my noble friend Lord Peston said, there are many things with which we agree. Nevertheless, we return to the central point that we believe that the balance between Parliament and the Executive is right as it is and should not be changed. That is why we shall ask the opinion of the Committee.
5.55 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 134.

Division No.1

CONTENTS

Ackner, L.

Jeger, B.

Addington, L.

Jenkins of Putney, L.

Airedale, L.

Kennet, L.

Archer of Sandwell, L.

Kilbracken, L.

Ashley of Stoke, L.

Lester of Herne Hill, L.

Barnett, L.

Llewelyn-Davies of Hastoe, B.

Beaumont of Whitley, L.

Lockwood, B.

Blackstone, B.

Lovell-Davis, L.

Bonham-Carter, L.

Mallalieu, B.

Boston of Faversham, L.

Mar and Kellie, E.

Bottomley, L.

Mayhew, L.

Bruce of Donington, L.

McGregor of Durris, L.

Callaghan of Cardiff, L.

McIntosh of Haringey, L.

Campbell of Eskan, L.

Meston, L.

Carter, L.

Molloy, L.

Castle of Blackburn, B.

Monkswell, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Nathan, L.

Dean of Beswick, L.

Nicol, B.

Desai, L.

Ogmore, L.

Dormand of Easington, L.

Peston, L.

Ennals, L.

Pitt of Hampstead, L.

Falkender, B.

Prys-Davies, L.

Falkland, V.

Richard, L.

Foot, L.

Rochester, L.

Gallacher, L.

Rodgers of Quarry Bank, L.

Gladwyn, L.

Russell, E.

Gould of Potternewton, B.

Seear, B.

Graham of Edmonton, L.

Sefton of Garston, L. [Teller.]

Serota, B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Haskel, L.

Strabolgi, L.

Healey, L.

Tenby, V.

Hollis of Heigham, B.

Tordoff, L. [Teller.]

Hooson, L.

Turner of Camden, B.

Howell, L.

Wallace of Coslany, L.

Hylton, L.

White, B.

Jacques, L.

Williams of Crosby, B.

Jay of Paddington, B.

Williams of Elvel, L.

Jay, L.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Astor, V.

Aldington, L.

Balfour, E.

Allenby of Megiddo, V.

Belhaven and Stenton, L.

Annaly, L.

Blatch, B.

Annan, L.

Borthwick, L.

Archer of Weston-Super-Mare, L.

Boyd-Carpenter, L.

Arran, E.

Brabazon of Tara, L.

Ashbourne, L.

Brougham and Vaux, L.

Astor of Hever, L.

Burnham, L.

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Butterworth, L.

Mackay of Ardbrecknish, L.

Cadman, L.

Macleod of Borve, B.

Campbell of Alloway, L.

Marlesford, L.

Campbell of Croy, L.

Marshall of Goring, L.

Carver, L.

Merrivale, L.

Chalker of Wallasey, B.

Mersey, V.

Chelmsford, V.

Monson, L.

Clanwilliam, E.

Mottistone, L.

Clark of Kempston, L.

Mountevans, L.

Colnbrook, L.

Mowbray and Stourton, L.

Courtown, E.

Munster, E.

Craigavon, V.

Murton of Lindisfarne, L.

Cranborne, V.

Norrie, L.

Crickhowell, L.

Northesk, E.

Cumberlege, B.

Orkney, E.

Davidson, V.

Orr-Ewing, L.

Dean of Harptree, L.

Oxfuird, V.

Denton of Wakefield, B.

Pender, L.

Digby, L.

Perry of Southwark, B.

Dixon-Smith, L.

Reay, L.

Downshire, M.

Rees, L.

Eden of Winton, L.

Renton, L.

Elles, B.

Renwick, L.

Elliott of Morpeth, L.

Rippon of Hexham, L.

Elphinstone, L.

Rodger of Earlsferry, L.

Elton, L.

Romney, E.

Ferrers, E.

Saltoun of Abernethy, Ly.

Finsberg, L.

Seccombe, B.

Flather, B.

Shannon, E.

Foley, L.

Sharples, B.

Fraser of Carmyllie, L.

Shrewsbury, E.

Fraser of Kilmorack, L.

Simon, V.

Gainford, L.

Simon of Glaisdale, L.

Gisborough, L.

Skelmersdale, L.

Goschen, V.

St. Davids, V.

Gridley, L.

Stewartby, L.

Grimston of Westbury, L.

Strange, B.

Hailsham of Saint Marylebone, L.

Strathcarron, L.

Halsbury, E.

Strathclyde, L.

Hanworth, V.

Strathcona and Mount Royal, L.

Harding of Petherton, L.

Strathmore and Kinghorne, E. [Teller.]

Hayhoe, L.

Henley, L.

Sudeley, L.

HolmPatrick, L.

Swinfen, L.

Hooper, B.

Thomas of Gwydir, L.

Howe, E.

Thurlow, L.

Hylton-Foster, B.

Torrington, V.

Inchyra, L.

Trefgarne, L.

Ironside, L.

Trumpington, B.

Kimball, L.

Ullswater, V. [Teller.]

Kinnoull, E.

Vinson, L.

Kitchener, E.

Vivian, L.

Lane of Horsell, L.

Wade of Chorlton, L.

Lauderdale, E.

Wakeham, L. [Lord Privy Seal.]

Lindsay, E.

Waverley, V.

Lindsey and Abingdon, E.

Wedgwood, L.

Liverpool, E.

Wharton, B.

Long, V.

Wilberforce, L.

Lyell, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.4 p.m.
Lord Peston Lord Peston moved Amendment No. 2:
Page 1, line 10, leave out ("is of the opinion") and insert ("can demonstrate").
The noble Lord said: The Committee has expressed its view on the nature of Part I of this Bill and I recognise that with a heavy heart. I still believe that the future will show the tightness of my position and the wrongness of the noble Lord's. But I fully accept that we always make our decisions, and now we go on.
What we have to do now, to quote what I said earlier on the Coal Industry Bill, is that if this measure is going to be a mess then we had better make it less of a mess; and we now slog through the next few pages of the Bill

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in the hope that we can at least improve it. One or two noble Lords to whom I listened, who felt unable to support me in the previous debate, will certainly recognise that we have to do something now to improve the Bill.
Perhaps I may make one other point in parenthesis. The Committee may have noticed that I did not speak on the subject of safeguards either in the speech that I have just given or at Second Reading. The reason is that I regard the safeguards in procedure issues as really very separate. There will be a time when I shall go into all of that, but there are other matters that we need to clarify and deal with before we get as far as safeguards. Nevertheless, in some sense everything that we are about to do for the next few hours has to do with safeguards. The first of those matters relates to the phrase "is of the opinion" in line 10, essentially the second line of the effective part of the Bill. That sentence is the trigger for what happens subsequently. If the opinion concerning these matters is whatever it turns out to be, then the whole procedure starts. My own view is that "is of the opinion"—unless I am persuaded to the contrary that it does not mean what it seems to mean —is too weak. The Minister, instead of merely being able to say, first, "in my opinion a burden arises from this", and secondly, "in my opinion by repealing or changing an Act of Parliament that burden can be diminished", ought to be able to go further and "demonstrate" his case, as my amendment suggests. I should add that this colours other amendments that I have tabled.
Perhaps I may reiterate another point that I made earlier, and I do not say this in any insulting way. I do not believe for one moment that it really would be the Minister's opinion that we are talking about. Much as I admire the noble Lord, Lord Strathclyde, I do not believe that he goes into the office every day and says, "Bring me all the Acts of Parliament and I will plough through them and tell you in my opinion which of them place a burden on industry". I do not believe that for one moment.
I expect—unless the world has changed from what I have been used to—that occasionally his officials say, "Have you noticed this, Minister?"; or occasionally, when he is lunching out, during the course of a nice lunch some captain of industry says, "Do you not know the terrible burdens my firm is suffering from because of such and such?". Equally, and worse than any of that, some expert economist (such as me) runs into him and says, "Don't you know about this particular burden?".
So the other reason for being concerned about "is of the opinion" is that it will not remotely be the opinion of the Minister. All that will happen is that it will be someone else's opinion. I look askance at that. I do not say that to criticise the Minister. It was ever thus. It was like that when I advised Ministers, and no doubt it will be similar one day in the future. Therefore, this amendment, as opposed to many others that we shall debate, enables me to explain what I think the problem is. But much more importantly—after other noble Lords have said anything that they may want to say—it gives the Government the opportunity to begin the process of
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justifying what it is that they believe they are doing. This is only the first of many amendments. I beg to move.
Lord Hailsham of Saint Marylebone: I must say that my opinion, which is as subject to being mistaken as that of the noble Lord who moved this amendment, is that this amendment would give rise to a constitutional enormity far bigger than anything that has so far been discussed. I shall tell the Committee why. The proposal in the Bill is that after the opinion of the Minister to trigger off the whole procedure has been arrived at—presumably in good faith, and whichever party happens to be in power at the time—and the elaborate procedure that was outlined by my noble friend on the Front Bench in reply to the first amendment a few moments ago has been gone through, no order shall be made unless a draft has been laid before and approved by a resolution of each House of Parliament. That means that Parliament has approved whatever becomes the law under this procedure.
What is the effect of deleting the initial words "is of the opinion" and inserting "can demonstrate"? It means that the power of Parliament to legislate is taken away and put into the hands of the courts. That is what it means and it means nothing else. Indeed, it means that the whole business of the separation of powers is destroyed. The separation of powers involves the separation at least between the Executive (represented by the Government), the courts (represented by the judicature) and Parliament, which is sovereign in this country.
What the noble Lord suggests—quite inadvertently, no doubt—is that something which is inherently in the power of Parliament (that is to say, to approve a resolution which has been rendered legal by the Bill, if passed) should not be decided by Parliament by the approval of two resolutions; it should be decided by the courts, which would then have to consider, at the earliest stage and before anything has gone through, whether the Minister has in fact "demonstrated" to the courts. That is why it is a constitutional enormity, which I am quite sure that the noble Lord, Lord Peston, neither understands nor intends.
Lord Simon of Glaisdale: I agree with the conclusion of my noble and learned friend, although I certainly do not go so far as to endorse "constitutional enormity". Generally, I much prefer an objective standard.
However, it seems to me that the words are quite unexceptionable here. It raises a different point from the point raised by the later amendment of the noble Lord, Lord Peyton. This is simply the trigger to set off the whole procedure. The Minister must form an opinion to set the whole machinery in motion. There cannot be anything objectionable about that.
Perhaps I may add that the words "can demonstrate" are manifestly inadequate. Demonstrate to whom and in what way? I hope that the Committee will not boggle at those words.
Lord Fins berg: The noble Lord was interesting the Committee until he said that he was commenting as an

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expert economist. Wherever there is one expert economist there is bound to be another one and there will be two totally different opinions.
Lord Peston: Perhaps I may just say that my whole point was exactly to plead, "Please, do not listen to expert economists." The noble Lord probably was not listening as attentively as he usually does. It is precisely because I worry that those are the kind of people who would be behind this measure that I do not like such things.
Lord Finsberg: I accept what the noble Lord said. I thought that he said he was speaking as an expert economist, which I am sure he is. However, he missed out one point. Ministers do not have time to sit down and read all the statutes; but I am perfectly certain that my noble friends would ask, "What are the most glaring instances of items that need changing?" and would ask for a list to be produced for them. It is when the Minister is looking at that list and the options available, which any civil servant would produce for him, that he will take the decision, in their opinion.
So there are three ways to proceed: looking at the statutes; listening to people at pleasant lunches (which, clearly, the noble Lord enjoys more than many other people); and the Minister taking the initiative. Knowing my noble friends, I am perfectly certain that the last mentioned would be one of the major ways in which they would proceed.
6.15 p.m.
Lord Rodgers of Quarry Bank: Perhaps I alone in the Chamber welcomed and understood the burden of the message which the noble Lord, Lord Peston, sought to convey. We can discuss precisely what the consequence may be of the amendment to insert the words "can demonstrate". I thought that it might be to •demonstrate to his own satisfaction or to demonstrate to the satisfaction of Parliament. To demonstrate to the satisfaction of Parliament might be a tautology, but we all live with tautologies from time to time and I do not see why we should not have another.
I understood that the noble Lord, Lord Peston, wanted to convey a very important mood to the Committee. I confess that I share his feeling that for the Minister to have an opinion is a far too loose and flabby approach to matters of such importance. Indeed, I ask the Minister whether he would like to be known as a man of reflection, who has an opinion, or a man of action, who demonstrates.
As a Minister anxious to get legislation through the Chamber and hold my own with my colleagues in government, I would feel that demonstration is a good deal better than opinion. I hope that the Minister will look sympathetically on this amendment, as I understand it, and will bear in mind the generous mood and good intention behind it, which I am very happy to support.
Lord Strathclyde: I entirely accept—
Lord Jenkins of Putney: Before the noble Lord rises I feel that he might prefer to answer after the debate is
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over rather than intervene at this point. Is that not so? I shall be very brief. I just want to make the point that what my noble friend objects to is the word "opinion". There is no question in his mind of going to law in the matter. He dislikes the idea—so do I —that a Minister comes to Parliament and says, "My opinion is so and so" and that is it.
The word "demonstrate" is better for the purpose because it carries with it the necessity of demonstrating to the satisfaction of Parliament that the provisions are met. If it is his opinion and nothing more, the position is extremely unsatisfactory. It seems to me that any reasonable person and someone who is not obsessed with going to law about everything must necessarily support my noble friend's amendment.
Lord Strathclyde: Of course I accept that the noble Lord, Lord Peston, moved his amendment in good faith and could not possibly have foreseen what my noble and learned friend explained so extremely well and much better than I could do.
The noble and learned Lord, Lord Simon, is quite right. The Minister has to form an opinion before starting the process whereby Parliament will ultimately make a decision. There is no chance, as the noble Lord, Lord Jenkins, seemed to indicate, of the Minister imposing his opinion. All that he has is an opinion initially, which then has to go through consultation and through the special committees.
The amendment would mean that Ministers would have to demonstrate to Parliament that their proposals can be justified and the amendment is not needed to achieve that result. The provision in the Bill for scrutiny of the proposals has, as I said, the effect that Ministers must be able to justify their proposals to Parliament. The effect of requiring Ministers to be able to demonstrate that their proposals can be justified will be to require them, if challenged, to demonstrate that to the courts. That was the point made by my noble and learned friend Lord Hailsham. That could not have been the intention of the noble Lord, Lord Peston. The courts should not be the place for that kind of political debate. This Chamber and the other place are the right places. I hope that the noble Lord will withdraw his amendment.
Lord Stoddart of Swindon: Before my noble friend does so, I tend to agree with him that "opinion" is rather weak for making legislation—or proposing to deregulate and get rid of legislation. Opinion is opinion; it is not fact. I should have thought, bearing in mind that we are opposed to verbiage, that "is of the opinion" is completely unnecessary and not good enough. Ought not it to be "a Minister of the Crown believes"?
Lord Hailsham of Saint Marylebone: It is the same thing.
Lord Stoddart of Swindon: No, it is not the same thing, if I may say so to the noble and learned Lord, learned though he is. In my mind it is not the same. Opinion is quite different from belief. Quite frankly, I should have thought that "belief would be better and the Minister might consider that.
Lord Peyton of Yeovil: I am entirely swayed by what the noble and learned Lord, Lord Simon of Glaisdale, said. For that reason the word "opinion" is only important in that it triggers the whole of a rather complicated process. I rise to my feet now simply to say that I shall not move either of my Amendments Nos. 8 and 10, though the noble Lord, Lord Rodgers of Quarrybank, whose name is also attached to the amendments, may decide to do so.
Lord Peston: I thank Members of the Committee for their contributions. Perhaps I can save the noble and learned Lord, Lord Hailsham, a lot of trouble. He said that I do not understand these matters and he is quite right. Other Members of the Committee may not wish to make such a confession, but it will save him rising to his feet on every amendment. I sit here as the person responsible for dealing with these matters. I am a layman with respect for the law. I believe that the English language says what it says. I shall always believe that the English language says what it says and I refuse to be told by lawyers that they have invented a different meaning of those words and that we must accept that. The Bill says "is of the opinion" and "is of the opinion" means, "Well, chaps, I think this, so let's go ahead". That is what it means and I do not like it.
The reason I do not like it is precisely the reason given by the noble and learned Lord, Lord Simon of Glaisdale. I do not doubt that I may have gone too far. He used the word "objective" as opposed to "subjective". I wish to see in the Bill more generally —I shall be returning to this in amendment after amendment—a more objective standard for doing all this sort of thing. Perhaps in due course we shall get to the stage when we need an objective standard of saying, "I will show you"—this will be seen on my other amendments—"that this regulation constitutes a burden".
Before I withdraw my amendment, I want to say that the noble and learned Lord, Lord Hailsham, takes me completely out of my depth. I cannot dispute with him when he says, "This will take all these matters into the courts". I have no knowledge of that. It would help me if either the noble and learned Lord himself or the Minister can confirm that the Minister will not be able to get away from judicial review simply by saying, "It was my opinion". In other words, the Bill says—and if it becomes law it will become an Act—"is of the opinion", so when the Minister is threatened with judicial review he can say, "No. It says 'is of the opinion'. That is my opinion. End of story".
Lord Strathclyde: I believe I dealt with this point in an earlier debate in reply to the noble Earl, Lord Russell, in dealing with what he called the Wednesbury rules. The point here, as the noble and learned Lord, Lord Simon, said, is that the Minister must have an opinion in order for the process to start. Parliament then has a very clear say. It is up to the Minister to justify to the parliamentary procedure whether or not there is a burden and that it is not removing unnecessary protections. He must statutorily consult. Those are three important protections at the heart of the parliamentary
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procedure dealing with the Bill. That is why this debate is not the most important that we could have had during the course of this afternoon.
Lord Peston: I am sorry, I still do not understand what the Minister is saying. Let me give an example. The Minister gets rid of some safeguard to do with hygiene using the words, "it is my opinion". I then claim, as an affected person, that he has taken away from me something that is valuable to me and I do not believe he did it properly. I put forward arguments of that sort. The Minister says, "Sorry, the Bill says, 'is of the opinion'; nothing else you say can matter. It was my opinion. I tell you honestly it was my opinion and therefore I am not subject to judicial review". I want to be told that the Minister cannot use that argument.
Lord Strathclyde: The problem here is that the Bill does not allow the Minister to do anything. It is Parliament that will decide and there is no question of Ministers getting rid of bits of legislation. It is Parliament which gets rid of legislation and the Minister simply starts off the process.
Lord Hailsham of Saint Marylebone: Perhaps I can say this to the noble Lord, Lord Peston, who is being very modest. He understands a good deal more than he pretends. Judicial review is a complicated process. But in the course of any challenge by way of judicial review to anything that is done under this clause, the courts will look, first, at the terms of the Act of Parliament; secondly, at the scope and meaning of the Act of Parliament; and, thirdly, at whether the required approval of both Houses to a resolution is within the terms of the Act of Parliament. Obviously if it is not within the terms of the Act, then, by judicial review or some other process, the courts will not give effect to what was done. If it is within the terms of the Act of Parliament, as complete—which would probably be decisively decided by the terms of the Act plus the fact of approval of the resolution—then the courts will say, "We have no jurisdiction". Subject to that and within the ambit of those limitations, there would in fact be judicial review.
Lord Peston: I thank the noble and learned Lord for that reply. There will come a day, I hope, when I really understand these matters. Having said that, I found the answers altogether quite interesting and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Peston Lord Peston moved Amendment No. 3:
Page 1, line 12, leave out ("a burden") and insert ("an unnecessary obligation").
The noble Lord said: Amendment No. 3 stands in my name and that of my noble friend Lord Williams of Elvel and the noble Lord, Lord Rodgers of Quarrybank. It is joined with Amendment No. 6 which stands in my name and that of my noble friend Lord Clinton-Davis; so it is a mixed bunch.
These amendments seek to elucidate what the Government have in mind by the use of the word "burden". Other amendments on that point will arise in due course and several matters concern me. The most

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obvious, again wearing my economics hat, is that I would expect the word "costs" to be used rather than "burden"; at least, one way into this would be to say, "We might be imposing unnecessary or unjustifiable costs on people". However, I believe that the Minister had something in mind which was not only more sophisticated but also broader than the simple idea of costs; namely, that we would ask whether it included other things than cost as a burden to the person.
Also, we need to look at the Bill in a more balanced way. That is why, apart from trying to obtain an elucidation from the Minister on "burden", we start the process of saying, "Let us look at the other side of the equation". Essentially, rational decision-making involves looking at both the plus and the minus side and the minus side is often of the sort, "If this person as defined in the Bill gains, are there any other persons who lose? If so, in what ways?".
I therefore draw to the Committee's attention a number of things that might be lost if burdens were being removed. I took as broad a list as I could and referred to property, rights, liberty, health, safety and general well-being. I do that because we are now starting the process of scrutiny, the process of clarification, and my purpose is twofold. I should like to know something more of what the Government mean by "burden" and I should like to know whether the Government recognise that there is a two-sided effect to it.
Let me say that in some of the specific cases we may look at in due course, the burdens and the commensurate benefits may both be funds. Perhaps I can give an example in classical economics, one we were all taught as students. A regulation that prevents a firm using unattractive processes which produce soot certainly places a burden on that firm. It is told that it may now have to use many more expensive processes which will place a burden on it. If we remove that regulation the firm will gain as its costs will be lower. However, if we do remove that burden, the costs to, for example, the neighbouring laundry will go up because it now has to deal with the fact that all the soot is falling on the clean laundry that is hanging out to dry.
That example has been taught to students of economics for the past 100 years. But it brings out the point that there is a need for balance here. The Minister is seeking to help one firm. I have to ask whether he is now hindering another firm. That is why the Committee will see from many of my amendments that I am demanding not merely a demonstration, to use that word, of whether there are burdens, but I am asking what would happen where the removal of a regulation would then place burdens on others. That is the purpose of the amendments. I look forward to hearing how the Minister argues.
6.30 p.m.
Lord Hailsham of Saint Marylebone: The noble Lord, Lord Peston, has again the very best of intentions. I agree with his intentions. However, I think he has not achieved those intentions by the proposal he makes. The expression "burden" is adequately defined in subsection
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(5) (b) of the clause. I shall not go further into that. In order to trigger the parliamentary process the Minister has to be of the opinion that the provision in question which he is triggering imposes a burden as thereby defined. He also has to be convinced that,
"by amending or repealing the enactment concerned and, where appropriate, by making such other provision as is referred to in subsection (4) (a) below, it would be possible"—
and here I start using italics—
"without removing any necessary protection, to remove or reduce the burden or, as the case may be, the authorisation or requirement".
That is the trigger of the proceedings. The ultimate sanction of the proceedings is, as I endeavoured to show the noble Lord in reply to the previous amendment, that the procedure is within the terms of the Act of Parliament and that there has been a passage through Parliament of an order which requires , positive parliamentary approval. In between there is the series of novel provisions which the Minister explained in answer to the first amendment. Therefore, the purpose which the noble Lord, Lord Peston, has quite properly put before the Committee has already been provided for in terms of the Bill and has been fully explained. It would be a mistake to improve upon it even by way of gilding the lily. My own view, for what it is worth, is that this does not gild the lily. It rather spoils the gilt on the lily.
Lord Mishcon: I may be sounding a note which is not popular in regard to the purpose behind the Bill but I must confess to being a little apprehensive as to the "burden" imposed on any Minister. There are many, many applications that could be made as the Bill now stands in regard to an onus put on any trade or indeed any trader by virtue of an Act of Parliament which goes through the procedure indicated by the noble and learned Lord.
I am not in any way made happier by the reference that the noble and learned Lord made just now to subsection (5) where "burden" is described. It is inclusive of, but is not otherwise described,
"a restriction, requirement or condition (including one requiring the payment of fees), together with",
any sanction and any procedural provisions. I should have thought that all we wanted to do—I may be sounding an unpopular note but that does not frighten me—is to deal with unreasonable burdens and not reasonable ones. I do not know why—I would love the Minister to tell me why—the word "unreasonable" does not occur here. The discretion of the Minister can be exercised, in the way that we are very much accustomed to, as to whether or not it is reasonable that a burden should be imposed. Otherwise we leave it open to the whole population to talk in terms of burdens without even having to show that the burden imposed is unreasonable. In those circumstances, I suggest that the Minister could consider the burden being imposed upon him and his colleagues and future colleagues of mine in the next government if the wording remains as it is.
Lord Hailsham of Saint Marylebone: The noble Lord has overlooked the fact that Parliament will decide whether the burden is unreasonable. I believe the noble

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Lord was not present when the safeguards were fully described by the Minister in the debate on the first amendment.
Lord Skelmersdale: When I first read the clause I was somewhat surprised to discover right at the beginning that the effect of the provision might be to require the imposition of a burden affecting any trade or business, especially as the Bill seeks to remove burdens. Over and above the reasons stated by my noble and learned friend Lord Hailsham, I was very much reassured to read subsection (4) (a). It is clear that in those circumstances the imposition of a replacement burden must be less onerous than that imposed by the existing provision. There is again another restriction on the kind of burden that we are talking about in this amendment.
Lord Stoddart of Swindon: I intervene because I have received from the Council of Civil Service Unions a note on the Bill. It states:
"It seems quite possible therefore that the Bill could be used to toughen regulations against certain organisations; for example, trade unions whose activities might be interpreted as placing a burden on business. It is not inconceivable that powers in the Bill could be used to amend the employment Acts in order to restrict even further the right to strike or to remove the existing legal immunities altogether. Alternatively, it might be possible to use the Bill to introduce a criminal sanction for taking industrial action in the public services".
The source seems a very respectable one and the point of view it puts is very worrying. I hope therefore that the Minister can give assurances that "burden" does not mean what that note says and that the Government cannot and will not come forward with measures that may take burdens off one shoulder but at the same time take rights away from other people. I hope that he can give those assurances.
Lord Hailsham of Saint Marylebone: I hope that when he does my noble friend will point out that the whole clause is subject to the word "enactments". The burden, if any, must be in an existing enactment. That puts an end to the kind of point which the noble Lord puts forward.
Lord Jenkins of Putney: It is rather unsatisfactory that in this subsection the word "burden" is undefined although I agree that some attempt is made later to define it. One man's burden could easily be another man's benefit. Even if the noble Lord were to give us the assurance which the noble and learned Lord, Lord Hailsham, has suggested, possibly that would not be quite sufficient. It is better that the matter be looked at again. It would be to the benefit of everyone concerned if the Minister were to decide that, in return for withdrawing the amendment, if my noble friend were so minded, the Minister would be prepared to look at the wording again between now and the next stage.
Lord Strathclyde: I wish to indicate my gratitude to my noble and learned friend who has been so tremendously useful during the course of this afternoon. I suspect that he has been useful not just to me, but also to the noble Lord, Lord Peston.
I shall deal with this question by demonstrating that, as the amendment would replace the term "a burden" by
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"an unnecessary obligation", that would reduce the ability to have deregulatory changes which could not therefore be achieved under the power. For example, it would not enable provisions to be amended or repealed under the power where they impose anything less than a serious burden, even if it is generally agreed that they deliver no benefit whatever. That is what "an unnecessary obligation" would mean. Even small burdens cumulatively have a significant effect, particularly for small business. Moreover, if they can be removed without removing any necessary protection, ought we not to do so?
As I mentioned earlier, we have provided an illustrative list in the booklet Cutting Red Tape to show the sort of measures that we believe would be appropriate for use of the power. I know that the kind of things we intend through ministerial assurances are not worth very much as far as Members of the Committee opposite are concerned. That is why ultimately the power is governed by Parliament through various committees and ultimately by both Houses which can vote on it.
Perhaps I may give some examples of the burdens which we are talking about. We want to ensure that the Patent Office can accept documents in forms other than paper, such as electronic filing. Others affect individual companies in a small way but cumulatively could be very significant. For example, one of the detailed requirements on companies to file information about their directors at Companies House is no longer needed because of advances in technology which allow this information to be collated. We therefore believe that it is desirable and necessary that the power should be available to remove or reduce small burdens as well as serious burdens. That is why redefining "a burden" as "an unnecessary obligation" goes too far.
The definition used in the amendment is also narrow in that it is restricted to obligations. The term "obligation" which has been used in the amendment is a very much narrower term than burden. There are a number of provisions which impose burdens of various kinds which may no longer serve a necessary purpose. A number of the provisions in our illustrative list are not "obligations". For example, at present each poultry slaughterman needs a licence from each local authority in whose area he or she works. We would like poultry slaughtermen's licences to be made valid throughout Great Britain. We see no reason why residential care homes in Scotland should not accept residents placed with them by local authorities in England or Wales and vice versa. We plan to repeal the outdated provision for pedlars to obtain a certificate from the police and annually renew it.
Lord Clinton-Davis: Is the Minister suggesting therefore that the Government's intentions in this regard are to eschew anything which is controversial? That seems to be the burden of what he is saying. How does he equate that with the questions which will arise later in our debates concerning the issue of the lorry ban and deregulation in relation to that, which is most certainly controversial?
Lord Strathclyde: The noble Lord, Lord Clinton-Davis, raises an extremely important point. In our document we have explained, by means of an illustrative list, the kind of burdens with which we intend the deregulation order-making powers to deal. The noble Lord's comments go to the heart of this debate. We really do want to use the power for the kind of tedious burdens which inhibit various firms from being able to compete effectively. That is exactly why the London lorry ban is not dealt with under the deregulation order-making power, but by primary legislation in the Bill. I cannot turn to the exact place in the Bill. It is a question of looking at primary legislation rather than the deregulation Bill. That is why we have not included it as part of the deregulation order and why it is not part of the illustrative list.
I shall not continue to deal with the examples. Suffice it to say that when my noble friend Lord Sainsbury of Preston Candover and his task forces reported, it tended to be about these relatively innocuous but tedious regulatory burdens which so many people said were a waste of time. That is why we have come forward with this procedure.
Lord Clinton-Davis: Will the Minister give way on that? The noble Lord referred to "so many people". They were so many business people, were they not? They were not consumers; certainly no trade unionists or environmental organisations, but business people.
Lord Strathclyde: I am delighted that the noble Lord, Lord Clinton-Davis, is joining the debate on this matter and I am delighted to deal with his point. The whole point of the task forces was to ask industry what it felt the burdens were. When Ministers have decided what to ask Parliament to look at in terms of deregulation orders, quite properly at that stage there is a statutory obligation to consult. The consultation process may well include trade unionists, consumer organisations and the noble Lord, Lord Clinton-Davis, himself perhaps. He will have his own voice in this House.
I hope that I have dealt with the point raised by the noble Lord, Lord Peston. Does the noble Lord, Lord Stoddart, wish to ask another question? He looks as though he is about to spring to his feet.
Lord Stoddart of Swindon: I am waiting for the Minister to deal with the question which I asked.
Lord Strathclyde: Perhaps the noble Lord will remind me what it was.
Lord Stoddart of Swindon: I am sorry that the noble Lord did not listen to it because it was from the Council of Civil Service Unions, the people who advise him.
Lord Strathclyde: I thought that my noble and learned friend had dealt with that.
Lord Stoddart of Swindon: He has not.
Lord Strathclyde: The point is that the Bill is relatively widely drafted. There are two hurdles to get over at the beginning. First, it has to be a burden and, secondly, it must not remove any necessary protection.
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It can impose burdens but they have to be less onerous, as my noble friend Lord Skelmersdale said. As long as it fulfils those criteria there is no reason why the Minister should not present a draft order to Parliament. Then it will be for Parliament to decide whether it is an appropriate use of the order.
The noble Lord, Lord Stoddart, gave the example that we might somehow use this power to take away the rights of trade unionists to strike. I believe that that would be the most inappropriate use of a deregulation order-making power. It would be extraordinary for that to be accepted by either or both Houses of Parliament. I hope that that deals with the question.
We believe that the term "necessary protection" as it is applied in Clause 1, provides a more robust and strict safeguard than that provided in the amendment, and that the term "burden" should not be narrowed in the way suggested. I believe that the provisions in Clause 1 are appropriately drawn. Therefore I hope that the noble Lord, Lord Peston, will withdraw his amendment.
Lord Stoddart of Swindon: I am sorry to come back to this matter. I take it that the noble Lord's reply to my question is no, and that the Government would not dream of bringing forward an order dealing with the matters which I raised earlier. I shall not repeat them. The Minister knows that the point he made about parliamentary control is bogus. I shall tell him why. He said that Parliament will have the final word. It will under the Whip system. Therefore, if the Government want their legislation—whether it be by primary legislation or by order—they will use the Whip system. If the Government bring forward an order, they will do everything possible to get it through irrespective of what individual Members think. That is the answer to the noble Lord. However there is more to the matter than that.
I am most concerned about the consultation that will take place. The Minister mentioned the proposal to drop the requirement for companies to file information about their directors. I have received a letter from the Transport and General Workers Union about that very issue and I had it in my hand as he was speaking. I regret that I must quote from the letter. The Transport and General Workers Union states that the proposed deregulation has cost and access implications for those who wish to obtain such information. The letter states:
"At present, companies are required by the Companies Act to register details of business occupation, nationality and particulars of other directorships in respect of each director at Companies House, and to keep that information up to date. The Government propose to drop these requirements giving the assurance that particulars of directors' other directorships would still remain available at Companies House 'in a more accessible form', through its computerised Directors' Register. However, contrary to the impression given by the Government, this proposal would certainly limit public access to information by making the data more complicated and much more expensive to access."
That is the important point.
'This is a serious matter for the TGWU, as we deal with thousands of companies and have over 7,500 company searches on our database. Currently, on the purchase of a company's file for £3, the public has access to particulars on each director of that company, including a list of other directorships held. This information relating to their directorships is an invaluable source of information in relation to inter-company connections. What is now proposed is to oblige those seeking such information to

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search, not just an individual company's files, but also the Directors' Register, which currently costs £2.50 per search. So even in the case of smaller companies, which typically have two directors, it would cost £8 to access the range of information now available for £3. It is also misleading to imply that the Directors' Register is 'more accessible'. The Directors' Register is now only accessible at Companies House public offices and to those with on-line access to its computer data."
It will cost those who want access to that information a lot more under this deregulation than if there were no deregulation. There are important issues of principle involved and issues of cost. What I and the trade union movement as well as individuals and other organisations want to be certain about is that they will be consulted before the issues are brought forward in an order. They are just as entitled to be consulted about such matters as are businessmen. I should like an assurance that all those who are involved will be consulted.
Lord Strathclyde: Contrary to what the noble Lord may think, I am delighted that he has raised the issue because it crystallises the debate rather well. There is not an issue of great principle here because we do not have a deregulation order before us. If an order were brought forward containing this proposal—and I take issue whether or not it is deregulatory—that would be decided through the special procedures that I have mentioned.
I take issue with the noble Lord on one point. I do not think that the proposal is bogus in terms of parliamentary procedure. I do not think that it is any more bogus than current legislative procedures where we already have the Whip system. It is not at all bogus particularly considering the events that I suffered on Tuesday afternoon. The House will decide upon the procedures that are appropriate to deal with deregulation orders, and it is for the committee concerned to report to the House as to whether or not the hurdles have been sufficiently dealt with. The House will then be able to debate and vote on that report. As I stated earlier, any noble Lord will be able to put down a motion.
In relation to consultation, that must take place before the Minister puts the order down, and the committee will be able to call witnesses, including witnesses from organisations the Minister has not consulted. Those are very strong safeguards that would deal effectively with the kinds of issues raised by the noble Lord, Lord Stoddart.
Lord Stoddart of Swindon: I appreciate all of those matters and I thank the noble Lord for his explanation. However, it will be for the Minister to decide whom he consults. That is what concerns me. I take the issue of directors. How will people know that the Minister is bringing forward an order so that they can get in touch with him and put their point of view? Public consultation is extremely important. I should like to get down to the nitty-gritty of how the Minister intends to consult and how he intends to warn people that he has an order in mind.
Lord Hailsham of Saint Marylebone: Surely, the answers to both the noble Lord's quite separate points are obvious: he should have seen them for himself. I tried to explain to him, in answer to the civil servants' union point, that the section does not bite unless there is
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an enactment already in force imposing the burden. The civil servants' point is completely dealt with by that limitation because there is no enactment at the moment in force preventing civil servants exercising their rights.
As to the Transport and General Workers Union, the situation was fully explained by the Minister in answer to the first amendment. The proposals of the Government involve a totally new and very elaborate scrutiny by committees of this House or the other place. Those committees will be able to call witnesses. So the Transport and General Workers Union, or whoever, can explain their grievance before the matter becomes law. I cannot imagine a stronger protection than that. The noble Lord is really being perverse.
Lord Peston: The debate is most interesting. If we take half an hour to discuss every amendment we shall be here for ever and ever. As always, I am rather puzzled. The noble Lord stated that we would be dealing only with matters that were innocuous and tedious. I cannot imagine why he should go through this elaborate procedure in relation to tidying up a few minor odds and ends of legislation.
In reply to the noble Lord, Lord Stoddart, the Minister referred to inappropriate use of the powers and said that that would not happen. The answer that my noble friend wanted was not "wouldn't" but "couldn't". I am not convinced that the word "couldn't" is there.
The discussion started when I innocently asked about the meaning of the word "burden". The noble and learned Lord, Lord Hailsham, referred to subsection (5) (b). However, that subsection only states what the burden includes; it does not define the burden. Without making a play on words, the burden of my amendment is to clarify the point of balance. We should look at burdens and benefits. I am not convinced that the Minister has fully thought the matter through. He gives a case that is too easy. We find no difficulty with the slaughterman case. I will nod through anything that he wants to do about slaughtermen at any time. However, I should like him to cite an example that demonstrates that by removing a burden there is prima facie evidence that someone may suffer. That is the kind of case that I should like him to look at rather than giving me the example of slaughtermen.
We shall return to this matter. In fact, we have tabled several amendments which will enable me to press the Minister for an example. As I said, there is no point in looking at an easy case. We want a hard case so that we can see how the Bill will work. Having said that, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Lord Peston Lord Peston moved Amendment No. 4:
Page 1, line 18, after ("protection") insert ("and without adding a burden to other persons carrying on a trade, business or profession or otherwise").
The noble Lord said: I have just realised that my amendment, Amendment No. 4, covers exactly the point to which I wanted the Minister to refer because it seeks to insert the words,
"without adding a burden to other persons".
I said "my amendment", but I must refer also to my noble friend Lord Williams and to the noble Lord, Lord Rodgers of Quarry Bank.
Amendment No. 43 asks us to consider whether the removal of the existing provision will impose an additional burden. Although I am not fully conversant with the argument that was put forward by my noble friend Lord Stoddart, I thought that his example was interesting when he referred to the possibility that, by seemingly simplifying the procedures relating to, say, the listing of directors, one could be imposing additional costs on other people. The purpose of the amendment is precisely to ask in what sense the Minister is obliged —independent of all representations and of all the procedures that we are considering—to say, "Ah, this looks like a good idea. This is a burden and we might remove it, but I had better check who is gaining from the regulation and the enactment. If removing or changing what we have done leads to those who were gaining now not gaining or losing or having costs that they might not otherwise have, what procedure insists that we balance these things?"
This is a difference in philosophical view. It may be that the Minister is saying that he would look only at "burdens", the removal of which imposes no costs on anybody else whatever. Those were the examples that he gave. However, to be perfectly honest, that is terribly uninteresting. Who will argue about those? As my noble friend Lord Clinton-Davis said, let us look at some examples that are controversial and let the Minister give us an example. Perhaps the Minister will give us examples of what he and his department have in mind, some of which will get up my nose, because we will then know what he is trying to do. So far, however, he has quoted only examples with which I have no difficulty. Indeed, no one in their right mind would have any difficulty with them. So why are we going through all these procedures and spending weeks on this legislation just to deal with slaughtermen and their relationship with local authorities? I am sure that we could find another way of dealing with that. I beg to move.
Lord Strathclyde: I do not know whether the noble Lord, Lord Peston, or the noble Lord, Lord Stoddart, have had an opportunity to read the document Deregulation: Cutting Red Tape. I hope that they will have such an opportunity because in that document they will find an illustrative list, including an explanation of the requirement on companies to file information direct to Companies House. I do not know whether the noble Lord, Lord Stoddart, will derive some comfort from that document when he reads it. Whether other of those measures get up the nose of the noble Lord, Lord Peston, will be for him to advise me when he has read the document.
Amendment No. 4 would mean that the order-making power could not be used if the effect of an order was to reduce a burden on one person but also to increase a burden on someone else. The amendment does not take any account of the relative scale of the new burden in comparison to the one being removed. Therefore, if the
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effect was to impose even a very small additional requirement on any person, the order-making power would not be available.
I believe that Amendment No. 43, to which the noble Lord also spoke, is also unnecessary. As has already been explained, before an order can be made, full consultation is needed with all interests substantially affected by the proposals and other appropriate persons. The full results of this consultation will be available to Parliament and in particular to the scrutiny committees which will be able to look in detail at the proposal, as well as taking evidence. I believe that this should provide sufficient information.
If a proposal is brought forward where it is believed that an additional burden is imposed either by the Minister or by consultation from the committee, or if the committee does not believe that the Minister has carried out sufficient consultation, it will be for the committee in the first instance to say so to the Minister. The Minister must then go away and think about it. The committee could ultimately say that to Parliament, and then the parliamentary process will continue.
I would not want the noble Lord, Lord Peston, to think that I find his amendments unworthy. Like him, I think that we have had some interesting debates. These are questions that need to be answered. I hope that he will agree that the Government are justifying their case rather well.
Lord Peston: As the noble Lord knows, I hold him in the highest regard and wish him well in whatever limited career he will have in the next few months. My high regard for the Minister is such that I have broken the rule of a lifetime. I actually acquired a copy of whatever that document is called—"Breaking the Tape" or whatever. Unlike my lifetime rule, which is that all such glossy documents go straight into the wastepaper basket, because of my high opinion of the noble Lord I actually read the thing. Of course, I should have put it into the wastepaper basket.
The Minister has made my case for me. He said that the weakness of my amendment—he is right—is that if the other burden was very small, it would be wrong not to remove the original burden. That is precisely my point. If the other burden was very large, it would be wrong to remove the initial burden. The whole point of my approach is to say that we have to compare gainers and losers. We have to consider what the net gain is rather than the gross figure with respect to the sort of people who will go to the deregulation task force and say, "We don't like this". Someone, the Minister, has to balance these things. That is the point of this amendment and many others. However, I was interested in what the Minister said and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Goschen: My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.05 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Merchant Shipping (Salvage and Pollution) Bill
7.7 p.m.
Report received.
Clause 4 [Prevention of pollution from ships: further power to implement international agreements]:
Lord Mustill Lord Mustill moved the amendment:
Page 3, line 32, leave out ("(3)") and insert ("(4)")
The noble Lord said: My Lords, my amendment would simply correct a minor typographical error in Clause 4 where what should be a reference to Section 20(4) (e) of the Merchant Shipping Act 1979 erroneously appears as a reference to Section 20(3) (e). I beg to move.
Lord Clinton-Davis: My Lords, I should like to welcome the noble Lord, Lord Mustill, and to commend the superb way in which he has moved this highly controversial amendment.
On Question, amendment agreed to.

Farm and Conservation Grant (Variation) Scheme 1994
7.8 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe)The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe) rose to move, That the scheme laid before the House on 16th May be approved [20th Report from the Joint Committee].
The noble Earl said: My Lords, as noble Lords may be aware, the Government have recently introduced the habitat scheme. It is designed to encourage farmers to create and enhance important wildlife habitats. Under the water fringe element of the scheme farmers in six pilot areas can enter agreements with the ministry, either to take buffer strips of land next to rivers and lakes out of production altogether or to manage waterside fields by extensive grazing. This will have benefits for wildlife both in the water and on the waterside banks. The pilot areas were slected on the basis of advice from English Nature and the National Rivers Authority as well as MAFF's Directorate of Fisheries Research. There has been considerable interest in the scheme already and some 500 information packs have been distributed to farmers in the six areas.
One of the factors in ensuring that individual agreements are effective in protecting wildlife will be the need, in some cases, for fencing in order to exclude livestock from the buffer strips and thus prevent them from breaking down river banks. We believe that fanners should be assisted with the cost of any necessary fencing. But in the habitat scheme, operating as it does through payments per hectare, there is no mechanism to make capital payments. In order to overcome this problem we are proposing to use the one-off investment part of the Farm and Conservation Grant Scheme (F&CGS) to offer grants towards the cost of such fencing in line with the grants for similar works already available in
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environmentally sensitive areas. Grant will be available at a rate of 40 per cent. Farmers with an existing F&CGS plan can participate in these schemes and may, by an approved plan variation, be able to incorporate, at normal scheme rates, a fencing grant.
This is a small-scale addition to the F&CGS but a necessary and, I trust, an uncontroversial one. I commend the instrument to your Lordships.
Moved, That the scheme laid before the House on 16th May be approved [20th Report from the Joint Committee].—( Earl Howe. )
Lord Carter:My Lords, the House will be extremely grateful to the Minister for explaining clearly, as always, the nature of the scheme. We on this side welcome the habitat scheme and this order is a sensible addition to it. If the habitat scheme is to work properly, the buffer strips of land next to rivers and lakes or waterside fields must be properly fenced against livestock so that river banks or lake sides cannot be broken down and damaged
There are, of course, other areas which would also benefit from fencing for habitat management. I am sure that the Minister is aware that the NFU has pointed out that it would be very helpful and conducive to good management if similar grants were available for hedgerows, especially those which fall outside the remit of the hedgerow incentive scheme, for chalk and limestone grassland and for moorland areas. In the latter case, the moorland, fencing would be particularly effective in support of the over-grazing regulations because it is clear that fencing can regulate grazing pressure much more effectively than shepherding.
Other than those comments—and I should be grateful if the Minister would respond to them—I repeat that this is a very sensible measure and we gladly support it from this side of the House.
Earl Howe:My Lords, I am grateful to the noble Lord, Lord Carter, for his welcome of this measure. Grants for the provision, replacement or improvement of hedges, including associated protective fencing, are already available under the F&CGS. Chalk and limestone grasslands are landscapes covered by the countryside stewardship scheme. That scheme includes provision for capital payments towards the cost of any necessary fencing. In addition, under the F&CGS, grants are available for the provision, replacement or improvement of fences in general.
With regard to over-grazing on moorland, grants under the F&CGS are also available to help farmers to meet the cost of fencing to control stock access. I reiterate that the amendment to the scheme that we are debating tonight is designed specifically for the purpose of making the water fringe element of the habitat scheme a practical proposition for farmers and to encourage them to enter the scheme.
On Question, Motion agreed to.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.14 to 8.5 p.m. ]

Deregulation and Contracting Out Bill
House again in Committee on Clause 1.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 5:
Page 1, line 22, at end insert:
("() For the purposes of subsection (1) (b) above, "necessary protection" shall include any protection relating to—

(a) the health and safety of employees;

(b) the economic security of any individual;

(c) the preservation of the environment;

(d) the preservation of wildlife and prevention of cruelty to animals;

(e) conservation and national heritage;

(f) voluntary organisations or voluntary activities;

(g) the promotion of racial harmony; and

(h) the preservation of the moral welfare of society.")

The noble Lord said: The amendment would enable us to test the areas in which the Government may seek to deregulate and/or examine those areas where we have great reservations about their commitment; and, indeed, even about their bona fides. The amendment also seeks to define what shall be included under the term "necessary protection".
I turn to my first submission in that regard. I fear that I shall take rather longer than my noble friend in my introduction as it covers such a wide spectrum. First, the amendment is consistent with what was said by the Minister, Mr. Sainsbury, when the issue was raised in Committee in the other place on 17th February. In reply to an amendment which was seeking to define the term "necessary protection", he said:
'The words 'necessary protection' encompass the protection specified in the amendment 'for the health, safety or economic protection of individuals'. However, the Bill goes far wider and so provides a more appropriate safeguard. Obviously, in addition to the protection specified for individuals, the term 'necessary protection' encompasses the important examples of protection for the environment and wildlife, against cruelty to animals and for our national heritage and the voluntary sector".
In fact, he explained, it encompassed all those important issues. The Minister then went on to say:
"Turning to the protection of individuals, the term in the clause encompasses not only economic, health and safety protection, but protection of civil liberties and racial harmony … It also encompasses protection for what might be described as moral welfare—for example, under age drinking or child pornography".— [Official Report, Commons, Standing Committee F, 17/2/94; cols. 91–92.]
We are not satisfied that the Bill does these things. That is why we are saying that such points should be incorporated in the legislation. However, if the Minister's argument is that it is indeed all encompassed and yet some of us express a doubt, why not resolve that doubt by accepting the amendment? What possible harm could come from doing so?
Our purpose is to make sure that on the face of the Bill there will be a reasonable balance of interests, because there are often conflicting interests in this field. It is necessary to maintain a reasonable balance of interests and for that balance to be seen to be maintained, as I say, on the face of the Bill. In other words, what we are talking about is removing unnecessary burdens on business while protecting other significant interests. That is where I think the Government fail to address the issue from the very start of their conception of this Bill.
They contacted the task forces and produced this document and the Minister is very proud of the fact that

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they approached business interests—mostly people who were very supportive of the Conservative Party not only as regards their political interests but also as regards their financial interests as they want to get something back for what they pay. Therefore, the Government identified those interests, in terms of their deregulation, from that source. I say that that was a bad way to start because these task forces are powerful. They are reinforced by a great deal of money and they have a great research facility available to them. When one compares that with the position of consumers, environmentalists or even trade unions, one sees this is an uneven battle ground—if indeed battle has to be enjoined.
I am referring to the controversial issues rather than the wholly benign matters to which the Minister previously alluded. We start from where the Government set the agenda. It is difficult for other people to shift the emphasis towards a more purposeful recognition of the balance. I think that is a mistake. We could have done business with the Government as Even if we discard the argument regarding the Government's bona fides and we accept, against all the evidence, that this Government are likely to act in the utmost good faith and with competence, and if we accept that the subjective ministerial decision still holds sway, that is fine as regards the obvious cases. Of course the Government will say that one needs to have regulations to prevent manufacturers incorporating flammable materials in children's nightwear. There is no problem about that. We would all agree with that. But what about the borderline cases? Those are what we are talking about.
Government supporters tend to argue that bad publicity highlights dangerous practices by businesses and that that should constitute in most instances a good argument for excluding regulations and that the market will yield the truth of the matter. I simply do not accept that, because it is only in really quite sensational cases that publicity tends to come to light. The near misses are not noticed and the promises to behave in future are sometimes illusory. I am not talking about those who engage in the best practices. In other words, we argue that this subjective appraisal by Ministers means that parliamentary safeguards—whatever safeguards there may be—will be undermined by what will ultimately be a fairly compliant majority conforming to the Minister's judgment.
If the Minister wishes to convince the Committee —this whole host of people who are here tonight!—that I am wrong, then the burden falls on him to establish how he will go about balancing costs, safety, environmental considerations and other matters. Ministers in another place have said—we have not heard too much about that yet in this place—that, in any case, anyone has a right to seek a remedy in the courts against abuse. But the trouble with that argument is that it is difficult to go to court these days. Eligibility for legal aid is becoming almost impossible to obtain for large sections of the community. It is not easy to gain access to the courts.
I wish to deal with a few, not all, of the items in the amendment. First I refer to the question of the health and
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safety of employees. I believe that here lies an important test in terms of the Government's good faith. What they say over and over again when they talk about flexibility —or what they mean by flexibility—is that the only way for British industry to be competitive and to face the challenges posed by other countries, particularly those of the Pacific Rim, is to engage in low wages, low skills, low standards, and so on. That is a philosophy that we not only abhor but one which we totally reject. I believe it is a sure route to the debasement of the dignity of people in the workplace and that it will store up great resentment and, indeed, help to promote political instability at a time of appalling unemployment.
Good employers need sensible regulations because that enables them to be able to withstand competition from ruthless, uncaring and shoddy business competitors. Equally, good employers are entitled to demand that regulations are applied evenly and fairly. That, of course, should include the monitoring of products which are imported from overseas. So they stand foursquare with their employees who are concerned about the erosion of decent standards because they know only too well that that costs jobs and that injuries are expensive not only for a worker and his family but also for the employer and, indeed, the state.
Therefore, enforcement is critical. However, I question the Government's bona fides in that regard as well. That is why we want it written into the Bill. We have seen a steady reduction in the monitoring processes in the workplace. Bad employers are able to engage in bad, unsafe practices which take a heavy toll in terms of injury, notably in the construction industry. Too many such employers exist.
Yet the budget of the Health and Safety Executive has been cut by no less than £30 million for 1993–94. The grant for the training of safety representatives in 1993 was cut by 25 per cent. and by 1995 it will have disappeared altogether. The role of the chairman of the Health and Safety Executive has become part-time, although I know that it has been buttressed by other senior officials. Nevertheless, it is a retrogressive step. Deregulation of wages councils has had the effect of pushing down already low wages to a much lower level.
If the Government assert that they have no interest in repealing any part of the Health and Safety at Work, etc. Act 1974 by order, then the procedures we suggest would wholly protect that objective.
The Government must understand the concerns that are felt throughout industry and which, through representations to us, have been made very evident. Shoddy work practices exist in the worst elements of British industry and permeate the industry from top to bottom. One has only to take, for example, the "Herald of Free Enterprise". That was the indictment that was; made by the inquiry at the time. Shoddy practices existed from the very top right to the bottom. Occidental Petroleum (Caledonia) Ltd. should really be called Accidental Petroleum. Those cases were the product of over-reliance on unregulated or badly regulated market forces. There has been a great deal of inertia about procuring compliance in a whole variety of areas, not least drivers' hours and rest periods.
We want to know from the Government how they would estimate the cost to the nation of weakening regulations of this character. We say that health and safety are far too important for the Government to take risks with them and should not be covered by Clauses 1 to 4.
What would the Government do if the Health and Safety Commission objected to a deregulation proposal? Would the Government say, "That's it"? I see that the Minister is nodding his head. I am glad that he is prepared to give that assurance. However, nods of the head do not appear in Hansard. Therefore, I should be grateful if he would indicate that clearly.
In relation to the economic security of an individual, the Minister in another place said that that was also encompassed. Again, this is a question of balancing often conflicting interests. The effect of this part of the amendment is to remove burdens on business while protecting other interests. What do the Government say about necessary protection? They say that it has been deliberately left undefined for a good reason. It means what it says. An unreasonable decision about what is necessary protection could be challenged in the courts. That is palpable nonsense. It is not easy to challenge these matters in the courts, as I have already said.
Issues that go to the very heart of the economic security of an individual are touched on by rights of women at work. If the Government are so proud of their bona fides in these matters, why did they go out of their way to object to the draft directive dealing with pregnant women at work and other similar measures emanating from Europe? Was it a question of subsidiarity? Why should it be a matter of subsidiarity in any event? I believe that in this regard the Government are found to be wanting.
As regards the environment, the list included in Chapter Four of Cutting Red Tape includes items such as integrated pollution control, aspects of waste regulation, looser planning regulation, landlord and tenant regulation, less stringent fire precautions legislation, simplified legislation on the safety of sports grounds, controlled deregulation of taxis and I understand that a new waste licensing system has been introduced under the Environmental Protection Act 1990. Those regulations will all contain substantial exemptions from licensing. Does the Minister believe that all that will be uncontroversial?
We are deeply concerned about the situation, not least because with existing legislation the Government have scaled down the ability to monitor effectively. We simply do not accept their good faith in relation to the environment. I mentioned that in the course of my Second Reading speech. When it is found to be of benefit to industry, they have said that industry will be permitted not to have to conform for a year or two, or even longer, with the requirements that they thought should be imposed in the first place. The Prime Minister even had the audacity to say that we should go down the route of not properly complying with European Union environmental law.
All the issues to which I have referred seem to me to be critical for inclusion in the Bill. However, if the
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Minister says that they are redundant because they are all included, I say that that is debatable. In order to put our minds at rest, and also the minds of many outside, particularly in the field of the environment and health and safety, the Minister's remedy is simple: accept the amendment, even if he alleges that it is redundant. I beg to move.
Lord Simon of Glaisdale: I wanted to ask the noble Lord, Lord Clinton-Davis, before the Question was put whether he would deal with the extremely interesting paragraph (h).
Lord Clinton-Davis: Paragraph (h) deals with the preservation of the moral welfare of society. In that instance I took up the words of the Minister in another place. I included that provision because he thought it was important. I also think that it is important. I agree that if the Minister thinks that it is significant, it should be included.
Lord Strathclyde: That is one of the great non-answers that we have heard in the course of the Bill. The noble Lord referred to my colleague in another place who made the comment, but he did not propose to put that phrase into legislation. In legislation it has no meaning. I suspect that that was the point that the noble and learned Lord, Lord Simon, was making. It would have been entirely proper for him to do so.
I shall not follow the noble Lord, Lord Clinton-Davis, with a long treatise and explanation as to what could or could not be done by the deregulation Bill, or even disagree with him as to what is or is not contentious. If the Bill is passed, that will be decided when draft orders are presented to Parliament by the relevant Ministers. As I have explained time and time again, we shall then see what the procedure is.
When it comes to health and safety provisions, the noble Lord, Lord Clinton-Davis, must know that the 1974 health and safety Act already gives most of the powers needed to reform and modernise health and safety law. The Health and Safety Commission has already identified one deficiency in that respect which, following the commission's request to Ministers, is being addressed in the Bill through the provisions of Clause 27.
We shall deal with the more general report which the HSE has provided about the reduction in the overall number of health and safety regulations after full and wide-ranging consultation.
I can entirely understand the wish of the noble Lord to be certain that necessary protection in the areas covered by the amendment would not be put at risk in any way by the power in Clause 1.I should like to assure the Committee at the outset that the Government's deregulation initiative is not about jeopardising necessary protection but about ensuring that where legislative protection is required it is provided in the way which imposes the lowest possible burden on those who have to comply. That seems to me to be a reasonable objective.
By proposing that the order-making power should not be used where doing so would reduce any necessary protection the Government have sought to make that

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safeguard both rigorous and comprehensive. It is for that reason that the term "necessary protection" is left deliberately undefined. It would certainly encompass necessary protection in all the areas listed in the amendment which we have been debating. The Government consider that all the general areas covered by the amendment are indeed areas in which necessary protections must be maintained. But necessary protection also covers all sorts of other things.
I sympathise with the intentions of the noble Lords in drawing up a list to make clear that certain matters would be encompassed by the term. I have to say, however, that I am not convinced that drawing up such a list is a helpful approach. In drawing up such a list it is almost inevitable that some matters of equal importance would be omitted. Any such omission which we identify now could be added to the list. The difficulty is that we could never be sure that all important matters are included. In the amendment, for example, there is no mention of protection for consumers for public health or for sexual equality. I could go on. It is in any case wrong, in my view, to highlight some such matters while ignoring others.
8.30 p.m.
Lord Clinton-Davis: Perhaps the noble Lord will give way. If he considers the amendment, he will read the words "shall include".
Lord Strathclyde: That is the exact point. Although the amendment identifies matters which are included in the definition, there is a risk that the provision could have the effect of narrowing the definition and thus narrowing the safeguard that it represents.
I understand the concerns of the noble Lord. I do not believe that there is any great benefit in having a substantial debate on various specific issues which may or may not make up "necessary protection". That, quite properly, should be left until we have orders before us. However, I hope that I have explained why the amendment is unacceptable.
Lord Clinton-Davis: I fear that the Minister has done nothing of the kind. He has not begun to deal with the point that, according to the Minister in another place, all those issues were encompassed by the Bill. Therefore they cannot be superfluous to requirements. As I have indicated, many people—consumers, environmentalists; the Minister knows them, he must have had representations from them—are deeply anxious about the way in which the Government have failed to define important issues. That has given rise to some of those anxieties. The Minister could have said, "Yes, all right, there is a risk that the words 'shall include' can inhibit further possibilities". Then he can think of the other possibilities that ought to be included. But even then the list would not be comprehensive. So the Minister has been found wanting on that issue. All that the Minister asked is why we did not have one or two other issues included.
I was asked previously about moral welfare. We had in mind burdens which related to public decency, child protection, and adult education—again, matters which seemed to have the approbation of Mr. Sainsbury in
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another place. I do not say that we have exactly the right drafting. The Minister said that there was some point, to the case that we have argued; he did not deny that. He said that there are legitimate concerns. I believe that he should address those concerns. I believe that he should be given another opportunity to say to the Chamber at a later stage, "Not only are we prepared to consider those anxieties—they are very natural—but we shall ourselves introduce proposals to take on board what is adumbrated in this provision". I am disappointed that he did not do that.
Before I conclude, perhaps the Minister will say, "Yes, we shall consider the matter again". It is no good the Minister nodding his head one way or another, it will not be included in Hansard. I invite the Minister to say something on that.
Lord Strathclyde: It is always my intention, in particular at Committee stage, to be as helpful as possible to the Committee, and to Opposition spokesmen in particular. However, I really cannot see that my answer could be construed in any other way than to say that I believe that "necessary protection" should remain undefined. Seeking to define the phrase in the way in which the noble Lord has done could positively end up weakening it.
Lord Clinton-Davis: That is a dangerous doctrine. It means that ultimately, even though people can go to the courts, it is the courts which have to do the job of Parliament. I believe that that is a thoroughly bad proposition and philosophy. I shall not say that I shall consider carefully what the Minister said. However, I want to give him another opportunity to read Hansard, nods and all. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved. ]
Lord Peston Lord Peston moved Amendment No. 7:
Page 2, line 3, leave out ("shortening") and insert ("varying").
The noble Lord said: This is an important amendment which I can deal with briefly. In subsection (2), the Bill refers to,
"reducing the authorisation or requirement by virtue of which a burden may be imposed".
The Bill includes a reference to shortening any period of time. That seems to me to beg the question. It enables me to emphasise once more my interpretation of what ought to happen.
A scrutiny of a specific enactment may merely reinforce the view that the provision is even more meritorious than we had understood previously. Although the measure places a burden on some, it may yield considerable benefits or advantages to others. One should not beg the question because as a result one might find that there was a net benefit from increasing the period during which the enactment, if it were time limited, would remain. The Bill refers to "burden". In my definition the burden, narrowly defined, is imposed.
Using the word "varying" certainly allows shortening as one of the directions in which the measure can be varied. It is a more satisfactory way of drafting and makes the Bill more even-handed.
Lord Strathclyde: One of the measures in the illustrative list may help to explain why Clause 1(2) allows for orders to reduce the period within which a burden may be imposed. We have said that we plan to shorten the statutory timetable for consideration of completed mergers. At present under the Fair Trading Act the Secretary of State may refer a completed merger to the Monopolies and Mergers Commission up to six months after it is made. We propose to use the order-making power to reduce the time limit to four months. That is an example of the length of time during which a burden can be imposed, in the case of a reference to the Monopolies and Mergers Commission, and reduced to the benefit of companies concerned without jeopardising necessary protection. The effect of the amendment would be in such circumstances to allow the order-making power to be used either to lengthen or to shorten the provision. As this example demonstrates, lengthening the period within which a burden might be imposed could not be a deregulatory change to legislation. It does not therefore fit with the purpose for which we are seeking the order-making power in Clause 1.
I recognise that the noble Lord, Lord Peston, seeks to be of assistance, but I do not believe that the amendment helps meet our objectives.
Lord Peston: I thank the noble Lord. I shall consider his argument. The example that he gave was interesting. He stated that it is clear that a benefit would result from shortening the period. In that case he may well be right. However, it suggests to me that there may be corresponding examples where the burden would be reduced by lengthening the time. That is my point.
I need to reflect on what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 12 not moved. ]
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 13:
Page 2, line 26, at end insert ("and provided that no order shall be made under this section if a Resolution is passed by either House of Parliament to the effect that the order shall not be made in the form of the draft laid before Parliament under this section.").
The noble Lord said: As the Committee knows, this is an important amendment standing in my name and I think that it will be well supported on all sides of the Committee, although attendance is a little thin at this hour. The crux of the issue is whether the Minister has said what we believe he said, whether we welcome what he said and whether he is willing to embody what we believe he has said and he thinks he has said in the Bill. I do not intend to speak for long as we discussed the substance of the matter at length under Amendment No. 1.
In its 9th report, the scrutiny committee drew attention first to what had been said in a memorandum prepared by the Board of Trade for the scrutiny committee. The memorandum stated:
"The Government has made it clear that it would take an adverse recommendation from a committee of either House extremely seriously and in normal circumstances would expect to submit a revised proposal or to withdraw the proposal altogether in such cases".
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The scrutiny committee noticed that in our Second Reading debate on 6th June the noble Lord, Lord Strathclyde, had gone rather beyond that and had said that if the outcome:
"Were a resolution of the House to the effect that the order should not be approved, the Motion to approve the order would not be moved".—[Official Report, 6/6/94; col. 956]
Listening carefully, that is what I thought he said today. If he did, he therefore confirms the scrutiny committee's understanding and we have reached the starting point for what to do now.
Here I simply read again the report of the scrutiny committee:
"We consider the Minister's undertaking to be of significance and we accordingly urge the House to consider whether an amendment should be made to the Bill to ensure that an order against which the House has passed a Resolution will not proceed".
We are now turning our attention to that matter. As I see it, assuming that the Minister does not wish in any way to renege on what he has said—and I would not expect him to —the question is whether that undertaking should effectively be enshrined in the Bill.
I know what the temptation will be to the Minister. He will say: "Any amendment, particularly one made in this House, is bound to be trouble. Let's try to avoid it if we can". He may be led to believe that any admission that the Bill as drafted falls short in respect of scrutiny is an admission in some way of failure on his part. I am sure that his officials will say to him: "Minister, do you want to tie your hands irrevocably?" These are the normal thoughts which would go through the Minister's head. However, what I know of the noble Lord leads me to believe that he is a bigger man than that and he will not allow himself to be put off by such considerations. Some Ministers would be—not corrupted, I think— softened by the vanity of power. But I do not believe for a moment that the Minister has been. I believe that his respect for the parliamentary process, despite the contents of Clause 1 and the first part of the Bill is such that he would prefer to satisfy Parliament rather than simply to rest on an undertaking given in the way that he has given it.
I hope very much that we shall hear from the Minister shortly. He need say one simple thing for the debate on the amendment to come to a conclusion. All he need say is that he has read the recommendation of the 9th report of the scrutiny committee; he sees the weight contained therein and, although as far as he is concerned an undertaking is an undertaking, he fully appreciates the extent to which Parliament wants something more. Therefore, he is happy to accept the amendment without further debate or a Division tonight. I beg to move.
8.45 p.m.
Lord Simon of Glaisdale: I consider this a very important amendment. I have come to regard the Bill as potentially increasing parliamentary control. We have been woefully deficient in our procedure in controlling secondary legislation. What the Bill does, with the acceptance of the Procedure Committee's recommendation, is to institute a procedure, a mechanism of scrutiny of secondary legislation under the Bill. I very much hope that that might be extended generally.

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As I venture to point out, what is proposed here is very similar to what was proposed by the Procedure Committee in another place when trying to find an answer to parliamentary control of secondary legislation generally, its increasing volume, complexity and importance.
There is one further point. I entirely agree with the noble Lord, Lord Rodgers, that we wish to make a system and close any loophole as regards our final survey and vote against any draft instrument placed before your Lordships. Again, I regard that as a matter of general importance, but we might as well start in this Bill. At the moment, the Bill states in the usual terminology in Clause 1(4):
"but no order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament".
Either that means something or it means only one House of Parliament. If we fetter ourselves with a so-called convention that we do not vote against a statutory instrument, that means that so far as this kind of formula is used in this and other Bills, it is single Chamber government and the words are completely meaningless.
As the Committee knows, there are certain statutory instruments of a type which need only the approval of the other place. They are mainly financial. That is what we are importing, or are urged to import, by way of a convention. Conventions vary enormously in strength. We can have a strong convention, if it is of long standing, if it makes good constitutional sense and if any breach is likely to be remedied by immediate legislative action.
Lord Clinton-Davis: Would the noble and learned Lord allow me to intervene? He has repeated the term "convention" which the Minister used in relation to our eschewing the opportunity to vote against statutory instruments. It is not really—is it?—a convention but more of a self-denying ordinance.
Lord Simon of Glaisdale: I am quite willing to accept that. In so far as it has any force at all, it is a constitutional convention in contra distinction to a rule of constitutional law. I was about to give an illustration of a very strong convention; namely, the convention whereby lay Lords do not interfere with the judicial work of your Lordships' House. That goes back well beyond the institution of the Lords of Appeal in. Ordinary. The noble Earl, Lord Russell, will correct me if I am wrong, but I believe that the last time that lay Peers interfered was in the case of Cobbett in the twenties of the last century. That is a very strong convention, having lasted for a long time, making good sense, and undoubtedly any breach would be altered by legislation.
On the other hand, you can have a very weak convention. There was a convention that when a government were defeated at the polls they did not resign until Parliament met and they were defeated there. That subsisted, I should think, a couple of centuries or more. Again, the noble Earl will correct me if I am wrong. But it was only a convention. When, at the end of last century, Disraeli and then Gladstone were defeated at the polls, they resigned immediately. That
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reflects the emphasis on the political sovereignty of the electorate as against the legal sovereignty of Parliament. So there was a convention that could be altered at convenience.
The Disraeli-Gladstone convention was observed by subsequent governments. But it was still only a convention. When, in 1923, there was a hung Parliament, Baldwin waited to meet Parliament before resigning. I imagine that that convention will be followed if we ever have another hung Parliament. But thereafter governments reverted to the Disraeli and Gladstone convention. So there you have a very weak convention which is altered at convenience.
An intermediate one was the American constitutional convention whereby a President serves for only two terms. That was instituted by Washington—although he undoubtedly wanted to retire at the end of the second term. But when Jefferson felt obliged to follow him, it became a constitutional convention of considerable strength because it stopped Grant and then Theodore Roosevelt from taking on a third term. But it was still only a convention. Franklin Roosevelt served a third term and the beginning of a fourth. That being so, as soon as there was a Republican majority in Congress, the previous convention of two terms was given legal force.
If you have conventions of varying strengths of that sort, the convention on which the noble Lord, Lord Strathclyde, relied must be a very, very weak one. There is no conceivable reason why, when both parties have to approve a draft order, only one should do so. That is particularly forceful in relation to this Bill because the draft order is not merely the ordinary run of secondary legislation. It is a draft order which alters primary legislation. So if there were ever a case where your Lordships could disclaim any alleged convention, it is this. It is of very recent origin, thought up, I venture to think, by Whitehall, because it is so very convenient to get any draft order through your Lordships' House and then only risk the whipped majority in another place.
If that is so, the Committee should, I think, declare roundly that it is not barred by any such convention, particularly in the circumstances of this; Bill. I had intended to put down a resolution at this stage to that effect. I did not do so because it seemed to me more appropriate to do it at Report stage in the full House rather than in a Committee, albeit of the whole House. But, subject to advice, and unless the Minister will now categorically say that the alleged convention is a nonsense, I propose to put down such a resolution for the Report stage.
I have only one further point to make. The convention is of very recent origin—in so far as it is a convention. It did not prevent the Conservative Opposition voting against the Government on Rhodesian sanctions. And there have been one or two other cases where a Conservative Opposition has disregarded the convention. As I said, it makes no sense. It particularly makes little sense in the context of the terms of this Bill, and the sooner we get rid of it the better.
Perhaps I may deal with an argument put forward by the noble Lord, Lord Monkswell, in this connection.

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The noble Lord takes a great interest in the matter. He asked what, if your Lordships vote against a draft order, happens if the other place votes in favour of it and if there is a difference of opinion between the two Houses? That is taken care of by the specific terms of the Bill which are in common form: no order shall be made unless it has been laid before and approved by a resolution of each House. So both Houses have to approve the order in order to give it validity. There is no possibility of a collision. If either House disapproves of the draft order, then the draft order fails. On that basis I respectfully ask the noble Lord, Lord Rodgers, not to press his amendment but to wait and see how things go if a resolution is passed that will meet his purpose at the Report stage.
Lord Strathclyde: The noble Lord, Lord Rodgers of Quarry Bank, is right to say that this is an important issue and one we touched upon in an earlier debate. Naturally, I must choose my words wisely when faced with an expert like the noble and learned Lord, Lord Simon of Glaisdale. Increasingly this debate becomes an educational experience for me. I very much enjoyed what the noble and learned Lord said.
The amendment addresses a point raised by the Delegated Powers Scrutiny Committee in its report on the delegated powers in the Bill. The committee drew attention to the wording in the Government's memorandum to the committee on the Bill in relation to the deregulation order-making power that:
"the Government has made it clear that it would take an adverse recommendation from a Committee of either House extremely seriously and in normal circumstances would expect to submit a revised proposal or to withdraw the proposal altogether in such cases".
The scrutiny committee was concerned that those were restrictive words and contrasted them with the assurances I gave at Second Reading that if the outcome of a debate on a Motion in respect of a report from the committee on a draft order,
"were a resolution of the House to the effect that the order should not be approved, the Motion to approve the order would not be moved".
9 p.m.
Lord Clinton-Davis: Before the noble Lord leaves that point, let me point out that he referred to "normal circumstances". What are the extraordinary circumstances which might cause the Government to take a contrary view?
Lord Strathclyde: It is part of the issue on which I believe—it is probably my fault—that the scrutiny committee was confused. If the committee makes a report to the Chamber in a negative way on a deregulation order, the Minister would have due warning that there was something wrong with the order and in normal circumstances he would remove it. In extraordinary circumstances the Minister could decide not to take the advice of the committee and ask the Chamber to make a decision on the report of that committee.
Lord Clinton-Davis,Lord Clinton-Davis, With respect, I asked the Minister to exemplify what might be extraordinary circumstances.
Lord Strathclyde: What is important is not found in the words "extraordinary circumstances". They are almost irrelevant. Normally, the Minister would take the advice of the committee. What is important is that the Chamber as a whole at some point should be able to have a view as to whether or not the committee was right. Then we reach the situation mentioned by the noble and learned Lord, Lord Simon.
Lord Clinton-Davis: With respect, that is not the situation. The Minister says that in normal circumstances the Government will accept the view of the scrutiny committee but there could be extraordinary circumstances. It is at that stage—not when the Chamber will consider it—that the Government have to determine what are the extraordinary or abnormal circumstances. How does the Minister exemplify that?
Lord Strathclyde: The noble Lord is making a little bit of a mountain out of this point. It will depend on the circumstances that exist at the time.
Lord Simon of Glaisdale: I am much obliged to the noble Lord for giving way. Why is he afraid to go directly to a non-approval of the draft? Is it because he is afraid that it might be used in circumstances other than this Bill? I rather fear that it is. If so, it is a reason why your Lordships should vindicate the contrary.
Lord Strathclyde: I wish to deal with the point of the noble and learned Lord, Lord Simon of Glaisdale. It is a different point from the one put by the noble Lord, Lord Clinton-Davis. In order to answer it, perhaps I may continue with the procedures that the Government believe will take place.
Lord Simon of Glaisdale: May it not be that the noble Lord, Lord Clinton-Davis, and I separately made good points?
Lord Strathclyde: The noble and learned Lord is absolutely right. They are good points; I draw attention in particular to the point made by the noble and learned Lord about the conventions of this Chamber. This is difficult territory for me. It is not the Government who impose conventions, hard or soft, good or bad, weak or hard, or whatever the noble and learned Lord wants to call them. I shall come to that point in a moment.
After the committee has considered a particular proposal, it will make a report to the Chamber. We have always made it clear that at that stage we would expect the Minister to treat such reports very seriously. The passage referred to in the Government's memorandum made clear that in normal circumstances, if a committee had reported adversely on a proposed order, the Government would expect either to revise their proposal or withdraw it altogether. In either case, the draft order would either be revised and come before the committee again or it would be withdrawn. It would not be laid as it stood for approval and therefore the question of a debate would not arise.

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I come to the point raised by the noble Lord, Lord Clinton-Davis. In exceptional circumstances the Government might consider it appropriate for the whole Chamber to have an opportunity to consider an adverse report from a committee. Before the noble Lord, Lord Clinton-Davis, rises and asks, "What might those exceptional circumstances be?" let me say that I cannot tell him what they may be because they may differ depending on the circumstances arising at the time. The point is that at that stage the whole Chamber will have an opportunity to consider the question.
Let us suppose that the committee was not unanimous in its recommendations. That might be an exceptional circumstance. It is an example for the noble Lord, and maybe it will keep him happy. There may be other examples which do not spring immediately to mind. At that point the House would have an opportunity to debate the committee's report on an amendable Motion and to debate the draft order at the same time. It could then vote on a Motion relating to the committee's report. If the outcome of the debate were a resolution of the Chamber to the effect that the order should not be approved, the Government have undertaken that the Motion to approve the order would not be moved. The Minister would then either have to revise his proposals, bring them forward in the form of a Bill, or abandon the proposals altogether. The two passages with which the Committee was concerned are therefore complementary and do not deal with the same stage of proceedings.
Let me turn with some delicacy to the point raised by the noble and learned Lord, Lord Simon of Glaisdale, on the question of the convention. Since becoming a Member of this House I have always understood that it was a long-standing convention that this Chamber did not vote on statutory instruments.
Lord Simon of Glaisdale: It does not go back beyond the Rhodesian sanctions order so it cannot be long standing.
Lord Strathclyde: That is exactly what I was going to say and I am glad that the noble and learned Lord confirms it. Since studying the Bill I have come to understand that the convention is 25 years old. It is a convention of the House; that is all it is, important as it may be. It must be a decision for the House and not for me. As a government Minister I believe it to be a useful convention and I hope that, generally speaking, it meets with the agreement of the whole House.
The point is that, in the event of this process arising, the Government would be mindful of the possible consequences for the useful convention that this House has respected for a number of years if a Minister were to press ahead with a Motion to approve an order in circumstances where the House had already resolved to the effect that it should not be approved. It strikes me, having said that and putting it in the context of what the noble and learned Lord said rather better than I, that the necessary safeguards are already firmly in the Bill—I am sorry, they are not in the Bill; they already firmly exist. Therefore I do not consider that it is necessary or appropriate to amend the Bill as proposed. And I can reaffirm the undertakings already given that, if a
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resolution of the House is passed that an order should not be approved, a Motion to approve the order will not be moved. I hope that they are viewed as sensible safeguards. I believe the context in which the noble Lord, Lord Rodgers, and the noble and learned Lord, Lord Simon, spoke fits what I now reaffirm as the Government's position.
Lord Clinton-Davis: I listened to the Minister with some interest and perhaps I may say at the outset in parenthesis that I hope his belief that the convention is a useful one will be an undertaking from him that it will not be violated when the Government lose the next election in a couple of years' time.
In the context of the Bill I cannot help feeling—I do not have the text of the Second Reading debate with me —that what the Minister said tonight resiles from the evident commitment that he gave at Second Reading.
Lord Strathclyde: No!
Lord Clinton-Davis: The Minister says 'no". I invite him to look at what he said last time. In order to do that effectively he must look at Hansard for today's debate because that is the important comparison In my view, what it comes to is that these extraordinary circumstances amount to no more or less than the exercise of discretion by the Minister on political grounds.
Earl Russell: Perhaps I may be allowed to defend the Minister before he does it himself. I listened to him with great care. I could not hear that he had in any way retreated from what he said at Second Reading. I found his assurances, so far as he is capable of giving them with his present brief, entirely adequate and entirely serious. Nevertheless, that is not the end of the matter.
Much as I valued the Minister's speech, the two most interesting things in it were the two mistakes: the first was his reference to a long-standing convention which is in fact a short-standing convention. Secondly, he: referred to the safeguards drawn up by the Procedure Committee and said that they were in the Bill. He then had to correct himself. That is a vital correction in the Minister's speech.
In regard to the safeguards, the Minister committed the Government for the duration of this Parliament. No government can commit their successor. The Procedure Committee is a body whose membership changes and which may from one Session to another reconsider its; conclusions. Not all noble Lords always know what is to be debated in that committee. Therefore, so far as I can see, the Minister gave us an assurance which we can treat as sufficient only for the duration of this Parliament. That is all he can do. But the duration of this Parliament is not all time and we want assurances which are a little more difficult for another government to change than a mere series of resolutions of the Procedure Committee. That is why I should very much like to see some of what the Procedure Committee has agreed to written on the face of the Bill, where it would be more difficult for a future government—perhaps 50 or even 100 years hence—to retreat from it. That would be of very great value and I hope that the. Government will even yet consider it.
Lord Strathclyde: I am very grateful to the noble Earl for defending my honour in such a way. I must say that I thought it was a bit of a cheap trick for the noble Lord, Lord Clinton-Davis, to accuse me of not knowing what I had said when he himself admitted that he did not have my Second Reading speech with him; and I, of course, do have it with me.
Lord Graham of Edmonton: My noble friend has a very good memory.
Lord Strathclyde: The noble Lord may have a very good memory, but as the noble Earl explained, the noble Lord was almost certainly wrong.
I fully accept that what we are dealing with is a very serious issue, but it is one for which I am not entirely responsible because we are dealing with conventions of the House which quite properly are for the House as a whole to decide. I believe that the assurances I have given in the strongest possible terms are sufficient to provide against an abuse by any government of this House's prerogative. I believe that that is a very strong statement. I am sure that we shall return to this subject at another stage and I look forward to discussing it then.
9.15 p.m.
Lord Rodgers of Quarry Bank: This is an hour of generosity and good will, and for that reason I endorse what was said by my noble friend Lord Russell about the Minister's statements at Second Reading and today. I wish I could say that he had resiled from his remarks on the previous occasion, but, first, I do not think he has and, secondly, it would undermine my argument, which was that, having said the same thing twice, surely now is the time to embody it in the legislation.
The argument is exactly what my noble friend pointed to when he said that the Minister made a slip when he said that it is in the Bill. Perhaps he meant,"I know it ought to be in the Bill"; and if he did mean, "I know it ought to be in the Bill", there is still time for him to put it there. And with a generous interpretation of his mood, his instinct and his innermost being, perhaps that is what we may see at a later stage.
I listened extremely carefully to the noble and learned Lord, Lord Simon of Glaisdale. I want to say where my anxieties arise. I have insufficient experience of this House to know what is or is not a convention but I have in my gut a feeling that if something has persisted even for 10, 15 or 20 years it has become a convention. Although in the history of Parliament that is a very short period, in the history of most of our lives it is quite a long one.
I also have a sense, but I would very much defer to the noble and learned Lord in this respect, that it would be easier for this House on a Bill of this kind to put in certain safeguards which by common consent, whether they are or are not or ought or ought not to be in the Bill, the House wants. It would be easier to put them in by amendments to the Bill than by confronting the issue in the sharpest head-on way, which is what I understood the noble and learned Lord, Lord Simon of Glaisdale, was proposing. It would be a very transparent step. It would confront the procedures and conventions of the House. It would open the door to other thoughts about
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whether we should not sometimes vote against the Second Reading of a Bill. It would raise the question of our relationship with another place. These are fascinating subjects to discuss, and I am sure we would be greatly enlightened at the end of it, but the practical fact is that we have a Bill before us and it is in that Bill that we want to have safeguards of a watertight kind and in keeping with what all sides of the House want to see.
I shall read very carefully what the noble and learned Lord said about a resolution to establish a convention, or reassert a convention, or to withdraw from a convention which is not a convention but we suppose that it is because it has endured for some years. I shall look at that extremely carefully and I shall hope that the noble Lord, Lord Strathclyde, will reflect on whether his instinct and the instinct of the House should be incorporated in the Bill. I shall hold myself ready to return to the matter at a later stage. That having been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved. ]
Lord Peston Lord Peston moved Amendment No. 15:
Page 2, line 40, at end insert:
("( ) "person" includes individual people acting separately or jointly as consumers").
The noble Lord said: I wonder whether it would be convenient for the Committee to give me permission to speak also to Amendments Nos. 16 through to 19 together.
Noble Lords: Yes.
Lord Peston: Thank you. Perhaps I may add that, the Committee having agreed to that, I do not propose to move or to speak to Amendments Nos. 17 or 18. My new group therefore becomes Amendments Nos. 15, 16 and 19.
Two of the amendments seek clarification and I hope that the Minister will help me on them. The first concerns the need to define "person" in line 12 of Clause 1.I have had conflicting advice and I should like to know what the Minister thinks. I was first advised not to worry, that "person" definitely does include consumers "acting separately or jointly" and covers what they do. I have been advised subsequently that that is not the case. If the Minister can say, first, that "person" does include consumers and otherwise covers what they do, then there is no problem there.
I now turn to Amendment No. 19, which concerns a matter raised by the noble Lord, Lord Mackay of Ardbrecknish. He interpreted some remarks of mine as meaning something much more interesting than I had intended. Because he did that I thought that I would get further clarification from the Minister. He had assumed that I was concerned about the Act itself being self-referencing. In subsection (5) (c), "enactment" means,
"an enactment contained in this Act or in any other Act passed before or in the same Session as this Act"
and could include deregulation and contracting out. He appeared to say that he thought it did not. My advisers have said no and that this Act could be self-referencing —in other words, the Minister could see whether any part of the Act itself imposed a burden and he could

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change it. If the latter is the case this becomes one of the most extraordinary—if not the most extraordinary—Act of Parliament that has ever been brought before this or any other House. I would like to know what is the Minister's response to that. That is a logical question and, like my first, related to a simple definition.
My third question relates to Amendment No. 16. It is put forward as an example of exactly why I believe this proposal to be inappropriate. The amendment states:
"'Act' does not include any legislation concerned with the supply of medicines".
Perhaps I may take Members of the Committee through what I have in mind here. In this country we have extremely tight rules and regulations concerning the testing of drugs for their therapeutic efficacy and danger to patients. These rules and regulations are immensely burdensome to the pharmaceutical industry. Perhaps I may declare an interest. I have at least an indirect connection with that industry, which I believe serves this country extremely well both in terms of its innovative skills and its contribution to the balance of payments. So far as that industry is concerned, my credentials are good.
One of the problems which that industry has is that, because of the rules and regulations to which I have referred, there is a long time-lag between the discovery and the marketing of a new drug or product. I am certainly willing to consider the proposition that these rules and regulations which we use for testing are too bureaucratic and ultra cautious. I am willing to consider that. But other Members of the Committee who will remember thalidomide and other drug tragedies will take the opposite view. There are certainly two sides to the question.
Where I agree with the Government is that regulation in this area must be scrutinised. If it were established that these rules and regulations were excessively burdensome then we must look for some other way of dealing with the matter. My point goes back to my view expressed in remarks at the beginning of today's debate in Committee; namely, that we can and should deal with this kind of problem using existing procedures. The relevant department should look at the law on drug testing and, if it feels that it is ultra burdensome, there should be put before Parliament a normal amendment of the law or a new set of regulations or both.
I believe that we should look at regulations and see if they are excessively burdensome. This particular matter is an example of the way in which we should look at them, using not the procedures of a Bill of this kind but normal procedures. That is the reason why I have included in the amendment:
"'Act' does not include any legislation concerned with the supply of medicines".
I am interested to hear the noble Lord's response to the definitional question of Amendment No. 15, to the logical question of Amendment No. 19 and to the substantive question of Amendment No. 16. I beg to move.
Earl Russell: I am grateful to the noble Lord, Lord Peston, for raising the question about the self-referencing Act. An Act that can be used for the amendment of itself would be a kind of legislative
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mantis. Before the matter proceeds we require an assurance that that is not the case; otherwise, I have no idea what we might be doing.
Lord Strathclyde: That remark gives me the right kind of invitation to join in the debate. I am grateful to the noble Lord for grouping the amendments because they deal with the same points.
The advice that the noble Lord has received that the word "person" includes consumers is correct and, therefore, the amendment is unnecessary. The word "person" is defined in the Interpretation Act 1978, which gives standard definitions for all legislation, as including a body of persons corporate or unincorporate. The same Act also provides that words in the singular include the plural. The result is that "person" in the Bill already includes single individuals and groups of individuals acting jointly. Moreover, the word is not limited to the acts of a person in any particular capacity; thus it includes individuals acting as consumers as much as in any other way.
The noble Lord is correct in the interpretation of "otherwise": it covers what people do and covers what they do other than in the carrying on of a trade, business or profession. In other words it includes what they do as consumers. We touched on that point earlier in the mini-debate between my noble and learned friend Lord Hailsham and the noble Lord, Lord Jay. I hope that I have now clarified the matter.
I should like to move on to the very interesting question raised by the noble Lord, Lord Peston, in his amendment that,
"'Act' does not include this Act".
The amendment would have the effect of preventing use of the deregulation order-making power to change any of the provisions in the Bill. It is not sought to make the power available to amend future legislation. Future legislation can be framed with deregulatory objectives in mind, with an awareness that circumstances may change in the future. In some cases, therefore, the Government may wish to include in individual places of primary legislation aspects that could be changed in the light of future circumstances.
For legislation that is proceeding this Session and for measures being enacted in the Bill, it would be unnecessarily complex to provide separate mechanisms in each case to deal with possible future changes. Indeed it would be impossible in relation to Bills that have been passed this Session.
Some examples may illustrate why it is desirable for the order-making power to be applicable to measures in this Bill. The new striking-off procedure is drawn in such a way as to provide necessary protection. We recognise, however, that circumstances might change in future in a way which might mean that aspects of the provisions could be amended without removing the necessary protection. We would want to be able to use the deregulation power to make such changes, subject to the safeguards, in particular consultation scrutiny, which we have provided.
There may also be small detailed changes to Chapters III or IV which may be appropriate because of technological advances in the future. Rather than

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providing separate mechanisms in each case to ensure that such changes could be made in the future it seemed that a more sensible way of proceeding was to ensure that matters provided elsewhere in the Bill would in future fall within the scope of the deregulation power.
That explanation deals with the situation generally, but I do not think that it was a specific point that was being raised by noble Lords. I suspect that they were concerned as to whether we could use the order-making powers to amend the order-making powers themselves. The answer to that question is that that would not be possible primarily because the provisions of Chapter I of the Bill do not impose a burden or authorise or require the imposition of a burden and therefore they do not fall within the scope of the order-making power. Furthermore, Part II of the Bill could not be amended by using that power because it also does not create burdens. That was a fuller explanation than perhaps the noble Earl and the noble Lord required, but I hope that it has been useful.
9.30 p.m.
Lord Monkswell: I am grateful to the Minister for giving way. He made a statement just now that, if the Bill becomes an Act, Part I would not impose any burdens—
Lord Strathclyde: It does not.
Lord Monkswell: The Minister says, "It does not impose any burdens". In fact, written into Part I is a consultation procedure and mechanisms to consult with interested parties. It could be argued that that process of consultation is itself a burden. The fact that one has junk mail from the Government to which one has to respond is yet another burden of government. It could be argued that way.
Lord Strathclyde: No, because the consultation is not an end in itself. The purpose of Chapter I is to provide for deregulation-making orders. Therefore, the power in Chapter I is not itself a burdensome imposition. That is why one could not use the order-making powers to amend the order-making powers.
Earl Russell: I am afraid that I am back to the point that I made on the first amendment, which was that the concept of a burden is a subjective one. I have some sympathy with the point made by the noble Lord, Lord Monkswell. If we are to have, as is perfectly possible, an annual trawl around business for powers that need deregulation, the returning of the forms would be widely regarded in business as a burden. The mere need to face constant change can also be regarded as a burden. People suffer from what the noble Earl, Lord Baldwin of Bewdley, described as "innovation fatigue". The Bill has suffered throughout from using the word "burden" as if it were an objective fact. In fact, a "burden" is something that is perceived very differently by different people. We have a real problem here.
Lord Strathclyde: I have nothing else to say.
Lord Peston: I should like a response to another amendment but, to make again my joke of last week, perhaps I slept while the noble Lord was speaking to it.
Lord Strathclyde: Which amendment?
Lord Peston: The one relating to the pharmaceutical industry and matters of that kind, Amendment No. 16. If the Minister is not briefed on it, I can wait until another day.
Lord Strathclyde: The noble Lord is absolutely right. This amendment raises basically the same point that I have already made. The noble Lord asks that the,
"'Act' does not include any legislation concerned with the supply of medicines",
but it is all part of what would be decided in the Minister coming forward with a deregulation order. Before he can put forward a proposal, the Minister would have to be of the view that a particular measure would not remove any necessary protection. Consultation is required with representatives of those likely to be substantially affected. We then go through the procedure. Therefore, there is no point in excluding, for instance, the supply of medicines. The deregulation order-making power would be subject to the test that is set out in Clause 1.
Lord Peston: I thank the Minister for his reply. I was particularly pleased that he made a statement which will appear in Hansard concerning Amendment No. 15 on consumers. I thank him warmly for that.
I am a trifle worried about the self-referencing question. The Bill certainly says that this Act is one of the enactments that this Act covers. The Minister repeated that. The point that was raised leads at least to the logical possibility that the order-making power could be used to amend, or propose to amend, parts of this legislation should they be thought to impose a burden. Examples have been given by my noble friend and the noble Earl showing that consultation itself, desirable though it is, can be extremely costly. One might then say, "We'll amend the thing to leave out the consultation bit because that is the burden", but we would find that most unattractive. I shall return to the issue of self-referencing when I have looked more closely at what the Minister said—
Lord Strathclyde: Perhaps I may comment on the example that the noble Lord gave. In order to use a deregulation order-making power to remove the consultation requirement, the Minister would first have to consult on it. Presumably, the consultation would indicate that it was not a good idea.
Lord Peston: That is the whole point. I know that the Minister is not as interested in logical puzzles as I am. However, he would consult on the consulting and we would have what is called an infinite regress. That is why I worry about the Bill as it stands. That is the kind of thing that I enjoy but I realise that other Members of the Committee do not find it amusing to consider.
As regards the pharmaceutical issue, my point is to attempt to draw a distinction, as in some way the noble Lord did this afternoon, between what one might call

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boring, tedious, irritating, small regulations that we wish to deal with and issues that are much bigger and should not be dealt with in this way.
I have made my point and I shall not move the other amendments. I beg leave to withdraw.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 to 19 not moved. ]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 20:
Page 2, line 47, at end insert:
("( ) "Act" does not include any legislation concerned with the unlawful eviction or harassment of a tenant by a landlord;").
The noble Lord said: The amendment would have the effect of excluding legislation concerning harassment or the unlawful eviction of a tenant by a landlord. One of the aspects of the clause that gives rise to a great deal of anxiety is the effect that it could well have on accommodation in the private rented sector.
Perhaps I may put the issue into perspective. In England and Wales 1.7 million households are in the private rented sector. It is the Government's intention to try to expand the number of private tenants. If that takes place, the ineluctable consequences will be that the problems of private tenants will increase. They will need additional help with the many problems that they face. Each year, 150,000 private tenants face all kinds of difficulties such as burglary, trespass, threats, verbal abuse and violence emanating from their landlords.
Since the provisions of the Housing Act 1988 came into force in 1989, most new lettings by private landlords have been made on assured shorthold tenancies, frequently providing tenants with as little as six months' security. Those provisions are making it extremely difficult for private tenants to enforce their legal rights; for example, getting repairs carried out or preventing harassment from taking place.
Another problem is that market rents are causing massive hardship to tenants of the new lettings, in particular elderly tenants living in fair-rented tenancies who are finding their rents escalating as a result of pressure from local market rents. Landlords run businesses but too many of them display an unbusinesslike and unprofessional approach to those responsibilities.
We say that it is essential that Ministers alone should not change any aspect of the delicate balance between landlord and tenant which is contained in the legislation covered by this amendment. We say that, whatever the safeguards, changes of this kind should be made exclusively through primary legislation. It is important that that should be the case, in particular because by comparison private tenants have far fewer and weaker legal rights than local authority or housing association tenants.
In addition, is extremely difficult and expensive for private tenants to enforce the legal rights that they have. I have referred to the problem previously in terms of eligibility for legal aid, which is seriously constrained these (Jays. We are talking not only about the poorest members of society, who may find it less difficult to obtain legal aid, but about people who have a slightly higher income.
Therefore, I should like to ask the Minister how he proposes to deal with that situation. In addition, how do the Government propose to go about consulting private tenants, if in fact they have any intention of so doing? Whom does one consult? There are such disparate interests involved. There is no questioning the fact that private tenants represent a very diverse group of people. I do not know how the Minister would propose to go about consulting them in any way that would be adequate.
The provisions of the Bill will not apply to changes in the legislation affecting the responsibilities of local authority or housing association landlords vis-à-vis their tenants. Such responsibilities would have to be amended or repealed through primary legislation. We must ensure that private tenants are put on exactly the same basis and are not dealt with differently from local authority or housing association tenants. I beg to move.
Lord Strathclyde: I shall not follow the noble Lord down the path of having a debate about the role of the private rented sector. I do not believe that it would be relevant to the Bill under discussion, which is a Bill to deal with deregulation. Deregulation orders can only come to this place under the procedures that have been mentioned. However, I join the noble Lord in welcoming the fact that there are now 1.7 million people in the private rented sector. I hope that that situation will improve. It is a magnificent way of providing housing and has brought untold benefits to hundreds of thousands of families who would otherwise have to put up with being tenants of their local authorities.
The point, when dealing with all such matters, is that the Minister concerned would have to be of the view that a particular measure would not remove any necessary protection and that consultation was required. The noble Lord asked, perfectly sensibly, whom one would consult. Fortunately, that is not my problem; it is the problem of the Minister who, having decided that there is a burden, believes that it would be suitable for the deregulation order-making power. First, he would have to satisfy himself that he had consulted with the right number of people; secondly, he would then have to approach Parliament and justify his consultation to the respective committees in both Houses. If they were not satisfied that the consultation had been appropriate, for exactly the kind of reasons quite properly put forward by the noble Lord, Lord Clinton-Davis, then, presumably, they would report adversely and ask the Minister to amend the proposal, to withdraw it or even to make a statement that such a matter would be much better dealt with under primary legislation.
There may well be aspects of the legislation concerning landlords and tenants which could be of a very minor nature and which would, perhaps, be most suitable for the deregulation order-making power. However, the amendment would effectively exclude that possibility. I believe that it is much better to rely upon the very real parliamentary safeguards that are built into the Bill, rather than seeking to amend the legislation in a piecemeal way depending on what

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special cause leaps into the mind of the noble Lord, Lord Clinton-Davis, or, indeed, that of the noble Lord, Lord Peston, as was the case with the earlier amendment.
Lord Clinton-Davis: I find the Minister's response somewhat puzzling. He said that the amendment is not relevant to the Bill. He also said that he was delighted by the fact that we have so many private tenants. However, that is not relevant. I can assure the Minister that some benefit from the situation while others do not; indeed, some people are deeply reluctant to accept the fact they have ceased to have local authority landlords. But, of course, others take a different view on the matter. It is not quite so simple.
However, that is not the point. As the Minister knows very well, the essential point is that local authority and housing association tenants and landlords must have primary legislation to determine their rights. That is the situation. It cannot be changed without primary legislation. How then can it be fair and equitable that this growing number of private tenants should be dealt with in a different way?
On the matter of consultation, the Minister says, "That is not my responsibility: it will be the housing Minister's responsibility. I want nothing to do with that". But that is really not good enough. We must have some idea, when we are considering questions of consultation, how meaningful the consultation is. That is this Minister's responsibility. Perhaps there are horizontal responsibilities in this regard as far as Ministers are concerned, but the Minister is carrying this Bill and therefore he has to explain and answer the point that I have just made. Is it quite impossible to consult with tenants' organisations because of the disparities and diversities that exist? If that is right, there should be no question of their being included in the Bill.
9.45 p.m.
Lord Strathclyde: The noble Lord has slightly misrepresented what I said. My point was that it was not my responsibility to make sure that the consultation was a success because I am not the Minister who is of the opinion that there is some over-burdening requirement that needs to be dealt with in the deregulation order-making power once this Bill becomes an Act. Of course I have to justify the statutory provisions for consultation which appear in Clause 3(1) and I shall do so when we get there. But to the specific question that the noble Lord raised, the Minister must, by statute, consult such organisations as appear to him to be representative of interests substantially affected by his proposals, and so on. He must also justify that consultation to Parliament. It is through the parliamentary process that the ultimate test will be conducted of whether or not the Minister has done so.
Lord Clinton-Davis: The difficulty with that is that what the Minister would do in those circumstances would be to assert to the scrutiny committee that, in fact, it is not possible to consult with tenants of this kind. There is no body with which he can easily consult and therefore he should be excused from so doing. That is our anxiety. I think the Minister has given a thoroughly
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unsatisfactory response to the points that have been made here. If he wants to deal with the issue later on —I understand why he might want to when dealing with the question of consultation—I wish to inform him that I shall put precisely the same question to him, over and over again if necessary, until we get some sort of answer. At the moment we have had no answer at all except that he can perhaps give answers dealing with his own immediate responsibilities.
Lord Strathclyde: The noble Lord, Lord Clinton-Davis, has had an answer. He may not like it but it is an answer.
Lord Clinton-Davis: That is subjective, is it not? I believe that not only am I dissatisfied with that answer but I am sure that anyone reading it would be dissatisfied. I know most people—I speak objectively here—would agree with me, as they usually do. Having heard what the Minister has said, and having been totally unconvinced by him, I will reflect further on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 21:
Page 2, line 47, at end insert:
("( ) "Act" does not include any legislation concerned with the conservation of flora, fauna or the national heritage or the prevention of cruelty to animals.").
The noble Lord said: The essential concerns that we have here in relation to wildlife and conservation give rise to this amendment. I am quite sure the Minister will say that he does not intend that this should fall victim to deregulation under the power, but we think that it could and we think that the consequences could be very profound indeed.
The Wildlife and Countryside Act 1981 could, to the extent that it was judged a burden on business, clearly be a candidate for deregulation by this route. Controls such as those in the Water Act 1989, which protected flora and fauna from the effects of privatisation—for example as a result of the sale of previously public land for development—could be endangered in the future. The legislation underpinning the protection of habitats and rare species could at some point in the future constitute a burden on business which a government were tempted to remove. The protection of historic buildings from unscrupulous or shoddy development could be weakened and safeguards against cruelty to animals could be reduced.
Each of these areas poses hard choices for society as regards the balance between conservation and development, or the protection of minority interests against majority interests. The point is that the choice should be made and it should be made in an open way allowing for proper debate and the weighing of the options. Primary legislation should not be vulnerable to removal or modification under a speeded up secondary legislation procedure, however carefully drawn. This amendment seeks to exempt one vitally important group of safeguards from this possible danger. I beg to move.
Lord Strathclyde: I hope that the noble Lord, Lord Clinton-Davis, accepts that very similar considerations

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apply in this case as to his previous amendment and to the amendment of the noble Lord, Lord Peston, concerning Pharmaceuticals.
It is true that potentially some of the cherished protections which the noble Lord mentioned could at some point be subject to a deregulation order-making power by the relevant Minister if we pass the Bill, because matters are excluded only if they offer necessary protection or are not burdensome.
I know that noble Lords opposite are opposed to the Bill in principle and therefore provide these extra hurdles which have to be jumped over. However, I cannot help the noble Lord further than I have already. I am sure that he accepts that and that he and I will not be able to agree on the situation. Ultimately it could be a matter for parliamentary procedure, but no Minister would come forward with highly contentious and controversial proposals unless he was absolutely certain that they fulfilled the obligations in Clause 1.
Lord Clinton-Davis: The answer is much the same. It is equally unsatisfactory, but I shall consider the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved. ]
Clause 1 agreed to.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank moved Amendment No. 23.
After Clause 1, insert the following new clause:
( "Order-making power to be renewable
.The power to make an order under section 1 above shall lapse three years after Royal Assent, but shall be renewable, by a Resolution of each House of Parliament, for a further period not exceeding three years, and shall be so renewable at the end of any such period.").
The noble Lord said: Amendment No. 23 would add a new clause following Clause 1.I hesitate to delay the Committee long at this hour. We have a lot of work still to do.
I simply draw the attention of the Committee to the dramatic opening, which we all recall, of the 8th report of the scrutiny committee in which the committee said that the powers conferred by Chapter I or Part I were unprecedented in times of peace. I do not believe that either at Second Reading or in today's discussions that startling statement has been challenged.
In pursuing the matter in its 9th report, in its first paragraph the scrutiny committee said that in view of its unprecedented nature:
"we urge the House to consider whether the bill should be amended to provide that the powers to make deregulation orders under Chapter I of Part I should lapse three years after Royal Assent, and should then be renewable."
The amendment standing in my name simply attempts to give substance to that thought.
A constant theme running through our discussions has been that, whereas we would trust what the noble Lord, Lord Strathclyde, has said and, on this occasion, the intentions of the Government, who can predict what the future holds? In three years time the same set of men and women will not be sitting around in Downing Street. Even different Ministers see their role differently. This debate and the undertakings given here could begin to fade away.
It is also the case that we all admit—and I admit— that those of us who have been critical of Clause 1 because of our anxieties about the abuse of power and the diminution of the authority of Parliament may prove to be wrong. The new scrutiny arrangements are not yet completely in place. It may be that those procedures have worked well, or they may have worked badly. It seems to me entirely sensible that in a period of time —three years seems about right—we should review what has happened. It would be congenial if those of us who are opposed to the provisions of Clause 1 are persuaded by experience, or Ministers who are enthusiastic about Clause 1 are persuaded by a different experience, that the procedures in the Bill are unnecessary or have worked badly.
One of my worries is that the provisions for consultation may mean that the government of the day are more occupied with consultation outside the House than with consultation inside Parliament. Experience may show that the burden falling on Ministers and officials will be greater, with the greater volume of consultation, and with the need to follow carefully the procedures which the House has laid down. The course which many of us would have greatly preferred is simply to have the provisions in the Bill from Clause 5 onwards, and to introduce, as I suggested earlier, an annual Bill which would bring matters of deregulation to the attention of Parliament.
That is in the future. I cannot predict where we shall stand. I only know from experience that it will not be where we stand now. We shall perceive the issues differently having learned from our experience. Given the scrutiny committee's recommendation, the amendment provides an obvious, new clause which the Government should accept in the spirit in which it is moved. I hope that we can move on rapidly by the noble Lord, Lord Strathclyde, saying that it is nice for him to say yes on one occasion today, and that this is the occasion. I beg to move.
Lord Clinton-Davis: I agree with the noble Lord, Lord Rodgers of Quarry Bank, that the proposal is better than the current situation. However, the support that we give is entirely without prejudice to our wider objections to the concept underlying the Bill.
Having said that, I believe that the Minister would improve his position considerably if he were to accept the proposition.
Lord Simon of Glaisdale: It is an unusual Bill and the scrutiny committee has produced a report which the amendment seeks to implement. The Bill is not only an unusual Bill; it aroused considerable disquiet, including among supporters of the Minister. One has only to think of the notable speech by the noble Lord, Lord Cockfield, at Second Reading, and the speech today by the noble Lord, Lord Beloff.
So far the Minister has resisted every single amendment, in some cases certainly with cogency and good cause. However, this amendment is very much a test of whether he is prepared to show any flexibility. The Bill shows certain signs of being a compromise between Ministers; and certainly any junior Minister handling a Bill of this kind is in some difficulty.

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However, the noble Lord, Lord Strathclyde, is absolutely responsible for the Bill to your Lordships' House. It is entirely up to him what amendments he accepts. This is certainly one amendment which should be accepted.
10 p.m.
Lord Strathclyde: The noble Lord, Lord Rodgers of Quarry Bank, loves to put words into my mouth and I am grateful to him for doing so. He may well be right that the legislative burdens or the parliamentary procedures which we are imposing on Ministers under this order may be far more burdensome than the normal legislative route through this House. That remains to be seen and it will be up to individual Ministers to decide. I agree with something which the noble and learned Lord, Lord Simon of Glaisdale, said earlier about giving far greater parliamentary control over secondary legislation and deregulation order-making powers. He is absolutely right. He is also right in that I am responsible for the Bill from the Government's point of view and for its passage through this House. Therefore I take careful note of what is said in the Committee, particularly by the noble and learned Lord.
There is a theme running through two or three of the amendments this afternoon dealing with safeguards and protections. In answer to the first amendment, I have explained what those safeguards are, what commitments the Government have made and what the Government have accepted in terms of recommendations already made by the Procedure Committee: namely, extending the period of scrutiny from 40 to 60 days. I have proposed amendments to which we shall come later.
We see the need for an ongoing deregulation order-making power. We believe that the circumstances which led us to identify a need for a special mechanism are likely to continue. We intend to continue to review legislation in order to identify cases where provisions can be amended or repealed so as to remove or reduce burdens without removing any necessary protection. We expect this process to continue to give rise to proposals to change primary legislation in modest but useful ways. That is the balance of convenience, as the noble and learned Lord, Lord Simon, called it in his concluding remarks in his Second Reading speech.
Circumstances will continue to change over the years, as society and technology change. This means that a measure which may confer protection necessary at one time may not be needed a number of years ahead. The illustrative list demonstrates how measures which were once useful can be removed or modified at a later date without removing any necessary protection. For example, advances in information technology have repercussions on Companies House. Changes in social conditions can mean change in what is regarded as constituting necessary protection. Other changes in legislation can also make regulation unnecessary. We may safely assume that technological and social changes will continue in the future to render the protection certain measures confer unnecessary. We would all be able to hazard a variety of guesses about that.
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Turning to the question of a procedure of renewal every three years, we have always recognised that the power is a significant and exceptional one. That is why we have proposed exceptional safeguards and constraints on the use of the power—in particular, consultation and the special and unique parliamentary scrutiny procedures. I have explained those. I have also explained the safeguards that the Government propose for use in this House.
I have to say to the noble and learned Lord and to the noble Lord, Lord Rodgers, that I am not convinced that a renewal procedure is really needed. However, I recognise that the noble and learned Lord and other noble Lords opposite have suggested that there is a need and I believe that the issue requires further thought. I am not making a commitment because it would be wrong of me to do so at this stage, but I feel that there is an issue here which needs further enlightenment.
Lord Rodgers of Quarry Bank: Listening to the first part of the noble Lord's comments, I made a note that his reply was no reply at all. But he began to redeem himself towards the end of his remarks. I am grateful for the support of the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Simon. I thought that the latter made an important point when he said that it was a test of whether the Minister could show flexibility. He placed upon the Minister the responsibility for the Bill in the House. From my own experience, I think that the Minister will walk taller, feel lighter and sleep better when he has shown flexibility. Those are brave and necessary actions from time to time and, standing where I do, I have always felt that an attempt to reach agreement and consensus and to listen to others is better than adversarial politics.
I much regret that for the larger part of today the noble Lord has pursued adversarial politics with a congenial pugnacity, if I may put it that way. However, although his final words were hedged around with "if's and "but"s and "no commitment"s, any final words of the kind that he gave suggest unusual flexibility. So, on that very cheerful note, I thank him for what he said and beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Preliminary consultation]:
[Amendments Nos. 24 to 26 not moved. ]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 27:
Page 3, line 35, leave out ("substantially")
The noble Lord said: I beg to move Amendment No. 27, standing in my name and in the name of my noble friend Lord Peston. It may be for the convenience of the Committee if I deal also with Amendments Nos. 29 and 31.
This amendment gives the opportunity to test what the Government mean by the word "substantially" in the context of the whole question of consultation. Conceptually, a possible criterion for a substantial interest might be its monetary value, in absolute or relative terms or the degree to which the proposed deregulation might fundamentally alter the nature of the

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interest. But the measurement is in relation to the effect on the interest, not the effect on the activity that is being deregulated.
More practically, the formulation would seem likely to exclude from the consultation process representative bodies of authorities with a responsibility to the public; for example, the local authority associations. It would be interesting to know what the Minister feels about that. Is the public interest in an area of regulation sufficiently substantial to qualify? If so, how would the consultation be undertaken? I dealt earlier with the question of private tenants in that regard. The Minister gave a very general reply, essentially saying that it would be for the housing Minister at the time to contemplate what was the answer to that. I do not think that that is good enough.
Will direct commercial interests automatically qualify? Would the existence of such direct interests crowd out other less directly identifiable ones? If deregulation means more traffic noise and pollution in one's home area, is a person's interest sufficiently substantial to warrant consultation in that context?
A further curiosity of the subsection is the purpose of the requirement to,
"consult such other persons as [the Minister] considers appropriate".
The meaning is obscure in the sense that the Minister need only determine the consultation not to be appropriate for no duty to arise. Clearly, those consulted will not be holders of a substantial interest because they are distinguished in this group by the duty in subsection l(a). Would the Minister have a duty to consult the aggrieved resident under this heading instead? Or is it intended to use this requirement to cover bodies such as the local authority associations, which may not be covered under "substantial interests"? All those are matters that require explanation.
The Consumers' Association had some very strong criticisms to make which I should like to put on the record in this House. The association reflected on the nature of the consultation in regard to the preparation of the Bill. I know all about what the Minister says in that regard, but it is interesting to know what the association had to say, because it reflects upon consultation procedures later on. It said:
"the portents are not good. In the run up to the Bill, some Ministers' ideas about consulting, with 'such organisations as appear to be representative of interests substantially affected by his proposals'… or about the time such organisations may take to respond, were woefully inadequate. For a start, no consumer representations were included on the sectoral task forces, thus allowing industry to set the agenda and ignore areas of deregulation that would have been more in the interests of consumers than business. Secondly, the consumer interest was sometimes only solicited as an afterthought, late on in the day, with extremely short deadlines for response. For example, in a three day period last July over 40 proposals for deregulation emanated from the DTI consumer affairs division; the purpose of the consultations was not made clear; they included fundamental measures such as the Consumer Protection Act and no overall listing was available to check that all relevant consultations had been received".
That is an extremely serious matter. It is the way in which the background to the Bill was developed. Rightly, the Consumers' Association, which is a prestigiously important body, has expressed grave concerns about it.
There is also the question of how one goes about testing and whether an organisation which feels aggrieved because it was not consulted can seek redress. The fact of the matter is that for the most part NGOs of that kind have no money. They cannot test the issue in the courts. They are not eligible for legal aid. How would they seek redress from a government which in fact averted the interests which—the Minister seems to find this matter amusing. Why is it amusing? I should like to know why the Minister thinks it is amusing. Does he just dismiss the Consumers' Association?
Lord Strathclyde: Since the noble Lord himself started to speak to these amendments in a state of mild hysteria, it is very far-fetched of him now to accuse me of having a very mild grin.
Lord Clinton-Davis: By not apologising to the Consumers' Association, the Minister thereby insults them. The fact of the matter is that I am not at all hysterical about this issue. I am annoyed that the Minister should take these issues so lightheartedly. He is talking more quietly than ever. What is worrying the Whip on the Front Bench? He seems to be pointing at something.
The whole question of consultation is a matter of very great importance. The Minister apparently feels that it is a matter of some insignificance. I do not think so. I feel that he owes some explanation to the Consumers' Association, which apparently he will not give. He owes it an explanation not simply because it was not consulted—the Minister says that it is a matter for businessmen to be consulted and not for any other interests at this time—but because of what happened subsequently. He ought to deal with that complaint. It is a matter which gives rise to considerable suspicion on the part of that organisation.
This is a matter which deserves proper consideration. I do not think that I need add anything to the other matters. I hope that the Minister will respond more seriously than he has so far suggested.
Lord Strathclyde: I always take these issues with the utmost seriousness and in particular the matter of consultation. That is why consultation is one. of the requirements in the Bill and is mentioned in Clause 3. It is a very important statutory duty and is not common in dealing with other aspects of legislation.
The noble Lord grouped several amendments together. I am grateful, because they cover a number of relatively similar points, with which I shall deal. First, however, there is the chestnut which the noble Lord opposite has decided is of great concern; namely, the tenants' organisations. He asked whom the Minister would consult and whether he would be able to ask the scrutiny committee to be excused from the requirement.
The Bill obliges the Minister to consult organisations which appear to him to be representative of those likely to be "substantially affected" by his proposal and "such other persons as he considers appropriate". If it appears that there are no organisations representative of substantially affected interests, the Minister should consult such other persons as he thinks axe appropriate to speak for the affected interests. How he should do that

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in any case would depend on the circumstances of the case. I emphasised that point when we discussed this specific issue earlier.
I reiterate that we see effective consultation with interested parties as an essential part of the procedure we are proposing in Chapter I of the Bill. We believe that good regulation—and good deregulation in particular—involves a dialogue with interested parties. Informed judgments about the desirability of possible changes to legislation cannot be made in isolation. The provisions of Clause 3 as drafted are intended to ensure that an effective dialogue takes place in relation to proposed uses of the deregulation order-making power; and that it takes place in a sensible and appropriate way in each case.
The noble Lord who moved the amendment clearly shares our objective of ensuring effective consultation and therefore we are united in that objective. It does not befit him to try and pretend that the Government are not interested in sound consultation.
Amendment No. 27 would require the Minister to consult not only representatives of those substantially affected by the proposal, but those affected in any way, however trivial. In practice that would be a very difficult test for a Minister to comply with, and would not seem likely to give rise to better consultation. For example, those "substantially affected" by a change in legislation related to building societies might include account and mortgage holders. It would be sensible and reasonable to consult representative organisations of those people. Those simply "affected" by such a change in a more long term and less direct way could be said to include anyone who was considering buying a house at some time in the future, or who was a saver with some other type of saving organisation. Those "substantially affected" by a change to UK company law would be relatively easily identifiable, but those "affected" without the test that the effect should be substantial, could include investors worldwide. It would be impossible to fulfil a requirement to consult representatives of all such investors.
Amendment No. 29 would require the Minister to explain why he had consulted particular parties other than those representatives of interests likely to be substantially affected by the proposals. It is not clear to whom the Minister is to explain himself, and in what form. I should not have thought that a particular explanation on this point was necessary or helpful, given the more general requirement in subsection (4) that details of the consultation and of the representations received would be included in the document laid before Parliament at the beginning of the scrutiny period.
Amendment No. 31 would require the Minister to undertake consultation by means of a public announcement. The nature of this order-making power is that it will be used to make commonsense deregulatory changes covering a variety of different policy matters. But we believe it makes sense to ensure that the consultation in each case can be tailored to the particular proposal. Many consultation exercises will involve a published consultation document, particularly when the proposals are of wide general interest. In other
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cases public announcement might not be the most effective way of ensuring that those who are likely to be significantly affected give their considered views on the proposals.
Let me finally deal with the issue in relation to the Consumers' Association. I am stung by the concern of the Consumers' Association and believe that it is incumbent upon the Government to justify their proposals not just to the Consumers' Association but also to other consumer groups.
In July last year 39 consultation documents were circulated seeking views on all existing consumer legislation for which the DTI has responsibility. The point is that that was not a consultation on specific proposals for reform. I go back to what I said at the beginning and I suspect that the noble Lord and I are far more united than he would like to think. We both believe in a statutory provision for consultation; we have drawn that consultation extremely widely; the Minister must then explain to Parliament what he has done and Parliament will make the decision as to whether or not that consultation was appropriate.
10.15 p.m.
Lord Clinton-Davis: The Minister indicated that he is sensitive to the interests of the Consumers' Association. However, he did not answer its complaint fully, only in part. One of the points raised was that there were extremely short deadlines for response; another was that the purpose of the consultations was not made clear. It is seeking to say that that does not represent a good augury for the way in which the business of consultation is to be undertaken by the Government if the Bill becomes law.
I agree that consultation is important but the problem arises when one reaches areas where it is extremely difficult to be able to define a body with whom one can consult. Those with business interests will be able to identify what they allege is a burden on industry. They can make their case in a more or less coherent way. They have the benefit of research to justify it, even if the case is not always right. We all know that lobbying concerns do not always approach the matter in the correct way but when they are acting for substantial interests money is no object in making those representations.
However, the position is different with tenants. It is all very well for the Minister to say that because he cannot find the tenants' body which is appropriate in the circumstances he will seek advice from individuals. But that is not the same thing. There is a tremendous difference in balance with regard to the possibility of representations to the Government. That is fundamental. I am tempted to test the will of the Committee. Perhaps I should be more emphatic and say that I will test it and then not bother at this stage. That would have alarmed the Minister no end. However, at this stage I think it would be better to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28 to 35 not moved. ]
Lord Peston Lord Peston moved Amendment No. 36:
Page 3, line 39, leave out ("such").
The noble Lord said: Although I have not given notice to the Minister I think it is obvious that I should speak to Amendment No. 37 as well. No meaning can be given to either of the amendments without the other.
When it comes to a variation of the whole or any part of the proposals the clause states:
"he shall undertake such further consultation with respect to the variations as appears to him to be appropriate".
I do not see why the Bill says that. If my amendment is accepted the clause will say:
"he shall undertake further consultation with respect to the variations".
That does exactly what I assume the Minister wants to do. I do not see why there is this circumlocutory drafting. It is totally unnecessary. I should like to know why the Bill is written as it is. I cannot see any reason for it. Clearly, having varied the proposals, the Minister shall undertake some further consultation. In fact, I am not. sure now whether "variations" is needed. The logical point is clear. I offer these amendments as a way of sharpening up the Bill.
Lord Strathclyde: The noble Lord is right. Amendments Nos. 36 and 37 deal with similar issues. Amendment No. 36 would have the effect of requiring the Minister, if he varied his proposal after the consultation period in any way, to repeat the entire consultation exercise again. We have provided instead that the Minister should be required to undertake further consultation as appropriate in order to avoid burdening consultees with duplicated consultation on variations which are of no interest to them. That is a sensible proposition. If there was a quite wide-ranging deregulation order but only very few of the consultees had a particular problem with which the Minister could then deal, it would be far better to go back to those consultees who had a problem than to go back to everyone he had consulted in the first place.
Amendment No. 37 deletes the words which make it a matter for the Minister's judgment as to who are the interested parties who should be consulted. Reaching a view on who is likely to be affected by proposed changes in legislation is not an absolute science. But somebody has to make a judgment. We have proposed that the Minister should do so and that is right because he is responsible for starting the process in the first place.
But the safeguard is that his judgment can be scrutinised and challenged if Parliament believes that he has not consulted sufficiently widely. In particular, subsections (3) and (4) of Clause 3 require him to lay before Parliament a document giving details of the consultation which has been undertaken and of the results. This will provide a very effective check that consultation has been properly carried out. Redress would be available if any person or organisation felt that they had been unreasonably excluded. Such a person could make representations during the period of parliamentary scrutiny. If they believe that they have been excluded improperly they could also seek judicial review on the grounds that the Minister had been unreasonable in exercising his judgment on who should be consulted.
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If the judgment of whom to consult is not left to the Minister's discretion, the test of whether appropriate consultation had been carried out would then become a matter for the courts, which would be impractical. That goes back to the point which my noble and learned friend Lord Hailsham made far better than I earlier this afternoon.
Lord Peston: I thank the Minister although I find it hard to persuade myself that he listened to a word I said. If the noble Lord would read the sentence as it would appear, subject to my amendment, it says,
"he shall undertake further consultation".
He is certainly not going to undertake consultations which he does not consider appropriate. He is certainly not going to undertake one which is irrelevant to the changes. The Minister will do exactly what he believes he should do. The words in the Bill, separate from mine, add nothing. I shall not criticise the parliamentary draftsmen because they are people whom I hold in the highest respect. The fact is that if the Bill states that further consultation will be undertaken, that is what it means.
Lord Strathclyde: If the noble Lord is saying that he and I are in total agreement about what the words mean and that he has some concern about them, I am sure that we can sort that out relatively easily.
Lord Peston: I thank the noble Lord. The reason I tabled my amendments is because I believed that "such" and the words,
"as appears to him to be appropriate"
appeared to the Minister to have some deeper meaning which I could not follow, but it appears that they do not. The words simply mean that he is going to consult. In that case it is no big deal, if I may use such a vulgar expression, and we shall sort it out. I certainly believe that the Bill would look cleaner if my way was adopted. Having said that, I leave the Minister to think about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 to 41 not moved. ]
Lord Peston Lord Peston moved Amendment No. 42:
Page 4, line 8, after ("burden") insert ("(including an estimate of its quantitative scale as it affects those persons referred to in section 1(1) (a) above)").
The noble Lord said: I shall deal with this amendment briefly. It is rather an important amendment which relates again to the meaning of the word "burden" and how the Minister proposes to approach it. I agree that we differ on the matter because I still wish to see the approach in terms of balancing gains against losses and, if you like, costs against benefits, but the Government do not seem to want to adopt quite such a rational procedure.
Essentially, if the word "burden" is to be approached seriously by the Minister and his advisers, then whatever other concepts we have it must involve a matter of scale and quantity. We must be talking here about burdens which are serious enough for this process to be warranted. Whatever we are talking about must be adversely affecting, in a significant way, the persons we referred to earlier.
That leads inevitably to the need for an estimate of their quantitative scale to be put forward. I take the view that if all we are offered in practice is an impressionist view of the matter, and nothing quantitative, that will not do. That is why I have tabled this amendment. In a sense it is a test of the seriousness of how in due course such a procedure would take place. I beg to move.
Lord Strathclyde: The amendment deals with matters to be included in the document which will be placed before Parliament at the beginning of the scrutiny period. It is our intention to ensure that this document should be a comprehensive one which will provide a sound starting point for the scrutiny process. Under Clause 3(4) it already has to include details of the burden which it is proposed to remove or reduce; whether the existing provision affords any necessary protection and, if so, how that protection is to be continued; details of cost savings and any other benefits and, subject to confidentiality provisions, the results of consultation undertaken and the changes, if any, which have resulted.
The amendment suggests that an estimate of the quantitative scale of the burden should be included in the document. We believe that it is useful to remove even quite small burdens if that can be done without removing any unnecessary protection. Even small burdens can cumulatively be important for businesses, charities or individuals. It will be apparent from the description of the proposal what the burden is which is proposed to be removed or reduced. We have already required the document to describe whether cost savings are expected to result and, if so, either the estimated amount or the reasons why savings should be expected. We see no additional useful purpose in trying to quantify the scale of the burden in some other way.
It would be open to the scrutiny committees to seek whatever evidence they wished. If the scrutiny committees felt that quantification of cost savings was an area about which they needed more information, they could request that. We set out the key factors which must be included in the document. The Minister can include further information on a particular measure. We believe that that method will give very full information to the committees which will be scrutinising the proposals and we therefore believe that the amendment is unnecessary.
Lord Peston: I thank the noble Lord. As he correctly states, we will return to the issue when we look more closely at procedures and matters of that kind. There are other amendments which relate to Clause 3(4) (c) on estimates of cost and other matters, which I was not proposing to move because of the lateness of the hour. I draw the Minister's attention to that paragraph because it also states,
"either the estimated amount or the reasons why savings should be expected".
That is not good enough. Let me give the noble Lord an example. When running a business one will frequently have proposals put forward to do one thing or another. One always asks questions like: how much are we talking about? One does not ask: what are you
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belly-aching about, or what is it that you want to do? Let us get the numbers right. That is not very different from how we would approach the matter. If someone comes to me and says, "There is this burden on our set of funds and we want you, the Minister, to do something about it," my very first question would be, "What are we talking about in terms of quantitative scale? Do not tell me that you do not like this, or it is a burden. How much? What is involved?"
That is why it would be better to have the matter on the face of the Bill rather than to wait for other matters to occur. I have had ample opportunity to make that point, and it is a matter of advice to the Minister rather than criticism of the Minister. He may wish to reflect on the matter; perhaps I shall come back to it again. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.43 not moved. ]
Earl Russell Earl Russell moved Amendment No. 44
Page 4, line 12, at end insert:
("(bb) Whether there is likely to be any impact on the quality and standards of care received by residents in residential and nursing homes if the burden, authorisation or requirement is removed or reduced;").
The noble Earl said: The effect of the amendment would be to exempt from the Bill standards of care in residential care homes and nursing homes. Those are two different types of home with two different sorts of licensing systems. The theory behind the Bill is basically a free market theory. I do not think that the Minister would dispute that. However, when dealing with homes for the ill and especially the old, one has a situation in which there cannot, in any normally understood sense, be a free market. In some senses one is dealing with people who are not in a position to make any choices. In some cases one is dealing with people who do not have the understanding to make choices. To apply strict free market theory to the provision of residential care and nursing homes is not necessarily the right way to go about the matter.
The effect of the amendment would be to ensure that the Bill could not be used to lower standards of care. There is quite a problem relating to standards because there are two different kinds of home - residential care homes and nursing homes - with two different systems of licensing and two different systems of regulation. The amendment originates from the British Association of Social Workers and the Royal College of Nursing, representing the two different systems and, interestingly, offering us a joint amendment. There is an increasing problem with the two different systems of regulation because of the increasing reliance on care in the community. Under the Registered Homes Act 1984, residential care homes are registered and inspected by local authorities, but private and voluntary homes and NHS nursing homes are registered and inspected by health authorities. The difficulty arises when a residential care home, which is not normally required to employ nurses, has a medical problem which involves the employment of nurses. With care in the community, that situation is likely to become more frequent. In such situations, the distinction between the two sorts of home causes problems. It is possible for homes to have dual

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registration, but since that involves the payment of a dual set of fees, which I think we would all agree is a discouraging feature, it does not happen quite as often as it might.
There is a real need for that anomaly to be reviewed, but when it is reviewed so many questions will arise, so many interests are going to be involved and there will be such a need to hammer out the different points of view, that the procedure of primary legislation would be a great deal more relevant and suitable than an order under the Bill. The amendment seeks to ensure that in that situation, which I hope may arise in the not-too-far-distant future, we shall have the chance to deal with it by primary legislation, as we should. I beg to move.
Viscount Goschen: The noble Earl, Lord Russell, has spoken convincingly this evening of the importance of ensuring that the very vulnerable people being cared for in residential care and nursing homes are properly protected from unscrupulous operators, and those who would seek to exploit or abuse them. I can assure your Lordships that the Government also strongly believe that the legislative framework governing care homes should protect residents from exploitation and mistreatment.
Your Lordships will recall from our debates on Clause 1 of the Bill that the deregulation order-making power could not be used where this would remove any necessary protection. The term "necessary protection" would certainly encompass protection necessary to safeguard the interests of residential care and nursing home residents.
As has been said earlier, in recognition of the exceptional nature of the power provided by Clause 1, the Government have provided a number of checks to prevent: its abuse. An important element in these checks is the requirement of Clause 3 that there should be consultation with representatives of those likely to be significantly affected by a proposal, and that the outcome of that consultation, together with other specified items of information about the proposal, should be laid before Parliament at the beginning of the special scrutiny procedure.
The matters which are required to be covered in the document include whether the provisions which are to be amended by the proposed order afford any necessary protection and, if so, how that protection is to be continued. The document must also include the details of the consultation and representations received as a result. The amendment would add to the matters required to be included in the document which accompanies a deregulation proposal. Information about any implications for the residents of residential care and nursing homes would also have to be included. The provisions as drafted, in particular the requirement of Clause 3(4) (b) to describe how any necessary protection afforded by the existing legislation is to be continued, would ensure that in cases where a proposal has implications for the residents of residential care and nursing homes, these will be brought out in the explanatory document.
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I hope that my remarks have reassured the Committee about the Government's commitment to providing necessary regulatory protection for residents of residential care and nursing homes, and our commitment to ensuring that the order-making power could not be used to remove necessary protection where the interests of residents, or any other group at risk, would be affected by a proposed use of this power. This is drawn to the attention of Parliament when the proposal is brought forward for scrutiny. It is not possible to overemphasise that significant statement.
I hope that in the light of the explanation of the provisions as drafted in the Bill the noble Earl will feel able to withdraw his amendment.
Earl Russell: I am grateful to the noble Viscount for that reply. Before I take any decision to withdraw my amendment, I wish to probe it a little further. I was extremely interested in what he said about necessary protection. I wish to ask, in particular, whether his comments about the effect of the necessary protection clause on standards of care in residential and nursing homes would, under the purposes of Pepper v. Hart, count as something which could be used in court to interpret the meaning of this Bill. That is an important and technical query.
I have been a little worried about the words "necessary protection" because they seemed to be a little tautological; they seemed to be stating that the Bill should not be used where it should not be used. That is an unexceptionable but not necessarily informative statement. The Minister's statement, in particular if it can be used under Pepper v. Hart, is a good deal more informative.
There is another point on which I should be grateful for some comment. I appreciate that the noble Viscount is in difficulty since the matter involves two ministries, neither of which are in charge of this Bill. Do the Government see a problem, as I do, in the existence of the two different systems of registration? One is through local authorities, which are ultimately responsible to the Department of the Environment, and the other is through the health authorities, which are ultimately responsible to the Department of Health.
Of course, there are always problems where two Whitehall departments share responsibility and communication is not always as good as it should be. I should be extremely grateful if the Minister could give me a clue as to whether the Government see a problem, or, if he is not empowered to do that, he could undertake to bring the point to the notice of his colleagues in the departments concerned.
I look forward to a reply which I hope will have something more to offer. I thank him now for what he may say.
Viscount Goschen: As regards the legal point, I understand that, yes, the statement would be subject to Pepper v. Hart. However, I am not a legal expert and in the ultimate eventuality it will be up to the court to decide.
The noble Earl raised the distinction between residential care and nursing homes. The question of the statutory distinction between them was among the

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matters raised with the Department of Health as part of its review of regulations affecting business. Like other suggestions that have been received, it will be considered.
Earl Russell: I am grateful to the noble Viscount for that further reply. I believe that he has given me everything that he is empowered to give. I thank him and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 to 49 not moved. ]
Lord Peston Lord Peston moved Amendment No. 50:
Page 4, leave out lines 23 to 28.
The noble Lord said: I realise that Amendment No. 50 is a long-winded way of saying, "Omit subsection (5) of Clause 3". It could have been done much more easily.
I tabled the amendment because I am pretty sure that it shows a difference between the Minister and myself, which I should like to illustrate. Subsection (5) says that where the Minister is giving details of representations that he has received he,
"shall not disclose any information".
In my view, that should not be the case. If people make representations, it does not seem to me that we should, even remotely, write into law that they can say, "I should like to make a representation on this burden, but I don't want anyone to know that it was me who made it. It is up to me to give consent as to whether they know or not". That is an absurd state of affairs. It is possible that I have misunderstood the provision, but it seems to read that way. It states that the Minister,
"shall not disclose any information … except… with the consent of that person … or in such a manner as not to identify that person".
Looking at it again, I must say that it is rather circumlocutionary and that makes me even more worried.
The main point that I should like the Minister to comment upon, despite the lateness of the hour, is a very simple one. If you wish to make representations on a matter that concerns you, then you must do it in the public arena. If you are worried that this might cost you something, then do not make representations; in other words, you cannot play the game if you are not willing to pay the entrance fee. That is really what I am saying. It is possible that the Minister agrees with me and that he may say that there is no problem in that respect. But, nonetheless, it is an important point. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I must inform Members of the Committee that if Amendment No. 50 is agreed to, I cannot call Amendment No. 51.
10.45 p.m.
Lord Strathclyde: The noble Lord has interpreted the subsection absolutely correctly. It does mean what it says: its purpose is to protect confidentiality. We have learnt that that is the best way to consult. We discussed earlier our overall objectives to consult; indeed, we need to consult widely in order to obtain the right feedback. That is a necessary safeguard for consultees. It is intended to encourage a frank and open response to the
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consultation, even when the response involves material which may be commercially sensitive. It also enables the Minister to give Parliament the substance of such responses if that can be done in a way which does not identify the author.
I should also add that such provisions are common; for example, I have in mind Section 133 of the Fair Trading Act 1973, Section 28 of the Health and Safety at Work etc. Act 1974 and Section 38 of the Consumer Protection Act 1987. If confidentiality cannot be guaranteed, the consultation exercise is likely to be much less full and, therefore, less useful to both the Minister and Parliament. In that case, we may well end up not getting the matter right. That is the purpose of the provision. With that explanation, I suspect that the noble Lord may, however regrettably, agree with me.
Lord Peston: I understand the Minister's response. I know that the appearance of such a statement in a Bill is not unusual. However, the Acts to which the Minister referred are not ones with which I was involved. I also understand the technical point involved. However, this is my opportunity to say how concerned I am about the matter. If we were to go into such matters, I would get up and ask the Minister whom he had consulted. He might then have to say to me, "I am sorry, but under this section I cannot tell you precisely who. I can tell you the class of people involved, as long as I do not identify them". I might then go further and comment, "I have heard that you consulted so and so"; whereupon the Minister might find himself in a difficult situation where he has to say, "Well, I can't tell you because of that provision".
That is the consultation part; that is the Minister reaching out and asking questions. I can just about live with that in terms of the argument that the noble Lord has put forward. But there is a second part. Supposing, for example, I ask the Minister, "Who has made representations to you?" That is a different question in that regard. It is not a case of asking the Minister, "How have you reached out?"; it is a question regarding those who have, so to speak, reached in. Again, the Minister could say, "I am afraid I can't give you the answer to that question. I can tell you generally the class of people who made representations and, in broad terms, what they have said; but I can't tell you specifically who".
I must say that I find the situation objectionable; indeed, if it were not so late and if we were not having a slightly confrontational exchange—although, it is not that confrontational—I believe I could even persuade the Minister that what I say is worth considering. It is a proposition in open government. I take the Minister's technical point: they will not say if they will be found out. But, equally, if they want to make representations and if they want their views to be felt, they really ought to be willing to place the matter in the public domain. I will not press the point tonight and I well understand why governments do this sort of thing, but I do think it is a most unhappy and unsatisfactory state of affairs. But I have been able to go on record on that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved. ]
Clause 3 agreed to.
Clause 4 [Parliamentary consideration of proposals]:
Lord Strathclyde Lord Strathclyde moved Amendments No. 52 to 54:
Page 4, line 41, leave out ("forty") and insert ("sixty").
Page 4, line 42, leave out from ("Parliament") to end of line 47.
Page 5, line 1, leave out ("periods of forty and") and insert ("period of).
The noble Lord said: These amendments give effect to the Government's commitment to extend the period provided for the parliamentary scrutiny of orders under the deregulation order-making power to 60 days in all cases. I very much hope that this will meet with the approval of the Committee. I beg to move Amendments Nos. 52, 53 and 54 en bloc.
Earl Russell: I would like to welcome these amendments very warmly indeed. They are a very helpful contribution to the Bill. But, in the process, with the usual tendency of Opposition Benches to look gift horses in the mourn, I should like just to probe one small point on which I expect to get a reassuring answer. It is one I have mentioned to the noble Lord before. It is the definition of the 60 days. It is my understanding, looking at subsection (3), that these 60 days refer only to days when the House is sitting and that they do not, as has sometimes happened with other limitations of 40 days, include days when the House sits only for judicial business.
During the Summer Recess, when there are a certain number of days when the House sits for judicial business, that can of course be a point of some significance, especially as there are also judicial sitting days during Prorogation. If I am right in my construction of subsection (3) —that this refers only to days when the House sits for legislative business—then this is a small change in parliamentary practice but one which I would regard as very welcome indeed and as a further earnest of the Government's good faith. I very much hope that I am right in that interpretation. I am waiting with a great deal of interest for the answer.
I am sorry to raise a point which may at this time of night seem quite a small one but it is one which arises in a number of other contexts and it may possibly cause a good deal of confusion sometimes where one has a point which needs consultation which cannot take place during September when it is really quite hard to get hold of people on occasion. I observe that a great deal of discussion is being caused by this. I am sorry, I did believe I had given the Minister notice that I was going to raise this point. I had no intention of catching him short by it. I had no intention either of prolonging the Committee's business.
Lord Peston: I thought the noble Lord would like to hear from me as well, and then speak once. I hope the Committee has noticed—particularly the Minister—that I have not said anything during today on the subject of safeguards and scrutiny. I am saving my ammunition on that because I believe that not until we have been through the whole Committee stage of this Bill will any discussion of safeguards and scrutiny have any meaning, and that is why I have refrained from joining
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in on any of that. But I rise partly to tell the noble Lord that there will come a day when I shall have a lot to say on safeguards and scrutiny. Having said all that, I think 60 days is better than 40 days and, if we want to play number games, 80 is better than 60, etcetera. However, I shall not press that at this hour. I simply want to say that, in welcoming 60, I am not committed to anything on the subject of scrutiny and safeguards yet.
Lord Strathclyde: I am grateful to both the noble Earl and the noble Lord for their welcome to these amendments and I owe the noble Earl an apology. He did in fact give me notice that he was going to ask me this question. I have to confess that I forgot about it approximately 30 seconds after he had given me that notice. However, I have now received some inspiration as to what the 60 days means in parliamentary terms. I am not sure that this explanation will give the noble Earl a great deal of comfort, but he will at least know what he is dealing with and the nature of the beast.
The 60 days applies only to days when both Houses are sitting. It includes days when another place is sitting for legislative purposes or this House for judicial purposes. Therefore, I suspect that it is the same definition as that which applies to 60 days in other circumstances.
Earl Russell: Perhaps I may give the Minister notice that I may return to the matter at another stage of the Bill and thank him for the trouble that he has taken so far.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 53 and 54:
Page 4, line 42, leave out from ("Parliament') to end of line 47.
Page 5, line 1, leave out ("periods of forty and") and insert ("period of).
The noble Lord said: I beg to move Amendments Nos. 53 and 54 en bloc.
On Question, amendments agreed to.
[Amendments Nos. 55 and 56 not moved. ]
Lord Monkswell Lord Monkswell moved manuscript Amendment No. 56A:
Page 5, line 10, leave out ("either House of Parliament") and insert ("the House of Commons")
The noble Lord said: I wish to move a manuscript amendment. For the convenience of the Committee, I shall also speak to manuscript Amendment No. 56B:
Page 5, line 10, after ("document") insert ("which has been made following consideration of any Resolution or Report of. or of any Committee of, the House of Lords.")
I apologise to the Committee for introducing this matter at this late hour and in this manner. However, it arises from the debate we had earlier on Amendment No. 1 and the Committee's decision not to agree that amendment.
The purpose of the amendment is to ensure that scrutiny of draft orders and supporting documentation by each House of Parliament shall be in sequence rather than in parallel.
In our debate this afternoon the convention of this House not to vote on parliamentary orders or delegated legislation was raised. We also heard how Ministers depend on their party majority in the other place for

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their authority. That gives us a clue as to why the convention not to vote on parliamentary orders in this House has emerged.
If the House of Lords votes in one way and the House of Commons votes another way, there is a clash between the two Houses of Parliament. In that case the Executive —the Government—is not held to account. To hold the Executive to account we must recognise that the Executive is answerable to the House of Commons. The amendment that I am now moving would enable the House of Lords to advise the House of Commons and the House of Commons, having taken into account the views of the House of Lords, to advise the Minister. The Minister is then in the best position to lay orders that will gain the approval of both Houses of Parliament.
This proposal is modelled on the sequential consideration of primary legislation that we currently use. It does not interfere with the right of either House to arrive at its own decisions. It seeks to prevent confrontation between the House of Lords and the House of Commons and recognises the primacy of the House of Commons in our parliamentary democracy in holding the Government to account, and it seeks to highlight the need for the expertise of this House to be taken into account. I beg to move.
11 p.m.
Earl Russell: We have again the invocation of an extraordinary procedure where an ordinary procedure already exists. Disagreements between the Houses used to be rather more common than they now are and a procedure has been evolved to deal with them. It is the procedure for a conference between the Houses. It normally used to take the form of the appointment of a Select Committee drawing on the membership of both Houses which would then negotiate the matter upstairs and in private and usually come to an amicable resolution. That procedure is on the books. It can be revived at any time we like. It might solve some problems.
Lord Strathclyde: With the leave of the Committee, I accept the apology which the noble Lord gave for invoking this rather extraordinary procedure of coming forward with a manuscript amendment. In all the Bills with which I have dealt over the past few years, this is the first time I have come across the procedure. I hope that it does not become a habit with the noble Lord.
Let me explain how we envisage that the process will work. Once a proposal has been laid before Parliament, the scrutiny committees in both Houses will start their work. This will be done in parallel. The Procedure Committees in both Houses have suggested that the scrutiny committees should have power to confer as
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well as to meet concurrently for the purpose of taking evidence. That fits in more with the procedures suggested by the noble Earl, as I understood them.
Once the scrutiny committees have made their recommendations, the Minister will reconsider his proposals in the light of what the committees have said. In that way, any differences of view may well be reconciled by the Minister revising his proposals. Ultimately, it will be for each House to decide whether it agrees with any concerns which may have been expressed by the committees or others about the proposal. If, in the end, either House objects to the proposal the order cannot be made.
We do not believe that making the process sequential rather than contemporaneous will help. If there are fundamental differences of view, it might well be that primary legislation would be the only means of activating the change, as the different stages would enable differences between the Houses to be resolved.
The effect of the amendment would be to make the Minister have to take into account only resolutions from the House of Commons, or its committees, but not those of this House. I am not sure that that is the way in which we ought to deal with this situation. I am glad that the noble Lord has given us a chance to explain that situation. I hope that he will withdraw his amendment.
Lord Monkswell: I thank the Minister for graciously accepting my apologies on behalf of the Committee. I thank him, too, for his explanation as to how the Government envisage the procedures working. I am not sure how our procedures will fit in with the procedures of the House of Commons, and the validity—in terms of the will of this House and the will of the House of Commons—of a joint committee.
However, I shall study in Hansard with interest the remarks of the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Manuscript Amendment No. 56B not moved. ]
[Amendments Nos. 57 to 60 not moved. ]
Clause 4, as amended, agreed to.
Viscount Goschen: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Commons Registration (East Sussex) Bill [H.L.]
Returned from the Commons agreed to with amendments. The amendments considered and agreed to.
House adjourned at four minutes past eleven o'clock.