Deregulation and Contracting Out Bill

HL Deb 23 June 1994 vol 556 cc418-73

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 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 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 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. 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 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 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 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 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". 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 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 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 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.

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.

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 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 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 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 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 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 —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". 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 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 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 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 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 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 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 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 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.

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 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 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 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 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.

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 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 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 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 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 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 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 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 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 (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 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 "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.

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 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 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 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 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.