§ 3.27 p.m.
§ Report received.
Lord Peston moved Amendment No: 1:
Before Clause 1, insert the following new clause:
§ ("Limitations upon order-making powers
§ .The order-making powers contained in sections 1 to 4 of this Act shall lapse three years after the day on which this Act is passed, but shall be renewable by a resolution of each House of Parliament for a further period not exceeding three years, and shall be so renewable at the end of any such period.").
The noble Lord said: My Lords, in introducing the amendment perhaps I may say at this stage that we are not discussing deregulation per se. Indeed, again I should like to take the opportunity to say that in many
ways there is not a great deal between us on deregulation per se. Indeed, on 23rd June the noble Lord, Lord Peyton of Yeovil, said from the Government Benches:
I totally applaud the Government's intention to clear away a lot of the tiresome, prolix and incomprehensible regulatory burdens which are imposed on our citizens".—[Official Report, 23/6/94; col. 440.]
I echo that; I have no problems with that. I may well disagree with the Government as to which those regulations are but I have no quarrel with the principle of getting rid of regulations which are either useless or harmful. However, we disagree and disagree strongly on the method of approach. That is what the amendment is about and in my view what the Bill is about.
§ Perhaps I may say also by way of preliminary remark that I recognise that this amendment and others standing in my name and those of other noble Lords move us into complex constitutional procedural fields and I recognise readily that I am not an expert on those matters. Therefore, I look forward to the interventions of other noble Lords who regard themselves as experts in order to clarify the position and put us right if we are wrong.
§ Right from the beginning I have stated that the Bill is constitutionally controversial. It deals with powers to repeal primary legislation by order. I found that rather more offensive than other noble Lords. When your Lordships were in Committee I tabled an amendment to indicate how disagreeable I found it but I was soundly defeated by noble Lords in a Division, and I accept the fact that I was defeated. But that does not mean that I think that I am wrong. It merely means that I accept that I was defeated. I hasten to add that I have no intention of going over that ground again. I was defeated on the fundamental principle and I have to admit that that is so.
§ In a sense noble Lords accepted the argument put forward in the main by the noble and learned Lord, Lord Simon of Glaisdale; namely, that deregulation was of such primary importance that a blanket Henry VIII approach to those matters was of a smaller consideration than the importance of deregulation. That is not the view that I took.
§ Perhaps I may stress the fact—and this leads me closer to the amendment—that there was also some disagreement in Committee and also on Second Reading as to whether the Bill actually sets a precedent. I believe that the noble and learned Lord, Lord Simon of Glaisdale, said that he thought, rather than hoped, that this would be a one-off; in other words, that it would not be a precedent. However, the noble Lord, Lord Beloff, made it most clear that he thought that it would set a precedent. It was certainly one of my arguments and one of my concerns that if one can remove such burdens—that is, get rid of primary legislation by ministerial order and opinion—one could do so in other ways. I believe that the powers are strong and that they set a precedent. That is why I feel that an amendment of the kind tabled by myself and the noble Lord, Lord Rodgers, should commend itself to your Lordships.
Of course, the amendment shows no originality on my part. Perhaps I may draw the attention of noble Lords to the Ninth Report of the Delegated Powers Scrutiny
Committee of 13th June. In the very first paragraph of the report the committee sets out essentially the contents of our amendment; namely,
we urge the House to consider whether the bill should be amended to provide that the powers to make deregulation orders under Chapter I of Part I should lapse three years after Royal Assent, and should then be renewable by Resolution of each House of Parliament for further periods each not exceeding three years".
Essentially we agree with that recommendation. However, we also feel that it is our duty to bring before your Lordships precisely that recommendation so that other noble Lords may also express a view on such a recommendation put forward by a committee of such importance and distinction.
§ The only other point I should like to make is to echo another matter raised by the noble Lord, Lord Rodgers. I believe that he raised it in Committee rather than on Second Reading. It related to the question that if one is not very keen on deregulation and one believes, as I argued, that the Bill is a constitutional outrage—I repeat that point and, indeed, will continue to do so—what could be done instead? How would one deal with the deregulation requirement? It seemed to me that the noble Lord, Lord Rodgers, put forward a suggestion which deserved better consideration than that which it received. He suggested that one could introduce (and might even take formal powers to oblige the Government to do so) an annual deregulation Bill.
§ I argued that if one looked at the format of the Bill, Chapter II which is entitled "Miscellaneous Deregulatory Provisions" consists of precisely the kind of legislation that I should like to see introduced every year. For the Government to argue that they could not use normal parliamentary procedures to deregulate flies in the face of Clauses 5 through to 35 (31 clauses) which contain precisely the kind of deregulation legislation suggested by the noble Lord, Lord Rodgers. I repeat the view that I believe that what the Bill proposes is unnecessary. I certainly think that we should take the advice of the Delegated Powers Scrutiny Committee which is very clear—indeed, it contains no "ifs" or "buts"—and which urges the House to take such action. In answer to those who ask whether that means abandoning the campaign against deregulation I say that it certainly does not. I believe that Chapter II of the Bill is sufficient evidence to show that it certainly does not. I beg to move.
§ 3.30 p.m.
§ Lord Rodgers of Quarry Bank
My Lords, I am grateful to the noble Lord, Lord Peston, for his generous remarks regarding a proposal that I made on the first day of Committee on 23rd June. I am especially grateful for the noble Lord's comment that it deserved a better reception than it received. In fact, I believe that it received no answer at all. It dropped not like a stone into a pool of water but like a feather on to hard ground. I do not blame the noble Lord, Lord Strathclyde, who replied for the Government at that time. It was not within his capacity at that stage to make a change in the policy which the Government had determined. However, I had hoped—and, indeed, I still hope—that 823 the noble Earl will be able to say in his response that my suggestion (and I shall elaborate upon it in a moment) is one which has been given serious consideration.
As the noble Lord, Lord Peston, said, I suggested the introduction of an annual deregulation Bill. I thought that it might command the support of the House because I believe that on all sides—and I stress that fact—there is support for the central principle of the Bill. Let there be no doubt about it. We want to remove restrictive regulations especially on small businesses as far as we possibly can. It is in that spirit that the larger part of the Bill has been scrutinised by the House.
Our quarrel, if I may put it that way, is with the content of Chapter I of the Bill; namely, the Government's decision to bypass the normal procedures and proceed with a large part of deregulation through secondary legislation. That is the nature of our quarrel. I must tell the Government that, given all the procedures involved—namely, the time that it has taken to debate such matters both in this House and in another place, the scrutiny procedures whatever they may be (and we hope that they will be improved) and the consultative procedures within the Bill as it now stands—surely it might actually have been easier not to have Chapter I of the Bill but to have settled for an annual deregulation Bill.
As I suggested at the time, the procedure—and those familiar with government will agree that this is quite possible—would be to trawl all departments early in the calendar year. There is no better way of putting pressure on Ministers than to require them to produce proposals for deregulation by a fixed date. For example, policy decisions might be made about Easter-time, and then parliamentary counsel would be briefed. As a result, there would be a Bill every year which could perhaps be introduced in this House after the debate on the Address in a rather calm period. It could be considered as primary legislation in the normal way. I believe that that would be in the spirit that the House has shown in its support for the central principle of the Bill. It would also avoid the long debates which we have had, and continue to have, on the procedures for scrutiny.
I glanced again at one of many documents produced by the Government as part of their deregulation initiative, as I believe it is called. In a foreword by the President of the Board of Trade, he said:There is masses to do".I am sure that that is grammatically correct, but it sounds very odd when one reads it aloud. The president went on to outline the nature of those "masses" and concludes by saying:Deregulation will be a liberating and invigorating force—we will make it a permanent feature of Government".That is the kind of hyperbole that one expects from such public documents. But if that is the Government's intention —and, one never knows, it might be the intention of successive governments—then the idea of going for primary legislation by an annual Bill surely makes very good sense.
The amendment standing in my name and that of the noble Lord, Lord Peston, is very similar to one that I tabled in Committee. I believe that I said at the time— 824 and if I did not, it was an oversight and I shall do so now—that I hoped we were modest enough on both sides of the House to admit that we could be wrong; and that perhaps the Minister could admit that he might be wrong in thinking that the use of the procedures in Chapter I were the best means of dealing with the matter. For example, there might be second thoughts on the questions to which I have just referred. But, equally, I think it beholds us on this side of the House to say— certainly I am prepared to say this for myself—that we may have an excess of anxiety. Experience may well show that these debates have been unnecessary, that the procedure is a smooth one and that nothing passes through Parliament without the scrutiny it would have received had it been a case of primary legislation. Therefore we could both be wrong.
If we could both be wrong—having admitted it on my part, I am sure that the Minister will readily concede it on his —what could be better than examining the matter again in three years' time? At that time the opposition parties, whoever they may be, may say, "We were wrong. There was no need for the debates we had. The scrutiny is satisfactory". The government of the day may say, "On the contrary we believe it was a clumsy procedure which we now wish to abandon". So why not look at it again in three years' time? Three years is indeed a long time in politics. In those circumstances Ministers need not worry too much, even if the same Government are responsible for legislation, that they will be sitting in the same places. I would be surprised if they were. While they must have due respect for the lives of their successors and should not make them unreasonably uncomfortable, there is really no need for a Minister today to think about who will be sitting in his place in three years' time when the matter comes up again.
I can see only one objection to the idea encompassed in the amendment, and that is the question of time. If the matter comes back in three years' time, of course there will have to be a debate. I know what the business managers will say. The business managers in this House and in the other place will say, "We do not want an extra burden. Parliamentary time is too short. We want to do what we want to do. Let us not commit ourselves to the future". However, this is a small commitment for a large matter. We are all agreed, on all sides of the House, whatever view we may take on the amendment or any other, that the question of primary or secondary legislation is at the heart of Parliament's role. I cannot believe that one day's debate in three years' time is a price too high to pay for making sure that finally we get this right. I hope that the amendment, will commend itself to the House and that the Minister will be able to speak to that effect.
§ 3.45 p.m.
§ Lord Simon of Glaisdale
My Lords, this amendment crystallises the fundamental and crucial question as to this Bill. In effect what the Bill does is to proceed against bureaucratic procedures by bureaucratic means. That has throughout, from the outset, posed a serious question. The bureaucratic processes are quite plain and have been identified but a number of 825 protective measures impair the supply side of industry and commerce to the serious impoverishment of the consumer. Therefore there was general agreement at least that many of these protective measures, bureaucratic measures, should be swept away unless it was shown that on balance they were clearly necessary for the protection of consumers and users and the public generally. The difficulty was that if it was done by primary legislation throughout there was little prospect of making real progress with the matter.
The Bill identifies some 12 immediate projects. About 30 have also been identified, apparently in the department, on which staff are working. But the working party of the noble Lord, Lord Sainsbury, identified, I believe, 3,500 measures that impede productive processes and economic enterprise. Therefore, however much one narrows the matter, there would be little prospect, if the persuasively argued case of the noble Lord, Lord Rodgers, were adopted—namely, that the matter should throughout be dealt with by primary legislation, by, say, an annual deregulation Bill—of any immediate progress being made, much less of dealing with the matter as a whole. Therefore on balance, although misgivings were expressed, your Lordships thought that in this case we were justified in adopting one of bureaucracy's chosen methods; namely, the Henry VIII clause using secondary legislation. Your Lordships believed that that was justified in this case.
Misgivings were expressed throughout the House. The noble Lord, Lord Cockfield, made an impressive speech on Second Reading, as did the noble Lord, Lord Stoddart—he is not present—and other noble Lords. They expressed misgivings that if we once sanction on so wide a scale using secondary legislation to repeal primary legislation, it gave a precedent to the Executive which might be misused. Therefore it seems to me that one should look for an alternative. I find the alternative moved today in substantially the same form as it was moved by the noble Lord, Lord Rodgers, in Committee, has much to commend it. In fact when it was moved in Committee I did not understand the noble Lord, Lord Strathclyde, to be dismissing it categorically. My impression was that it would be sympathetically considered.
I urge the noble Earl, now he has taken over, to give the matter some serious thought. For some reason I think there has been some hiatus in this Bill in the taking-over process. If he feels he needs more time, I am sure your Lordships would be perfectly willing to consider that. However, there is a great advantage in operating now for three years as in three years the immediate impact of the bureaucratic aggrandisement at the expense of industry, commerce and other areas, should have been dealt with. As noble Lords have argued, at the end of three years we can see how we have got on. That is not to say necessarily that the process will come to an end; on the contrary, it is saying that it can be renewed. I beg the noble Earl not to turn down this measure categorically.
§ Lord Mishcon
My Lords, I have found during the pleasant years that I have spent in your Lordships' House that if there is one thing which unites the House 826 it is an attack upon secondary legislation going too far. I find the Government Benches, those who sit on the Cross Benches, those on the ecclesiastical Benches, and the Opposition generally united in their fear of the growing power of Ministers to pass measures by secondary legislation. If that be true, can we limit ourselves in this amendment to consideration of that principle which unites us all? We are not debating whether an annual Bill should be passed. That is not the intention of the amendment, although I listened with great respect to what has been said in support of that idea.
I am afraid not only of a precedent being set, which is dangerous enough, but I am afraid that under the Bill orders may be put before the House with which we do not agree. That is perfectly possible. As my noble friend Lord Peston said, we are all in favour of getting rid of irritating bureaucratic restrictions upon trade and industry. But there may come a time when this House disagrees with a suggestion that is being made. The reason we have all attacked secondary legislation is that there is little opportunity fully to debate and oppose an order when it comes before your Lordships' House.
Therefore I believe that, regardless of party, the House will want to think very seriously about what harm would be done by passing the amendment. I can think of one great advantage. Every three years our minds will be awakened to the purpose of the Bill. There may be speeches in your Lordships' House paying tribute to the Minister involved for doing his job extremely well and removing thousands of obstructive regulations from the back of trade and industry. On the other hand, this House may want to censure a Minister and ask what has been done in three years. Your Lordships may say that Parliament was enthusiastic about the whole idea of deregulation but very little has been produced. That will come out of such a debate in three years' time.
Regardless of party, I hope that the House will realise that this is a sensible amendment.
§ Lord Harmar-Nicholls
My Lords, the Government have to keep in mind that party does come into this issue. The Conservative Government as a whole are under considerable attack from many sources for allowing themselves to be diverted from what they know is right because it is unpopular in certain quarters. On this issue the damage that could be done to the Government's reputation for decisiveness would be considerable.
The individual arguments, such as those we heard from the noble Lord, Lord Mishcon, and my noble friends, are formidable if considered on the narrow point of the working of individual Acts. However, as a member of the party which forms the Government I would not recommend that my noble friends, on behalf of the Government, give the appearance of retreating from something that they think is right—as it is clear from the way they have presented the Bill they do. While I recognise the problems that have been explained 827 I do not believe that they are as great as the danger to this Government, and to the power of governments generally, of such a retreat.
§ Lord Clinton-Davis
My Lords, I wish to intervene only briefly to reflect on what the noble Lord, Lord Harmar-Nicholls, has just said. How can decisiveness be invoked in this instance? We are talking about a situation three years hence, by which time Parliament, which is the rightful body to consider these matters, will have been able duly to reflect on the progress or lack of progress which has been made in this areas, as my noble friend Lord Mishcon pointed out. What has the Government's reputation for decisiveness or indecisiveness to do with that? We are not asking the Government to retreat from anything. We are asking them to abide by something which is plainly common sense.
Why should not an issue as important as this be the subject of debate as defined within the terms of the amendment? I hope that the Minister will find that the arguments adduced by the noble Lord, Lord Harmar-Nicholls, do not contain even that normal grain of common sense which he usually imparts to this House. His remarks bypassed the essentials of the amendment.
What have the Government to lose by accepting the amendment? Would they appear to be indecisive if they were to embark on this course; or rather, would it not be the case that for once in a while the public outside might commend the Government for listening to sane voices on this issue which have been heard in this House not only from the Cross-Benches but also from these Opposition Benches?
My Lords, I was glad that the noble Lord, Lord Peston, said that there was very little between us on this matter. Indeed, he said that he did not disagree with the principle of deregulation. The noble Lord, Lord Rodgers of Quarry Bank, said the same. It is good that there is common ground. We all want deregulation where that can be achieved. The only area of contention is that some noble Lords do not think that this is the right way to go about achieving that. With this amendment the question is whether the Bill should continue in effect indefinitely or should be renewed every three years.
The noble Lord, Lord Rodgers, hoped that his view had been given serious consideration. Indeed it has. He said that he would have preferred there to be an annual deregulation Bill, but the amendment allows for the Bill to be renewed every three years. It could be said that the fact that the Bill would be renewed every three years is in itself an additional burden.
I would be the first to admit to your Lordships that there is no hard and fast rule, and no one could say that one argument is right and the other is wrong. There is a perfectly reasonable argument that the exercise should be undertaken every three years.
The Government have always recognised that the power which is conferred by Clause 1 of the Bill is an exceptional one for which exceptional arrangements are appropriate. I agree with the noble Lord, Lord Peston, 828 that these are strong powers. That is why the Bill provides for preliminary consultation with interested parties outside the Palace of Westminster.
The noble Lord, Lord Mishcon, said that we may not like an order which is produced. That is perfectly true. That is why the Bill provides for special scrutiny by both Houses. Those arrangements will allow your Lordships to consider orders which will be brought forward under the power in detail. They can be scrutinised line by line if appropriate, with the benefit of written and oral evidence from whatever source is considered appropriate. The Government will be required to consider the outcome of that scrutiny carefully.
Clause 3 of the Bill requires consultation with outside parties. It requires information about that consultation, about the views that have been expressed and about other information about the proposed orders to be laid before your Lordships. Clause 4 of the Bill provides a period for parliamentary scrutiny of orders before they are laid for approval. We have extended that period to 60 days at the suggestion of your Lordships' Procedure Committee. Clause 4 of the Bill so requires the Government to take careful account of the scrutiny process and requires the affirmative resolution procedure in both Houses of Parliament. All those matters are set out in the Bill. None of them is dependent on the good will of any government at any particular time.
It has also been suggested previously that it would be appropriate for the power in Clause 1 to lapse after a period of a few years because the need for it may fall away after time. I do not believe that that is likely to be the case. Deregulation is not a one-off exercise. It must be a continuing process at the heart of government. We think that it will continue to result in the identification of legislative provisions which can be amended or which can be repealed in order to remove or reduce the burdens without removing any necessary protection. We believe that that process is likely to continue to give rise to proposals to change primary legislation in ways which will be appropriate for the use of the powers in Clause 1 of the Bill.
As the years go by inevitably one has more legislation. Inevitably some of that legislation in due course becomes redundant. I think that it will be a great deal like travelling up a down escalator. One will not be in a position to say, "Now that we have deregulated everything we can close the book". It is a process that will have to continue over a number of years. Therefore we think it appropriate that measures should be put on the statute book and should be available continually for use.
The noble and learned Lord, Lord Simon of Glaisdale, says that one could renew the legislation in three years' time because most of the deregulation will have been accomplished in three years. I doubt whether that is so because I believe that in another three years there will be more legislation which has to be pruned. I understand the argument for saying, "Let us have the power to renew the Bill in three years' time". It is a perfectly tenable argument. If we are to put on the statute book 829 the ability for Parliament to get rid of unnecessary burdens, that power ought to stay on the statute book and to be available for use as and when necessary.
For those reasons I hope that your Lordships will feel it appropriate to leave the Bill as it is without the restriction that the order-making powers should have to be renewable every three years. I believe that noble Lords may be putting an unnecessary burden upon Parliament.
§ 4 p.m.
§ Lord Peston
My Lords, I thank noble Lords and the noble Earl for responding to the amendment. I was somewhat taken aback by the remark of the noble Lord, Lord Harmar-Nicholls. Although party comes into the issue, to use his words, over the years he and I have agreed on a number of matters. Indeed, we have had a number of successes and failures. One of our failures was of a deregulation nature. We sought to remove the licensing laws to allow the opening of licensed premises all day on Sundays. It was only rigid restraint which prevented my attempting to bring that issue into the Bill. The noble Lord and I usually do not disagree. However, I found his argument today slightly unattractive. Although I do not disagree on the party point, for the noble Lord to argue to his noble friend that one ought to reject an issue because his party needs an image of decisiveness at present slightly undermines what we seek to attain when we deal with legislation in your Lordships' House. I hope that the merits matter. Much as I am anxious about the future of the Conservative Party, I do not believe that such anxiety ought to be central to how we assess this or any other clause of the Bill.
One of my worries concerns a remark by my noble friend Lord Barnett. It was made rather frivolously, although not entirely so. He said that as Chief Secretary he would have liked to have had the powers in the Bill. That is the precise point which worries me. I know that if I were a Minister—it may never happen—I, too, would love to have the power to say, "Do this. Do that. Forget this. I'm not having that". That is the reason that I dislike the approach in the Bill. My noble friend Lord Barnett put that issue forward slightly frivolously, but deep down I know that there are people who like to exercise such powers.
My second worry is in response to the noble Earl's remarks. He stated that he felt there would be a continuing need for the Bill. I should have thought logically that he would have stated the opposite: that in their dying days the Government had learned that they should not introduce even more useless and burdensome legislation to British industry. I should have thought that we could get rid of the need for the Bill by not introducing such legislation in the first place. I am rather frightened that when the gracious Speech is presented to us in a month's time it will contain even more regulations and that we shall have to use the Bill to get rid of them.
My Lords, I seek to allay the noble Lord's anxiety. I do not wish him to come to wrong 830 conclusions or to exercise his imagination too greatly. I had in mind, for instance, that future technological advances may make engines electrically driven instead of by petrol. Therefore emissions may be of a different nature. That is the kind of matter which may need alteration.
§ Lord Peston
My Lords, I understand and am reassured by what the noble Earl says. I hope that he has learned the lesson that I have learned: that before we start we ought to scrutinise legislation to see what burdens it involves and what lunacies it may contain. Often those burdens and regulations exist because people are frightened of their own legislation. They think that they had better have many more bits in it just to be on the safe side.
The noble Earl's reference to engines is apposite. We no longer need red flags placed before trains or motor vehicles. We are quite capable of getting rid of useless pieces of regulation.
My final point is this. I remind your Lordships of what the Delegated Powers Scrutiny Committee said. Without pulling the leg of the noble Lord, Lord Harmar-Nicholls, too much, perhaps I may remind him that that was not a politically motivated committee. It was a committee of distinguished noble Lords advising your Lordships in a non-party way. The committee stated,The significance of the powers is such that"—the point is germane to what the noble Earl said—in spite of the proposed safeguards which we discuss in paragraphs 2 to 4 below, we urge the House",and so on. In other words, the committee was not convinced by the safeguard argument. That is why I believe it right to place the amendment before your Lordships. It is an occasion on which we ought to register our opinion, Content or Not-content.
§ 4.8 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 120; Not-Contents, 156.831
|Addington, L.||Cocks of Hartcliffe, L.|
|Airedale, L.||Craig of Radley, L.|
|Allen of Abbeydale, L.||Crook, L.|
|Ashley of Stoke, L.||Dahrendorf, L.|
|Attlee, E.||Darcy (de Knayth), B.|
|Barnett, L.||David, B.|
|Beaumont of Whitley, L.||Dean of Thornton-le-Fylde, B.|
|Blackstone, B.||Desai, L.|
|Boston of Faversham, L.||Donoughue, L.|
|Bottomley, L.||Dormand of Easington, L.|
|Bridges, L.||Eatwell, L.|
|Brightman, L.||Ennals, L.|
|Brimelow, L.||Ezra, L.|
|Brooks of Tremorfa, L.||Falkender, B.|
|Bruce of Donington, L.||Falkland, V.|
|Callaghan of Cardiff, L.||Farrington of Ribbleton, B.|
|Campbell of Eskan, L.||Foot, L.|
|Carmichael of Kelvingrove, L.||Gallacher, L.|
|Carter, L.||Gould of Potternewton, B.|
|Cledwyn of Penrhos, L.||Graham of Edmonton, L.|
|Gregson, L.||Ogmore, L.|
|Grey, E.||Palmer, L.|
|Halsbury, E.||Parry, L.|
|Hamwee, B.||Peston, L.|
|Harris of Greenwich, L.||Plant of Highfield, L.|
|Haskel, L.||Prys-Davies, L.|
|Hayter, L.||Rea, L.|
|Healey, L.||Redesdale, L.|
|Hilton of Eggardon, B.||Richard, L.|
|Hollick, L.||Richardson, L.|
|Hollis of Heigham, B.||Robson of Kiddington, B.|
|Hooson, L.||Rochester, L.|
|Howell, L.||Rodgers of Quarry Bank, L.|
|Howie of Troon, L.||Sainsbury, L.|
|Hughes, L.||Seear, B.|
|Hunt, L.||Sefton of Garston, L.|
|Hylton-Foster, B.||Serota, B.|
|Jeger, B.||Shaughnessy, L.|
|Kagan, L.||Shepherd, L.|
|Simon of Glaisdale, L.|
|Kintore, E.||Stallard, L.|
|Kirkhill, L.||Stoddart of Swindon, L.|
|Lawrence, L.||Strabolgi, L.|
|Lockwood, B.||Strafford, E.|
|Longford, E.||Strafford, E.|
|Taylor of Blackburn, L.|
|Lovell-Davis, L.||Taylor of Gryfe, L.|
|Mackie of Benshie, L.||Tenby, V.|
|Mason of Barnsley, L.||Thomson of Monifieth, L.|
|McIntosh of Haringey, L.||Tordoff, L. [Teller.]|
|Merlyn-Rees, L.||Turner of Camden, B.|
|Milner of Leeds, L.||Varley, L.|
|Mishcon, L.||Wallace of Coslany, L.|
|Molloy, L.||Wedderburn of Charlton, L.|
|Morris of Castle Morris, L.||Whaddon, L.|
|Mulley, L.||White, B.'|
|Murray of Epping Forest, L.||Wigoder, L.|
|Nathan, L.||Williams of Elvel, L.|
|Nelson, E.||Williams of Mostyn, L.|
|Nicol, B.||Winchilsea and Nottingham, E.|
|Aberdare, L.||Courtown, E.|
|Addison, V.||Craigavon, V.|
|Ailesbury, M.||Cranborne, V. [Lord Privy Seal]|
|Alexander of Tunis, E.||Crathorne, L.|
|Allenby of Megiddo, V.||Cumberlege, B.|
|Archer of Weston-Super-Mare, L.||Davidson, V.|
|Arran, E. [Teller.]||Dean of Harptree, L.|
|Balfour, E.||Denham, L.|
|Barber of Tewkesbury, L.||Denton of Wakefield, B.|
|Barber, L.||Digby, L.|
|Belhaven and Stenton, L.||Dixon-Smith, L.|
|Blake, L.||Dormer, L.|
|Blateh, B.||Eccles, V.|
|Blyth, L.||Effingham, E.|
|Boardman, L.||Elibank, L.|
|Borthwick, L.||Elliott of Morpeth, L.|
|Boyd-Carpenter, L.||Elphinstone, L.|
|Brabazon of Tara, L.||Erroll of Hale, L.|
|Brookes, L.||Faithfull, B.|
|Brougham and Vaux, L.||Fanshawe of Richmond, L.|
|Bruntisfield, L.||Ferrers, E.|
|Bumham, L.||Finsberg, L.|
|Butterworth, L.||Fraser of Carmyllie, L.|
|Cadman, L.||Gainford, L.|
|Caithness, E.||Gisborough, L.|
|Campbell of Alloway, L.||Goschen, V.|
|Campbell of Croy, L.||Gray of Contin, L.|
|Carnegy of Lour, B.||Gridley, L.|
|Chelmsford, V.||Hailsham of Saint Marylebone, L.|
|Chesham, L.||Harding of Petherton, L.|
|Clanwilliam, E.||Hardinge of Penshurst, L.|
|Clark of Kempston, L.||Harlech, L.|
|Coleraine, L.||Harmar-Nicholls, L.|
|Colnbrook, L.||Hayhoe, L.|
|Constantine of Stanmore, L.||Hemphill, L.|
|Henley, L.||Oxfuird, V.|
|Hives, L.||Pender, L.|
|Holderness, L.||Peyton of Yeovil, L.|
|HolmPatrick, L.||Pike, B.|
|Howe, E.||Plummer of St. Marylebone, L.|
|Iddesleigh, E.||Polwarth, L.|
|Inchyra, L.||Rankeillour, L.|
|Inglewood, L.||Reay, L.|
|Ingrow, L.||Renfrew of Kaimsthorn, L.|
|Johnston of Rockport, L.||Rennell, L.|
|Kenyon, L.||Renton, L.|
|Kimball, L.||Rippon of Hexham, L.|
|Kinloss, Ly.||Rodger of Earlsferry, L.|
|Knollys, V.||Saltoun of Abemethy, Ly.|
|Leigh, L.||Sanderson of Bowden, L.|
|Lindsay, E.||Sandford, L.|
|Long, V.||Savile, L.|
|Lucas of Chilworth, L.||Shannon, E.|
|Lucas, L.||Sharples, B.|
|Lyell, L.||Shaw of Northstead, L.|
|Mackay of Ardbrecknish, L.||Skelmersdale, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Soulsby of Swaffham Prior, L.|
|St. Davids, V.|
|Macleod of Borve, B.||Strange, B.|
|Strathclyde, L. [Teller.]|
|Malmesbury, E.||Strathcona and Mount Royal, L|
|Manchester, D.||Swansea, L.|
|Manton, L.||Swinfen, L.|
|Melville, V.||Terrington, L.|
|Merrivale, L.||Thomas of Gwydir, L.|
|Mersey, V.||Trumpington, B.|
|Milverton, L.||Ullswater, V.|
|Monk Bretton, L.||Vaux of Harrowden, L.|
|Montgomery of Alamein, V.||Vinson, L.|
|Mottistone, L.||Vivian, L.|
|Mountgarret, V.||Wade of Chorlton, L.|
|Munster, E.||Wakeham, L.|
|Newall, L.||Watkinson, V.|
|Norfolk, D.||Waverley, V.|
|Norrie, L.||Westbury, L.|
|Northesk, E.||Wharton, B.|
|O'Brien of Lothbury, L.||Whitelaw, V.|
|Oppenheim-Barnes, B.||Wigram, L.|
|Orr-Ewing, L.||Wise, L.|
On Question, amendment agreed to.
§ 4.17 p.m.
§ Clause 1 [Power to remove or reduce certain statutory burdens on businesses, individuals etc. ]:
Earl Ferrers moved Amendment No.2:
Page 2, line 4, leave out ("Chapter") and insert ("section and sections 2 to 4 below").
§ The noble Earl said: My Lords, I beg to move Amendment No. 2 and to speak to Amendments Nos. 4, 7 and 20 as well as Amendments Nos. 21 and 22. All these amendments relate to enforcement action. During the debate on the Bill in another place and in an amendment which was moved by my noble friend Lord Vinson at Committee stage, the question was raised as to whether there were sufficiently flexible appeal mechanisms in place which could resolve difficulties of over-zealous or unreasonable application of regulations. One of the overriding concerns of many businesses— and particularly that of small firms—is the interpretation and enforcement of rules and regulations. The Bill already provides in a number of ways for reducing the burden of existing regulation. What the Bill does not as yet do is to tackle the issue of the fair enforcement of regulations.833
§ We think that it is important for business to be able to clarify the status of, and to understand the reasons for and to be able to challenge decisions at as early a stage as possible. Much good practice exists and checks and balances are already provided in many cases. But we consider that where there are problems, we should have the legislative ability to tackle them.
§ The first new clause and the new schedule provide order-making powers which could be used in particular areas at the discretion of the responsible Minister. The powers would be available for legislation affecting business and charities so that they could be used where they would improve procedures in terms of fairness, transparency or consistency.
§ We recognise the importance of effective enforcement. The powers will be available to be used only where this could be done without undermining the purpose of the legislation. Nothing in the new provisions could prevent immediate enforcement action where this is justified. Businesses often value informal advice from enforcement officers, and we very much want to see that continue. But the distinction between advice on best practice and a legal requirement as to what should be done, with which a business has to comply, is an important one. Blurring this distinction can lead to unnecessary costs and indecision for business. An enforcement officer needs to be clear whether a particular requirement is really necessary in order to secure compliance with the legislation and to make clear in advance to the business when he is advising that action is legally required.
§ We therefore propose in the new schedule a power to require that when, without taking formal enforcement measures, an enforcement official tells a business that it should take some action, the business would be entitled, on request, to a written statement making it quite clear why that action is required. Unless immediate action is essential (for example for safety reasons), the intention is that the enforcement authority would not then be able to take formal enforcement action until the business had had a reasonable opportunity to consider the statement. In cases where the legislation allows some room for discretion, the written statement would have to include an explanation as to why the official believes that the step is necessary.
§ We recognise that immediate enforcement action is sometimes necessary and in these cases business cannot be given a chance to challenge the decision in advance. Most powers to take immediate action against business are tightly constrained, but we believe that businesses should be entitled to an explanation as to why the enforcement officer considers that immediate action is required in the particular case.
§ Therefore we propose a power to require enforcement officers, when they take immediate action against a business including action which could have the effect of closing down the business, to provide a statement as soon as practicable, explaining why it was necessary to take action immediately.
§ It is helpful for business to be able to challenge an enforcement decision which it believes to be unreasonable before any formal action is taken against 834 the business. Defending a prosecution, for example, is risky for the business both in financial terms and in relation to its reputation. The opportunity for an informal review could prevent matters getting to that stage.
§ We therefore propose a power which would require enforcement officers to issue a business with a notice that they are "minded to" take formal enforcement action (in other words to commence prosecution proceedings). The business would then be entitled to have its point of view heard and taken into account. Meanwhile formal action would not be taken. Again, there is an exception if immediate action is necessary in the public interest.
§ Most legislation provides for some right of appeal against formal enforcement action—with a stay of execution except in cases of danger. But not all enforcement officers make a point of telling the business clearly what its rights are when the enforcement action is taken.
§ We therefore propose a power to require that when formal action is taken, the business should be told exactly what rights it has for appeal, including the grounds on which an appeal can be made; to whom it should be addressed; within what timescale; and whether the enforcement decision can be stayed during the appeal.
§ Then again an enforcement decision can sometimes have a serious impact on a particular third party who may not even be informed of the decision. For example, action may be taken against a retailer in respect of the products of a particular manufacturer. The retailer will clearly be told, but the manufacturer, who may be significantly affected, may not.
§ We therefore propose a power to apply relevant provisions to third parties who would be required to meet or make a significant contribution to any enforcement requirement or who would be specifically referred to in any enforcement action. Enforcement officers could under the provisions of the new schedule be required to take reasonable steps to make such third parties aware of the relevant enforcement action.
§ The sheer diversity of current appeal mechanisms can, we believe, in itself be a problem for business. Some of the differences in appeal mechanisms arise from the nature of the legislation in question, but in other cases diversity has arisen simply because of the piecemeal development of the legislation.
§ The second new clause would enable the Secretary of State to draw up model standard appeal provisions including certain elements of good practice. These provisions could then be used where thought fit when legislation is being drawn up or revised. They could be applied either in full, or with modifications.
§ The new clause sets out the main elements. The model would contain provision for the appointment of persons to hear appeals and for their powers. These would include the power for the body to appoint its own experts, to summon witnesses and require evidence to be produced. The body could impose a stay on enforcement action or make other interim orders. The model provisions would provide for costs to be awarded to 835 appellants and, in certain circumstances, against them. They would also cover the right to make representations before enforcement action is taken, for reasons to be given for any such action and for both sides to set out their arguments before the hearing. Appeals would then be determined on the merits of the case. The clause sets out the elements to be included. We would intend to consult on the detail of the order before it is brought before Parliament.
§ I have spoken in terms of appeal mechanisms for business and I apologise for doing so at some length, but I think that these are important matters and are particularly important because of the impact that the proposals will have on business. The clauses also apply to legislation affecting charities.
§ I should emphasise that it is not our intention in any way to undermine the proper enforcement of rules and regulations, and the provisions could not be used to do this. Nor do we intend these provisions to apply to areas of legislation which involve deliberate wrongdoing.
§ As I have already said, there is a great deal of good enforcement practice, and checks and balances already exist in many of the present systems. Enforcement bodies are also making considerable efforts to ensure that business understands the purpose of particular regulations and how best to comply with them. We are also taking action to improve understanding between enforcement authorities and the businesses with which they deal.
§ Some 70 central government enforcement agencies have now adopted the principles set out in the document Working with Business: A Code for Enforcement Agencies. Under codes produced by each agency, the enforcement agencies have committed themselves to a closer dialogue with business and, more importantly, to introduce complaints mechanisms including an independent element. We are working together with business to identify other potential candidates to adopt the code's principles as well as monitoring how effective the code has been in changing attitudes of enforcement officers.
§ The Local Business Partnership scheme brings together business and local authority enforcers to discuss at the local level issues such as regulatory requirements and enforcement policies. Some 30 such partnerships will have been established by the end of this year; 150 further local authorities have expressed interest in the project.
§ Another concern of business has been that too much emphasis is being placed upon measuring the numbers of prosecutions or enforcement notices rather than on seeking improvements in the level of compliance. My officials are considering, therefore, with interested parties how enforcement performance might be measured in a way which is more closely linked to the objectives of the regulations.
§ We do nevertheless need to ensure that where there are deficiencies in the present arrangements we can take legislative action to improve matters. We would intend to use the powers where existing arrangements for challenge or redress can be significantly improved, and 836 provided that the use of such powers would not undermine the achievement of the objectives of the legislation.
§ I apologise for moving this amendment at such length, but, as I have said, these factors are important and it is right that the House should understand what is meant by these amendments.
§ I think that these provisions will offer an important means of ensuring greater fairness, transparency and consistency in enforcement procedures and I commend them to the House. I beg to move.
§ Lord Renton
My Lords, speaking for myself, I welcome these provisions, although I shall have one or two comments to make about them. My first general comment is that it seems to me that by granting the powers which are in Chapter I and the proposed new clauses and the new schedule, Parliament will be saved a great deal of time when future legislation comes before us. If these powers are to be used in so broad a way as my noble friend Lord Ferrers indicated, it would become unnecessary for them in effect to be re-enacted in future detailed legislation. That in itself would be an argument in favour.
I believe that on both sides of the House we would necessarily welcome improved procedures for enforcement by the various kinds of enforcement officers so long as they also include new procedures for appeals against enforcement. That is precisely what is now proposed by my noble friend.
However, I must confess that with the present contents of the chapter, which are to be left more or less intact, the new clauses and the new schedule, the draftsmen have produced a very big mouthful for us to digest. I have spent only a little time with a metaphorical wet towel round my head, but I do wish—I know that it is rather late in the day to propose it—that the drafting could have been done in a way which brought all these provisions together to a greater extent instead of their overlapping, as they undoubtedly do. I feel bound to make that comment about the drafting.
Perhaps I may raise the question of repeals of existing law, which undoubtedly would have to arise if and when these new powers are exercised. Schedule 16, which is the last schedule to the Bill runs to a number of pages and contains a great many repeals, not all of them very far-reaching. They are mostly rather detailed repeals. But there is a very important one: the whole of the Shops (Airports) Act 1962 is repealed. The Shops (Early Closing Days) Act 1965 is also repealed. The rest are somewhat detailed repeals and not very far-reaching.
When my noble friend replies to what I have no doubt will be a fairly short debate, could he tell us whether it is envisaged that the ministerial orders which will have to be made by statutory instrument in order to exercise these new powers will contain proposals for repeals of primary legislation? In your Lordships' House we are all sensitive about statutory instruments amending or repealing primary legislation. But there are times when it is accepted that it is reasonable to do so. I personally feel that it would be reasonable to do it in these 837 circumstances. I should be grateful if my noble friend could enlighten us on what the Government intend and expect will happen with regard to that matter.
§ 4.30 p.m.
§ Lord Vinson
My Lords, along with my noble friend Lord Renton, I very much welcome the proposed new clause. It broadly fulfils the promises made by Ministers both in this House and in the other place. It goes some way to meeting the real problem of bringing back fairness into regulation and the very British way of doing things: sensible checks and balances at the point of the administration of law.
However, although some of us are hopeful that the new appeal procedures suggested will do the trick, it very much depends on whether the Ministers concerned get round to introducing them. I hope that we shall regard it as part of our duty in this House to ensure that they do so.
Above all, I welcome the new clause because it introduces checks and balances and greater fairness at the point of application of the law. The prospect of appeal will concentrate wonderfully the minds of those applying the law—the regulatory officers—and thus, I believe, they will attempt subconsciously to be much fairer. At the end of the day I hope we shall achieve the objects that the Minister has so well set out and have better legislation and better regulation as a result.
We are dealing with quite a major new clause. Much excellent work has been done during the summer by the Government and the department behind them, but nobody would expect the Bill as presented to us to be word perfect. Thus I hope that the Minister will be prepared to take on board sensible minor alterations which will clarify much of the discretion that is currently left to the Minister in implementing the new clause.
Perhaps there will be further opportunity in this debate to raise these matters but there are two points which I feel would improve the clause by being incorporated within it. New subsection (1) (b) states:by exercising any one or more of the powers conferred by Schedule (Powers to improve enforcement procedures) to this Act, it would be possible, without jeopardising any necessary protection, to improve (so far as fairness, transparency and consistency are concerned) the procedures for enforcing the restriction, requirement or condition".There is one word missing which I feel should be incorporated. When the Minister responsible for deregulation, Mr. Neil Hamilton, issued a press release on this amendment, he said that he,would like to create a non-legalistic body to which businesses could appeal if they felt that the enforcement of a regulation lacked a sense of proportion".So the word that is missing in the clause is "proportionality". It is a very important word. It helps to bring into balance the whole judgment at the point of the application of law. Though not widely used to date, the word "proportionality" has in fact clearly been spelt out under EC doctrinal law and is well understood. Therefore it would be doubly seemly to introduce it not only because it clarifies the position but also because it 838 would bring our thinking on these matters very much more into line and harmony with potential European legislation which these matters will in future increasingly address. I ask the Minister whether he would consider inserting the word "proportionality" after the word "transparency". I believe that it would improve what he is trying to do. The whole tenor of this clause is extremely important.
Secondly, when the model new clauses are drawn up there are two other considerations that those who draw them up should have in mind. I refer to Amendment No. 21 on page 5 of the Marshalled List. Subsection (3) of that new clause lists under paragraphs (a) to (e) matters to which the model should address itself. I am concerned that in an attempt to introduce a perfect model we may finish up with a Rolls-Royce which is so expensive that it is unusable. That would prevent many people from using appeal procedures. We must try to get a good fit between the problem and the solution. So I should like to suggest two further areas for consideration— timeliness and costliness. I suggest a new paragraph (f) where consideration should be given to the time within which appeals shall be heard. Nothing could be worse than having the sword of Damocles of an appeal hanging over a small business for months on end. The nervous tensions put on the proprietors concerned would be quite unreasonable. Therefore, there should be a known timescale. In addition, under a new paragraph (e) the question of cost should be considered. If we make appeal procedures too costly they simply will not be used and much unfairness will continue. As there is the precedent of a small claims court we should have a similar small appeals court or a mechanism that can deal with such matters cheaply, effectively and quickly. To repeat, therefore, I am suggesting that both timeliness and costliness be added to the desiderata of the model.
Finally, the House will recall that in the amendments put forward on which these proposals are based it was considered that the magistrates' courts would very often be the most appropriate appeal mechanism. People are familiar with them, they are used to taking commonsense decisions and they already have much to do with the application of regulation. Although subsection (3) of the new clause does not rule out the use of magistrates' courts I should like to see it positively rule in the use of magistrates' courts. I hope that that can be considered and the appropriate wording inserted at that point.
Later, I hope to turn to one or two other minor matters. I reiterate that if adopted and implemented this new clause will go a long way to meeting the present situation. It will certainly affect attitudes wholly beneficially and I should like to congratulate the Government and the staff who stand behind them on work they have done particularly during the vacation period.
§ Lord Monkswell
My Lords, I rise because the Government have placed Parliament in yet another difficult position. I remind the House that we are at the Report stage of a Bill that has already been through the other place, and that this is a major new clause. Not only are many detailed and contentious matters raised in the Bill but the Government saw fit to propose at the 839 first stage of the Bill to take powers to the executive which will enable them to change regulations almost at will—basically with very little parliamentary scrutiny.
However, we have a clause introduced at this very late stage of the parliamentary proceedings on the Bill which will effectively give them powers to rewrite Acts of Parliament in terms of the enforcement regulations. I am fairly sure that that is not the right way for Parliament to consider changing previous Acts of Parliament that have all received very detailed consideration not only in terms of the regulations that they have introduced and the subject matter of those regulations but also in terms of the enforcement of those regulations. We are being asked to consider a whole new range of rewriting of previous Acts of Parliament. We should bear in mind that the procedures the Government are proposing give Parliament very little opportunity for scrutiny of those changes. My instinct as a parliamentarian is to say that the Government are asking Parliament for too much too late in the day.
§ 4.45 p.m.
§ Lord Simon of Glaisdale
My Lords, this amendment is designed to go some way to meet the case that was put by the noble Lord, Lord Vinson, when he moved his amendment in Committee. In so far as it does go to meet that case, it seems to me to be wholly to be welcomed. But it does not go the whole way and in fact I do not think it goes anything like as far as the noble Lord, Lord Monkswell, has suggested. The problem identified by the noble Lord, Lord Vinson, has been known from ancient times; namely, that a generally beneficent law may show up occasional cases of injustice. As the debate on that amendment proceeded, it was plain that there was another aspect; namely, that a generally beneficent regulation may be harshly, unfairly and unjustly applied by the regulatory officials. These amendments make it less likely that there will be harshness mainly because any action is in the light of the procedure that has been laid down and subject to review. But more is necessary if we are to meet the case that a generally beneficent law may show up cases of injustice.
The traditional English, and I think also Scottish, way of dealing with that problem was to institute a system of equity whereby a court of equity could relieve against the injustices and harshnesses in particular cases of a law. In that they followed the Roman law. That would be, one would have thought, perfectly easy to institute in this field save for one fact—so many regulations are in pursuance of European law which we are bound to enforce. I know that the department which the noble Earl now represents has had this problem generally under review in a working party under a Minister but I hope that this proposal which your Lordships are now considering is the last word.
I do not believe that a system of equity would necessarily be opposed or countered by the European Commission. Working as it does in a civil law tradition it would find it very difficult to argue that a system of equity relieving against harshness of the law was to be discountenanced. Although, like the noble Lord, Lord Vinson, I greatly welcome what has been done in 840 response to his initiative, I hope that the noble Earl and his department will not close their minds to further exploration of that matter.
§ Lord Wade of Chorlton
My Lords, I too very much support these amendments proposed by the Government. I am delighted that they have taken note of the comments made by many noble Lords at Second Reading and particularly those made by my noble friend Lord Vinson in Committee. At an earlier stage many of us said that we felt that we should go further because there is more and more concern among those making investment decisions in business about the impact of regulations and controls. It is time that people realised that the Government are looking at these matters very seriously. The best thing that comes from these Government proposals is that they now realise that there has been unfairness in the past and that it is time for them, through this Bill, to take some action.
When my noble friend Lord Strathclyde introduced this Bill he made it clear that deregulation is a matter of continuous change and part of a continuing process. In replying to that, the noble Lord, Lord Peston, indicated that those on the other side of the House felt that deregulation was a subject that should be looked at more closely. I welcome the proposals and see them as a new stage in the continuing process to create more fairness in aspects of regulation and for those on whom they impact. I am delighted by the comments made by the noble and learned Lord, Lord Simon of Glaisdale.
I should like to express my thanks to my noble friend Lord Vinson who pursued this matter with some determination and who has brought the matter to the position it is today. I hope that the House will support these amendments.
§ Lord Harris of High Cross
My Lords, I, too, strongly support the amendments and observations which have been made by the noble Lord, Lord Vinson and my friend the noble and learned Lord, Lord Simon. I was somewhat dismayed by the reflection that a Bill to tackle the excesses of regulation should run to such an enormous length and that each remedy which we seek seems to involve us in deeper and deeper waters.
I find Amendments Nos. 20, 21 and 22 extremely difficult and impossible to grasp fully. Therefore, in clutching at straws, I seize on passages which appear to me to be clear to the ordinary intelligence. I strongly support the idea that there should be some provision, whether at the magistrates' court or not, for minor irritations and injustices to be corrected promptly. Anyone who has read The Mad Officials, or the articles by the excellent Christopher Booker in the Sunday Telegraph, must have his confidence in the process of the implementation of regulations severely undermined. Personally, I have very little confidence in the whole process. The natural instinct and the professional hazard of a regulator is to regulate and to be able to go back and show that he has imposed protection on the consumer in the name of security, cleanliness, health and other things. We read in The Mad Officials of almost entirely quixotic judgments made that would not stand up to examination.
841 One particular passage on which I seek the noble Earl's reassurance appears in paragraph 1(1) (a) of Amendment No. 22. It states that the "victim" should be given,as soon as practicable … written notice which satisfies the requirements".I want to know what that means. If a regulator decides— as has happened many times—to serve notice that a business is to be closed—and slaughterhouses come to mind —he must at that moment have in his mind the reasons why that severe step should be taken. Is "as soon as practicable" when he gets back to the office, or is it when he has had time to set down in simple English on a piece of paper the powers that he is acting on and the reasons which led him to his decision? Why not a time limit? Would a week be sufficient to allow the official to assemble his thoughts and to make his case? Would 21 days be the limit that we should extend to him?
There are many cases where a person's business— admittedly, a small business in many cases—may be threatened with complete closure. The balance of convenience should be adjusted in favour of those who have been conducting their businesses and perhaps affording employment to others, rather than that the official should be allowed plenty of time to contemplate his state of mind, or to consult lawyers and colleagues in order to make a case. When he makes the decision he knows the reasons for it. Therefore, why cannot he be required to set those down in writing and delivered into the hands of the victim or citizen within the space of one week? What does "as soon as practicable" mean? If the Minister cannot provide a satisfactory explanation on such a small matter then this will be another occasion for some exercise through the Lobbies.
§ 5 p.m.
§ Lord Peston
My Lords, I thank the noble Earl for introducing these amendments. I was fully convinced by the noble Lord, Lord Vinson, when he spoke in Committee on this matter, that it was a subject that we should look at and try to deal with. The over-zealous, unfeeling and unreasonable enforcement of statutes and orders is a matter about which one feels more than irritation. One feels a deep sense of injustice. I, too, am a devoted reader of the relevant part of the Daily Telegraph or Sunday Telegraph which tortures one at regular intervals with an example of over-zealous regulation.
I believe that the noble and learned Lord, Lord Simon of Glaisdale, put the matter logically and very clearly. We are concerned with regulations which, prima facie, we are in favour of. Then one comes to a specific example where the regulation does not quite meet the needs of the case or where the regulator is not really applying the regulation in a sympathetic way. That is the problem, as I see it.
I should like to see the problem solved simply, not as regards what we might call British regulation but EC regulation as well. I have come across too many examples where businesses are allegedly put in peril 842 from the apparently unreasonable application of a regulation which one would otherwise favour. I speak as someone who is very strongly pro-Community.
My problem is one which we have to recognise. We are today at Report stage on this Bill which means that if we stick to our rules we cannot speak again. The noble Lord, Lord Vinson, said that he hoped that he could intervene later. But on a strict interpretation—shall I say on an unfeeling and unsympathetic interpretation of our own rules? —he may not be allowed to do so and, equally, I may not be allowed to speak again. My difficulty is this: the noble Lord, Lord Renton, has spoken as though he understands what the government amendments say, as have other noble Lords. The noble Lord, Lord Renton, said that they were a very big mouthful for us to digest. My difficulty is that I do not understand the amendments. I have read them, but I have not had them very long.
I thought that I understood what the noble Earl, Lord Ferrers, and the noble Viscount, Lord Goschen, said. Indeed, the noble Viscount did me the honour of writing me a letter about these amendments a few days ago. Although the letter contained a lot of sense, my difficulty is—this is what we have to face—that I cannot connect what I am told that the amendments do and what Ministers say that they do with the amendments themselves. That may very well be due to my total lack of expertise, but I cannot make head or tail of the amendments as amendments. That makes life very difficult for me as the Opposition spokesman because I am anxious to be supportive and to give matters a fair wind. On the other hand, I am also anxious not to get a letter tomorrow saying, "Do you know that you are a complete idiot because you have supported something which will not work and which is legally doubtful?"
I should like to raise one or two other matters. Taking the kind of cases that noble Lords have in mind, I have to ask the Minister bluntly whether he is convinced that these procedures will do the job. I shall take the example from the Daily Telegraph that really got up my nose. Perfectly sensibly, a road was built as a bypass. Everybody benefited from it except for one inn or restaurant that had been on the main road but was no longer. The owner put up a road sign on the new road reading, "Turn left for the inn", because without that custom he could not survive. Like all noble Lords, I am certainly of the opinion that the countryside should not be cluttered with road signs. That is why the noble and learned Lord, Lord Simon of Glaisdale, said that this is a beneficent rule. However, I am equally of the opinion that if that rule is occasionally interpreted generously so that a particular inn is not bankrupted; that is a good thing also. Therefore, my question to the noble Earl is: is he convinced that these procedures will work in such a case? I cannot read them as guaranteeing anything.
The noble Lord, Lord Vinson, echoed a remark that I made when I said that I was looking not for the magistrates' courts' solution but for the small claims courts' solution. I was looking for a procedure that would work rapidly and where people could say, "This is being done unreasonably. I want a quick decision to say that—at least for the moment until it can be argued through—I can put up a road sign so that mys business 843 is not ruined". That is what I wanted but I cannot see that the procedures provide that. I should like to hear the noble Earl say that he is convinced that that is what will happen. If the House were in Committee, I should be able to sit down now, the noble Earl could rise and when I had heard his argument I could rise again, as could the noble Lord, Lord Vinson, and we should be able to explore these rather complicated clauses in some detail. My problem is that I am not allowed to do that.
Perhaps I may make one or two other remarks in so far as I understand the provisions. As was implicit in the argument of my noble friend Lord Monkswell, the new clause still contains the offensive phrase,If … a Minister … is of the opinion".As I have argued throughout our deliberations on the Bill, I hate that phrase. It is an arbitrariness that I could do without. The new clause also refers to,without jeopardising any necessary protection",and I approve of that. I am very keen on that phrase. Indeed, the noble Earl reinforced that as being an important part of the Government's thinking. Although subsection (1) (a) also includes the words,any trade, business or profession or otherwise",I should like an explanation of an interesting provision in subsection (2) which states that that does not apply if the effect on that person is on him "in his personal capacity". I had assumed that the words "or otherwise" might mean "in his personal capacity". I cannot see that in many cases there will be a difference between,any trade, business or profession",and "in his personal capacity". Therefore, I hope that the Minister will tell me what the phrase "in his personal capacity" means and why it has been included. What is so special about that phrase that the Government have gone to some trouble in subsection (2) to leave out "or otherwise" but to include "in his personal capacity"? That must mean something, but what?
I should also like some clarification about subsection (3) which states that the Minister shall "consult with that person" before making an order. What does "consult" mean in that case? How rapidly will such consultation take place and will it involve expense for the person who is trying to save money rather than spend it? That point was raised by the noble Lord, Lord Vinson. I am sorry to go on at length but this is my only chance for the moment. Whatever appeals procedure is introduced, one does not want to have to introduce lawyers into the procedure. All that we want is something simple whereby someone can say, "The enforcement officer is being unreasonable. Please do not let him do it". If one is then told, "My advice is to get yourself a rather high-class lawyer as well", one will be bankrupted by that route rather than because of the unfair regulator. I should be grateful for the Minister's comments on that.
I am a bit puzzled by subsection (5) which begins:Nothing in any order made under this section shall".To some extent, paragraphs (a) and (b) could be interpreted as totally undermining any appeals procedure because the enforcement officer could say, "I'm sorry; I have to take immediate action and cannot wait. There is no way of messing around. It is for me to 844 judge. Okay, you'll go bankrupt, but that is too bad". I am not sure which noble Lord referred to that as being a Rolls-Royce procedure. I believe that it was the noble Lord, Lord Vinson. It may well be that this is too elaborate a procedure when what we want is something simple.
I have tried hard not to utter a negative note because I want to see something happen. My next question relates to Amendment No. 21 which states:the Secretary of State may by order prescribe model provisions".That may well be the correct drafting, but I am a little puzzled about why the word "may" has been used rather than "must". I should be much more encouraged if the amendment stated, "You, Secretary of State, will do this and you will do it right away". I should add that I do not want the Bill to become an Act, but that is clearly going to happen. Therefore, although it may well be simply a term of art that the draftsman uses "may" when he means "must", perhaps the Minister could confirm that we agree that "must" is what we want.
I should be happy to be advised by the Minister on another point. I shall have to go into this in more detail and to get much more advice because I want the provisions to work and I do not want to be told that they will not work although they could work if we changed them in some way. Therefore, I should like the Minister to be responsive to what the noble Lord, Lord Vinson, asked which was that when we come to Third Reading (when we can still do some tidying up), if we discover that we can do better—and more simply —than this, I hope that the Minister will say, "Yes, that is two weeks away and is fair". I hope that the Government will listen to suggestions to make the thing workable. After all, that is what is required.
§ Lord Tordoff
My Lords, in Committee I indicated that we on these Benches wanted a fair wind to be given to the suggestion of the noble Lord, Lord Vinson, although we had some criticisms about the use of the magistrates' courts for this procedure. Nevertheless, we welcome the fact that the Government have tabled a new clause to deal with the problem that the noble Lord rightly laid before us.
As the noble Lord, Lord Peston, said, and as has unfolded during this interesting debate, it is unfortunate that this very large new clause has come before your Lordships for consideration on only the second day back after the Recess when nobody has really had an opportunity to examine it. I believe that members of the Scrutiny Committee felt some irritation at the fact that the provisions were brought before them only this morning. I should have thought that at the very least the Government might consider recommitting the new clause so that we can have a proper Committee stage discussion on this very important matter. It seems to me that the parliamentary draftsman decided that he would fill his time during the summer holidays by producing a really big compendium new clause—and, by Jove, he has done a good job of it.
More seriously, we on these Benches very much support the comments of the noble Lord, Lord Vinson, about the possibility of establishing a sort of small claims court. sThat was what we envisaged when the 845 matter was brought before us originally. We were thinking of something quick, cheap and effective. Although it may have been a little blurred legally at its edges, we would have said, "Never mind", because if justice was done at the end of the day, so much the better. In that sense, of course, magistrates' courts have something to commend them, because it is my belief that there is more justice in the magistrates' courts than anywhere else in the country's legal system. The law may not be as good but, by Jove! the justice is much better.
I hope that the Minister will have listened—I am sure that he has—to the debate, and will be able to reassure us that the matter is not absolutely cut and dried in the way that the clause is laid before the House at the moment. I am sure that the clause will go into the Bill today, because no one will oppose it, but I hope that the Government will look at the matter seriously between now and Third Reading and come back with such amendments as they can to take into account the various points that have been made from all sides of the House.
My Lords, I am grateful to your Lordships for the general welcome that has been given to the amendments. I realise that they are fairly compendious. Indeed, my noble friend Lord Renton said that they are a big mouthful for us to digest, and I would not disagree with him. I have a certain sense of pleasure and a sneaking sense of understanding when the noble Lord, Lord Peston, says that he could not understand the amendments but he could understand my speech. I am gratified by that. I do not know whether I shall be able to continue in that happy vein and satisfy the noble Lord, but I shall do my best.
These are difficult and complicated matters. I have a sneaking sympathy for the noble Lord, Lord Harris of High Cross, who said that a great deal of regulation was required in order to effect some deregulation. Of course that is one of our difficulties. If one tries to deregulate without losing a whole lot of good things, the matter becomes complicated.
I was a bit disappointed when the noble Lord, Lord Monkswell, said, "Here we are on Report, and along come the Government with an amendment of this nature". The Government did that because they were told in your Lordships' House and in another place that the Bill required amending in that respect. That is why we have done it. I can assure the noble Lord, Lord Tordoff, that if we accept the amendment, and I hope that we shall, we shall consider all that has been said by your Lordships this afternoon. I accept that we are towards the end of the Bill's parliamentary passage and that it may be difficult to make the alterations that some people might have liked had it been at an earlier stage. But we shall take great care and great note of what your Lordships have said. It worried me when the noble Lord, Lord Harris of High Cross, said that the amendment might be a good reason for going through the Division Lobbies again. I see that he is covering his face with his papers. I assume that he does so in shame for suggesting that. I am sure that he did not mean it with any degree of seriousness.
846 I have been asked a considerable number of questions. I shall do my best to answer most of them. I cannot guarantee that I shall be able to answer them all because I may not have adequate notes of all the questions that were asked. One of the points that caused the noble Lord, Lord Harris of High Cross, some anxiety was the use of the words, "as soon as practicable". He asked what they meant, and why we could not use just "one week". The words, "as soon as practicable", are used fairly commonly in statute. The term is deliberately relatively vague because one does not want to put a specific time limit on every conceivable set of circumstances which in fact might be different.
The words mean as soon as the enforcement officer can physically do it. I can assure the noble Lord that in most cases that will be very much earlier than three weeks and probably even less than one week. In the case of paragraph 1 of the new schedule, the enforcement officer cannot take action, because of paragraph 1(1) (b), until after he has issued the written statement and has given a reasonable period for it to be considered.
My noble friend Lord Renton was concerned about repeals and whether they would be needed when the provisions are applied. The powers could not be used to repeal provisions of primary legislation. If applying the principles which are embodied in the powers in a particular case required change to the existing primary legislation, then separate legislation would be necessary to achieve that. The repeals in Schedule 16, to which my noble friend referred, relate to another separate matter. That is covered by Amendment No. 35 which we shall debate later.
The noble and learned Lord, Lord Simon of Glaisdale, was concerned about the system of equity. As he said, it would be possible, subject to our Community obligations, to provide for legal requirements to be set aside in appropriate cases, and that some such provisions already exist in particular legislation. Our researches have established that even under the civil law tradition it is relatively rare to set aside or dispense with the law. To provide for such a general power at this stage would have been a major step, and therefore it seems better to approach it in the way that we have, including, as we have, provision for the sanctions to be fair.
My noble friend Lord Vinson was concerned about proportions. He wondered whether we should not insert "proportionality" after "transparency". Proportionality in fact covers two different concepts. It can mean that the law should not be applied in certain circumstances. The clause is not about that. If there is a problem with the substance of the law, then the answer may be to use the powers in Clause 1; but, alternatively, it can mean that the sanction applied should be no greater than is necessary to achieve the objective. That is very much what this clause is about.
The idea is encapsulated in the word "fairness" which is already in the amendment. I believe therefore that there wold be no advantage to be gained by adding a reference to proportionality. My noble friend was also concerned about timeliness and costliness. I fully accept 847 that the time-scales and the costs involved in any appeal mechanism are important factors in determining how useful in practice an appeal mechanism is for business.
With regard to time-scales, of course different time-scales may be appropriate in different cases. That will depend upon the urgency and complexity of the issue. It may well also not be in the interests of business for time-scales to be very tight. With regard to costs, an important element in the provisions is the informal stage of the review. In formal procedures, consideration of some cases will inevitably be more complicated than others, but it is nevertheless important that any mechanism is no more costly than is necessary. I therefore agree that these are important matters. I am happy to consider carefully what my noble friend and others have said.
My noble friend Lord Vinson also suggested that specific reference to magistrates' courts should be made. The noble Lord, Lord Harris of High Cross, was also concerned about that point. I do not believe that the magistrates' courts are necessarily the most appropriate body to hear appeals in all cases. At the informal stage, experts in the particular field—for example a senior officer in the same organisation—may be more ready to challenge the official's decision and better able to reach a view on whether the judgment which has been made is consistent with the practice of other officers or in other areas. A general appeal body might be more inclined to accept uncritically the conclusions of the expert official. It is therefore right for the new model standard appeal to leave open which body should hear appeals on individual cases and to provide for new bodies to be created if appropriate.
The noble Lord, Lord Peston, was anxious about Clause 1(2). He wondered what it was for and what "or otherwise" in subsection (1) (a) meant.
§ Lord Peston
My Lords, my question was not what is meant by "or otherwise" because that was answered in Committee in dealing with other parts of the Bill. I wish to know why the phrase disappears in subsection (2) of the new clause and is replaced by "in his personal capacity". The phrase "or otherwise" appeared there previously and it still appears all over the Bill. I wish to know about subsection (2) of the new clause, which appears as Amendment No. 20.
I have problems with the phrase "or otherwise" but that has been explained to me.
My Lords, I am glad that that has been explained to the noble Lord. We intend these powers to be available for legislation affecting charities as well as business. Legislation which would affect only individuals in their capacity as such raises different issues and we do not believe that it would be appropriate for the order-making provisions to apply to that kind of legislation.
§ Lord Peston
My Lords, perhaps I may interrupt again. My point is that subsection (2) on page 4 of the Marshalled List of amendments looks significant because it is different from the drafting elsewhere in the Bill, including subsection (1) (a). "Or otherwise" has been replaced by "in his personal capacity" and there 848 must be a reason for that. Why, with respect to the appeal mechanism, does "or otherwise" cease to be the correct formulation and why does "in his personal capacity" have to be ruled out? Perhaps I am asking such an arcane question that the Minister will wish to get in touch with me on another occasion. However, when I see the wording suddenly changed I think that the draftsman is doing something of substance. I am asking what of substance the draftsman is doing.
My Lords, I shall certainly take note of what the noble Lord said. Legislation which only affects individuals in their capacity as such raises different issues. We do not believe that it would be appropriate for the order-making provisions to apply to such legislation. However, I shall certainly take note of what the noble Lord said. He is on to a point and believes that something is being implied which is; probably not implied. I shall consider what he has said and contact him.
The noble Lord was concerned about whether the procedures would work in cases of obvious unfairness. If the powers in paragraphs 1 and 2 of the new schedule were applied in a particular case the new procedures would come in before any formal decision had been taken. They would oblige the enforcer to set out his thinking in writing and then give the business a chance to put its side of the case in writing or orally. I emphasise that all that would happen before a formal decision was taken. In most cases there seems no reason to expect that this would involve excessive formality or cost.
These are complicated features and I understand why noble Lords are anxious about them. I have tried to explain the reasoning behind them and I believe that they have met with the general approval of the House. I shall consider all that has been said—and a lot has been said—during our debate and I hope that your Lordships will accept the amendment.
§ Lord Peston
My Lords, before the Minister sits down perhaps I may ask a further question. I am anxious about Clause 21 because as a naive lay person that extreme appears to be extraordinarily elaborate relative to the task that I thought we were trying to undertake. It deals with the power to appoint experts, the disclosure of documents and so forth, and that is not what the complainant I have in mind will be looking forward to.
Perhaps the Minister and I can look separately at the matter during the next couple of weeks. He may be open to the suggestion that we look at something which is a good deal more simple. Perhaps I am wrong, but it appears to be an elaborate procedure as regards my example of road signs and other examples about which we are told. The Minister said that his mind is open to further consideration and I hope that simplification will be one of the considerations to which his mind is open.
My Lords, we must be careful not to fall into the trap to which the noble Lord earlier referred; that is, of turning this into a Committee stage. I should not wish to use that argument as a way of truncating the noble Lord in expressing his anxieties. The power to appoint experts is intended to help the business. I shall 849 read what the noble Lord said to see whether there is a way of simplifying the matter. I add only the caveat that I find it difficult to believe that there will be an easy way of simplifying it. My noble friend was kind enough to congratulate my department on having drafted the amendment. I do not accept the congratulations for myself because, needless to say, it was no part of my doing; it was officials who were clever enough to think of it.
I believe that had there been a more simple way it would have been found. However, I shall see whether any of the points that have been made today can be included at a later stage. Obviously I cannot hold out any definite hope that they will be but I shall see whether it can be done.
§ Lord Peston
My Lords, before the Minister sits down for the last time, perhaps I may place on record a matter which relates to what was said by the noble Lord, Lord Tordoff. Prior to today's proceedings I raised the question of recommittal. In order that I did not insist that we recommit the Bill I was persuaded that the matter would be approached with a certain amount of latitude. I do not wish to prolong the period of time that your Lordships spend on the Bill. I merely return to my remarks about deregulation and point out that, where a matter of this kind arises, we should not stick too closely to the letter of the law because that would make the Opposition's position completely impossible; namely, we should cease to co-operate and have a vote on a recommittal. I have no desire to do that because I want the Bill to have a fair wind. I certainly do not wish to be stopped asking questions that are relevant to an understanding of the Bill. That is my final remark and I do not need a reply.
Lord Rodgers of Quarry Bank moved Amendment No. 3:
Page 2, line 5, at end insert ("and Schedule (Section 1: Procedures to be followed) to this Act (which makes provision about the procedures to be followed) shall have effect.").
§ The noble Lord said: My Lords, I had anticipated that the noble Lord, Lord Peston, would move the amendment standing in his name. However, in view of the active way in which he participated in Amendment No. 2, I appreciate that he has left that responsibility to me. I had hoped to come in as a long-stop but now find myself obliged to bowl the first ball.
§ The amendment is one of two which address the recommendations of the scrutiny committee. Perhaps your Lordships would like to be reminded of the starting point. It was the exchange which took place on the first day of Committee (which appears at col. 488 of the Official Report) between the noble Lord, Lord Strathclyde, and the noble Lord, Lord Clinton-Davis. It related to the point made by the scrutiny committee on the apparent disparity between the contents of the DTI memorandum which was put before the committee and the remarks of the noble Lord, Lord Strathclyde, on Second Reading.850
§ As a result of that exchange and our discussion on that occasion two points emerged which were not clearly separate. I stand to be corrected by noble Lords in my understanding. But the first question was whether if the scrutiny committee were to recommend against the use of the procedures in Chapter I of the Bill with respect to a statutory instrument the statutory instrument would be proceeded with. The second and related question concerned the attitude of the Government, given the provisions of Chapter I, to a resolution of the House.
§ The second of those issues—the attitude of the Government under Chapter I to a resolution of the House—is dealt with in Amendment No. 6 which the House will reach shortly. In relation to a schedule contained in Amendment No. 23, Amendment No. 3 addresses the question of the committee's procedures and what would happen in the event that the committee described in Amendment No. 23 were to report against a statutory instrument set before the House in accordance with the procedures of the Bill.
The important paragraph is paragraph 3 of Amendment No. 23 which states:
If either Committee reports that the order-making power contained in section 1 of this Act should not be used in respect of a specific proposal, no order shall be laid before either House of Parliament in respect of that proposal".
§ The preceding paragraphs deed, in perhaps a conventional way, with the formation of a Select Committee and the succeeding paragraphs elaborate on what is contained in paragraph 3. However, I believe that paragraph 3 is the nub of the matter. That paragraph seeks to assert the supremacy of Parliament through the agency of those committees in the circumstances of this Bill and the unusual powers that are being taken by the Government in it.
§ Taken together, the two amendments provide that— and this follows the recommendation of the ninth report of the Scrutiny Committee—if the committee described in the schedule, together with a committee of a similar kind set up in another place, decides against the use of those procedures for a specific proposal, no order shall be laid before the House.
§ That is a very serious matter indeed. I understand that on 20th October, we are to discuss more fully the very important matters raised by the noble and learned Lord, Lord Simon of Glaisdale, as regards the attitude of this House towards voting on statutory instruments. We should not anticipate that full debate today. But there is an issue here with which the House is concerned, and I have a very strong feeling that, on all sides of the House, there is concern about circumstances in which the House, by convention, however short that convention may be, does not vote on statutory instruments and/or the extension of the power represented by this Bill. Therefore, what is proposed in the amendments is important because it seeks to assert the authority of this House and another place—although that is a matter for another place—in circumstances where it has been eroded by the provisions of the Bill. It provides a further safeguard which we believe is essential. For that reason, 851 I hope that the two amendments, and in particular Amendment No. 3 which we are now discussing, commend themselves to your Lordships.
§ 5.30 p.m.
§ Lord Peston
My Lords, first, I thank the noble Lord, Lord Rodgers, for taking up the burden. The debate that we had on the previous set of government amendments took much longer and was rather more difficult than I had anticipated so that it was pleasant to have a short break. However, I wish to add a few words of support for what the noble Lord said and to make some additional remarks.
I believe that I should read into the record some sentences from the second report of your Lordships' Select Committee on Procedure. Page 4 paragraph (b) states very sensibly:It would however be naive to deny that this report has a political angle. Whether the House is content to grant to Ministers the powers set out in Chapter I may depend partly on how far the procedures proposed are seen to safeguard the balance of power between Parliament and the Executive".That seems to me to be the nub of the matter. I suppose that my objection to the Bill is that it moves the balance of power too far in favour of the Executive. I make that point even though I expect to be part of that Executive in the very near future.
I hope that noble Lords recognise, although I am sure with regret on the Government side, that one's desire to participate at this stage of the Bill in trying to improve the procedures does not mean that one has resiled from the position that the Bill is, as the Select Committee report says, inherently objectionable. In other words, I make those remarks on procedure faute de mieux because, as I have said several times, I would rather not have the Bill at all.
Perhaps we may now look at the detail. As the noble Lord, Lord Rodgers, said, the keyword is "safeguards". The reason for proposing Amendment No. 23 as a schedule to the Bill is precisely in order to safeguard the rights of both Houses, although I am concerned in particular with your Lordships' House. The noble Lord, Lord Henley, may say that the Government favour those procedures and that they can be relied upon to ensure that those procedures are followed. However, I believe that many of us—and not only noble Lords on this side of the House—will feel happier if those safeguards are written into the Bill.
Many parts of the schedule are particularly to be commended to your Lordships. For example, the fact that the committee will sit notwithstanding any adjournment of the House is extremely sensible and will improve the efficiency of what we do. I believe that the ability of either House to meet with the equivalent committee of the other to take evidence or to appoint a sub-committee to do that is a great step forward in relation to the way in which Parliament will work. That is quite separate from deregulation. I strongly favour that. As an outsider rather than a natural parliamentarian, if I may use that expression, I have always been puzzled that on many occasions things are done separately and evidence is taken separately when it would obviously be sensible to do them together.
852 Paragraph l(j) of the schedule provides that members who are not on the committee can ask questions of witnesses when evidence is taken. That is also extremely important.
All those matters are important but overwhelmingly important, as the noble Lord, Lord Rodgers, said, is paragraph 3. Although that paragraph does not make the Bill less obnoxious, it provides a safeguard which gives me a slightly greater feeling of safety. It states:If either Committee reports that the order-making power contained in section 1 … should not be used in respect of a specific proposal, no order shall be laid before either House of Parliament in respect of that proposal".That provision is stated in no uncertain terms. It does not say, "Go away and bring it back next week when you have your majority", or anything like that. It provides that it shall not be done.
I conclude by commending the schedule and the amendments to your Lordships, but in particular I draw your Lordships' attention to paragraph 3 of the schedule.
§ Lord Simon of Glaisdale
My Lords, in many ways it would be convenient if we could have the two debates which are now scheduled for 20th October before we discussed this amendment; namely, the debate on the general procedure of the Scrutiny Committees, although we are concerned only with our own Scrutiny Committee; and the other debate on the perfect freedom, undeterred by any so-called convention, of your Lordships to vote against any subordinate legislation submitted for your consideration.
When we discussed the matter before, your Lordships were largely satisfied with what was proposed as regards the Scrutiny Committee. In subsequent correspondence the noble Lord, Lord Wakeham, who was then Leader of the House, made it plain to me that the Government would in other than exceptional circumstances accept the recommendation of the Scrutiny Committee. But the words, "other than exceptional circumstances", of course, left a hole. It was with the object of blocking that hole that the noble Lord, Lord Peyton, and I tabled the Resolution which is now scheduled for discussion on 20th October.
The Government have conceded that they will accept that Resolution; in other words, so far as concerns subordinate legislation, there is perfect freedom without the amendment for your Lordships finally in this Bill— and, indeed, generally—to vote against it. In those circumstances, it seems to me that the amendment is unnecessary. In my view, if the Government give the assurance that I repeated today just after Question Time, it can be accepted without any question, If that is so, it goes beyond this particular amendment and embraces it.
§ 5.45 p.m.
§ The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley)
My Lords, I have to say that I was somewhat confused by the introductory remarks made by the noble Lord, Lord Rodgers, in that I gained the impression that he was taking both Amendment No. 3 and the one grouped with it along with Amendment No. 6. Certainly, the arguments seemed to be addressed to that aim. I should prefer to 853 leave the question of the freedom to vote against subordinate legislation or the convention that we do not do so and other such matters until we come to deal with Amendment No. 6. That is something that we can also debate on 20th October when we discuss the Motion of the noble and learned Lord, Lord Simon of Glaisdale. I should like to stick to the procedural point which I believe is a very simple one with regard to the amendment. I hope that we can dispense very quickly with the amendment and then possibly spend slightly longer on the more fundamental points in Amendment No. 6 which I believe are more important.
As the House will be aware, the Procedure Committees of both Houses have produced reports. As most noble Lords will know the Government accepted all the recommendations of your Lordships' committee and almost all of those from the Procedure Committee of another place. My understanding is that the amendments moved by the noble Lord, Lord Rodgers, pick up many of those recommendations, but they seek to incorporate the proposed new procedures of this House and the powers of the Select Committees in primary legislation.
We believe—and I think that the belief is generally shared by most in your Lordships' House—that the setting out of parliamentary procedures in legislation is a practice which is probably best avoided.
Standing orders are the appropriate method by which to define the procedures of the House. The powers of Select Committees should be set out in the Motion which approves the terms of reference of the Select Committee. Those are the standard procedures of this House, and of those of another place. Indeed, the Procedure Committee report identified where new or amended standing orders would be required to effect its recommendations.
Not only that, but setting out those matters in legislation would mean that it would be necessary to introduce primary legislation should any changes need to be made to them in the future. The Procedure Committee recognised that the procedures and powers of the committee ought, indeed, to be reviewed in the light of experience and they recommended that that should happen after they had been in operation for about a year. We still think that standing orders provide the right mechanism for implementing those matters.
I readily accept that your Lordships should have an opportunity to debate what procedural arrangements should be made and it is clearly sensible that the House as a whole should have a clear idea of how those scrutiny procedures will operate before it finishes its consideration of the Bill. Therefore, I should like to remind the House that we will have the opportunity to debate the matter again when we deal with Amendment No. 6; and, obviously, when we discuss the Motion tabled in the name of the noble and learned Lord, Lord Simon of Glaisdale, on 20th October, which will be before the Third Reading of the Bill.
I should stress again that it has always been our intention that deregulation orders should be subject to rigorous and thorough scrutiny. We have, within the provisions of the Bill, provided the framework for that 854 to be achieved. I suggest, though, that it is a matter for each House to put in place the appropriate procedures which it thinks appropriate for scrutinising proposals under the power. On that basis, I hope that the noble Lord will feel able to withdraw his amendment. We can then debate the other matters when we deal with Amendment No. 6.
§ Lord Rodgers of Quarry Bank
My Lords, the Minister has put me into a difficult position. The order of business before the House today means that he is seeking to persuade me that we should not press the amendment to a Division because of what might be said when we come to debate Amendment No. 6. I agree with him that the latter amendment is indeed the more important one because it relates directly to the powers of this House. However, without knowing what is to be said by the Minister on Amendment No. 6, it is very difficult for me now to concede that the amendment has no weight.
As I understood him, the noble and learned Lord, Lord Simon of Glaisdale, referred to concessions that the Government have already made in respect of his Motion which was originally to be debated tomorrow but which will now be dealt with on 20th October. However, the noble and learned Lord then said that he thought there would be no need for the amendment to be pressed to a Division if the Government were to repeat now what was said at another time about their acceptance of his Motion. We have not had any—
§ Lord Simon of Glaisdale
My Lords, I am much obliged. I did not suggest that it was necessary for the Government to repeat it now. The fact that they said it earlier today should be sufficient for us. Moreover, rather than add words which would probably be unnecessary to the Bill, there is the further opportunity of making amendments on Third Reading.
§ Lord Rodgers of Quarry Bank
My Lords, I am grateful to the noble and learned Lord for his explanation. Perhaps I should point out that I did not hear what was said by the Government spokesman earlier today. I should have thought that it would have been an easy matter for the Minister to repeat it now for the benefit of others who might be in the same position. If the Minister is prepared to repeat those words now, I shall be more than happy to give way to him. That would give me an opportunity to assess whether I should respond to his proposal and not press the amendment to a Division. That would allow the House to proceed with the rest of the business on the Marshalled List.
§ Lord Henley
My Lords, the noble Lord puts me in a rather embarrassing situation. I need to take advice on the matter. I also did not hear precisely what my noble friend the Leader of the House said earlier. I believe that it would be wrong and rather dangerous for me to try to repeat at this stage exactly what my noble friend said. Put very simply, what I hope I was saying in terms of my arguments on the noble Lord's amendment was that we 855 do not think it appropriate that primary legislation should be used for such procedural matters and that standing orders are the appropriate method to deal with them.
On the substance as to whether there should be freedom to vote against subordinate legislation and/or the longstanding convention that we do not do so, such issues can be dealt with more appropriately when we deal with Amendment No. 6.
§ Lord Peston
My Lords, I am sorry to interrupt the Minister, but do I understand that he will accept Amendment No. 6 standing in my name and that of the noble Lord, Lord Rodgers? Is that the point that the Minister is trying to make?
§ Lord Henley
My Lords, I was not giving any such hint. I can assure the noble Lord that I am not going to accept Amendment No. 6.
§ Lord Peston
My Lords, did the Minister say that he is not going to accept Amendment No. 6? Is he saying that he would like to have an argument on it, although he has already said that he will not accept the amendment?
§ Lord Henley
My Lords, the noble Lord is somewhat unfair. Obviously I always listen to arguments which are put to me, but if the noble Lord suggests that I am not going to listen to his arguments—
§ Lord Barnett
My Lords, I hope the noble Lord, Lord Rodgers, will not mind my interrupting him, the Minister and my noble friend Lord Peston. I am not clear. I thought the Minister was saying he had not heard what was said earlier. He is nodding in agreement. But even without hearing his noble friend the Minister, would he not be prepared to say that whatever he said he would agree with him?
§ Lord Henley
My Lords, obviously I am quite happy to do that and obviously I always agree with what my noble friend the Leader of the House says and I agree with what he said earlier this afternoon. The problem is that the noble Lord, Lord Rodgers, did not hear it. The noble Lord, Lord Rodgers, feels that he cannot proceed without knowing what was said on that occasion.
§ Lord Rodgers of Quarry Bank
My Lords, if I can remember what I was saying before I was so politely interrupted I will try to pick up the thread of the argument. However, what has been said in the interim has been extremely helpful in helping me to resolve my view. I confess I am surprised—I must put it this way, perhaps rather gently—that the noble Lord does not have the text of what was said by his colleagues earlier in the day because that is an essential text; if not, according to his own description, on this amendment certainly on Amendment No. 6. But I would go beyond that Again I would stand correction by the noble and learned Lord, Lord Simon of Glaisdale, but I understood the argument to be that the Government have made a concession in respect of the Motion to be debated on 20th October which meant by implication they would accept Amendment No. 6, because Amendment No. 6 was in a sense in default of the wider undertaking which I 856 understood they were going to give in respect of the Motion of the noble and learned Lord, Lord Simon of Glaisdale.
If indeed the Government are not to accept Amendment No. 6, then by implication the understanding of the noble and learned Lord, Lord Simon of Glaisdale, about the Government's intentions as explained earlier today to the House, must be at fault. If we are not therefore to have an undertaking of the wide kind about the powers of this House in relation to statutory instruments, then the case for voting on this amendment is immensely strong. I entirely agree with the Minister that Amendment No. 6 gets to the heart of the matter of the powers of this House and this is a lesser amendment, but unless we are to get the greater we must seek to get the lesser. In those circumstances, in default of an undertaking from the Minister and a repetition now of the statement made earlier in this House by his colleagues, and therefore without confirmation that the Motion of the noble and learned Lord, Lord Simon of Glaisdale, will be accepted, and in the knowledge already that Amendment No. 6 will be opposed, I must ask to divide the House.
§ 5.53 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 87; Not-Contents, 137.857
|Addington, L.||Howie of Troon, L.|
|Airedale, L.||Hughes, L.|
|Attlee, E.||Jeger, B.|
|Barnett, L.||Kilbracken, L.|
|Birk, B.||Kirkhill, L.|
|Blackstone, B.||Kissin, L.|
|Boston of Faversham, L.||Longford, E.|
|Brimelow, L.||Lovell-Davis, L.|
|Brookes, L.||Macaulay of Bragar, L.|
|Callaghan of Cardiff, L.||Mackie of Benshie, L.|
|Carmichael of Kelvingrove, L.||Mallalieu, B.|
|Carter, L.||Mason of Barnsley, L.|
|Castle of Blackburn, B.||McIntosh of Haringey, L.|
|Chandos, V.||Merlyn-Rees, L.|
|Chorley, L.||Miner of Leeds, L|
|Cledwyn of Penrhos, L.||Molloy, L.|
|Clinton-Davis, L.||Morris of Castle Morris, L.|
|Cocks of Hartcliffe, L.||Mulley, L.|
|Darcy (de Knayth), B.||Murray of Epping Forest, L.|
|David, B.||Nathan, L.|
|Dean of Thornton-le-Fylde, B.||Nicol, B.|
|Desai, L.||Ogmore, L.|
|Donoughue, L.||Parry, L.|
|Dormand of Easington, L.||Perry of Walton, L.|
|Eatwell, L.||Peston, L.|
|Ennals, L.||Pitt of Hampstead, L.|
|Farrington of Ribbleton, B.||Prys-Davies, L.|
|Foot, L.||Rea, L.|
|Gallacher, L.||Redesdale, L.|
|Gould of Potternewton, B.||Richard, L.|
|Graham of Edmonton, L.[Teller.]||Robson of Kiddington, B.|
|Grey, E.||Rodgers of Quarry Bank, L.|
|Hamwee, B. [Teller.]||Seear, B.|
|Haskel, L.||Sefton of Garston, L.|
|Healey, L.||Serota, B.|
|Hilton of Eggardon, B.||Shepherd, L.|
|Hollick, L.||Stoddart of Swindon, L.|
|Howell, L.||Taylor of Gryfe, L.|
|Tordoff, L.||Whaddon, L.|
|Turner of Camden, B.||White, B.|
|Varley, L.||Williams of Elvel, L.|
|Wallace of Coslany, L.||Williams of Mostyn, L.|
|Wedderburn of Charlton, L.||Winchilsea and Nottingham, E.|
|Abinger, L.||Jeffreys, L.|
|Addison, V.||Johnston of Rockport, L.|
|Archer of Weston-Super-Mare, L.||Kimball, L.|
|Arran, E. [Teller.]||Kintore, E.|
|Balfour, E.||Layton, L.|
|Belhaven and Stenton, L.||Leigh, L.|
|Beloff, L.||Lindsay, E.|
|Blake, L.||Long, V.|
|Blatch, B.||Lucas of Chilworth, L.|
|Blyth, L.||Lucas, L.|
|Boardman, L.||Mackay of Ardbrecknish, L.|
|Borthwick, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Brabazon of Tara, L.||Macleod of Borve, B.|
|Brougham and Vaux, L.||Malmesbury, E.|
|Burnham, L.||Manton, L.|
|Butterfield, L.||Masham of Ilton, B.|
|Butterworth, L.||Merrivale, L.|
|Cadman, L.||Milverton, L.|
|Caithness, E.||Monk Bretton, L.|
|Campbell of Croy, L.||Monson, L.|
|Carnegy of Lour, B.||Mottistone, L.|
|Chesham, L.||Mountgarret, V.|
|Clanwilliam, E.||Munster, E.|
|Clark of Kempston, L.||Newall, L.|
|Colnbrook, L.||Norfolk, D.|
|Courtown, E.||Northesk, E.|
|Cox, B.||Orkney, E.|
|Craigavon, V.||Orr-Ewing, L.|
|Craigmyle, L.||Oxfuird, V.|
|Cranborne, V. [Lord Privy Seal.]||Palmer, L.|
|Cumberlege, B.||Pearson of Rannoch, L.|
|Davidson, V.||Pender, L.|
|Dean of Harptree, L.||Peyton of Yeovil, L.|
|Denham, L.||Rankeillour, L.|
|Denton of Wakefield, B.||Reay, L.|
|Dixon-Smith, L.||Rees, L.|
|Dormer, L.||Renton, L.|
|Downshire, M.||Rippon of Hexham, L.|
|Eden of Winton, L.||Rodger of Earlsferry, L.|
|Effingham, E.||Rodney, L.|
|Elles, B.||Sanderson of Bowden, L.|
|Elphinstone, L.||Savile, L.|
|Faithfull, B.||Sharples, B.|
|Ferrers, E.||Shaw of Northstead, L.|
|Finsberg, L.||Simon of Glaisdale, L.|
|Fisher, L.||Skelmersdale, L.|
|Fraser of Carmyllie, L.||Skidelsky, L.|
|Gisborough, L.||Slim, V.|
|Goschen, V.||Soulsby of Swaffham Prior, L.|
|Gray of Contin, L.||St, Davids, V.|
|Gridley, L.||Stewartby, L.|
|Grimston of Westbury, L.||Strange, B.|
|Hailsham of Saint Marylebone, L.||Strathclyde, L. [Teller.]|
|Harding of Petherton, L.||Strathcona and Mount Royal, L.|
|Hardinge of Penshurst, L.||Swinton, E.|
|Harlech, L.||Teviot, L.|
|Harmar-Nicholls, L.||Thomas of Gwydir, L.|
|Harvington, L.||Thurlow, L.|
|Hayhoe, L.||Trumpington, B.|
|Hemphill, L.||Tugendhat, L.|
|Henley, L.||Ullswater, V.|
|Hives, L.||Vaux of Harrowden, L.|
|Holderness, L.||Vinson, L.|
|HolmPatrick, L.||Vivian, L.|
|Howe, E.||Wade of Chorlton, L.|
|Hylton-Foster, B.||Whitelaw, V.|
|Inchyra, L.||Wigram, L.|
|Inglewood, L.||Wise, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.1 p.m.
Lord Henley moved Amendment No. 4:
Page 2, line 10, leave out ("Chapter") and insert ("section and sections 2 to 4 below").
§ The noble Lord said: My Lords, my noble friend spoke to the amendment earlier. I beg to move. On Question, amendment agreed to.
Lord Peyton of Yeovil moved Amendment No. 5:
Page 2, line 27, leave out paragraph (d).
§ The noble Lord said: My Lords, I fervently hope that the amendment will take up rather less time than some of those which have preceded it. I hope that I shall not be thought impertinent if I say to the noble Lord, Lord Peston, that I shall be grateful for his support for the amendment, and I am sure that it will not take long for him to express it.
§ I wish nothing so much as to assist the Government and to aid them in sustaining their reputation for good sense and elegance. In pursuit of that unchallengeably right purpose I propose to leave out the words:
make different provision for different cases or descriptions of case, including different provision for different areas".
§ I do not believe that even the most charitable champions of the authors of our legislation could possibly say that that is anything other than the very converse of lucidity. Such material ought not to be allowed to appear on the pages of the statute book.
§ Perhaps I may draw the attention of my noble friend to what is already contained in the clause. Orders may be made for the purpose of removing or reducing burdens which either create a new burden which relative to the subject matter is less than the original burden or, where the Minister thinks it right, make consequential modifications of enactments. Any consequential amendments which the Minister deems appropriate can be made without further trouble. Moreover, under paragraph (c) the Minister may also make such transitional provisions as he considers appropriate.
§ Therefore, he can add to the burdens, so long as the new burdens are less onerous; he can introduce whatever consequential amendments he thinks are necessary in the process of diminishing the burdens; and he can also introduce such transitional provisions as he thinks appropriate. I ask my noble friend what more can he or his noble and right honourable friends possibly require.
§ If my noble friend can name an additional power which he needs then he ought to persuade his right honourable friends to include it in the Bill. If he cannot name any further power which he needs, then he has to admit that the paragraph is not necessary.
§ If I understand correctly paragraph (d) which I now seek to delete from the Bill, it means that the Minister believes that he needs three types of power, but just in case he has left something out it is covered by the paragraph. Moreover, my noble friend's right honourable friend will be able to sleep comfortably 859 because he can be absolutely certain that the ghastly words which I propose should be omitted can be made to mean almost anything.
§ I am deeply sorry for my noble friend. I am sure that he is given very little liberty, licence or discretion in this matter. I am sure that somewhere in his brief will be written the single word "Reject". My noble friend has to laugh because the alternative would be for him to cry bitter tears of repentance. I very much hope that he will convey messages to his noble friends that there are still a few people in your Lordships' House who do not enjoy this cascade of gobbledegook which is allowed not merely to leak occasionally on to the statute book but literally to pour all over it. I beg to move.
§ Lord Peston
My Lords, noble Lords will be aware that I stand second only to the noble Lord, Lord Peyton of Yeovil, in my deep anxiety to be of help to the Government.
My interpretation of the matter is somewhat different. I assume that the draftsmen need to maintain their position of power and are terrified that the rest of us might begin to think that we understand the legislation. Therefore, rather as when one thinks it is safe to go back into the water, when one thinks one understands the legislation—as the noble Lord, Lord Peyton, and I thought we did in the case of paragraphs (a), (b) and (c)—the draftsmen throw in paragraph (d) to make sure we do not understand it.
I believe that what is intended is that the statutory instrument should be appropriate to the case in hand. I do not see why the draftsmen do not say that. However, as I take for granted that one would draft a statutory instrument that was appropriate, the words are not necessary. Therefore, I believe that if we removed paragraph (d) we would have a better Bill. It would not be a much better Bill but it would be a teeny bit better.
§ Lord Boyd-Carpenter
My Lords, I disagree with my noble friend Lord Peyton with reluctance. He is often right, but I do not believe that in this matter he is right. This is a useful little provision which lends flexibility to the operation of the Bill. I hope that my noble friend the Minister will resist the amendment.
§ Lord Simon of Glaisdale
My Lords, the amendment seeks to leave out one of those pieces of statutory drivel which turn up out of the computer whenever the button dealing with regulations is pressed. As a result, the statute book continues to increase. In 1975 the Renton Committee on preparation of legislation drew attention to the fact that the legislation generally was unnecessarily prolix. It then ran to three volumes. Ten years later, with fewer statutes to be included, it ran to five volumes. The legislation expanded, and the expansion has continued ever since.
The objective of the provision is to avoid an argument that there must be one, and one only, set of regulations and that if there are different provisions for different cases or description of cases, including 860 different provisions for different areas, then the regulations are ultra vires. That has only to be stated for it to be palpable nonsense.
I am rather sorry that the noble Earl is not on the Front Bench because we had a similar instance during debate on the Charities Bill which contained some such provision as this. If (a) or (b) is satisfied, or both, then such and such a result will follow. During Public Bill Committee stage my noble friend Lord Allen of Abbeydale pointed out that the words "or both" were quite unnecessary. That was supported by my noble and learned friend Lord Brightman who stated that no court could conceivably clear up any ambiguity, as the Minister had argued from his brief would occur if the words were left out. In due course the amendment was defeated.
The amendment was brought forward again at Report stage when everyone in the House told the noble Earl that the words were completely unnecessary. It was only at amendments on Third Reading that the Minister conceded the amendment once again moved by my noble friend Lord Allen of Abbeydale. I think that he probably just got tired of the argument.
I have no doubt after the colloquy between the noble Lord, Lord Peyton, and the Minister that the word "reject" occurs at the end of the brief. I remind the Minister of something that happened during discussion of the criminal justice Bill. The noble Earl, Lord Ferrers, had been given a completely unarguable brief on the question of touting. After speeches, he read out the brief but concluded that as it appeared that noble Lords were all of one mind, he accepted the amendment. I hope that that is what the noble Lord, Lord Henley, will tell us.
§ Lord Henley
My Lords, I am sorry to disappoint the noble and learned Lord. Perhaps I may say that with two such friends as my noble friend Lord Peyton and the noble Lord, Lord Peston, I was rather grateful for an intervention from my noble friend —he is generally my noble friend—Lord Boyd-Carpenter. He, quite rightly, stated that this useful little paragraph brings some flexibility to the provision. There are two crucial questions posed by the amendment in the name of my noble friend Lord Peyton which asks to delete it. First, what does the paragraph do? Secondly—the point was made by the noble and learned Lord, Lord Simon—are these words actually necessary to achieve that or are they superfluous? I shall not go into the elegance of the words, but I shall have to accept the advice of parliamentary draftsmen that these are appropriately beautiful words to achieve what we seek to achieve.
First, on the question, "What does the provision do?", my noble friend Lord Peyton asked whether I could give some examples of the different sizes and different areas that we sought to reach. If we start with different sizes, perhaps I may give an example to my noble friend. We have proposed to exempt purchasers of small statistically insignificant tonnages of corn from making a weekly return under the Corn Returns Act. Paragraph (d), which provides for, 861different provision for different cases or descriptions of case, including different provision for different areas",allows one to do that. Similarly, flexibility to make different provision for different areas could also be useful in deregulation orders. For example, it would enable different provisions to be made for Greater London or for distinctions to be drawn between England, Wales, Scotland and Northern Ireland.
§ Lord Peston
My Lords, perhaps I may interrupt the noble Lord. Is the logic of what he says that if we do not have paragraph (d) he could not do those things? We sought to make the point that he could do so without paragraph (d). I am astounded that one cannot have provision for the purchasers of small tonnages of corn without paragraph (d). It seems perfectly obvious that one could. One simply has an order.
§ Lord Henley
My Lords, if the noble Lord will bear with me, I said that I would deal with the matter in two parts. The first question is: are the provisions necessary? I seek to say that that is what the measure provides. Do we need this paragraph to achieve that? I am grateful to the noble and learned Lord, Lord Simon, for his tireless efforts to simplify the drafting of our legislation and to ensure that there are no unnecessary provisions included in a Bill which may look nice but are actually unnecessary. Obviously I hesitate to take issue with the noble and learned Lord. However, I have to say that I am advised that we cannot achieve that which I have just described without these specific words and without paragraph (d). Without paragraph (d) we could not make those distinctions.
§ Lord Henley
My Lords, the noble Lord asks, "Why not?" We need those words to allow us to distinguish between, for example, purchasers of small statistically insignificant tonnages of corn. Otherwise we could only make a general order covering all producers and not exempt the others. I see a degree of hilarity on the Front Bench opposite.
§ Lord Peston
My Lords, what the noble Lord saw in my case was mind boggling. I find it impossible to believe that one could not write an order corresponding exactly to what the noble Lord said, or an order applying differently to London or Scotland, without paragraph (d). I am willing to be persuaded by the noble Lord. However, although I have no desire to prolong the argument, I can only say that the argument does not sound convincing to me. The noble Lord, Lord Henley, is a man of intelligence. He, at least, has been convinced by the draftsman and his officials. I find the argument completely unconvincing.
§ Lord Henley
My Lords, in a matter of this kind, I would obviously take the advice of parliamentary draftsmen. I am prepared to continue the discussion in correspondence. That might be more useful. We have another stage to come back to. 862 I do not know how the noble Lord could distinguish between the classes about which we have spoken by simply using paragraphs (a), (b) or (c). I should have thought that paragraph (d) was necessary. I do not believe that the provision is an unnecessary extra addition to the Bill. If it were, I would be the first to agree with my noble friend Lord Peyton and other noble Lords that such a paragraph should be removed.
§ Lord Barnett
My Lords, perhaps the noble Lord will allow me to intervene with a few words. If I were the Minister and the noble Lord, Lord Peyton, offered me advice, like the Minister I am not too sure that I should wish to accept it. However, on this occasion I am bound to say that the noble Lord, Lord Peyton, seems to be absolutely right. Paragraph (d) includes the word "different" four times. I find it incredible that for the two reasons that the noble Lord has given he is not prepared to accept what his noble friend Lord Peyton and the noble and learned Lord, Lord Simon of Glaisdale, said. One reason was given in the brief intervention of the noble Lord, Lord Boyd-Carpenter: that the provision needs flexibility. Why we need the word "different" four times in order to be flexible I am blest if I know! The second reason the noble Lord gives us—and I hope the Minister will agree that it is wholly unacceptable to say this to noble Lords—is that the Minister has to accept the advice of parliamentary draftsmen that the words are "beautiful". I believe that was said. That is incredible. The Minister does not have to accept the words of parliamentary draftsmen. If he thinks that the parliamentary draftsmen are wrong, then why not tell them they are wrong? It is quite simple.
§ Lord Henley
My Lords, I am sorry, but I think that the noble Lord is slightly misinterpreting the argument I was putting forward. I was saying that it is right that I listen to advice from parliamentary draftsmen. Similarly, I will listen to advice from this House. I said to the noble Lord's noble friend Lord Peston that we could continue the matter by means of correspondence. From my knowledge of the law— and no doubt the noble Lord has his own knowledge—if you read subsections (4) (a), (b), (c) and (d), you would not be able to achieve what I said we were setting out to achieve if you omitted paragraph (d).
The noble Lord might think it is inelegant that the word "different" is used on four occasions in paragraph (d). It may be that we could find better words. However, what I am saying is that the paragraph is necessary to achieve what we wish.
§ Lord Simon of Glaisdale
My Lords, before the next stage, will the noble Lord consider asking the Law Officers whether they think those words are necessary?
§ Lord Henley
My Lords, if someone of the distinction of the noble and learned Lord asks me to do that, I should be the first to agree to do it. This is a matter which could be pursued quite profitably by means of correspondence between now and another stage. However, I stick to my guns: I think that the 863 words are necessary. If it is felt that they are unnecessary, then I would be the first to say that we could remove them.
§ Lord Monkswell
My Lords, perhaps I may press the Minister further. One of the anxieties that I am sure we all have—
§ Lord Monkswell
My Lords, I am aware that we are at the Report stage, but as yet I have not spoken on this amendment and I am effectively taking my right to speak on it.
I wish to ask the Minister whether he recognises that one of the objects of legislation is to ensure fairness. One of the problems of regulations is that they can be unfair as they apply to different classes and circumstances. The case that the noble Lord mentioned of the producers of small amounts of corn having to make statistical returns could be judged to be unfair for the small producers in that the regulations cause an unnecessary burden to them. In that case, I can understand the argument that the noble Lord, Lord Henley, has been putting for the use of the ability to write regulations differing for different cases and different circumstances. We would have to debate and consider carefully where the line is drawn and the implications of it in this case in terms of statistical returns.
However, one thing we have to bear in mind is that we are part of a national parliament and we have a responsibility for the whole nation. One of the anxieties that I have is conferring on Ministers the ability to make regulations that are different for different areas. I am worried that that will introduce unfairness regarding the residents and businessmen in one area compared with another area of the United Kingdom. So far the noble Lord has not explained the need for that, and I wonder whether he can do so. If not, then I think we would have to support the amendment of the noble Lord, Lord Peyton.
§ Lord Henley
My Lords, if I understood the noble Lord—which I very much doubt—I think he was supporting my arguments. I do not believe that I can take matters any further. As regards the drafting point, I am prepared to pursue the matter further by means of correspondence and we can come back to it at Third Reading.
§ Lord Peyton of Yeovil
My Lords, if I may say so with respect, I am not sure that I feel that my cause has been further advanced by the contribution of the noble Lord, Lord Monkswell. I am certainly not an expert in procedure, but it has been my understanding that the procedure in your Lordships' House is that, on Report stage, after the Minister has spoken the only Peer who can speak is the proposer of the Motion. I thought it was very tolerant of your Lordships to receive the observations of the noble Lord, Lord Monkswell.
864 I am the least greedy of men, the least optimistic and perhaps the most easily satisfied. Therefore, I grab, even with a measure of gratitude, what my noble friend said about continuing the discussion with parliamentary draftsmen and even seeking the opinion of the noble and learned Lords, the Lords of Appeal. It would be a most welcome course for him to take. In those circumstances, I am so grateful to my noble friend for his "flexibility" that I do not intend to press the amendment to a Division. I assure my noble friend that I shall read with sympathy and care, and every measure of understanding that I can bring to bear, every word that my noble friend has said. Whether at the end of it I shall clearly understand what he was saying, I am not sure. My immediate impression is that he was saying, "We need those words in paragraph (d) because we need them and we need them because we need them because we need them". It was a recurring theme.
I do not wish in any way to be unkind to my noble friend, but I believe that such horrible words as are comprised in paragraph (d) should be permanently enshrined under the heading of "a little flexibility". That sounds like the kind of protective clothing which cricketers are obliged to wear today in order to protect themselves against balls that come too fast. My innate delicacy restrains me from going into the question of the beauty which parliamentary draftsmen attribute to the words. That is optimistic, but I should not like to spoil the good will of the occasion because I am most grateful to my noble friend for undertaking to consider the matter further with the draftsmen; and, in response to the question from the noble and learned Lord, Lord Simon, also to seek the opinion of the Law Lords. That is welcome. On that basis, I beg leave to withdraw the amendment. I shall of course seek to come back to it at the next stage.
§ Amendment, by leave, withdrawn.
§ 6.30 p.m.
Lord Rodgers of Quarry Bank moved Amendment No. 6:
Page 2, line 31, at end insert ("provided that no order shall be made under this section if a Resolution is passed by either House of Parliament to the effect that the order shall not be made in the form of the draft laid before Parliament under this section.").
§ The noble Lord said: My Lords, I hope that the moment will come towards the end of the discussion of this amendment when I shall be able to make remarks as warm and generous as those of the noble Lord, Lord Peyton, in responding to the Minister's reply to the amendment which we have just discussed.
§ In a sense, I wish I could reverse roles, as the noble Lord, Lord Peston, did with me at the beginning of our discussion of Amendment No. 3. I feel that we are discussing the issues with a drifting mist obscuring them from time to time, but occasionally lifting to reveal them. We have talked about the issues in our discussion on Amendment No. 3 and we have considered them in the context of the Motion standing in the name of the noble and learned Lord, Lord Simon of Glaisdale, which neither the noble Lord, 865 Lord Henley, nor myself had seen at that time. I have now seen the Motion, as also, no doubt, has the noble Lord, Lord Henley. I have to say that I do not believe that it simplifies the matter before us nor that it makes a case for this House not to proceed with the amendment.
As I understand it—I hope that I shall be corrected if I am wrong—the Motion has been accepted by the Government. The terms of the Motion are these:
That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".
I would have thought that it would have been extremely foolish for the Government in any circumstances to have opposed that Motion. It does no more than embody the powers of this House and of Parliament set down by statute. The question is not what the powers of this House may be and whether it has an,
unfettered freedom to vote on any subordinate legislation",
but whether those powers are exercised or whether they are constrained by convention. I hope that I do not misrepresent the noble and learned Lord, Lord Simon of Glaisdale, but it may well be that the noble and learned Lord will argue that those powers cannot be constrained or fettered by convention—and least of all by an uncertain convention lasting only 25 years. Be that as it may, it seems to me that this Motion does no more than reassert the powers of the House; and, in so far as the Government may have indicated their willingness to accept it, that does not in any way affect the amendment that is before us today.
§ After all, when the noble Lord, Lord Strathclyde, spoke at Second Reading (I shall repeat what he said in a moment) and when his remarks were considered by the Scrutiny Committee, the statutory position was then as it is now. If indeed the noble Lord, Lord Strathclyde, felt justified in making the remarks that he did and if the Scrutiny Committee then decided to come to the conclusion that it did, I do not see how either of those two considerations can be overborne by the attitude of the Government to the Motion standing in the name of the noble and learned Lord, Lord Simon.
Perhaps I may repeat what the noble Lord, Lord Strathclyde, said at Second Reading. He was referring to a Motion to debate a report of the Scrutiny Committee:
If the outcome of this debate were a resolution of the House to the effect that the order should not be approved, the Motion to approve the order would not be moved. In this way, the House need not depart from its convention that it does not divide on secondary legislation".—[Official Report, 6/6/94; col. 956.]
That is what the noble Lord, Lord Strathclyde, said. The amendment standing in my name and that of the noble Lord, Lord Peston, does no more than seek to embody the sentiments expressed by the noble Lord, Lord Strathclyde, in this Bill.
However, the matter goes further. The Scrutiny Committee, in considering the remarks of the noble Lord, Lord Strathclyde, and also bearing in mind what had been said earlier in the DTI memorandum, concluded in paragraph 3 of its ninth report:
We consider the Minister's undertaking to be of significance and we accordingly urge the House to consider whether an amendment should be made to the bill to ensure that an order against which the House has passed a Resolution will not proceed".
That is precisely what the House is considering now: embodying in the Bill not only, as I said, the remarks of the noble Lord, Lord Strathclyde, but also what is in effect a recommendation of the Scrutiny Committee. I need only repeat, and will not pursue the matter further, that I do not believe that any undertakings which may have been given but have not been repeated in the course of this debate in any way invalidate the case for this amendment—least of all before the debate that your Lordships are to have on 20th October.
§ As the House knows—its anxiety has been expressed on a number of occasions, and indeed the Government recognised that anxiety in advance by the safeguards that they provided in this Bill—there are most unusual departures in the Bill by way of using secondary legislation, statutory instrument, for matters which would normally be considered in the course of wider legislation.
§ In these circumstances—I shall not elaborate further on my remarks earlier about an annual deregulation Bill—if the Government intend to proceed with Chapter I of this Bill and to use these procedures, all that we are asking the House in this amendment is to build into the Bill what the noble Lord, Lord Strathclyde, readily conceded and the recommendation of the Select Committee.
§ The only argument that I can see—though I await the remarks of the noble Lord, Lord Henley—is that this amendment would be superfluous. It is redundant. It merely repeats what is already accepted as being within the powers of the House. This House must always be cautious of the argument that something is superfluous or redundant because it is already understood. Certainly, my experience of legislation is that it is not lessened or in any other way diminished, nor does it become less effective for repeating, if it needs to repeat, what is already understood convention or practice. For that reason I hope that the House will support this amendment. I beg to move.
§ Lord Clinton-Davis
My Lords, I rise to support the noble Lord, Lord Rodgers of Quarry Bank. We are dealing with legislation of a character totally different to what we have had before. We are engaged in new terrain. Therefore it is critically important that the Government should be very careful about the language of the legislation. They were engaging in the last debate that we had, to use the words of Lord Justice McKinnon in the case of Anstey v. National Coal Board many years ago, in an area of "fuliginous obscurity". In this instance it is important that they should clarify their intentions in the legislation along the lines of the contribution that was made by the noble Lord, Lord Stŕathclyde. There can be no possible argument against that, as the noble Lord, Lord Rodgers has observed. It is not a question of construction of the legislation or the interpretation of the legislation that might come before the court. It is a question of the legislation needing to be specific. I therefore believe that if the Government were to resist this amendment it would cause very strong doubts about their bone fides. I hope therefore that in reply to this debate the Minister will say that the Government have nothing to lose by incorporating this proposition in the legislation and that they will accept it. The word, as I 867 recall it from my ministerial experience, is not "reject"; it is "resist". I hope that the Minister will not resist it, and that he will at the very least take it away and give further consideration to it.
§ Lord Henley
My Lords, the noble Lord has his memories of ministerial life, and I assure him that normally the word is "resist" rather than "reject". They are very different words indeed, and I shall not tell him just now what word I have at the top of my brief.
Perhaps I may start by correcting one small matter that was raised by the noble Lord, Lord Rodgers. He said that neither he nor I had seen the Motion in the name of the noble and learned Lord, Lord Simon. I had in fact seen the Motion, and I knew the terms of the Motion. I was not fully aware of the precise words of my noble friend the Lord Privy Seal. My understanding is that he said that the Government will accept the Motion that your Lordships do have a right to vote on these matters; but obviously that will come out in the arguments that I am about to put to the House. There is still a convention—albeit that there are arguments as to whether that is a convention of long standing or short standing depending on one's views of a certain period of years—and there are also arguments on the strength of that convention. Nevertheless, I think most parts of the House would accept that there is a convention against this House voting against subordinate legislation.
The noble Lord's amendment would provide that no order shall be made if a resolution is passed by either House to the effect that the draft order should not be made. The House will be aware that we have provided for affirmative resolution for orders under this provision. The noble Lord's concern no doubt arises from the convention that I mentioned, which has been respected for some time by this House; namely, that we do not divide on such statutory instruments. It may assist the House if I explain the circumstances in which the point addressed by the amendment just might arise.
Every draft deregulation order will fall to be considered by committees in both Houses. We have made it quite clear that we would expect a Minister to treat very seriously indeed the reports on a proposed order from the deregulation committee. In normal circumstances, if the committee had reported adversely on a proposed order, the Government would expect either to revise their proposal or to withdraw it altogether. If the draft order were revised, it would come before the committee again. In either case it would not be laid as it stood for approval and the question of debate would not arise.
In exceptional circumstances the Government might consider it appropriate for the whole House to have an opportunity to consider an adverse report from the committee. An example might be where the committee was not unanimous in its recommendations. In that case, the House would have an opportunity to debate the committee's report on an amendable Motion and to debate the draft order at the same time. It could then vote on the amendable Motion relating to the committee's report. If the outcome of the debate were a resolution of the House to the effect that the order 868 should not be approved, as the noble Lord quite rightly stressed, the Government have undertakenamp—and an assurance was given by my noble friend Lord Strathclyde at both Second Reading and Committee stage—that the Motion to approve the order would not then be moved by the Government. The Minister would then have to revise his proposals, bring them forward in the form of a Bill (i.e., in the form of primary legislation) or abandon them altogether.
The purpose of the undertaking that my noble friend gave is to assure the House that the unique procedures for deregulation orders will not give rise to occasions on which noble Lords might feel it necessary to depart from that convention of not dividing on statutory instruments. The Government believe that that is a useful convention—that is a matter which no doubt will be debated at greater length on some subsequent occasion—and hope that generally speaking that convention meets with the approval of the House. As I said, this is a matter that we shall debate in considerably greater detail when the Motion in the name of the noble and learned Lord, Lord Simon of Glaisdale, is moved on the 20th. I should like just to stress that it is a convention that the House does not divide. Of course it has the power so to do.
The Government would have to be mindful of that if they were to press ahead with a Motion to approve an order in circumstances where the House had already resolved to the effect that it should not be approved. Therefore, I believe that the amendment itself would add nothing useful to the existing requirement that no order could be made without the express approval of each House. Therefore on that basis I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Tordoff
My Lords, before the noble Lord sits down, perhaps with the leave of the House I may ask a question. Is the Minister saying that in some way he can bind future governments to take that view? I should be surprised if he could do so. I do not suppose that anybody in your Lordships' House would doubt that it is the Government's intention to handle this legislation—these secondary instruments—in this way. But, as I understand it, there is no way in which this Government can bind future governments of whatever colour unless it is on the face of the Bill.
§ Lord Henley
My Lords, my noble friend Lord Strathclyde can only give assurances of that sort for the government of the day. The argument that I tried to put—I noted signs of nodding and understanding from the noble Lord as I developed it—was that we believe that the convention has certain uses and considerable value. Most of the House would accept mat there is a convention and that it has its uses. Some noble Lords feel that the convention is not of very long standing and is not a very strong convention. I quite understand that view. But, as I tried to argue, allowing this amendment could give rise to occasions on which the House felt it should depart from that convention unnecessarily.
I hope that the assurances that I have given and the fact that there will be strong encouragement to depart from a convention were the Government to press forward with a regulation, having already had an 869 adverse vote on the amendment, would be sufficient to make this amendment unnecessary. I hope that the noble Lord will understand that. I am not sure that I see much nodding from the noble Lord, Lord Tordoff. I await the response from his noble friend Lord Rodgers.
§ Lord Rodgers of Quarry Bank
My Lords, my noble friend Lord Tordoff put his finger on the heart of the matter. The noble Lord, Lord Henley, very fairly stated the conventional arguments for leaving matters as they are. I thought it extremely interesting that he reminded the House of—what some of us had not heard—the remarks of the Lord Privy Seal when he said that the Government would accept the Motion standing in the name of the noble and learned Lord, Lord Simon of Glaisdale, and emphasised apparently that their Lordships had the right to vote against the statutory instrument.
But the noble Lord's subsequent remarks were all concerned with the convention on which he leant very heavily. In other words, he restored the status quo in our understanding of the matter: that the powers of this House cannot be changed except by statute but convention determines the way in which we exercise them.
In those circumstances we are practically back to where we began. Indeed, I wish that that were not the case. I hoped that the Minister would respond in some other way. He said that the Government would be mindful of the views of the House, and not for a moment do I doubt that that is indeed the case. That is so for these Ministers and this Government. But as I have said on previous occasions, this legislation will endure for some time. We know that all Ministers and all governments—I speak also for myself on past occasions—like to exercise their powers with maximum advantage and with minimum parliamentary interference, whatever they may on occasion say.
In the light of that, but with reluctance, because I believe that the matter has not been changed by anything said in this debate or anything said by the Government with respect to the Motion standing in the name of the noble and learned Lord, Lord Simon of Glaisdale, I believe that I must divide the House.
§ 6.47 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 44; Not-Contents, 118.
|Airedale, L.||Donoughue, L.|
|Attlee, E.||Dormand of Easington, L.|
|Barnett, L.||Farrington of Ribbleton, B.|
|Birk, B.||Graham of Edmonton, L.|
|Brimelow, L.||Hamwee, B.|
|Brookes, L.||Haskel, L. [Teller.]|
|Carmichael of Kelvingrove, L.||Houghton of Sowerby, L.|
|Carter, L.||Howie of Troon, L.|
|Clinton-Davis, L.||Kilbracken, L.|
|Cocks of Hartcliffe, L.||Kirkhill, L.|
|David, B.||Lawrence, L.|
|Macaulay of Bragar, L.||Robson of Kiddington, B.|
|Mackie of Benshie, L.||Rochester, L.|
|Molloy, L.||Rodgers of Quarry Bank, L.|
|Monkswell, L.||Seear, B.|
|Monson, L.||Serota, B.|
|Murray of Epping Forest, L.||Shepherd, L.|
|Nicol, B.||Stoddart of Swindon, L.|
|Parry, L.||Taylor of Gryfe, L.|
|Perry of Walton, L.||Tordoff, L. [Teller.]|
|Peston, L.||White, B.|
|Pitt of Hampstead, L.||Williams of Elvel, L.|
|Abinger, L.||HolmPatrick, L.|
|Addison, V.||Hothfield, L.|
|Archer of Weston-Super-Mare, L.||Howe, E.|
|Arran, E. [Teller.]||Inglewood, L.|
|Balfour, E.||Johnston of Rockport, L.|
|Beloff, L.||Kimball, L.|
|Belstead, L.||Leigh, L.|
|Birdwood, L.||Lindsay, E.|
|Blake, L.||Long, V.|
|Blatch, B.||Lucas of Chilworth, L.|
|Bledisloe, V.||Lucas, L.|
|Blyth, L.||Lyell, L.|
|Boardman, L.||Mackay of Ardbrecknish, L.|
|Borthwick, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Brabazon of Tara, L.||Macleod of Borve, B.|
|Burnham, L.||Malmesbury, E.|
|Butterworth, L.||Masham of Ilton, B.|
|Cadman, L.||Milverton, L.|
|Caithness, E.||Monk Bretton, L.|
|Carnegy of Lour, B.||Mottistone, L.|
|Chalker of Wallasey, B.||Moyne, L.|
|Chesham, L.||Munster, E.|
|Clanwilliam, E.||Napier and Ettrick, L.|
|Clark of Kempston, L.||Norfolk, D.|
|Cox, B.||Northesk, E.|
|Craigmyle, L.||Oxfuird, E.|
|Cranborne, V. [Lord Privy Seal.]|
|Crickhowell, L.||Pearson of Rannoch, L.|
|Cullen of Ashbourne, L.||Pender, L.|
|Cumberlege, B.||Rankeillour, L.|
|Dean of Harptree, L.||Reay, L.|
|Denham, L.||Renton, L.|
|Demon of Wakefield, B.||Renwick, L.|
|Rippon of Hexham, L.|
|Dixon-Smith, L.||Rodger of Earlsferry, L.|
|Dormer, L.||Rodney, L.|
|Downshire, M.||Romney, E.|
|Eden of Winton, L.||Sanderson of Bowden, L.|
|Elles, B.||Savile, L.|
|Faithfull, B.||Sharples, B.|
|Faringdon, L.||Simon of Glaisdale, L.|
|Finsberg, L.||Skelmersdale, L.|
|Fraser of Carmyllie, L.||Skidelsky, L.|
|Gardner of Parkes, B.||Soulsby of Swaffham Prior, L.|
|Gisborough, L.||St. Davids, V.|
|Glenarthur, L.||Stewartby, L.|
|Goschen, V.||Strange, B.|
|Gray of Contin, L.||Strathclyde, L. [Tetter.]|
|Gridley, L.||Swinton, E.|
|Grimston of Westbury, L.||Thomas of Gwydir, L.|
|Harding of Petherton, L.||Trumpington, B.|
|Harmar-Nicholls, L.||Tugendhat, L.|
|Harrowby, E.||Ullswater, V.|
|Harvington, L.||Vinson, L.|
|Hayhoe, L.||Vivian, L.|
|Hemphill, L.||Wade of Chorlton, L.|
|Henley, L.||Wigram, L.|
|Hives, L.||Wise, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.871
§ 6.55 p.m.
Lord Henley moved Amendment No. 7:
Page 2, line 32, leave out ("Chapter") and insert ("section and sections 2 to 4 below").
§ The noble Lord said: My Lords, my noble friend spoke to this amendment with Amendment No. 2. I beg to move.
§ On Question, amendment agreed to.
Lord Henley moved Amendment No. 8:
Page 2, line 45, at end insert (", or any provision of an order under this section").
§ The noble Lord said: My Lords, this is a technical amendment. Without it there could be some doubt as to whether orders made under the deregulation order-making power which contain free-standing provisions could subsequently be amended to achieve further deregulation. The amendment would allow this additional flexibility. I beg to move.
§ On Question, amendment agreed to.
Lord Tordoff moved Amendment No. 9:
After Clause 1, insert the following new clause:
§ ("Exclusion of legislation on wildlife and conservation
§ . Nothing in section 1 above shall be taken to apply to any provision which has effect in relation to the conservation of flora and fauna or the national heritage.").
§ The noble Lord said: My Lords, we return to a matter that was discussed at the Committee stage on an amendment moved by the noble Lord, Lord Clinton-Davis. We have brought it back because we were a little worried by the response that was given by the noble Lord, Lord Strathclyde, at col. 501 of the Official Report of 23rd June. This raises conservation and national heritage issues and concerns how far these deregulation matters should apply to those issues.
On 23rd June the noble Lords, Lord Strathclyde and Lord Clinton-Davis, were not having their normal amicable discussions. There was a certain—I shall not say "acerbity" because that is not a word we use in this place —tension between the two Front Benches. The noble Lord, Lord Strathclyde, said:
It is true that potentially some of the cherished protections which the noble Lord mentioned could at some point be subject to a deregulation order-making power by the relevant Minister if we pass the Bill, because"—
these are the interesting words—
matters are excluded only if they offer necessary protection or are not burdensome",—[Official Report, 23/6/94; col. 501.]
Those words rang alarm bells, at least on this side of the Chamber.
§ It is revealing that the Minister gave those reasons. The truth is that heritage, wildlife and conservation are frequently in primary legislation matters that have been reached and positions that have been achieved as a result of considerable compromises on both sides of the argument. We are very worried that to use these deregulation procedures for these matters will upset some of the delicate balances which have been achieved after a considerable period both in your Lordships' House and in another place. We feel that the Government must give an assurance today that they do not have any current plans to disturb protection, 872 whatever their view of its necessity, touching on conservation or heritage. These are all matters of the greatest importance to the House. The Government are being asked tonight to state their position fully.
§ If, on the other hand, they continue to say even after reflection that they may use the Henry VIII provisions in this area they need to answer two basic questions. First, what precise plans do they have at the moment, or what precise plans could they have in the future, concerning these areas? Secondly, what kinds of current protection are in their view outside the ambit of "necessary protection"? It is all very well to use words like that but they do not necessarily have the same meaning on each side of the House.
§ We hear a great deal about the protection of businesses and so forth, but, as I say, these are positions which have been reached as a result of agonising arguments in your Lordships' House. I remember the Wildlife and Countryside Bill which had a huge Committee and Report stage in this House. The noble Lord, Lord Melchett, who does not grace us much with his presence these days, nevertheless put in a yeoman performance on that Bill. Eventually positions were reached that were compromises on all sides. To be able to move away from those compromises by the use of Henry VIII clauses and secondary legislation seems to us to be completely wrong.
§ The noble Lord, Lord Clinton-Davis, mentioned the Water Act 1989. That was a good illustration of the situation where directors of water services have duties to exercise their powers for further conservation, the enhancement of natural beauty, the conservation of the flora and fauna and geological or physio-graphical features of special interest. By that Act they are required to take these matters into account.
§ Those environmental duties were not as rigorous as some people would have wished to have put in the Bill, but eventually the Bill was accepted by your Lordships. Here is a case where someone can pop up one day and announce that he is going to change the whole balance by secondary legislation. I am asking the Government to accept that the spirit of this amendment is to seek some explanation of what was said by the noble Lord, Lord Strathclyde, as to what the Government's position truly is as regards the future of legislation in this very sensitive area. I beg to move.
§ 7 p.m.
§ Lord Renton
My Lords, whether or not this amendment is necessary I believe that the noble Lord has done service by enabling us to discuss the possible effect of Clause I onthe conservation of flora and fauna or the national heritage".I should disclose that I was a founder of what used to be the Conservation Society. I was the president as long ago as 1971. I remain a very keen conservationist. It is unthinkable that this clause could or should be used for repealing provisions; for example, in the Wildlife and Countryside Act, to which the noble Lord referred.
But I take heart from several things which make the amendment unnecessary. First, I do not believe that this or any other government would be so unwise and foolish 873 as to repeal the necessary provisions for protection and conservation. That is my first point. One knows that one should never trust any government too much.
Secondly, I invite the attention of noble Lords, and particularly that of the noble Lord, Lord Tordoff, to Clause 1(1) (b) at the top of page 2 of the Bill where these words appear:without removing any necessary protection, to remove or reduce the burden or, as the case may be, the authorisation or requirement by virtue of which the burden may be imposed".Those words are mumbo jumbo, but I believe that,without removing any necessary protectionare operative words which may save the situation for the noble Lord. I am not certain, so I shall be glad if my noble friend Lord Ferrers will say whether he agrees that they give protection to the conservation of flora and fauna.
§ Lord Clinton-Davis
My Lords, I support the amendment. I wish to follow some of the remarks made by the noble Lord, Lord Renton. If the noble Lord— who is always absolutely scrupulous about the desire to have very clear legislation and who often questions it when it is obscure—has doubt about these particular words as preserving the objectives which he set out, then the Government should be very chary indeed of rejecting what is implicit in that; namely, advice to become clearer. I do not understand what the words are supposed to mean if they are supposed to be protective of the environment and to ensure that high standards of environmental protection are not eroded. That is not said in language which ordinary people understand.
The fact of the matter is that great anxiety as regards the Government's intention in this matter has been ventilated outside this House. Would it enable the Government to do the sort of things about which the noble Lord, Lord Tordoff, spoke? I have received letters indicating considerable concern in that regard. The Government must not be oblivious to the anxieties of non-governmental organisations which are there to protect and preserve the environment in the best way they possibly can. Therefore, there is an especial duty here to respond positively to the arguments which were adduced very effectively by the noble Lord, Lord Tordoff.
I spoke in a similar debate on 23rd June. I, too, share the anxieties which were expressed about the brief intervention of the noble Lord, Lord Strathclyde. He said that,matters are excluded only if they offer necessary protection or are not burdensome".—[Official Report, 23/6/94; col. 501.]We have a disjunctive inserted there and I worry about that. With this Government's own attachment to ensuring that the question of the burdens placed on business shall be paramount there is a real concern here that our anxiety to preserve the environment, which should have at least equal treatment in these matters, will not be honoured because of the way in which the Government go about their tasks. The noble Lord, Lord Strathclyde, was very brief indeed in his intervention on 23rd June. The Government have to be much more specific.
874 In many ways environmental legislation can be seen as a burden to industry—at least, that is how many industrialists and people in commerce construe it. If one looks at the matter philosophically one can easily say that environmental and industrial advance can complement each other. I believe that that is the case when looking at these issues in a more general way. But that is not necessarily how the businessmen who advise the Government have viewed environmental legislation. So far there is nothing that the Government have done in this field which reassures us.
The Government have a duty to be very specific. They must answer the two questions which have been posed by the noble Lord, Lord Tordoff, because the answers are highly relevant to establishing the Government's good faith. I also hope that the Government will be more full in their response than the noble Lord, Lord Strathclyde, was on the last occasion. These are serious points which worry a great many people. I sense that they also worry the noble Lord, Lord Renton.
My Lords, I wonder whether I can try to reassure your Lordships a little over this. I know that anything to do with flora and fauna causes a great deal of anxiety. I well remember the Wildlife and Countryside Bill, to which the noble Lord, Lord Tordoff, referred and the complexities with which we had to deal then. The noble Lord referred to the noble Lord, Lord Melchert, who regrettably does not grace us very much with his presence now although he graced us with his presence on that occasion. I remember him playing a great part in our deliberations on that Bill, and I particularly remember him referring to me as the Arthur Scargill of the Ministry of Agriculture, Fisheries and Food. That was not the most complimentary of expressions, and I cannot think what on earth I had done to deserve it.
I believe that I can give the noble Lord, Lord Tordoff, the comfort that he seeks. The Government have no intention of deregulating at the expense of protection for the environment, for wildlife or for our national heritage. But even if some future less scrupulous Government were to take a more cavalier attitude, the provisions in Clause 1 of this Bill could not be used for them to do so. The general safeguards which we have built into the provisions will prevent them being used in a way which would damage the wildlife or our national heritage.
The power in Clause 1 is intended to be available in relation to legislation covering a wide range of policy areas. We have not sought to constrain its availability by identifying particular policy areas where it might or might not be appropriate. Instead, the power is framed in general terms with safeguards to prevent it being used in unsuitable ways.
It may be helpful if I remind the House of the safeguards which we have provided. The power can only be used where doing so would not remove any necessary protection. Necessary protection has been left deliberately undefined to ensure that it has the widest possible meaning. It would certainly encompass protection for flora, fauna and the national heritage.
875 There will be no possibility of a future unscrupulous Government taking an unreasonably restrictive view of what constitutes necessary protection. That is because of the unique scrutiny arrangements which we have proposed for orders made under this power. Perhaps I may remind your Lordships that a proposal to make an order under the power would first be the subject of consultation with representatives of those who are likely to be significantly affected. Your Lordships can imagine the kind of people who would be involved in such consultation. The results of that consultation, and other information about the proposal, including the Government's judgment of whether any necessary protection is conferred by the existing legislative provisions and, if so, how that protection would be maintained, will be laid before your Lordships' House.
§ Lord Clinton-Davis
My Lords, on the question of consultation, I am not satisfied that the Minister is sufficiently particularising the people who will be engaged in the consultation. The noble Earl said that those consulted will have to be involved in the issue— or words to that effect. Does he mean that there will be no obligation to consult non-governmental organisations which would not be directly involved, but which would certainly have a locus in the argument?
My Lords, obviously it is difficult to state exactly who will be involved in consultation in any unforeseen circumstances. All that I can tell your Lordships is that any people who are likely to be involved in any alteration of the law will be consulted about it in advance. The results of that consultation will be laid before your Lordships' House. There will then be an opportunity for detailed scrutiny of the proposal, including the examination of witnesses and consideration of further representations. The Minister will then be required to take careful account of any representations which may have been made during that period and in particular to consider the outcome of the Scrutiny Committee's deliberations with the utmost seriousness. The order is then subject to the affirmative resolution procedure.
I can only try to reassure your Lordships and in particular the noble Lords, Lord Tordoff and Lord Clinton-Davis, that we have no intention of deregulating at the expense of protection for the environment, wildlife or our national heritage. I hope that the noble Lords will be content with that assurance.
§ 7.15 p.m.
§ Lord Tordoff
My Lords, I am particularly grateful for the Minister's final words which put clearly on the record the Government's understanding of what the Bill means. I was hesitant until I heard those words because we seemed to take two steps forward and then two steps backwards throughout the rest of our discussions. I was very much with the noble Lord, Lord Clinton-Davis, when he asked the questions that he did.
The wording of Clause 1 is difficult, and I can understand the Government's difficulties in not wanting to draw the provisions too tightly. However, we are left with needing interpretations of words such as "necessary protection". There are people in the outside world who 876 devote their life to the protection of the environment and our heritage in one way or another who fear that the Government's proper support for the industry and economy of this country in making our business community effective and competitive is liable occasionally to favour business to the detriment of the environment. As I tried to indicate in my opening remarks, it is a very delicate balance.
The noble Earl's last sentence underlined the position that the Government intend to adopt. Now that the courts can take into account words that have been stated from the Government Front Bench, those words are given greater weight than would have been the case some years ago. Therefore, I am grateful to the noble Earl and his advisers for stating their position much more clearly than was possible on the last occasion that we debated this. I hope that people outside this House are reassured by that. Of course, some will not be reassured because some will never be reassured by anything that is said, but I think that the noble Earl has gone as far as he possibly can tonight in giving us that reassurance. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Hamwee moved Amendment No. 10:
After Clause 1, insert the following new clause:
§ ("Existing legislation relating to eviction and harassment of tenants
§ . Nothing in section 1 above shall be taken to apply to any provision which has the effect at the date of Royal Assent to this Act of preventing a landlord from unlawfully evicting or harassing a tenant.").
§ The noble Baroness said: My Lords, in this amendment we move to a matter that is not dissimilar to the issues raised by the amendment that has just been moved and withdrawn by my noble friend Lord Tordoff; but in this case the fauna are tenants, particularly tenants in private rented accommodation. When I first read the proposed amendment, I thought that its only contentious aspect might be the pronunciation of the word "harassment", so obvious did its points seem. Its underlying anxieties are similar to those previously described with regard to conservation and the national heritage in that in Committee—again in relation to an amendment moved by the noble Lord, Lord Clinton-Davis —the assurances that were sought from the Government were not forthcoming. This amendment relates to provisions which prevent a landlord from unlawfully evicting or harassing tenants. In Committee, it was hoped that the Government would be able to say that they had no plans to use the powers to amend primary legislation because they had not given any indication of that in their list of proposed deregulations. Clearly, making such amendments would be extremely controversial.
My noble friend Lord Tordoff referred to alarm bells ringing in relation to the previous matter under discussion. Similarly, alarm bells rang on this when the noble Lord, Lord Strathclyde, slated:
There may well be aspects of the legislation concerning landlords and tenants which could be of a very minor nature and which would, perhaps, be most suitable for the deregulation order-making power".—[Official Report, 23/6/94; col. 498.]
§ I hope that the Minister can put on the record similar assurances in this area. I refer to Clause 1(1) and its reference to "necessary protection". There are some 1.7 million households in the private rented sector and the issue of harassment is a sensitive one.
§ I hope that the Minister will indicate that there are no plans in this area, at any rate at the moment, and explain to the House what changes would be, to use the words of his noble friend, "of a very minor nature". In Committee the noble Lord, Lord Clinton-Davis, rightly drew attention to the difficulties of consultation, there being no obvious body that the Minister could consult under the provisions of Clause 3(1) (a). Like the noble Lord, Lord Peston, I have a natural disposition against the Minister being able to judge whom he considers to be appropriate to be consulted when people are not within such a body, which is the protection given under Clause 3(1) (b). I hope that our concerns can be dealt with in a similar way. If one did not have to read it all into Hansard one might almost say, "as above", but those would be welcome words. I beg to move.
§ Lord Clinton-Davis
My Lords, there is no end to the ingenuity of the Opposition, as I think the Minister will agree. I failed to persuade the noble Lord, Lord Strathclyde, so we thought that this Minister would fall for the blandishments of the noble Baroness rather more easily than mine. So I hesitate to join in the debate, but the fact is that there are areas of the reply which were given last time by the noble Lord, Lord Strathclyde, which give rise to particular difficulties. They have been touched on by the noble Baroness. It is strange that he should have used the words that he did, which I repeat:There may well be aspects of legislation concerning landlords and tenants which could be of a very minor nature".—[Official Report, 23/6/94; col. 498.]What might be of a very minor nature to the Government might not be of a very minor nature to tenants, many of whom are vulnerable, as I said in that debate: 150,000 private tenants face all kinds of difficulties—burglary, trespass, threats, verbal abuse and violence emanating from their landlords. We know that over the years the Government have shown a propensity to introduce legislation which does not take sufficient account of that kind of thing and which does a good deal to protect landlords' interests. I am not arguing that all landlords are bad, but there are many who are.
I fear that without the ability to have an effective link with people who might be consulted in this instance, the Government may favour the landlords' point of view in a way which they, at best, might not fully appreciate because they merely look at whether the regulation is burdensome. Having regard to the narrow terms in which the amendment is drawn one might have hoped that the Government would have responded rather more positively.
On the issue of consultation to which I alluded in that debate, and to which the noble Baroness has referred, it is not good enough to say, "We will leave it to the Minister who is charged with this particular responsibility to determine who is to be consulted", 878 because by the very nature of this situation, the tenants themselves do not have a readily and easily available organisation that the Government can consult. Consequently, that adds to the problems that we face.
I cannot understand why the Minister said also that the amendment would constrain the Government's freedom to deal with the matters to which I have just referred. I do not understand that argument. In his response, will the Minister be kind enough to give further and better particulars of what the noble Lord, Lord Strathclyde, was saying? In what particular way would the Government be constrained from doing the kind of things that they would want to do were the amendment to be adopted?
My Lords, we are back on ground not dissimilar to that of the previous amendment. The arguments deployed are similar to those deployed on the amendment relating to flora and fauna. In that amendment the noble Lord, Lord Tordoff, sought assurances that the Government were not intending to do anything wicked which would ruin the flora, the fauna or the national heritage. I tried to persuade the noble Lord, and I believe that I satisfied him, that that did not form part of our intention.
In the same way, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Clinton-Davis, are anxious about the position of tenants for fear that under these provisions the Government might do something which would affect tenants adversely. I am bound to say that they are right to express that concern, and it is up to me to try to assure your Lordships that the Government have no intention of doing anything which would disturb the harmony of the tenants' position.
I can assure your Lordships that the Government have no intention of deregulating at the expense of the protection of tenants' rights. I can only say that the power in Clause 1 is intended to be available in relation to legislation covering a wide range of policy areas. We have not sought to constrain its availability by identifying particular policy areas where it might or might not be appropriate. In so far as the noble Baroness has moved the amendment, that is merely one of many amendments one could move to try to protect one part or another of our life, but the powers in Clause 1 cannot be used to remove any necessary protection. That is fundamental. Where protection is necessary, these powers cannot be used to remove it.
Necessary protection includes protection for tenants from unlawful eviction and harassment. The Government believe that the vast majority of landlords treat their tenants fairly, but it is true that a small minority abuses its position. The Government take a serious view of that. A tenant cannot usually be evicted lawfully unless the landlord has first obtained an order for possession from the courts. For most tenancies, a landlord must prove to the court that one of the grounds or one of the cases for possession, which are set out in the legislation, apply. The main exception to that is where a tenant shares accommodation with the landlord. In such cases a court order for possession is not normally required.
879 In addition, the Protection from Eviction Act 1977 makes it an offence to act in a way which is likely to interfere with the peace or comfort of a tenant or anyone living with him, or persistently to withdraw or withhold services for which the tenant has a reasonable need to live in the premises as a home.
The Housing Act 1988 strengthened those provisions by introducing a new offence of harassing a tenant knowing or having reasonable cause to believe that that was likely to cause him to leave his home. The Act also created a new right to civil damages for tenants who are illegally evicted. That is based on the landlord's financial gain from the illegal eviction.
The noble Lord, Lord Clinton-Davis, was worried about what my noble friend Lord Strathclyde described as "minor measures". My noble friend was saying that in any field there may be less bureaucratic ways of achieving the same necessary protection, and it is only in those conditions that action would have been taken. Necessary protection certainly covers protection needed for tenants.
The noble Lord was anxious about the form and timing of consultation being a matter for the Minister's judgment. It is not appropriate to specify in the Bill the precise consultation requirements. Measures are bound to vary widely in both the range of people and the organisations affected and the technical and specialist advice which may be required. Judgment on a case-by-case basis is necessarily required and that is what we shall have to do.
The noble Lord was also anxious about who will be consulted on behalf of tenants. A number of organisations represent and campaign for the rights of tenants. One thinks of Shelter, for example. The campaign for bedsit rights in Brent provides a tenants' rights group and there are others. I assure the noble Lord that when action is considered for or about tenants a whole variety and a wide spectrum of people make their views known on behalf of the tenants.
I hope that your Lordships are satisfied that the protection given in the Bill—that is, protection for all people who may be affected by any form of deregulation—is such as to satisfy the tenants and those people who are living in such accommodation.
§ Baroness Hamwee
My Lords, I asked whether the Government have any plans in this area. Can the Minister answer that question tonight?
§ Baroness Hamwee
My Lords, I thank the Minister for that and I am grateful for his reply. I believe that Shelter will be glad to hear that after a recent little hiccup it is persona grata again.
I wished to pursue the matter because often the balance between business and the private sector is that the landlords represent business and these days renting private accommodation is a big business. However, I accept that there are tenants in the public sector who equally may need protection. The Minister's assurances are most welcome and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
§ Clause 3 [Preliminary consultation]:
Lord Peston moved Amendment No. 11:
Page 3, line 35, after ("above") insert ("or sections 33, 64 or 65 below").
§ The noble Lord said: My Lords, Amendment No. 11 is grouped with Amendments Nos. 14 to 19 and 83, which stand in my name and that of the noble Lord, Lord Rodgers of Quarry Bank. The topic with which we are dealing is immensely important but it is not one with which I shall weary the House at this late hour. I had to decide on the three issues which I thought were most important. They cannot all come first; one must come last and it is this. Although I shall be brief, I hope that your Lordships will accept that that does not undervalue the subject of the amendment.
I quote from the report of the Select Committee on the Scrutiny of Delegated Powers of 13th June 1994, page 2 paragraph 6. I shall read the whole paragraph as it is best that it appears on the record. It states:
There are, however, two provisions for delegated powers in the Bill for which the Committee consider that neither the affirmative nor the negative procedure provides an appropriate degree of parliamentary scrutiny. These are the powers to repeal certain health and safety provisions (Clause 27) and the power to contract out functions (Clauses 58 and 59)".
I remind your Lordships that in the Bill we are considering those clauses have different numbers. I am concerned with several clauses, beginning with Clause 64.
The committee continues, and rightly in my judgment:
These are both policies which the House might have expected to debate in detail in primary legislation; and both sets of powers are very widely drawn. The Committee accordingly urges the House to consider whether the procedure for deregulation orders, with the improved safeguards for parliamentary scrutiny"—
which we have discussed—
should apply not only to orders under Chapter I of Part I of the bill, but also to delegated legislation made under Clauses 27, 58 and 59 of the bill".
I repeat that those clauses are numbered differently.
§ I believe that the Select Committee is right in that regard. From the beginning of our deliberations on the Bill—from Second Reading to the present time—a number of us have asked why Part II of the Bill is dealt with differently from Part I, Chapter I. I have heard no logical explanation.
§ Perhaps I dare say that the amendments are a clever way of dealing with the problem. I take no credit for that because my advisers have put the amendments forward. If your Lordships wish to follow them the easiest way is to change your copy of the Bill by inserting the amendments. It will then read exactly as it ought to; namely, it inserts here the special scrutiny position.
§ Perhaps at this late hour I should tell the Minister that I do not intend to divide the House on this matter. It appeared that it would be useful for me to demonstrate, first, that it is technically possible to do in the Bill what I believe ought to be done and to reiterate that we should 881 do so and follow the advice of the Select Committee. Secondly, I am intrigued to know why, in an area as important as Part II, the Government have not done precisely that. I beg to move.
§ Lord Rodgers of Quarry Bank
My Lords, the noble Lord, Lord Peston, moved the amendment in a temperate and reasonable way and asked questions of the Minister. I endorse the spirit of his remarks and await the Government's reply.
My Lords, the Delegated Powers Scrutiny Committee described the order-making power in Clause 1 of the Bill as "unprecedented in time of peace". They are substantial words. The Government have always acknowledged from the introduction of this Bill that the powers provided by Clauses 1 to 4 are exceptional. We have explained why we believe that such exceptional powers are necessary to give effect to deregulatory changes in legislation.
It is because those powers are exceptional in allowing the amendment of primary legislation across a range of policy areas that we have proposed arrangements which will give Parliament scrutiny opportunities in addition to the normal affirmative resolution arrangements.
There are those who have argued that the order-making powers in Clause 33 (health and safety) and in Clauses 64 and 65 (contracting out) also justify exceptional arrangements. I am bound to say that I believe that those order-making powers represent a perfectly ordinary use of delegated legislation for which the normal affirmative resolution procedure is appropriate.
Clause 33 affects only a specific and identified body of legislation; namely, some 40 Acts which form the "existing statutory provisions" in the Health and Safety at Work etc. Act 1974; 200 regulations which predate the 1974 Act; and about 20 regulations which have been enacted since the 1974 Act, which carried forward pre-1974 Act provisions. Ministers already have powers to repeal post-1974 legislation under the Health and Safety at Work etc. Act. Those powers are subject only to the negative resolution procedure. The Government felt that Parliament would welcome the additional safeguard of the affirmative resolution procedure in relation to the similar powers which are proposed in Clause 33. We are of the view that the affirmative resolution procedure will provide the proper level of scrutiny.
Turning to the powers in Clauses 64 and 65 relating to the contracting out of statutory functions, we believe that these, too, represent a well-accepted use of secondary legislation. The powers are available only for a narrowly-defined purpose; that is, that they will specify statutory functions which, in future, will be capable of delegation to contractors. Those powers are available only in relation to functions which can at present be delegated to the staff of the Minister, the office-holder or the local authority on whom the function is conferred. The powers cannot be used to make any change in the function itself.
882 The passage of this Bill provides the opportunity for debate on the principle of contracting out statutory functions under these circumstances and on the constraints which are imposed by Part II of the Bill on the circumstances in which such contracting out should be possible. All that will remain to be determined by the orders which will be brought forward under Clauses 64 and 65 is the particular statutory functions for which the principles will be applied. I suggest that that is a perfectly normal pattern for delegated powers.
The principles are set out in the Bill. Accountability of Ministers will be unaffected; confidential information will be safeguarded; certain categories of function such as power of entry, search and seizure are excluded; and impartiality will be safeguarded under the existing law. That is why we believe that the normal affirmative resolution procedure will provide for the appropriate level of scrutiny of the orders made under Clauses 64 and 65 when they come forward.
In conclusion, we believe that there is a difference of kind and not just of degree between the order-making power in Clause 1 and the other powers to which the amendments relate. The unique arrangements which we have proposed for orders under the power in Clause 1 are justified only in relation to the exceptional nature of that power. There is no such justification, in our view, for extending those arrangements to other powers in this Bill. I hope that your Lordships will agree.
§ Lord Peston
My Lords, I thank the noble Earl. I am a little surprised by what he said. Essentially he said that the Delegated Powers Scrutiny Committee is mistaken in its assessment of the importance of Clauses 64 and 65. I agree that it is a question of judgment as to whether it is a matter of degree or kind. The noble Lord, Lord Rodgers, and I have placed our view on the record. We believe, as did the Delegated Powers Scrutiny Committee, that the matter is sufficiently serious to require a new procedure.
The noble Earl does not agree with that. But in a sense, as we have not written the procedure onto the face of the Bill, if we need a new procedure in the future we shall be able to introduce it because in any event it is not written into the Bill. It is worth reflecting on that. Although the hour is late and few noble Lords have heard the debate on the matter, it has been a useful interchange. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 12 and 13 not moved.]
§ Clause 4 [Parliamentary consideration of proposals]:
§ [Amendments Nos. 14 to 19 not moved.]
Earl Ferrers moved Amendment No. 20:
After Clause 4, insert the following new clause:
§ Powers to improve enforcement procedures
§ (".—(1) If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion—
- (a) that the effect of the provision is such as to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise, and
- (b) that, by exercising any one or more of the powers conferred by Schedule (Powers to improve enforcement procedures) to this Act, it would be possible, without jeopardising any necessary protection, to improve (so far as fairness, transparency and consistency are concerned) the procedures for enforcing the restriction, requirement or condition,
§ (2) No order shall be made under this section in any case where the sole or main effect which the restriction, requirement or condition may be expected to have on each person on whom it is imposed is an effect on him in his personal capacity, and not as a person carrying on a trade, business or profession.
§ (3) Where the relevant enactment—
- (a) contains a power for the Minister to make regulations or orders; and
- (b) provides for that power to be exercisable so as to give effect, with or without modifications, to proposals submitted by some other person,
§ (4) An order under this section shall be made by statutory instrument and may do all or any of the following—
- (a) make provision as to the consequences of any failure to comply with a provision made by the order;
- (b) contain provisions (including provisions modifying enactments relating to the periods within which proceedings must be brought) which are consequential upon, or supplemental or incidental to, the provisions made by the order;
- (c) contain such transitional provisions and savings as appear to the Minister to be appropriate;
- (d) make different provision for different cases or descriptions of case, including different provision for different areas;
§ (5) Nothing in any order made under this section shall—
- (a) preclude an enforcement officer from taking immediate enforcement action against any person, or from requiring any person to take immediate remedial action, in any case where it appears to the officer to be necessary to take such action or impose such a requirement; or
- (b) require such an officer to disclose any information the disclosure of which would be contrary to the public interest.
(6) In this section and Schedule (Powers to improve enforcement procedures) to this Act—
enactment" means an enactment within the meaning of section 1 above, and any subordinate legislation made under such an enactment;
enforcement officer" does not include—?
licence" includes any authorisation (by whatever name called) to do anything which would otherwise be unlawful;
Minister of the Crown" and "Minister" have the same meanings as in section 1 above;
the relevant enactment" means the enactment containing the provision by which the restriction, requirement or condition is imposed or, as the case may be, is authorised or required to be imposed;
remedial action" means action taken by any person in order to avoid enforcement action being taken against him;
subordinate legislation" has the same meaning as in the Interpretation Act 1978.").
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 2. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 21:
After Clause 4, insert the following new clause:
§ Model provisions with respect to appeals
§ (".—(1) Subject to the following provisions of this section, the Secretary of State may by order prescribe model provisions with respect to appeals against enforcement action with a view to their being incorporated, if thought fit and with or without modification, in enactments to which subsection (2) below applies.
§ (2) This subsection applies to enactments which include provision the effect of which is to impose, or authorise or require the imposition of, a restriction, requirement or condition affecting any person in the carrying on of any trade, business or profession or otherwise.
§ (3) Model provisions prescribed by an order under this section may provide for the appointment of persons to hear and determine appeals and confer powers on persons so appointed, including in particular—
- (a) power to appoint experts and their own counsel or solicitor;
- (b) power to require respondents to disclose documents and other material;
- (c) power to summon or, in Scotland, to cite witnesses;
- (d) power to make interim orders, including orders staying or, in Scotland, suspending enforcement action; and
- (e) power to award costs or expenses to appellants and, in certain cases, against them.
§ (4) Model provisions so prescribed may also—
- (a) confer a right for interested persons to make representations before enforcement action is taken;
- (b) require the giving of reasons to such persons for any decision to take such action;
- (c) require appellants to state their grounds of appeal and respondents to furnish statements by way of answer;
- (d) enable appellants to amend their grounds of appeal before the hearing;
- (e) require appeals to be determined on the merits rather than by way of review; and
- (f) provide for further appeals to courts on points of law.
§ (5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section—
enactment" does not include anything contained in Northern Ireland legislation but, subject to that, includes an enactment contained in an Act (whenever passed) and an enactment contained in subordinate legislation (whenever made);
enforcement action" has the same meaning as in section (Powers to improve enforcement procedures) above;
interested person" means—
Northern Ireland legislation" means—
subordinate legislation" has the same meaning as in the Interpretation Act 1978.").
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 22:
Before Schedule 1, insert the following new schedule: