HL Deb 13 February 2001 vol 622 cc146-216

3.10 p.m.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Clause 1 [Power by order to make provision reforming law which imposes burdens]:

Lord Goodhart moved Amendment No. 1: Page 1, line 6, leave out ("(3) and") and insert ("(2A) to").

The noble Lord said: My Lords, in moving Amendment No. 1, which is purely a paving amendment, I shall speak also to Amendments Nos. 13, 24, 25, 37, 38 and 40. This group of amendments goes to the heart of what I believe is the central issue on the Bill.

We need to spend a minute or two on the background of the Bill to explain the significance of this group of amendments. We on these Benches welcomed the objective of the Bill. Indeed, my noble friend Lord Razzall said so in the debate on the gracious Speech. The Bill will enlarge the powers in the Deregulation and Contracting Out Act 1994 and enable those powers to be used to improve post-1994 legislation as well as pre-1994 legislation. However, in our view the Bill should be used for broadly deregulatory purposes or for the rationalisation and clarification of existing powers. It should not be used as a general power to enlarge burdens by order.

The Government presented the Bill as a deregulatory Bill. In Committee I referred to a number of passages in the speech made at Second Reading by the noble and learned Lord, Lord Falconer of Thoroton. The fact that the objects of the Bill are primarily seen as deregulatory was made even clearer by the noble Lord, Lord McIntosh of Haringey, on day one of Committee. Perhaps I may briefly refer to his speech. He stated: it is necessary, in order to achieve our wider objectives … to envisage the possibility of continuing or re-enacting some regulatory burdens in order to achieve a greater removal of other burdens, and of introducing new burdens on some people in order to reduce the aggregate amount of burden on those people or on other people".

He went on to state: In that sense, to the extent that we have extended the scope of the 1994 Act, it is not out of any intention to increase the amount of burden in total, or even in detail. The intention is to use the whole range of facilities and abilities and powers available to us to more effectively reduce burdens than the 1994 Act made possible".—[Official Report, 23/1/01; cols. 223–24]

That is a clear statement of the Government's purpose behind the Bill. It is one which I believe is entirely satisfactory. But the Bill as drafted gave us cause for concern. Clause 1(1) sets out the four objects of the Bill. Each are clearly free-standing. We have no problems with Clause 1(1)(a): the removal or reduction of any of those burdens"; nor with paragraph (b): the re-enacting of provision having the effect of imposing any of those burdens, in cases where the burden is proportionate to the benefit which is expected to result from its retention"; nor with paragraph (d): the removal of inconsistencies and anomalies". However, we have major problems with paragraph (c): the making of new provision having the effect of imposing a burden which—

  1. (i) affects any person in the carrying on of the activity, but
  2. (ii) is proportionate to the benefit which is expected to result from its creation".

That plainly gave a free-standing power to increase burdens without any requirement to link that increase with the reduction of other burdens. Clause 3 provides valuable safeguards against the abuse of the powers conferred by Clause 1, but none of those safeguards in Clause 3, as it now stands, requires any link between the increase of burdens on some, and the reduction of burdens on those people or others.

It is not enough to say, as Clause 3(2) does, that there must be a balance between the public interest and the interest of persons affected by the new burden. That is not meaningless, obviously, but is a condition which can be almost always satisfied because governments are not in the habit of imposing burdens for the sake of imposing them; they impose them because they think that there is benefit to be obtained from that. That is not in any real sense a safeguard.

The power in Clause 1(1)(c) therefore went beyond what we regarded as the proper purpose of the Bill. It also plainly goes beyond the Government's own intentions as stated in earlier debates on the Bill, both by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord McIntosh of Haringey. We therefore tabled amendments which were debated in Committee. The effect of those amendments was intended to be to remove Clause 1(1)(c) as a freestanding object but to allow the creation of new burdens where those new burdens were proportionate to the benefits resulting from the removal or reduction of other burdens. That amendment bears some similarity to what is now Amendment No. 9 tabled by the Conservative Front Bench, though there are significant differences.

Originally we tabled those amendments again at Report. At that point the Government approached us and indicated that although they were not willing to accept the wording of our amendments, they were willing to accept the principle of linkage between new burdens on the one hand and on the other hand the benefit to persons affected by the existing burdens. The upshot of those discussions was the amendments which appear in this group, which I understand the Government are willing to accept.

We therefore need to go through the amendments in a little detail. As I said, Amendment No. 1 is purely a paving amendment. The two key amendments are Amendments Nos. 13 and 25. Amendment No. 13 adds a new subsection (2A) to Clause 1 and states: An order under this section must include provision made by virtue of subsection (1)(a)".

In other words, any regulatory reform orders must include some element of deregulation. That is a significant step forward, but on its own it is pretty obviously not enough. There is no linkage or balance between deregulation and new regulations. Therefore, a small deregulation element could frank the imposition of extensive new burdens.

Further amendment is therefore necessary and it is achieved by Amendments Nos. 24 and 25 which add a new condition to Clause 3(2). That provision requires the Minister to be, of the opinion that the provisions of the order … strike a fair balance between the public interest and the interests of the persons affected by the burden being created".

That is not adequate. However, Amendment No. 25 requires that the Minister must also be satisfied that the extent to which burdens under existing law are removed or reduced justifies the making of the regulatory reform order. In other words, there must be not merely some reduction in the burdens but a reduction sufficient to justify the order as a whole. One cannot decide whether that new condition is satisfied without looking at the balance between deregulation and new regulation.

The amendment refers not only to the removal or reduction of burdens but also to other beneficial effects for persons affected by the existing law. That means that one can take into account not only the direct removal of burdens but also the fact that the changes, while not formally removing a burden, might make it easier to discharge.

It is also true that the new condition in Amendment No. 25, set out in the new paragraph (b), is a subjective test not an objective one because it is a matter for the opinion of the Minister. However, if that opinion is plainly unsubstantiated by the facts, it will be a matter for judicial review. More important in practice, the document which must be laid before Parliament under Clause 6 must explain how that condition is satisfied. That requirement appears in Clause 6(2)(f).

That explanation will be examined by the Delegated Powers and Deregulation Committee in your Lordships' House and by the Deregulation Committee in the other place. If those committees do not agree that the conditions in what will become Clause 3(2)(b) are satisfied, the proposal will go no further.

The other amendments in the group, Amendments Nos. 37, 38 and 40, are consequential and do not need to be treated separately.

I believe that the Government's acceptance of the principle of linkage between new regulation and deregulation—that linkage being contained in these amendments—removes our only substantial objection to the Bill. Those amendments having been made, we should be happy to see it passed. I beg to move.

Lord Falconer of Thoroton

My Lords, I congratulate the noble Lord, Lord Goodhart, on his extremely clear exposition and I agree in particular with the following elements. The extracts which he quoted from speeches made by my noble friend Lord McIntosh and myself at Second Reading and in Committee reflected our view of the purpose of the Bill. The proposal he makes in Amendment No. 1 and in other amendments in the group give better effect to that purpose.

The noble Lord, Lord Goodhart, is correct in saying that we will agree to the amendments he has tabled. Their effect would be that there could not be an RRO which did not comply with the provision in Clause 1(1)(a) and it must therefore be deregulatory. I also agree with his remark that that of itself would not provide the protection he was seeking and that therefore the addition to Clause 3 has been tabled. It provides that, the extent to which the order removes or reduces one or more burdens, or has other beneficial effects … makes it desirable for the order [which contains new burdens] to be made". That means that there must be a consideration of the burdens going and the burdens coming and a consideration of whether in those circumstances it is desirable to proceed with the order.

Dealing with the matter as proposed by the noble Lord, Lord Goodhart, covers many of the concerns which were expressed in Committee and to which the Government have listened. We will therefore support Amendment No. 1 and the subsequent amendments.

Lord Skelmersdale

My Lords, before the noble and learned Lord sits down, perhaps I may ask a simple question following on from what he said. He will remember that at Second Reading and in Committee I commented on "new new burdens"; in other words, burdens flowing from Acts of Parliament which have no trigger clauses for them or any orders flowing from them. Does the acceptance of Amendment No. 1 remove that anxiety?

Lord Falconer of Thoroton

My Lords, I do not follow what the noble Lord says. He referred to "new new burdens" and I am lost at sea as regards his question. I apologise.

Lord Skelmersdale

My Lords, I understand that the new burdens referred to are alternative; in other words, they are substitution burdens of a greater or lesser extent. That is what the Bill and these amendments provide. However, perhaps we may take an unlikely scenario: that of the fox hunting Bill which is currently going through another place. It is not beyond conceivability that that Bill will fail before a general election. Were it so to do, I understand that up to the time of the noble and learned Lord accepting the amendment from the noble Lord, Lord Goodhart, under Clause 1(1)(c) it would be possible to produce what I call "new new burdens"; in other words, the regulation of fox hunting. However, am I correct in believing that with the linkage produced by the noble Lord, Lord Goodhart, that would no longer be possible?

Lord Falconer of Thoroton

My Lords, perhaps I may say for the record that it would be inconceivable that fox hunting would remotely be considered under a regulatory reform order. Anyone would regard it as so controversial as to be wholly inappropriate for such a provision. All the committees would immediately indicate that.

The amendments tabled by the noble Lord, Lord Goodhart, have two effects. First, one cannot have an order which does not have some deregulatory effect. Secondly, before the Minister can promote such an order he must be satisfied that the benefits which come from imposing new burdens are balanced by the old burdens which are removed.

Lord Goodhart

My Lords, I am grateful to the noble and learned Lord for his constructive response. I commend the amendment.

On Question, amendment agreed to.

Lord Phillips of Sudbury moved Amendment No. 2: Page 1, line 9, after ("any") insert ("charitable, educational or business").

The noble Lord said: My Lords, in the absence of the noble Lord, Lord Norton of Louth, who tabled the amendment, perhaps one may give it a run for its money. I assume that the noble Lord, in seeking to insert the words, charitable, educational or business", was seeking to achieve clarity as to the extent of the measure proposed by the Bill. I beg to move.

3.30 p.m.

Lord Falconer of Thoroton

My Lords, at Committee stage the noble Lord, Lord Norton, indicated that he would come back to try to restrict the word "activity" in Clause 1. The effect of the amendment which he tabled would cripple the Bill and I shall explain why. It would restrict the activities which could benefit from legislative reform to those persons engaged in charitable, educational or business activities and to only a narrow interpretation of those categories of persons. That is because the noble Lord's list of qualifying activities omits any qualifying phrase, such as "or otherwise", which is in the existing Act.

That phrase was construed as including charities, the voluntary sector and the individual, but not public bodies. The amendment tabled by the noble Lord, Lord Norton, and moved by his amanuensis the noble Lord, Lord Phillips of Sudbury, would restrict Ministers to even less than that. It would mean that an order could not reform burdensome legislation that affected the individual in his or her private capacity, or voluntary organisations or any public body in the wider public sector, such as NHS trusts. For example, in the vaccine damage case burdens are placed on those who apply for compensation. They are not engaged in charitable, educational or business activities, and yet a regulatory reform order could not help them because it would not fall within that activity.

The Bill seeks to move away from the acknowledged deficiencies of the deregulation process. Under the 1994 Act only the subject or person, however described, be it a trade, business, profession or otherwise, could benefit. That approach represents a mistaken view which we should not carry forward in this Bill. Governments no longer just regulate and prohibit but provide services and facilitate. The regulatory reform power would not be used to take burdens off government and the wider public sector merely to make life easier for them. This is not a Bill about administrative convenience. The tailpiece of Clause 2(1) will prevent them from getting rid of burdens which apply only to them, such as the general duty to maintain the NHS. For example, we should be able to deal with burdens on hospitals, doctors or policemen. For all those reasons, I urge the noble Lord not to go as far as to press the amendment tabled by the noble Lord, Lord Norton of Louth.

Lord Phillips of Sudbury

My Lords, I can assure the noble and learned Lord that I have no such intent. I am not the amanuensis of the noble Lord; I merely sought to keep the amendment alive for the Minister's excellent explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 3: Page 1, line 9, leave out ("with a view to") and insert ("for the primary purpose of achieving").

The noble Baroness said: My Lords, in Committee the Minister indicated that it would not be appropriate to use the word "solely" in this context as that would have an unduly inhibiting effect. I have heeded that. The noble and learned Lord also said that the words "with a view to" were adequate. I respectfully disagree. If amended, the opening words of the clause (which I paraphrase) would read: A Minister of the Crown may by order make provision for the purpose of reforming legislation … for the primary purpose of achieving one or more of the following objects".

I should like to make two points clear at the outset. In Committee it was perhaps inferred that by proposing amendments we on this side of the House did not favour regulatory reform. That is not so. We are wholly in favour of the proposition that it is desirable to introduce an effective and safe means of achieving regulatory reform. That said, the power to amend primary legislation by secondary means which is contained in this Bill is unusual and potentially far-reaching. The power represents a singular shift in the balance of power away from Parliament and the courts and into the hands of Ministers. For that reason, it is a power which should be jealously guarded and strictly policed.

The Bill grants a dual power: the power to amend primary legislation by secondary means and the power to impose new burdens. By that means the Bill places unprecedented power in ministerial hands. Given the nature of that power, one immediately asks: what are the effective safeguards against abuse? As the Minister said in Committee, one is looking all the time at the terms of the Bill and its scope. The wider the scope, the more safeguards there must be".—[Official Report, 23/1/01; col. 193.]

I am pleased to hear that that is the view of the Minister. However, the Bill provides no effective substantive safeguards. The measure before us provides only a form of procedural safeguard; namely, use of the super-affirmative procedure. In Committee the Government placed great reliance upon the existence of the super-affirmative procedure. However, that reliance is misplaced. However great may be the powers of scrutiny that are available, vital checks and balances are missing. We believe that there are almost no safeguards as regards the scope of the power itself, in which case the Bill will be a weapon in the armoury of the government of the day. Procedural safeguards will count for little, not least should your Lordships' House fall victim to future reform.

I am pleased that the Government have accepted the amendments spoken to by the noble Lord, Lord Goodhart. Notwithstanding that, I should like to speak also to Amendments Nos. 6 and 9. My noble friend Lord Campbell of Alloway should like to deal with Amendment No. 6 separately. I apologise for not making that clear at the outset of my speech. The purpose of' Amendment No. 3, in common with Amendments Nos. 6 and 9, is to ensure that, while maintaining the aim of the Bill, adequate safeguards are included. The elephant test previously proposed by the noble and learned Lord for the use of the power is, with all due respect, meaningless both as a descriptive definition and as a threshold test. Amendment No. 3 inserts a first threshold test which any RRO should be required to pass; namely, that its primary purpose is regulatory reform.

The words "with a view to" are manifestly too wide. They may be appropriate when the purpose and use of a power is clearly defined, but that is not so here where the purpose is wholly undefined. The use of the words "the primary purpose" meets the objection raised by the noble and learned Lord in Committee. They are not in any way restrictive, provided the Bill is used for its proper purpose; they will ensure that the Bill is used for its proper purpose and for that purpose alone.

As to Amendment No. 6, I have heard the Minister's observations this afternoon. I have also read with care and interest the Minister's observations in Committee. However, the Minister stated repeatedly that there was no question of any increase in the burden of regulation, and that the power to increase the burden would be used only on very rare occasions. As if to underline the point, there was produced a list of 51 current categories of measures which required attention as candidates for regulatory reform. However, in Committee the noble Lord, Lord McIntosh of Haringey, said that none of them would increase burdens. I seek confirmation that when the Minister said that there would be no increase in burdens he meant that there would be no net increase. The concern is that there is no need for the provision if it is true to say that in any event there will not be an increase in the burden. I refer in particular to the second day in Committee when the Minister said: If it is seriously suggested that the effect of this Bill will increase burdens, perhaps the noble Baroness, Lady Buscombe, or anybody else will tell me which of the 51 examples of measures that are high on our priority list for regulatory reform orders will actually increase burdens. Of course they will not".—[Official Report, 25/1/01; col. 403.] We believe that Amendment No. 9 is preferable to the amendment which has been accepted by the Minister because in that event there is only a need to ensure that Clause 1(1)(c) is subsidiary to Clause 1(1)(a), (b) and (d). Paragraph (c) of subsection (1) is presently a free-standing provision which permits the creation of burdens regardless of whether the other objectives laid down in that subsection are intended to be achieved. However, were the Minister to accept our Amendment No. 9, the position would be such that Clause 1(1)(c) would be subsidiary. I hope that the House will forgive my predicament; I have only just been told that the first group of amendments has been accepted. The provision would hang, and rest, only upon the objects in Clause 1(1)(a), (b) and (d) being achieved. I beg to move.

Lord Skelmersdale

My Lords, I am in the same position of difficulty as my noble friend Lady Buscombe, with perhaps slightly less excuse because I have been in your Lordships' House in the past 10 days and she has not. As I understand the group of amendments that have just been accepted, the amendment removes most of our anxieties about Clause 1(1)(c); namely, the making of new provisions. Although I chose a somewhat inapt example in fox-hunting, I had envisaged a future government creating a burden where no legislation affecting that particular issue exists on the statute book. That is what I have been most determined to avoid. I understand now that the amendment in the name of the noble Lord, Lord Goodhart, removes that anxiety. I see that the noble and learned Lord is nodding this time, although I clearly confused him utterly last time. It could be that I also confused myself.

Lord Haskins

My Lords, I regret that I was not able to take part in the Committee stage debate on this issue, but I have read Hansard. I share the wish of the noble Baroness, Lady Buscombe, to ensure that the powers in the Bill are put to the correct use; namely, to improve the quality and reduce the burden of regulation. Goodness knows, there is plenty of work for us all to do on this front, since the powers of the old Deregulation and Contracting Out Act have virtually withered away. I look forward with pleasure, therefore, to the Government taking action on the 51 examples that they have so far put forward. That should keep everyone hard at work for some time to come.

So, I believe that there would have been little risk of "wicked Ministers" using the powers to bring forward inappropriate and burdensome regulations. The amendments proposed by the noble Lord, Lord Goodhart, which the Government have just accepted, make that even more unlikely. Therefore, the noble Baroness should rest easy because the task force will be watching events with great interest and will deal with recalcitrant Ministers in the appropriate manner. In the circumstances I suggest that the noble Baroness should not press her amendments.

I should like to revert to our discussions in Committee, when the noble Baroness, Lady Buscombe, and the noble Lord, Lord Vinson, mentioned my views on enforcement. I was sorry not to be present to respond at the time. Perhaps I may take an early opportunity to do so now, as it may help the House when it returns to these issues later today.

The issue of enforcement has been a consistent theme in my three and a half years as chairman of the Better Regulation Task Force. In many cases, businesses and citizens understand, and even support, the objectives behind a regulation. The real problem arises as to the unpredictability of enforcement: businesses need to know where they stand.

In the foreword to our last annual report, I commented that the Government's objective should be to simplify the enforcement process for those on the receiving end. Those being regulated constantly complain that they do not understand their obligations; that they are not given enough time and help to comply; and that enforcers have too much of an inclination towards retribution.

I am a great believer in having as much flexibility and discretion as possible in the process of getting people to comply with the law, consistent, of course, with being effective. This approach has worked well in the Inland Revenue, which no longer treats every taxpayer as a potential tax evader. Inspectors now concentrate on helping the majority of citizens who want to do things properly, and focus their punitive efforts purely on the villains.

The Government have consulted widely on enforcement. All parties were in favour of a voluntary approach based on co-operation between enforcers and business. This resulted in the introduction of the code of best practice known as the enforcement concordat. The principles of the code are not dissimilar to the five principles of good regulation promoted by the task force. They include consistency, proportionality and openness, together with a clear complaints procedure and tough service standards.

The concordat requires enforcers to discuss the circumstances of the particular case with business and, if possible, resolve differences informally, before formal action is taken. Enforcers are also required to distinguish clearly between what is simply good advice and what is a legal requirement with which businesses must comply.

In Committee, the noble Lord, Lord McIntosh of Haringey, noted that 84 per cent of local authorities in England, Scotland and Wales and 80 per cent of central government agencies had already signed up to the concordat. He hoped that all of them would have signed up by this July.

The task force is in favour of this voluntary approach to good regulation—it seems to me to be the best means of achieving fair, effective and flexible enforcement. Indeed, our "enforcement" report published in April 1999 described the concordat as the cornerstone of good enforcement policies and procedures.

However, we also recognise that voluntary agreements need legislative support where things go wrong. That is where the enforcement provisions in the Bill should help. They are intended to assure business that the Government can bring pressure to bear on enforcers who fail to apply best practice as agreed in the concordat.

The power for Ministers to set out a code of good enforcement practice should give business, the voluntary sector and consumers the confidence that the Government will be able to take action where enforcers fail to comply with best practice. It will give the concordat more credibility; businesses will know that enforcers will not be allowed to simply ignore it.

I know that the noble Lord, Lord Vinson, has tabled amendments which will be discussed later. As I understand it, the noble Lord played a part in the inclusion of a section in the Deregulation and Contracting Out Act 1994 giving businesses a statutory right to challenge the intended actions of enforcers in the courts. However, that section has, so far as I know, been used only once. The Government have been told by business, the voluntary sector and consumer groups that those groups are content with the concordat approach. I support the Government on the issue, as the provisions of the section mean that enforcers will be called to account if they fail to comply with best practice.

I hope, therefore, that when the House turns its mind to these issues again, as I know the noble Lord, Lord Vinson, intends that it should, it will do so with a clearer understanding of where I stand on these matters.

3.45 p.m.

Lord Falconer of Thoroton

My Lords, I have every sympathy with the predicament of the noble Baroness, Lady Buscombe. The noble Lord, Lord Goodhart, has explained the position, but perhaps I may explain it as I understand it.

In Committee, the noble Baroness, Lady Buscombe, and others raised a concern that, as drafted, Clause 1(1)(c) allowed a Minister to promote an RRO which only imposed burdens and did nothing else. The effect of the first substantive amendment proposed by the noble Lord, Lord Goodhart, is that one cannot get an order off the starting block under the procedure proposed by the Bill if it adds burdens, unless it also removes or reduces burdens. So, any order that has the object of increasing burdens must also remove burdens. The provision does not go as wide as was suggested by the noble Baroness, Lady Buscombe. It would not be enough simply to re-enact burdens, and it would not be enough to remove inconsistencies. An order must, if it adds any burdens, also remove burdens.

However, the noble Lord, Lord Goodhart, went further, and we agree with him. The noble Lord argued that it is not enough to say, "Well, if you can find some teeny-weeny burden to remove, that opens the door". He is saying that that is not enough. The Minister must also be satisfied that the reduction in burdens made by the new order justifies or makes desirable the making of the order. The noble Lord has, in effect, removed the free-standing nature of Clause 1(1)(c), which deals with the point made by the noble Lord, Lord Skelmersdale, but he has gone further and said, "Looking at the reduction or removal of burdens, there has to be a desirability, in the opinion of the Minister, before the order is made".

We took the view that that was a legitimate point. We took the view that the amendment of the noble Lord, Lord Goodhart, deals with that point. It deals with a similar issue to that dealt with by the noble Baroness, Lady Buscombe, in Amendments Nos. 6 and 9. It deals with it in a different way, but we think that the protections proposed by the noble Lord, Lord Goodhart, are adequate. I invite the noble Baroness not to move her amendments when the time comes.

Perhaps I may deal briefly with Amendment No. 3. In Committee, the noble Baroness proposed the insertion of the words, for the sole purpose of". At that time I explained that the words in the Bill as it stood were more than robust enough to deal with what she sought. The noble Baroness has now changed her approach. Instead of saying, for the sole purpose of", she seeks to insert the words, for the primary purpose of achieving". With respect to the noble Baroness, that is worse. It is not an improvement at all. It would no doubt be said by lawyers, if I may use the phrase, "Well, if it has a primary purpose, it can also have a secondary purpose". That would be precisely what both the noble Baroness and the Government seek to avoid. It would provide a broader power than the wording we currently have, when an order must be made with a view to the objects listed in Clause 3. As I said in Committee, any order under the Bill must be made to achieve one of the objects in Clause 1. There can be no doubt about that. I respectfully suggest that the noble Baroness's amendment makes the position worse. In those circumstances, I invite the noble Baroness to withdraw Amendment No. 3 and not move the other amendments standing in her name in this group.

I shall not respond to the detail of the speech of the noble Lord, Lord Haskins, because it relates to a much later amendment. However, I understand why the noble Lord made his remarks at this stage—because they are more about enforcement. I ask the noble Baroness, Lady Buscombe, to bear in mind what the noble Lord, Lord Haskins, said about the Better Regulation Task Force keeping an eye on matters. That is a good thing.

Baroness Buscombe

My Lords, I thank the noble and learned Lord for his response to the amendments. I am sorry in some ways that Amendment No. 9 was not accepted in lieu of the amendment put forward by the noble Lord, Lord Goodhart. We have one small concern. Are we not trying to compare apples with pears in relation to comparing a new benefit with the removal of an old burden?

I am grateful to the noble Lord, Lord Haskins, for what he has been able to say to us so far. However, I hope that, in the absence of my noble friend Lord Vinson, it is not his intention that I should attempt to relay his comments to my noble friend. That would be impossible. I hope that the noble Lord is able later today to repeat some of what he said. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 4: Page 1, line 13, leave out ("the burden") and insert ("it is necessary to retain the burden and the burden to be retained").

The noble Baroness said: My Lords, in moving Amendment No. 4, I should like to speak also to Amendment No. 8. By these amendments, the required purposes of any RRO, and I paraphrase, will be either, the re-enacting of provision … in cases where it is necessary to retain the burden and the burden to be retained is proportionate to the benefit which is expected to result from its retention", or, the making of new provision having the effect of imposing a burden which … is necessary for the purpose of reforming that legislation and is proportionate to the benefit which is expected to result from its creation".

By proposing these amendments, I seek to achieve a dual purpose in answer to arguments raised in Committee: first, to state what it is we regard as the appropriate approach to the retention or creation of a burden; and secondly, to clarify what has in the past possibly been a subject of misunderstanding.

I shall deal first of all with the misunderstanding. The use of the word "necessary" in this context is not intended to imply some form of proportionality test, to be applied ex post facto to determine whether the retention or creation of a burden is proportionate. It is intended as a threshold test. Only after this threshold has been passed does the question of proportionality arise.

In Committee, the noble Lord, Lord McIntosh, said that the word "necessary" when added to this clause did not add anything because: If it is not necessary to do something to achieve a benefit, it follows that it is necessary not to do it in order to be proportionate". He went on to say: There is nothing added by the word "necessary" which is not already available in the legal concept of proportionality".—[Official Report, 23/1/01; col. 178]

With the greatest of respect, the noble Lord fell into the very trap which it is the purpose of this amendment to avoid. One cannot allow an elision between the two concepts of necessity and proportionality.

Perhaps I may give your Lordships a working example. Section 5(2) of the Regulation of Investigatory Powers Act 2000 makes provision for the issue of interception warrants. These are warrants which may be used to intercept postal and telephone communications. The subsection reads as follows: The Secretary of State shall not issue an interception warrant unless he believes—

  1. (a) that the warrant is necessary on grounds falling within subsection (3); and
  2. (b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct".
First, the warrant must be necessary. Then, and only then, is it required to be proportionate. If the warrant is not necessary, proportionality does not come into it. It does not arise. The threshold test of "necessity" is not satisfied and the warrant cannot be issued.

That Act grants a variety of powers, all broadly similar in nature, which for want of a better description I shall call "powers of executive interference". The dual test—that of necessity followed by a requirement of proportionality—is adopted within the Regulation of Investigatory Powers Act on no fewer than 10 occasions. It is a format with which the draftsman is well acquainted. This Bill, and that Act, have this in common. Each is intended to enable a degree of executive interference. In the case of this Bill it is the imposition not merely of new regulations, but new burdens, which is the interference with which I am concerned.

I compare and contrast the provisions of paragraphs (a) and (d) in the Bill, where we do not propose a "necessity" test, with paragraphs (b) and (c). Neither paragraph (a) nor (d) is concerned to create or recreate a burden. It is only where there is a burden that the test of "necessity" should require to be satisfied. I shall deal, first, with paragraph (b). We are being asked to vest in a Minister the power to impose burdens in the name of regulatory reform. As a matter of principle, if it is not necessary to re-enact a burden, then in the context of deregulation, that burden should not be re-enacted. If a burden which is a possible candidate for re-enactment cannot pass the "necessity" test, we do not want it. Keeping such a burden, even if it could be said to be "proportionate", would be unnecessary and would amount to regulation for regulation's sake. If new burdens are to be imposed by means of secondary legislation, they should, at the very least, be demonstrated to be necessary. If they are not, there is no justification for imposing them. This is no more than is required in practice of primary legislation and I can think of no reason why, in principle, secondary legislation of the kind with which we are concerned should be any different. I beg to move.

4 p.m.

Lord Falconer of Thoroton

My Lords, these amendments propose a twofold test in relation to retaining burdens and imposing new burdens. First, it is said that the retention or imposition of the new burden should be necessary and, secondly, that it should be proportionate. The Government hold to the position they adopted in Committee; namely, that if the word "proportionate" imports into it the concept of necessity, then if the burden is unnecessary, it cannot be proportionate either to impose it or to retain it. That remains the Government's position. With respect to the noble Baroness, I do not think that anything stands between us here.

In support of her argument for a twofold test, the noble Baroness relied on the Regulation of Investigatory Powers Act. She referred to a provision which states, in effect, that where X thinks that it is necessary to impose an interception order on the grounds set out in Section 3, then such an order can be made where it is proportionate to do so. That is a totally different situation because in that example the RIP Act lays down that such an action will be necessary where—I do not recall exactly what is written in Section 3, but I imagine that it is termed along the lines of, "where it is necessary to fight crime or to discover information in the national interest"—it identifies precisely what is the context of necessity. It is a workable definition and a context is provided.

What context does the noble Baroness have in mind when she refers to necessity in her additional test in Clause 1(1)(b) and (c)? Is it necessary because of an overriding legal imperative? Is it necessary to maintain the integrity of the state or is it, as I think she may mean, that a burden is imposed only where the balance—having regard to the benefits that may accrue from it—is in favour of imposing it rather than getting rid of it? If that is the correct interpretation of her approach, then that is precisely the effect of the word "proportionate". The introduction of the word "necessity" would lead to confusion because there is no context. Furthermore, it would not give that which she seeks.

I covered these points in our discussions at the previous stage. Perhaps the noble Baroness could cite a practical example—not from a different statute in which plainly there is a statutory context, because the action is "necessary" under the terms of Section 3—of where a regulation or a burden is either being imposed or retained which is not necessary but is proportionate.

As I said earlier, I do not think that there is anything between us in what we seek to achieve here. We are discussing simply the method of achieving it. In the light of what I said, I earnestly suggest that the noble Baroness should reconsider her amendment.

Baroness Buscombe

My Lords, I have listened to what the Minister has had to say as regards my amendment. I have to respond by saying that I entirely disagree with him. On that basis, I should like to test the opinion of the House.

4.2 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 149.

Division No. 1
CONTENTS
Alton of Liverpool, L. Campbell of Croy, L.
Anelay of St Johns, B. Carnegy of Lour, B.
Arran, E. Colwyn, L.
Astor of Hever, L. Cope of Berkeley, L.
Attlee, E. Courtown, E.
Biffen, L. Dean of Harptree, L.
Blatch, B. Denham, L.
Brabazon of Tara, L. Dundee, E.
Bridgeman, V. Elles, B.
Brightman, L. Elliott of Morpeth, L.
Brougham and Vaux, L. Elton, L.
Burnham, L. [Teller] Erroll, E.
Buscombe, B. Freeman, L.
Butterworth, L. Gardner of Parkes, B.
Byford, B. Geddes, L.
Campbell of Alloway, L. Goschen, V.
Gray of Contin, L. Onslow, E.
Greenway, L. Oxfuird, V.
Harris of High Cross, L. Park of Monmouth, B.
Hayhoe, L. Peel, E.
Henley, [Teller] Perry of Southwark, B.
Hooper, B. Rawlings, B.
Howe, E. Rees, L.
Howe of Aberavon, L. Renfrew of Kaimsthorn, L.
Howell of Guildford, L. Renton, L.
Jenkin of Roding, L. Roberts of Conwy, L.
Kimball, L. Rogan, L.
Kingsland, L. Ryder of Wensum, L.
Saatchi, L.
Knight of Collingtree, B. Seccombe, B.
Lawson of Blaby, L. Skelmersdale, L.
Lucas, L. Strathclyde, L.
Luke, L. Swinfen, L.
Lyell, L. Thomas of Gwydir, L.
McColl of Dulwich, L. Trefgarne, L.
Marsh, L. Trumpington, B.
Monson, L. Vinson, L.
Mowbray and Stourton, L. Vivian, L.
Murton of Lindisfarne, L. Waddington, L.
Naseby, L. Wade of Chorlton, L.
Northesk, E. Wilcox, B.
Norton of Louth, L. Young, B.
NOT-CONTENTS
Acton, L. Gale, B.
Addington, L. Geraint, L.
Ahmed, L. Gibson of Market Rasen, B.
Allenby of Megiddo, V. Goodhart, L.
Alli, L. Gordon of Strathblane, L.
Amos, B. Gould of Potternewton, B.
Ampthill, L. Graham of Edmonton, L.
Andrews, B. Greaves, L.
Archer of Sandwell, L. Gregson, L.
Ashton of Upholland, B. Grenfell, L.
Avebury, L. Hardy of Wath, L.
Barker, B. Harris of Greenwich, L.
Bassam of Brighton, L. Harrison, L.
Beaumont of Whitley, L. Haskel, L.
Bernstein of Craigweil, L. Haskins, L.
Blackstone, B. Hayman, B.
Blease, L. Hogg of Cumbernauld, L.
Borrie, L. Hollis of Heigham, B.
Bragg, L. Hooson, L.
Brooke of Alverthorpe, L. Howells of St. Davids, B.
Brookman, L. Howie of Troon, L.
Bruce of Donington, L. Hoyle, L.
Burlison, L. Hughes of Woodside, L.
Carter, L. [Teller] Hunt of Kings Heath, L.
Christopher, L. Islwyn, L.
Clarke of Hampstead, L. Janner of Braunstone, L.
Clement-Jones, L. Jay of Paddington,. (Lord Privy Seal)
Clinton-Davis, L.
Cocks of Hartcliffe, L. Jeger, B.
Craig of Radley, L. Jenkins of Putney, L.
Crawley, B. Judd, L.
Dahrendorf, L. Kirkhill, L.
David, B. Lea of Crondall, L.
Davies of Coity, L. Levy, L.
Davies of Oldham, L. Lipsey, L.
Desai, L. Lockwood, B.
Dixon, L. Lofthouse of Pontefract, L.
Donoughue, L. Macdonald of Tradeston, L.
Dubs, L. Mcintosh of Haringey, L. [Teller]
Elder, L.
Evans of Parkside, L. MacKenzie of Culkein, L.
Evans of Watford, L. Mackenzie of Framwellgate, L.
Ezra, L. Mackie of Benshie, L.
Falconer of Thoroton, L. McNally, L.
Falkland, V. Maddock, B.
Farrington of Ribbleton, B. Mallalieu, B.
Faulkner of Worcester, L. Mar and Kellie, E.
Mason of Barnsley, L. Shore of Stepney, L.
Massey of Darwen, B. Shutt of Greetland, L.
Merlyn-Rees, L. Simon, V.
Miller of Chilthorne Domer, B. Slim, V.
Mishcon, L. Smith of Clifton, L.
Molyneaux of Killead, L. Smith of Gilmorehill, B.
Morris of Manchester, L. Stallard, L.
Northover, B. Stoddart of Swindon, L.
Orme, L. Stone of Blackheath, L
Palmer, L. Strange, B.
Parekh, L. Taverne, L.
Patel, L. Taylor of Blackburn, L.
Peston, L. Tenby, V.
Thomas of Gresford, L.
Phillips of Sudbury, L. Thomas of Walliswood, B.
Ponsonby of Shulbrede, L. Thomson of Monifieth, L.
Prys-Davies, L. Thornton, B.
Ramsay of Cartvale, B. Tomlinson, L.
Rea, L. Turnberg, L.
Redesdale, L. Turner of Camden, B.
Rendell of Babergh, B. Varley, L.
Rennard, L. Walmsley, B.
Richard, L. Watson of Richmond, L.
Rodgers of Quarry Bank, L. Wedderburn of Charlton, L.
Roper, L. Whitaker, B.
Sandberg, L. Whitty, L,
Scotland of Asthal, B. Wilkins, B.
Serota, B. Williams of Elvel, L.
Shepherd, L. Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.11 p.m.

Lord Phillips of Sudbury moved Amendment No. 5: Page 1, line 14, leave out ("retention") and insert ("reenactment").

The noble Lord said: This is a modest drafting amendment. It seeks to clarify the extremely difficult terminology of Clause 1(1)(b) of the Bill At Committee stage I attempted a much more ambitious clarification in the form of Amendment No. 3, which did not find favour with the Government. This amendment is a much more modest attempt to clarify the words "its retention" at the end of Clause 1(1)(b). We should always put ourselves in the position of those who subsequently have to try to interpret these provisions. Admittedly, the parliamentary draftsman faced a challenging task in drafting this Bill. However, I believe that the replacement of the word "retention" by the word "re-enactment" will enable Clause 1(1)(b) to be much more readily understood. I beg to move.

Lord Norton of Louth

My Lords, I rise briefly to support the noble Lord, Lord Phillips of Sudbury, and also to prove that I am now in my place. Unfortunately, I was the victim of signalling problems earlier today. I am grateful to the noble Lord, Lord Phillips of Sudbury, for moving, in my absence, an earlier amendment standing in my name. I now know how a Member of the other place feels sitting with a speech that cannot be delivered. My only consolation is that I can claim that it would have been excellent.

As the noble Lord, Lord Phillips of Sudbury, mentioned, this amendment was tabled in Committee. At that time I understood the point made by the Minister in response to the noble Lord. I suggested that, to ensure that the paragraph was internally consistent, the problem might be resolved by the use of the word "re-enactment". I believe that the noble Lord, Lord Phillips, has a valid point. I am therefore pleased to support his amendment.

4.15 p.m.

Lord Falconer of Thoroton

My Lords, I do not think the noble Lord, Lord Norton of Louth, need speak to prove that he is in his place.

With regard to whether we should replace the current word "re-enactment" with the word "retention", as I explained in Committee, I believe that, apart from being unnecessary, it would be positively damaging. As we have said on numerous occasions, any proposal aimed at reforming a substantive legislative regime would almost certainly not need to amend many parts of the Act of Parliament affected. Even if it did, it would do so only consequentially—for example, by way of renumbering—but those unamended parts would still form part of the new regulatory regime. We have many times heard the example of the 120 pieces of legislation that presently form the fire regime, many of which, if brought together in one place, would involve reenactments of the existing legislation but would not be changed in any way.

As the noble Lord's amendment is worded, the burdens are "retained". He suggests that the use of the word "retained" would make it clear to the public. The noble Lord, Lord Norton of Louth, underlines the point by suggesting that the word "retained" be used by reference to "burdens" in another part of the same provision. We want to go one stage further than retaining them, do we not? We want to allow an order to incorporate those unamended parts, which would result in one piece of legislation that would be much easier to understand and apply.

Lord Phillips of Sudbury

My Lords, I am suggesting that the word "retention" should be replaced by the word "re-enactment". It is the other way round.

Lord Falconer of Thoroton

My Lords, my draft says, "Remove 're-enactment' and insert 'retention'."

A noble Lord

It is the other way round.

Lord Phillips of Sudbury

My Lords, if I may say so, the argument that the Minister advances is entirely logical!

Lord Falconer of Thoroton

My Lords, I apologise for that. The note that I have is based on the precisely opposite contention. It is obvious that I have considered the matter on a false basis. I shall consider it and return to it at Third Reading.

Lord Phillips of Sudbury

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Ampthill)

My Lords, in calling Amendment No. 6, I should inform the House that if the amendment is agreed to, I cannot call Amendments Nos. 7 and 8.

Lord Campbell of Alloway moved Amendment No. 6: Page 1, line 15, leave out paragraph (c).

The noble Lord said: My Lords, this amendment seeks to leave out Clause 1(1)(c) in order to remove the power conferred to make new provisions. The amendment tabled in Committee by the noble Lord, Lord Goodhart, and retabled for Report stage, would also have removed Clause 1(1)(c). If it had not been withdrawn, I would have supported that amendment as a reasonable compromise position with which the House could live. However, I fear that I cannot live with the revised form of the amendment proposed by the noble Lord, Lord Goodhart, and accepted by the Government. Clause 1(1)(c)—for reasons that I shall give in a moment, and fairly shortly—is wholly unacceptable.

On Second Reading, the noble Lords, Lord Haskins and Lord Dahrendorf, in two remarkable speeches, identified and expressed the paradox of the Bill: that to alleviate and remove the heavy load of government it was proposed to strengthen the hand of government and to give it unprecedented powers to legislate by order. That would indeed remain the position under the revised form of the amendment of the noble Lord, Lord Goodhart, which is acceptable to the Government. It is this unprecedented power under paragraph (c) to which objection is taken.

At the outset it may be said that in the Bill as drafted there are no safeguards as to the exercise of that wide, unprecedented power such that, I suggest quite seriously, it could have ever been considered acceptable by the Delegated Powers and Deregulation Committee as envisaged in the conclusion of its report.

I make no bones about it. Paragraph (c) is wholly deviant from the constitutional requirement that secondary legislation must lie within the remit of a specific delegation of power under a specific Act of Parliament, so that if, without such remit, an order is made, the judiciary will declare it ultra vires the Act and unenforceable. But paragraph (c), as a total departure, would confer a kind of single source of power under primary legislation to enable the Government to introduce any secondary legislation imposing burdens on persons carrying on any activity. This could not be treated by the judiciary as ultra vires under this generic delegation of power under paragraph (c). This is a totally novel, unprecedented situation of considerable danger.

Why so? Because it would breach the fundamental doctrine of a separation of powers as between the legislature, the executive and the judiciary. In effect, it lifts the lid off Pandora's box to govern by decree for the sake of some administrative convenience. The functions of the judiciary would be slighted; there would be no effective control over misuse of executive power; and the Government propose to use the legislature to introduce this wholly unacceptable structure for an entirely new style of government.

The judiciary will no longer decide, as a matter of construction, whether the secondary legislation is without the delegation of power under the Act; under Clause 1(1)(c) that simply no longer arises. My noble friend Lord Norton of Louth truly said at Second Reading that this is a major constitutional Bill. The powers conferred are excessive and take the Bill beyond deregulation. The problem which lies at the heart of the Bill is the power to change primary legislation by order. My noble friend said that the solution is to remove, or considerably amend, subsection (1)(c). With respect to the House, I suggest that that is the only solution. It is not the solution afforded by the Government's acceptance of the amendments of the noble Lord, Lord Goodhart.

The only ground under subsection (1)(c)—as long as it stays in the Bill—on which the judiciary could declare a new provision ultra vires or unlawful could be that the burden was not proportionate to the benefit. But that is not a question of legal construction; it is a complex process of assessment which would have already been taken by two Houses of Parliament. In those circumstances, no court would intervene with a decision which had been taken by two Houses of Parliament, on a qualitative assessment, approving the order. So there is no effective judicial control. This is a dangerous situation; an unconstitutional situation. The only way to deal with it is to remove Clause 1(1)(c). I beg to move.

Lord Falconer of Thoroton

My Lords, as has occurred already in the course of the Report stage, there now cannot be an order which imposes a burden in accordance with Clause 1(1)(c) unless it also reduces or removes burdens under Clause 1(1)(a). In addition, before the Minister can propose any order which imposes burdens, he must be satisfied that the order is desirable as a result of the burdens it removes.

The purpose of including Clause (1)(c), as has been made clear at all stages, was to permit the streamlining and improvement of regulatory regimes, very often by reducing many burdens but, in addition, perhaps replacing five burdens with one. If the proposal of the noble Lord, Lord Campbell of Alloway, was to be followed, that would not be possible. The decision for the House in relation to the noble Lord's amendment is whether one wants to remove that ability. Does one want a Bill which allows regulatory reform orders where indeed burdens can be imposed, but only in the context of an order that removed other burdens and allowed the streamlining of regulatory regimes? I would respectfully suggest—particularly having regard to the safeguards which have now been introduced as a result of the amendments of the noble Lord, Lord Goodhart—that the far better course is that one should allow such regulatory reform orders.

I could not disagree more with the way in which the noble Lord, Lord Campbell of Alloway, put his case. He said that there were no safeguards. There is a requirement that the Minister has to be satisfied that the order does not remove any necessary protection or prevent the exercise of rights that an individual may expect to retain; there is a requirement for consultation; there is a requirement that a committee of each House should satisfy itself that the order has been proved, as the noble Lord, Lord Campbell of Alloway, said; and there is a requirement for both Houses of Parliament to pass the order.

This is a parliamentary procedure and it is for Parliament to ensure that appropriate orders are allowed and inappropriate orders are not allowed. I respectfully invite the noble Lord to withdraw his amendment.

4.30 p.m.

Lord Campbell of Alloway

My Lords, as always, I listened with respect to what the noble and learned Lord said. I heard his suggestion that what he proposes is a better course. I profoundly disagree for the reasons I have given. I am also very concerned that the provisions in Clause 1(1)(c) are not being treated as a matter of strict construction. That is our duty and advisory function when considering any Bill and the use to which the provisions could be put by any government. We have heard protestations from the Government Front Bench as to the use to which they intend to put paragraph (c) and not on matters of policy, whatever that may mean. Reference has been made to good governments, wicked governments and control freak governments. That is simply not to the point having regard to the plain provisions of the Bill which is about to become a statute.

This is not the time to carry on further argument. Obviously, the noble and learned Lord and I look at this matter from a totally different point of view. It is also obvious that the representation of our respective cases cannot marry exactly, but there is no reason why we should not regard each other's views objectively. I would certainly like further time to study the observations made by the noble and learned Lord. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Norton of Louth moved Amendment No. 7: Page 1, line 16, at end insert— ("() is necessary to compensate for the removal of an existing burden").

The noble Lord said: My Lords, I shall be brief because I suspect that the matter may have been overtaken by what was discussed earlier. The motivation, as we discussed at Committee stage, was to ensure that Clause 1(1)(c) was not free-standing, but linked to the removal of a burden. I believe that at Committee stage the noble and learned Lord, Lord Falconer, thought that I was arguing that it did not matter if they were unrelated and that as long as one burden was removed it did not matter if one was added. There did not have to be a link between the two. I tabled this amendment as a marker because I believe that there should be a link between the two, but if in the light of what happened earlier this afternoon the Minister is able to indicate that there is a linkage I shall be satisfied. I beg to move.

Lord Falconer of Thoroton

My Lords, I do not know when the noble Lord joined us but the effect of the amendments of the noble Lord, Lord Goodhart, were that one could not have Clause 1(1)(c) unless the order is covered in Clause 1(1)(a). In addition, it has to be the opinion of the Minister that the removal of the burdens justifies the making of the order. That does not mean that the Minister has to be satisfied that the burdens imposed, when weighed against those removed, are not a balance. The balance is identifying what burdens are being removed from the citizen and whether that makes the order desirable. If, in the opinion of the Minister, that is so, then and only then is he entitled to promote the order. There is not the direct link that the noble Lord proposes in his amendment, but there has to be a consideration and a conclusion by the Minister that the overall reduction in burdens justifies the making of the order.

Lord Norton of Louth

My Lords, I am grateful to the noble and learned Lord for that response. In principle, I would like to believe that he would prefer to go further and that there is a link. I understand what is being said. I am very pleased with what the Government have accepted in principle. I would like there to be a link where a new burden is added, which compensates for a burden which is reduced. In principle that is desirable. In the light of what has already been accepted, I do not wish to push the matter further. There has been an advance, but I do not believe that it goes far enough. I welcome what has been achieved so far. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 and 9 not moved.]

Lord Campbell of Alloway moved Amendment No. 10: Page 1, line 20, at end insert ("(1A) An order may not be made under subsection (1) above—

  1. (a) until a Select Committee of either House, or both Houses, upon scrutiny of the draft order as laid has reported that such order if made would be in conformity with the provision of such subsection and would not impose any offence, obligation, liability or administrative control not in force on the date on which this Act takes effect which involves the burden of any sanction, or increase the burden of any sanction, in force on the date on which this Act takes effect, and
  2. (b) unless both Houses of Parliament shall have debated and approved the making of such order as laid in draft, or (if so advised) as amended.").

The noble Lord said: This amendment makes mandatory provision for meticulous and methodical examination of any order laid under this Bill to ensure conformity with the provisions of Clause 1(1) and the general provisions of the Bill, as amended through the revised amendment of the noble Lord, Lord Goodhart. It ensures that, on meticulous examination, there is total conformity with the provisions of the Bill. It further ensures that the making of an order as laid or amended may only be approved after debate in both Houses.

It is the ultimate, if not the only effective safeguard, which could commend itself perhaps to the Delegated Powers and Deregulation Committee as a safeguard against the misuse of what are, without question, wide and unprecedented powers conferred by this Bill. In that context it would also strengthen the role of Parliament in calling government to account in the due exercise of the functions of this House.

This amendment is supported by my noble friend Lord Norton of Louth. It delays making an order until there has been scrutiny of the draft, as laid by a Select Committee in either or both Houses. I accept that it is implicit that to avoid undue delay some flexible limit of time for scrutiny and report by the Select Committee must be given consideration. It is also requisite that there should be administrative arrangements for debate which inhibit a perfunctory decision or resort to the guillotine.

My noble friend Lord Dean of Harptree referred to the recent change in procedure in another place on Bills concerning the constitution which are now taken under the guillotine without the agreement of the Opposition. The noble Lord, Lord Dahrendorf, took the point as regards adequate time for scrutiny. He said that orders emanating from this Bill concern our core functions and that necessary time for scrutiny was essential.

This is a main constitutional Bill. It derogates from the fundamental concept of the separation of powers. It confers new powers to legislate by order, as already asserted by Amendment No. 6. In principle, parliamentary scrutiny will confer the only effective safeguard irrespective of the drafting of this amendment. As mentioned on Amendment No. 6, the supervisory functions of the judiciary have been slighted.

The wording of this amendment would inhibit the imposition of, any offence, obligation liability or administrative control not in force on the date on which this Act takes effect which involves [or increases] the burden of any sanction", by order under this legislation. It reflects the concern, as already expressed by my noble friend Lord Norton of Louth, that, under the Bill, primary legislation could be changed by order. I beg to move.

Viscount Goschen

My Lords, before we leave Clause 1, especially paragraph (d) relating to, the removal of inconsistencies and anomalies", I have one brief point to make which reflects my noble friend's desire to see enhanced safeguards within the Bill. During our detailed considerations in Committee, we did not spend very much time on this little "get-out" paragraph at the end of the clause.

When the Minister addresses the points raised by my noble friend Lord Campbell of Alloway about additional parliamentary safeguards being inserted into the Bill, I wonder whether he could define a little further exactly what is meant by the removal of "inconsistencies" and, in particular, the removal of "anomalies". During the course of our deliberations on the disqualification Bill, I recall the noble and learned Lord, Lord Falconer of Thoroton, referring to that legislation as an "anomaly" and saying that it was a simple tidying-up measure. I should like to know whether that sort of legislation could be put through Parliament by order under this Bill.

4.45 p.m.

Lord McIntosh of Haringey

My Lords, I do not believe that I can assist the noble Viscount, Lord Goschen. If he wishes to have a discussion on inconsistencies and anomalies, he can table an amendment. I am sure that the House would not appreciate it if I strayed from the amendment on the Marshalled List. After all, that is what we are supposed to be considering.

I must say that I am surprised to see Amendment No. 10 here. I thought that we spent a good deal of time in Committee discussing the fact that the procedures of the House are matters for this House, not for government by way of legislation. I am still very firmly of that view. How the House organises its affairs is a matter for the House; it is not a matter for legislation. Therefore, many—though not all—of the matters referred to in either paragraph (a) or (b) of the amendment are matters for the House to consider by way of its own procedures; for example, whether or not to have debates, under what circumstances, and at what stage. It would be presumptuous of the Government to seek to impose such restrictions on the House.

I have a further problem with the amendment in that it would return the restrictions to the Bill that were contained in the comparable amendment tabled in Committee and which, presumably, the noble Lord, Lord Campbell, withdrew on the basis that he had an improved version for this stage. It has become a mantra for this Bill, but it is worth repeating: the power contained in the Bill is a wide one, but one that is surrounded by robust safeguards. Indeed, the noble Baroness, Lady Buscombe, referred to that when addressing Amendment No. 3. Although I know that she does not agree that we have achieved those safeguards, she recognises that that is the structure of the Bill.

The Bill provides that a Minister will have to show that any new burden imposed by an order is proportionate and that, in his or her opinion, it also strikes a fair balance between the rights of the persons involved and the interests of society at large. That applies to Clause 1(1) and Clause 3. We should not forget that the consultation process would have to be thorough in exposing those issues and seeking views, including the views of those likely to be adversely affected. The Minister will have to document his reasoning and submit the proposal for rigorous scrutiny by the two committees. The House is then free to vote on the matter when it comes before it for affirmation. As I said in Committee, any Peer can table a companion Motion to amend the Motion to approve the committee's report. As a result, the draft order would be taken up and re-laid, with amendments. That is how I approach this part of Amendment No. 10.

The amendment seeks to limit the order-making power by ruling out the introduction of, any offence, obligation, liability or administrative control not in force", on the day that the Bill is enacted, if it, involves the burden of any sanction". Let us consider the implications. I am sure noble Lords will agree that it would be a very good move if an order were to simplify a highly complex, regulatory regime by replacing a whole gamut of licences with one simple, transparent licence for all. And that the reform should take into account appropriate changes in circumstances since the parent Act was enacted. It is possible that this hypothetical new licensing regime with the simple, transparent licence would only be workable in the sense of the protections that it offered to consumers if there were some sort of penalty for non-compliance. That is not just a possibility; it seems to me to be almost inevitable. However, it would be impossible under the terms of the amendment now before us.

The proposed restriction would make it impossible to carry out some of the most worthwhile reforms. The classic example is reform of fire safety regulations—one of the key examples of what would be possible under this Bill—which could be ruled out if the amendment were carried. Another example is the worthwhile and sensible reform of weights and measures legislation. There has to be some power and there have to be some penalties, but they do not have to be set out in the complex, often out-of-date and burdensome way that applies at present.

The amendment would also reintroduce a problem that we had with the Deregulation and Contracting Out Act 1994. It proposes an arbitrary, date-driven cut-off date that would quickly render the Act useless as a tool for worthwhile reform. Therefore, for those three reasons—the interference with the privileges and processes of the House, the removal of the possibility of having penalties for the new orders that would he required to remove greater burdens, and the arbitrary cut-off date—I hope that the noble Lord will not pursue his amendment.

Lord Skelmersdale

My Lords, before the Minister sits down perhaps he can answer one simple question. Does the noble Lord consider that the present structure of the Select Committees in this House is adequate for the consideration of super reform orders, such as those under the fire safety and the weights and measures legislation? Alternatively, does he believe, as I do, that some changes will need to be made?

Lord McIntosh of Haringey

My Lords, it would be presumptuous for me to express a view on the matter from this Dispatch Box. However, as a Member of the House, I can, like the noble Lord, express a view. If the noble Lord is suggesting that there will be an increase in work for the Delegated Powers and Deregulation Committee, then, objectively, the answer must be yes. That was anticipated when the 1994 Act was before the House. When it came to the point where an increase arose in the workload of the committee, it was dealt with accordingly. If there were to be a greater increase in the workload of that committee—I express this view as an ordinary Member of the House, not as a member of the Government—it would be up to the committee to say to the Government, "Well, you'll have to have a queuing system. You'll have to introduce these measures at a rate that will enable us properly to consider them". Similarly, the committee might say that it needs greater resources in order to consider such measures. All those scenarios are possible, but they are not for the Government to prescribe.

Lord Campbell of Alloway

Yes, my Lords, this amendment would impose restrictions; indeed, that is the object behind it. The whole object of this proposal is to preserve the traditional constitutional position. If you want to amend all the fire regulations or those relating to weights and measures, you would do so in the manner in which it has always been done—namely, by primary legislation. That is the traditional way in which matters have been dealt with, and that is how matters should continue to be dealt with. My amendment would ensure that the traditional system is observed.

As to the other question about the House having sovereignty over its own procedures, I think the noble Lord would agree that on more than one occasion I have asserted that such should be the case. However, this does not in any sense derogate from that concept. In the circumstances, I should like to consider the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Kingsland moved Amendment No. 12: Page 1, line 24, after ("made") insert ("and which contains provision that it shall be deemed as "legislation" within the meaning of this subsection").

The noble Lord said: My Lords, we are concerned that the Bill permits any legislation whatsoever, whether or not in force, to be amended on the basis of a two-year rolling timetable. We on these Benches do not understand why a two-year rolling timetable is necessary. If legislation is found to be misconceived, inconsistent, anomalous or generally in need of regulatory reform, why should it be necessary to wait for two years before doing something about it? Why not act immediately?

It is no answer to say that legislation needs time to bed down, because if the hypothesis is correct no amount of bedding down will do any good. Conversely, if bedding down may do some good, and that can be seen to be so, why impose a time limit? Those who are tasked for the job of regulatory reform are perfectly well able to judge whether or not the initial legislation is bedding down satisfactorily; and they can time their intervention accordingly. While some protection is better than none, we are driven to the conclusion that the purpose of this provision is to provide an illusion of protection when in fact it provides none at all.

We are acutely aware of the view of many of your Lordships that the introduction of a two-year rolling period is an invitation to legislative slackness. I hope I shall be able to demonstrate that that is a separate point. I am here concerned with the establishment of legislative safeguards against an abuse of the powers granted by this Bill. That is why we are proposing an alternative in this amendment.

The 1994 Act provided a clear measure of protection. No legislation was to be subject to regulatory reform unless it was already on the statute book when the 1994 Act was passed. This Bill abandons that safeguard entirely, yet replaces it with none. In our submission, the absence of any such safeguard makes the Bill open to abuse. It would be possible to pass primary legislation with a view to its amendment in the name of regulatory reform. In two years' time, what ought to have been the subject of primary legislative scrutiny will be passed by secondary means. Indeed, under the terms of Clause 1(2)(a) what was passed the first time around will not even have had to come into force.

We therefore propose that two safeguards should be introduced, although it will not have escaped your Lordships' attention that I have sought to retain the two-year rolling period as well. The first safeguard requires that we be told here and now what are regarded as proper candidates for regulatory reform. We have been provided by the noble and learned Lord, Lord Falconer, with an informal shopping list of current legislation which is deemed worthy of regulatory reform. It appears on the Cabinet Office website and is to be seen as a list of categories rather than as a list of statutes or orders.

I must admit that is a start and, in deference to the noble and learned Lord, had it been possible I should have proposed an amendment whereby the list should go into this Bill in the form of a schedule. I am unable to propose such an amendment because, although the list is a long one, it comprises no more than a list of categories and not one of specific provisions. However, I should make it clear that I would not oppose a proposal that, instead, this Bill should contain a provision similar to that contained in the 1994 Act; so that all antecedent legislation is subject to these reforming powers. I therefore invite the noble and learned Lord to consider such a provision.

Secondly, in order that some measure of control can be kept upon the use of this Bill, all future legislation which contains what is regarded as regulatory content should identify itself as such. The Government have repeatedly stressed, as I understand it, that this Bill will not be used for politically controversial measures. Therefore it must follow that the inclusion of such a provision in primary legislation will itself be non-controversial.

This provision also meets the objection from the noble Lord, Lord McIntosh of Haringey, that legislation may be passed after the passing of this Bill which is part of a pattern of legislation passed before it, all of which will need to be reformed as a package. This requirement will therefore serve a two-fold purpose, without undermining the purpose of the Bill. It will prevent abuse of the system and, given the passage of time, it will define that which the elephant test cannot; namely, the type of legislation to which the power granted by this Bill is intended to apply. I beg to move.

Lord McIntosh of Haringey

My Lords, I confess to being in a difficulty which has occurred to me on a number of occasions in the last few years. I do not know whether to speak to the amendment or to the speech, because they are so different. I think that I shall have to do both—

Lord Kingsland

My Lords, I am most grateful to the noble Lord for giving way. I was going to suggest that he did both, so that he would cover all eventualities.

Lord McIntosh of Haringey

My Lords, let me explain what the amendment would do and then I will turn to the argument of the noble Lord, Lord Kingsland. The amendment would limit the scope of reform to legislation which specifies that it is eligible. That would rule out all legislation passed before this Bill receives Royal Assent because no legislation that has been passed says that this legislation is eligible under the Regulatory Reform Act 2001—

Lord Kingsland

My Lords, I am grateful to the noble Lord for giving way so swiftly once again; but I recall either the noble Lord or his noble and learned friend saying this afternoon that the task of the 1994 Act was now exhausted, so that it should not matter whether or not the Bill applied to that class of legislation.

Lord McIntosh of Haringey

My Lords, of course it matters. I will have to turn to the speech rather than to the amendment now, because the noble Lord, Lord Kingsland, admitted that the 1994 Act was restricted in the sense that it only covered legislation up to and including the 1993–94 legislative Session and did not include legislation afterwards. Therefore we are all agreed that it has ground to a halt, albeit an honourable halt, because very little of the legislative burden is going to consist almost entirely of legislation not subsequent to the 1993–94 legislative Session. This amendment does quite the opposite. It states that nothing before the passage of this Bill, and, indeed, given the two-year rolling period, nothing for two years after the passage of the Bill, will be considered for inclusion in the powers of the Bill. The legislation would have to state that a matter is eligible for consideration under the Regulatory Reform Bill—no legislation states that—and that when the Bill is passed it cannot be considered for two more years. Therefore, no provision can be included for two years after the passage of this Bill.

The noble Lord, Lord Kingsland, said that he had considered putting the 51 examples on the face of the Bill. This amendment would rule out all of the 51 examples. We have a problem with the amendment. I have great difficulty in addressing the speech of the noble Lord, Lord Kingsland, because it is based on a misunderstanding of what his amendment means and does.

I appreciate his concern about the two-year period. We debated that matter in Committee. He expressed the view at that time that the provision would encourage sloppy drafting because the draftsmen and the Government would say, "It does not matter if we get it slightly wrong because we can put it right in two years' time using a regulatory reform order". Our response to that was—and I stick by that response—that we would be astonished if that were to be the case. It would be a poor way to proceed given the difficulties of getting a regulatory reform order through. The obstacles to be overcome and the safeguards in the Bill would result in primary legislation being preferred in any circumstances that were at all dubious.

The noble Lord, Lord Campbell of Alloway, who is no longer present, considers that primary legislation ought to be used all the time. He really does not believe in regulatory reform at all and he made that entirely clear in his previous speech. However, we consider that the cut-off point which we propose here; namely, that one cannot alter a measure until two years after at has been passed, is entirely reasonable. When we consulted on the matter in 1999, there was general agreement that it was reasonable. The Delegated Powers and Deregulation Committee supported the view. The noble Lord, Lord Goodhart, as a member of the committee, expressed that view in Committee. The rolling cut-off which the noble Lord, Lord Kingsland, addressed in his speech is an important part of the provisions of the Bill ensuring continuity and consistency between it and the 1994 Act. Therefore, even if the amendment did not mean what it does mean, we would oppose the arguments that the noble Lord, Lord Kingsland, advanced.

5 p.m.

Lord Kingsland

My Lords, I am most grateful to the Minister for his reply. I must say I do not see the problem that he sees in this amendment. The 1994 Act will remain on the statute book until this Bill becomes law, if it does become law. The 1994 Act will apply to everything up until that Act is repealed. Thereafter, this Act will take over.

Lord McIntosh of Haringey

My Lords, the 1994 Act applies only to legislation up to and including the 1993–94 legislative Session. Nothing between 1994 and 2001 would therefore be covered. We are dealing with a whole series of statutes over a period of time. If we cut out permanently seven years of legislation, we would cut the heart out of this legislation.

Lord Kingsland

My Lords, I am most grateful to the Minister for that clarification. I shall, in the light of that, look at the amendment again. But I think the clear thrust of the amendment to the operation of the Bill in future is manifest. If the Minister will address himself to that matter when I reintroduce the measure again at Third Reading, I shall respond more fully. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 13: Page 2, line 4, at end insert— ("(2A) An order under this section must include provision made by virtue of subsection (1)(a).").

The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Kingsland moved Amendment No. 14: Page 2, line 25, leave out ("the Minister thinks") and insert ("is").

The noble Lord said: My Lords, this amendment is grouped with Amendments Nos. 20, 23, 29, 30, 32, 33 and 34. These amendments highlight a fundamental difference between the Government and the Opposition in the approach to the policing of the powers granted by the Bill. On the one hand, there is a desire to restrict access by individuals to the courts for the purpose of mounting an effective challenge to inappropriate secondary legislation. On the other hand, there is a desire for openness and a recognition of the fact that no wrong should be left without a remedy.

It was suggested during Committee that parliamentary scrutiny provides a better and more secure form of policing than the courts. With the greatest respect, that cannot be so in this case. When Parliament is required, as here, to pass legislation by secondary means, its ability to exercise its policing powers is restricted. That is why the opportunities for secondary legislation are rightly and properly limited and it is precisely why those affected by such legislation should be able to have effective recourse to the courts.

It was also suggested that, if recourse to the courts were to be permitted, the courts would be inundated with applications, not from those who are required to bear the burden of regulation but from pressure groups intent on using the courts as a soap-box from which to air their views. I was somewhat surprised to hear that said. Regardless of whether a pressure group might have the right to bring a certain matter to court, if the law provides a remedy it does so as a means of righting a wrong. No application may be made to the court in a vacuum.

Furthermore, it is not my experience that the courts will hesitate before dismissing applications which are lacking in merit, particularly in the field of judicial review. The courts are not overrun with unmeritorious applications and even if they were, they have adequate powers to protect themselves. I am therefore driven to conclude that the objection to this amendment, and to others like it, is not based upon a concern for the wellbeing of the courts but is an objection to judicial scrutiny of the exercise of ministerial power. That being so, in my submission the objections to this amendment are ill-conceived.

The Bill shifts power away from Parliament and into the hands of Ministers. Parliament's policing powers are limited and yet nothing is offered in the Bill by way of replacement. The courts are the obvious alternative as a policing authority and yet they are being rejected on, in our view, insubstantial grounds. This amendment, therefore, and others like it, redresses the imbalance of power which the Bill will otherwise create. I beg to move.

Lord Borrie

My Lords, under the Bill as it stands, should a Minister do something which no reasonable Minister would do—if he acts perversely—judicial review is possible. The courts may intervene at someone's instance. That, to my mind, is appropriate. But, under the various amendments in the group we are discussing, anyone could go to court to say that a Minister's decision on a whole range of matters was simply wrong on its merits. That seems to me to undermine completely the whole approach of the Bill which is, of course, concerned to give, through the super-affirmative resolution process and through the scrutiny committees and so on, a superior form of parliamentary scrutiny, if I may put it that way.

If, for example, Amendments Nos. 22 and 23 were passed, instead of a Minister accountable to Parliament deciding what in his opinion is a fair balance between the public interest on the one hand and the interests of a person on whom a burden is being imposed on the other, someone could properly go to court to determine that on its merits.

More remarkably still, if Amendments Nos. 29 and 30 were passed, instead of a Minister accountable to Parliament deciding whom he should consider or who might be a representative body to be consulted among affected interests, a court would be entitled to do so. This group of amendments would undermine the superior form of parliamentary accountability which is embodied in the Bill and would raise a wholly extended form of judicial review far beyond anything we understand by that phrase.

My evening yesterday was enlightened by reading an article by the noble Lord, Lord Kingsland, in the journal Counsel of February 2001. As the article is not only written by the noble Lord, Lord Kingsland, but also describes him as the Shadow Lord Chancellor, I take it that it represents something near an official point of view.

Lord Kingsland

My Lords, I may have been described as the Shadow Lord Chancellor but it was not an article written in any official context. My own views on the matters form the substance of the article.

Lord Borrie

My Lords, I am happy to be enlightened on that point. However, perhaps I may quote a passage from the article. The noble Lord will realise that my eyebrows rose a little when he talked a few moments ago about the Regulatory Reform Bill shilling powers from Parliament to the executive. In the article the noble Lord refers to the Human Rights Act and states: The Human Rights Act engineers a massive shift of power from parliament to the courts where the judges will be confronted, as the Lord Chancellor has accepted, with legal choices which offer immense scope for political moral and philosophical disagreement ". The noble Lord raises the question, very reasonably, about the difficulty of establishing the necessary legitimacy of judges to deal with the important matters in that Act. I readily agree that the Regulatory Reform Act is an entirely different matter. However, does the noble Lord think that some of those phrases are appropriate for the Regulatory Reform Bill? It deals with a balance between burdens and benefits, and such issues as who is a suitable body to be consulted on specific orders. Does he not think that it would be a massive and unjustified shift of power from Parliament to the judges if one rules out the phrase "in his opinion" wherever it appears in the Bill and, according to the amendments proposed by the noble Lord, Lord Kingsland, it was possible to get a judicial decision on the merits of any of those matters which are more appropriate to Ministers and Parliament?

Lord Skelmersdale

My Lords, the noble Lord, Lord Borrie, should welcome the view of my noble friend. Members of the governing party complain frequently about our inconsistency. My noble friend has been totally consistent in his views today and in the article.

5.15 p.m.

Lord Goodhart

My Lords, I think that it will be appropriate for me to speak at this point because Amendments Nos. 20 and 23 are identical to amendments which I moved in Committee, and which I put forward for Report stage although I withdrew them subsequently.

The argument on which I relied to a considerable extent in Committee was a somewhat double-edged sword. I said that it would be wrong to make the test subjective when that did not represent what happened on the ground. The position is that the Minister states his opinion. In your Lordships' House that comes before the Delegated Powers and Deregulation Committee. That committee does not consider whether the Minister's opinion is rational but whether the proposed order meets the test and conditions in what will be Clause 3(2). In practice, although not on the face of the Bill, the test is objective rather than subjective although the body that tests it in this House is the Delegated Powers and Deregulation Committee rather than the court.

That position is something of a two-edged sword. One could say that in those circumstances it does not matter enormously whether on the face of the Bill the test is objective or subjective. Whichever it is, the committee will consider it. If the committee comes to the conclusion that the Minister's view is incorrect even if not irrational, in practice it is unlikely that that order would be allowed to go forward to the House. If it went forward, it would be unlikely to succeed.

In those circumstances, therefore, I do not regard this group of amendments as being of major significance. In view of the fact that the Government have made what I believe to be substantial and important concessions over the amendments contained in the first group I would not be minded to press this group of amendments.

Viscount Goschen

My Lords, because the Government have made some move towards strengthening the level of detail in the Bill does not mean that we should not improve it further.

When replying to a previous amendment proposed by my noble friend Lord Kingsland, the noble Lord, Lord McIntosh of Haringey, was in two minds as to whether he should speak to the amendment or the speech of my noble friend. When addressing this group, Members of your Lordships' House are in the same position: whether to address what is contained in the Bill or the assurances given by Ministers as to how the Bill will operate.

In their speeches, Ministers have gone to great lengths to reassure the House that there are only targeted and specific circumstances in which the measure could be used. However, the Bill states nothing of the kind. The instances where it can be used are extremely wide. That is why I strongly support my noble friend. We need to take out more of the subjective nature of the Bill.

The whole Bill is about what "the Minister thinks"—whether the Minister thinks some piece of legislation should be amended which is not at the top of the Government's priority list. We have heard time and again about fire safety legislation. If safety is a priority of the Government, perhaps they should consider bringing forward in primary legislation a new fire safety Bill which draws all the measures together. I wonder how many ministerial speeches would have to be rewritten to delete fire safety legislative arguments.

The words "the Minister thinks" appear throughout the Bill. There are instances where such a phrase is appropriate in legislation. However, in a Bill which is so open to abuse, to have such latitude for a Minister is not appropriate. I support my noble friend's amendment.

Lord McIntosh of Haringey

My Lords, fire safety is one of 51 examples. Perhaps the noble Viscount, Lord Goschen, would like us to bring forward 51 Bills to deal with each of those issues. That is an interesting proposition.

Viscount Goschen

My Lords, I cannot let the noble Lord get away with that. He has used the same example at every stage of the Bill and done so at great length. That is why I drew attention to it. My noble friend Lord Kingsland said earlier that perhaps we should write those 51 examples into the Bill. Let the Government get that through and then bring forward another Bill if they want. Then there might be something to consider.

Lord McIntosh of Haringey

My Lords, I do not mind being accused of using the fire safety example, but I very much mind being accused of doing it at great length. If the noble Viscount measures the column inches on fire safety, he will find that they do not amount to much.

We dealt with the issue thoroughly in Committee. We have not changed our opinion since then. The procedure in the Bill, which the amendments would alter, is the same as in the 1994 Act. It has been there all the time and has not caused any difficulty. The Conservative Party introduced that legislation, which included the provisions for the Minister's opinion.

Viscount Goschen

My Lords, I know that my party did that. The noble Lord will recall that I was sitting in the position that he is sitting in now. That is still reasonably fresh in my memory. The Bill is much wider and goes much further than the Deregulation and Contracting Out Act 1994. It therefore needs much more powerful provisions to limit its effects.

Lord McIntosh of Haringey

My Lords, as is well known, I dispute that claim. Bearing in mind the amendments that we have accepted from the noble Lord, Lord Goodhart, today, the relationship between the scope of the Bill and the safeguards included in it is highly defensible. We have nothing to apologise for and no need to make different provision from that in the 1994 Act. We still have the principle of thorough consultation and intense scrutiny in both Houses of Parliament. As my noble and learned friend Lord Falconer said in Committee: We do not think that the right course is to allow the courts, after Parliament has scrutinised the legislation with the relevant amount of information and in the necessary degree of detail, to try to unhinge the process".—[Official Report, 23/1/01; col. 208.] Of course, that is subject to the legitimate point made by the noble Lord, Lord Borrie, about judicial review. If the Minister acts unreasonably, judicial review is possible under well established principles. However, the amendments would give the courts much greater scope to intervene or to be approached to intervene.

I shall deal with the amendments in turn. Although they all have the same thrust, it is necessary to consider them individually. The noble Lord, Lord Goodhart, tabled comparable amendments in Committee to Amendments Nos. 20 and 23. He made the correct observation about them. They relate to the safeguards in Clause 3 of necessary protection, rights and freedoms and fair balance. That is carried over from the 1994 Act. The provision has worked well and the committees have been vigilant to police it. The noble Lord, Lord Goodhart, pointed out today that the Minister reaching an opinion is the starting point. That happens before any consultation takes place and before the matter comes before any committee. There are provisions to make sure that if the consultation is unfavourable, the adverse results of consultation are brought before the committees of both Houses. The committees then have the duty of considering whether the Minister's opinion is reasonable and deciding whether the proposal before them removes any necessary protection, as in Clause 3.

Removing the Minister's opinion from the Bill would leave the power to decide to the courts, not to Parliament. I do not want to get involved, as a mere market researcher, in a disagreement between the noble Lord, Lord Borrie, and the noble Lord, Lord Kingsland, although it sounded to me as if it was abusing plaintiff's attorney, for which I was grateful. Surely the protection for the public is that the Minister has to make a judgment before going to consultation and before the matter comes before Parliament, and that the Minister is accountable to Parliament.

Amendment No. 14 deals with such incidental, consequential, transitional or supplemental provision as the Minister thinks appropriate. The question of what is incidental, consequential, transitional or supplemental is objective. There are examples in legislation that show what that means. If the Minister does not determine what provision to include, that leaves open the question of who is to decide on the appropriateness, which is, by definition, a matter of judgment.

Amendments Nos. 29 and 30 relate to whom a Minister consults about a proposal. It is not possible for a Minister to know whether a particular body is representative of a certain group of people. He can only form an opinion. The starting point has to be someone's opinion. On Amendment No. 32, the Minister thinking that it is appropriate to vary the proposals is a factual precondition. If the Minister thinks that it is appropriate to vary the conditions, he must undertake such further consultation as appears necessary. It would be nonsensical to remove the reference to what the Minister thinks. Amendments Nos. 33 and 34 are purely consequential.

We have not learned any more from this debate than we learned from the same debate in Committee. The Government's position is the same: the public interest is best protected by the Minister exercising his duty to form an opinion and that being tested by consultation and by the parliamentary process. The amendments would remove that.

Lord Kingsland

My Lords, I am most grateful to the Minister for his reply. I thank the noble Lord, Lord Borrie, very much for giving my article in Counsel some publicity. I doubt that it would have received it otherwise. That article is about the relationship between the courts and Parliament in its primary legislative mode in the particular context of the Human Rights Act 1998. We are considering, here, a delegated legislative procedure in which most of the safeguards depend on particular conduct in your Lordships' House, not on procedures set out in detail in the statute. With great respect to the noble Lord, Lord Borrie, the parallel is not fair, although I have no objection to his attempting to draw it.

I am grateful to the Minister for setting out the Government's position clearly on each amendment. The Opposition disagree with it and we would like to test the opinion of the House.

5.29 p.m.

On Question, Whether the said amendment (No.14) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 152

Division No. 2
CONTENTS
Alton of Liverpool, L. Howe of Aberavon, L.
Astor, V. Jenkin of Roding, L.
Attlee, E. Kimball, L.
Biffen, L. Kingsland, L.
Boardman, L. Knight of Collingtree, B.
Bridgeman, V. Lamont of Lerwick, L.
Brougham and Vaux, L. Lang of Monkton, L.
Burnham, L. [Teller] Lawson of Blaby, L.
Buscombe, B. Lucas, L.
Byford, B. Luke, L.
Caithness, E. Lyell, L.
Campbell of Alloway, L. Monson, L.
Campbell of Croy, L. Mowbray and Stourton, L.
Carnegy of Lour, B. Moynihan, L.
Coe, L. Northesk, E.
Colwyn, L. Norton of Louth, L.
Cope of Berkeley, L. O'Cathain, B.
Cox, B. Onslow, E.
Oxfuird, V.
Cranborne, V. Park of Monmouth, B.
Cumberlege, B. Patten, L.
Dean of Harptree, L. Peel, E.
Denham, L. Rawlings, B.
Dixon-Smith, L. Rees, L.
Dundee, E. Renfrew of Kaimsthorn, L.
Eden of Winton, L. Renton of Mount Harry, L.
Elliott of Morpeth, L. Roberts of Conwy, L.
Freeman, L. Rogan, L.
Gardner of Parkes, B. Saatchi, L.
Geddes, L. Seccombe, B.
Goschen, V. Selborne, E.
Gray of Contin, L. Skelmersdale, L.
Hanham, B. Stewartby, L.
Hanningfield, L. Stodart of Leaston, L.
Hasiam, L. Strathclyde, L.
Hayhoe, L. Swinfen, L.
Henley, L. [Teller] Thomas of Gwydir, L
Holderness, L. Trefgarne, L.
Home, E. Vinson, L.
Howe, E. Waddington, L.
NOT-CONTENTS
Acton, L. Blackstone, B.
Addington, L. Blease, L.
Ahmed, L. Borrie, L.
Allenby of Megiddo, V. Bragg, L.
Alli, L. Brennan, L.
Amos, B. Brooke of Alverthorpe, L.
Ampthill, L. Brookman, L.
Andrews, B. Brooks of Tremorfa, L.
Archer of Sand well, L. Burlison, L.
Ashton of Upholland, B. Carter, L. [Teller]
Barker, B. Castle of Blackburn, B.
Barnett, L. Christopher, L.
Bassam of Brighton, L. Clarke of Hampstead, L.
Bernstein of Craigweil, L. Clement-Jones, L.
Billingham, B. Clinton-Davis, L.
Cocks of Hartcliffe, L. McIntosh of Haringey, L. [Teller]
Craig of Radley, L.
Crawley, B. McIntosh of Hudnall, B.
Currie of Marylebone, L. MacKenzie of Culkein, L.
Dahrendorf, L. Mackenzie of Framwellgate, L.
David, B. Mackie of Benshie, L.
Davies of Coity, L. McNally, L.
Davies of Oldham, L. Maddock, B.
Desai, L. Mar and Kellie, E.
Dixon, L. Marsh, L.
Dubs, L. Mason of Barnsley, L.
Elder, L. Massey of Darwen, B.
Erroll, E. Merlyn-Rees, L.
Evans of Parkside, L. Miller of Chilthorne Domer, B.
Evans of Watford, L. Molloy, L.
Falconer of Thoroton, L. Morris of Castle Morris, L.
Farrington of Ribbleton, B. Morris of Manchester, L.
Newby, L.
Faulkner of Worcester, L. Orme, L.
Gale, B. Parekh, L.
Geraint, L. Patel, L.
Gibson of Market Rasen, B. Peston, L.
Gilbert, L. Phillips of Sudbury, L.
Gladwin of Clee, L. Prys-Davies, L.
Goldsmith, L. Puttnam, L.
Goodhart, L. Ramsay of Cartvale, B.
Gould of Potternewton, B. Rea, L.
Graham of Edmonton, L. Rendell of Babergh, B.
Greaves, L. Roper, L.
Grenfell, L. Russell, E.
Hardy of Wath, L. St. John of Bletso, L.
Harris of Greenwich, L. Sawyer, L.
Harris of Haringey, L. Scotland of Asthal, B.
Harris of Richmond, B. Shepherd, L.
Harrison, L. Shore of Stepney, L.
Haskel, L. Shutt of Greetland, L.
Haskins, L. Simon, V.
Hayman, B. Slim, V.
Hogg of Cumbernauld, L. Smith of Clifton, L.
Hollis of Heigham, B. Smith of Gilmorehill, B.
Howells of St. Davids, B. Smith of Leigh, L.
Howie of Troon, L. Steel of Aikwood, L.
Hoyle, L. Stoddart of Swindon, L
Hughes of Woodside, L. Stone of Blackheath, L.
Hunt of Kings Heath, L. Taylor of Blackburn, L.
Islwyn, L. Thomas of Gresford, L.
Jacobs, L. Thomas of Walliswood, B.
Thornton, B.
Janner of Braunstone, L. Tomlinson, L.
Jay of Paddington, B.(Lord Privy Seal) Tordoff, L.
Turnberg, L.
Jeger, B. Turner of Camden, B.
Jenkins of Putney, L. Uddin, B.
Judd, L. Varley, L.
King of West Bromwich, L. Wallace of Saltaire, L.
Kirkhill, L. Walmsley, B.
Lea of Crondall, L. Weatherill, L.
Levy, L. Wedderburn of Charlton, L.
Lipsey, L. Whitaker, B.
Listowel, E. Whitty, L.
Lockwood, B. Wilkins, B.
Lofthouse of Pontefract, L. Williams of Elvel, L.
Macdonald of Tradeston, L. Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.40 p.m.

Clause 2 [Meaning of "burden" and related expressions]:

Lord Kingsland moved Amendment No.15 Page 2, line 28, leave out ("includes") and insert ("means").

The noble Lord said: My Lords, in moving Amendment No. 15 I shall speak also to Amendments Nos. 16 and 17. In Committee the noble and learned Lord, Lord Falconer, explained that the use of the word "includes" was deliberate as paragraphs (a) and (b) which followed were intended to include examples of burdens only, without restricting the natural meaning of the word. He gave as examples of burdens which would not fall within (a) and (b) but which would, none the less, be burdens within the natural meaning of the word, outright prohibitions and appeals mechanisms.

I have some difficulty with that analysis. First, the structure of paragraph (a) is such as to indicate a broad approach to the definition. The words used are effective to define wide categories, not mere instances. Secondly, I do not believe that an outright prohibition is anything other than a restriction within the meaning of paragraph (a), likewise an appeals mechanism. The breadth of definition in paragraph (a) seems to me to catch both.

We are left with the clear impression that the use of the word "includes" is intended as some form of escape clause. I have no objection to the use of an escape clause if its use is warranted, but given the broad definition in paragraph (a), I can see no reason why such an escape clause should be necessary.

I can deal with Amendments Nos. 16 and 17 together. From the website of the Cabinet Office, and in particular the sites which give details about the Bill and potential regulatory reform orders, we can soon expect to see a package of business-friendly initiatives, reform of outdated, overlapping and over-burdensome legislation; clearer and better-targeted legislation and a climate that encourages thriving business.

I am sure that your Lordships are excited by those prospects. However, it is not entirely clear from the website—in fact, it is not clear at all to the Opposition—that those new initiatives will allow Ministers to make regulatory reform orders which permit Ministers, government departments and local authorities to incur further expenditure.

I would be grateful, therefore, if the Minister would make clear, to the extent that he can, whether or not the Government intend to use the Bill for the purpose of making regulatory reform orders that remove conditions or limits which prevent the incurring of expenditure. I beg to move.

Lord Falconer of Thoroton

My Lords, we debated the first issue in Committee; namely, is it right to say "includes" or should the definition in 2(1)(a) be exhaustive? The approach that we have taken is the one adopted in the 1994 Act, where the word "includes" was used and not the word "means", which is the word proposed by the noble Lord, Lord Kingsland. I am unaware of that causing difficulty in terms of definition. The noble Lord skated over skilfully, but, with the greatest of respect, inadequately, the argument that had been advanced in Committee by the Government. When it was said in Committee that the appeal procedure that he wanted to include might be a burden the noble Lord said that the word "restriction" includes an appeal procedure. I do not think for one moment that that is right. If that is not right, one can see that it would be far more sensible, when one defines "burden", to say that burden includes the things set out but leave it to Parliament to define "burden" in its ordinary, natural meaning. Ministers, the scrutiny committees and both Houses of Parliament will have an opportunity to consider the matter.

With the greatest respect to the noble Lord, I do not think that he has addressed the fact that the word "burden" has worked well, that it is sensible; and that it is a word that has an ordinary meaning. He has not dealt with the arguments advanced in Committee.

As regards the second group of amendments, are there occasions when we would want to remove conditions which prevent expenditure? Yes, there are. The example that was given was conditions attached to the granting of vaccine-damage compensation. It would be our intention specifically to make it easier for Ministers to incur that expenditure for the benefit of the parents and the vaccine-damaged child.

Lord Kingsland

My Lords, I am grateful to the Minister for his response to Amendments Nos. 16 and 17 and for the particular example he gave. He will not be surprised to hear that I remain unhappy with his explanation in respect of Amendment No. 15. It is clear on the face of the Bill that a restriction is a burden. If I follow his argument correctly, it is therefore strange to find it as part of the definition of "includes". I have no objection to the noble and learned Lord having an escape clause to sweep up those circumstances that are not defined. However, in my submission the proper form of legislative drafting is first to define "burden" and then at the end to provide a clause or expression which picks up all those instances which are not dealt with. Does the noble and learned Lord not agree that that would be a happier way of achieving the objective he seeks?

Lord Falconer of Thoroton

My Lords, perhaps I may say to the noble Lord that I do not. It is sensible to say that Parliament, the committees and Ministers are well able to understand the word "burden". Too great a complexity in how we define something means that we would depart from the ordinary, natural meaning of the word.

Lord Kingsland

My Lords, I am grateful to the noble and learned Lord. The word "burden" is crucial to the function of the Bill. In our submission it therefore merits specific definition. That is why I continue to be unhappy with the reply given by the noble and learned Lord. I shall reflect on the matter and may return to it at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Lord Falconer of Thoroton moved Amendment No. 18: Page 2, line 35, leave out ("only affects") and insert ("affects only").

The noble and learned Lord said: My Lords, in Committee, the noble Baroness, Lady Buscombe, raised the issue of the discrepancy in the placing of the word "only" in Clause 1(5)(c) when compared with Clause 2(1) where the words come in a different order.

The complexity and brilliance of the argument raised by the noble Baroness indicated the problems that can arise where words intended to mean the same thing come in a different order. I do not share her concerns, because in a number of respects I failed adequately to follow them. However, the brilliance of the argument requires that the amendment be made so that nobody else can seek to take advantage of a difference in the order of the words. In those circumstances, we have made it the same in both places. I thank the noble Baroness for drawing this matter to our attention. I hope that in those circumstances she agrees to the amendment. I beg to move.

Baroness Buscombe

My Lords, as noble Lords will see, I am eager to thank the Minister and pleased that he has taken the time to explore and consider the points. I am happy to accept and support the amendment.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Clause 3 [Limitations on order-making power]:

[Amendment No. 20 not moved.]

Baroness Buscombe moved Amendment No. 21: Page 3, line 2, after ("opinion") insert ("that the purpose of the order is not politically controversial and").

The noble Baroness said: My Lords, no one has yet succeeded in identifying those areas of legislation which are appropriate candidates for regulatory reform, although in Committee we were told by the noble Lord, Lord McIntosh of Haringey, that if anyone came up with an adequate definition the Government would consider it seriously.The elephant test showed us that although we could not define a suitable candidate we would know it when we saw it. In our view, that is not satisfactory because an attempt at definition, as an attempt, defines nothing. It seems to me that if we cannot define what our elephant is, we should at least attempt to define what it is not.

We have repeatedly been assured that the Bill will not he used to legislate matters which are politically controversial. However, nowhere in the Bill does that assurance appear. That omission is easily remedied. Let the Minister concerned be required to be of the opinion that the matter is politically non-controversial.

If it is the intention of the Bill to avoid matters of political controversy, no Minister should be permitted to bring forward legislation without first having satisfied himself that it is so. The amendment ensures that in future any Minister wishing to use the Bill will be bound by the assurances given to your Lordships' House.

I am aware that an order may be deemed controversial without that controversy having a political aspect. I considered whether it might be appropriate to broaden the exclusion which the amendment would provide but thought better of it. It would not be desirable that reform could be prevented in such circumstances and for that reason I have adopted the phrase used by the noble and learned Lord the Minister.

There is the added safeguard that by the time the Minister comes to make his order he will have gone through the consultative procedures required by Clause 5. Whether or not the order taken as a whole is politically controversial is a matter about which by that stage he will be well qualified to have an opinion. No doubt the Minister's opinion could then be subject to parliamentary scrutiny in the normal way. I beg to move.

Lord Falconer of Thoroton

My Lords, I understand the motives for the amendment. It is based upon what was said during Committee but I do not believe that it would be appropriate to put the words on the face of the Bill.

As has been repeatedly stated by everyone involved, the power in the Bill is not suited to large and controversial measures. The entire procedure contained in the Bill would weed out such proposals. A highly contentious issue would come up against serious problems during the consultation period and the Minister, obliged to set all this out in the document he placed before Parliament, would have to reflect that explicitly. The scrutiny procedures in Parliament, involving careful examination by committees and the co-equal status of the two Houses, are such that any Minister would obviously be ill-advised to choose this route.

Of course, that does not mean that no proposal could contain any controversial provision, but the consultation and scrutiny process would allow opposing views to be tested. There will always be disagreements about the best way to achieve a particular goal, however desirable that goal might be, and this Bill provides an excellent method of achieving a consensus as to what that best method might be. However, that is quite different from highly political and highly controversial legislation which would not be suitable for treatment under the Bill. It would be simpler to get such legislation through via primary legislation.

The phrase adopted—namely, "not politically controversial"—also has a degree of imprecision which would not be appropriate for insertion in a Bill. Therefore, for two reasons—first, that the processes envisaged in the Bill would ensure that such a measure never got through and, secondly, that the phrase is imprecise—we respectfully submit that the wording is not appropriate to incorporate in the Bill. We invite the noble Baroness to withdraw her amendment.

Baroness Buscombe

My Lords, I thank the Minister for his response. I hear what he says but he will appreciate that we are all searching for a way of identifying the areas of legislation which are appropriate candidates for regulatory reform in this way.

I accept that there is a degree of imprecision in the terminology that we have proposed. It is not ideal; it is not perfect. However, we are deeply concerned that the door is wide open for any form of legislation to be considered relevant or right for regulatory reform as opposed to primary legislation.

We shall consider the matter further and perhaps return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 22: Page 3, line 3. after ("remove") insert ("or reduce").

The noble Baroness said: My Lords, in rising to speak to Amendment No. 22, I shall speak also to Amendment No. 39. I do so with some trepidation because it relates to fire safety, although I am using that as an example for the protection of life safety. I have tabled the amendments in response to considerable consultation with outside bodies and concerns expressed to us about some of the implications with regard to regulatory reform. Concern has been expressed that in trying to reduce regulations we might also reduce safety.

Any watering down of regulations protecting life safety is a delicate matter. Proper concern, for example, for small businesses hampered by red tape, should not outweigh the need to maintain an appropriate level of fire safety for employees and the general public. It is possible that regulatory reform procedures could remove antiquated and disused statutes, facilitating modernisation, consolidation and rationalisation of fire safety standards. That must be good.

However, the Fire Safety Development Group in particular worries that the provision could be extended to cut back on fire safety demands. The amendments are intended to ensure continuity and improvement in public safety and ensure that they remain a core principle of good regulation. Many in the fire community believe that the amendments are essential for the Bill to achieve its objectives. They would be consistent with principles promoted in Section 1(2) of the Health and Safety at Work etc. Act 1974, stating that existing health and safety law cannot be replaced unless substituted by legislation which maintains or improves upon present standards. The 1974 Act was a measure taken to rationalise and consolidate safety law.

Furthermore, the Better Regulation Task Force accepts the need, to safeguard health and safety or protect citizens from harming themselves".

I beg to move.

Lord Goodhart

My Lords, it may assist the noble Baroness to know that, in my experience, when such issues come before the Delegated Powers and Deregulation Committee it interprets the word "remove" as meaning not only to remove absolutely but to remove to some degree or in some part. Therefore, while I entirely sympathise with the noble Baroness's objective, I am not sure that the amendment is necessary.

Lord McIntosh of Haringey

My Lords, I am sympathetic to the thrust of both amendments and to the thinking behind them. Perhaps, with the permission of the Fire Brigades' Union, I may continue to use fire safety as an example. I am happy to do so. I believe that the noble Lord, Lord Goodhart, is right about Amendment No. 22. The point is not merely that the word "remove" will be interpreted by the committee as including any lesser part but also that the word "any" is significant. An order may not reduce the level of necessary protection and the Bill already achieves the purposes intended in Amendment No. 22.

I must give the same reply in respect of Amendment No. 39. As it stands, Clause 6 allows for consideration of, whether the existing law affected by the proposals affords any necessary protection and, if so, how that protection is to be continued". The amendment would add "or improved, and ensured", and that must be desirable.

I deal first with "ensured". The word "continued" in Clause 6(2)(d) already covers this in legal and legislative terms and there is no need to add the word. The word "improved" is interesting. It is intended to cover those instances when necessary protection is increased. That is not necessary. This part of the Bill deals specifically with the "necessary protection" test; namely, how existing protection is being maintained. It would not be appropriate to dilute that by including other material which was not part of the test. That is not to say that any increase in protection should not be discussed. The point is already covered by paragraph (i) at the bottom of the page. Clearly, the words, any benefits … which are expected to flow from the implementation of the proposals-, include improvement in protection.

I hope that in this case too the noble Baroness, Lady Buscombe, recognises that, however well-meaning the amendments, the Bill already covers the points which they raise.

6 p.m.

Baroness Buscombe

My Lords, I thank the Minister for his response. I also thank the noble Lord, Lord Goodhart, for his reassurance in relation to the customary response of the Delegated Powers and Deregulation Committee to such terminology. The Minister is aware that these are in a sense probing amendments to the extent that we seek reassurance. I believe that I heard words of reassurance in the Minister's response. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Lord Goodhart moved Amendment No. 24: Page 3, line 7, after ("opinion") insert ("—(a)")

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 25: Page 3, line 10, at end insert (", and (b) that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for the order to be made.").

On Question, amendment agreed to.

Clause 4 [Statutory instrument procedure]:

Lord Phillips of Sudbury moved Amendment No. 26: Page 3, line 34, at end insert ("subject to such amendment or amendments as both Houses shall agree upon in respect of any order made under section 1(1)(b) or (c)").

The noble Lord said: My Lords, in Committee on 25th January your Lordships generously allowed me to explain a t some length (at cols. 366 to 369) why I believed this amendment to be important. It gives noble Lords the power to amend rather than wholly to reject an order. I hesitated before I re-tabled the amendment. However, I want to raise this fundamental issue again, in particular because at present there is considerable feeling in the country, first, that there is far too much regulation, and secondly, that Parliament is losing its effectiveness in controlling a powerful executive.

I am well aware that one of the principal arguments against allowing the amendment of statutory instruments by either House is that it could slow down the tidal wave of secondary legislation which is habitually put through both Houses. In Committee, the arguments put forward by me and others in support of the amendment were responded to by the noble Lord, Lord McIntosh of Haringey, on the basis that, the super-affirmative process already permits the amendment of regulatory reform orders … Furthermore, it affords the opportunity for amendment".—[Official Report, 25/1/01; col. 370.]

The first essential point to make clear—I do not intend to repeat the arguments that I put forward in Committee—is that when the noble Lord made those two statements he was not speaking about amendment at all. The truth of the matter is that this House has no power of amendment with regard to secondary legislation. We can kill it or not. If we pass a Motion to annul or a Motion to amend, by convention the effect is to kill the order. That gives the Government three choices: to abandon the secondary legislation; to bring it back in a form which is consistent with the Motion passed; or to reintroduce the instrument unamended. But we must avoid confusion by talking about an existing power to amend where none exists. We are in an all-or-nothing situation: if we reject it we risk throwing out the baby with the bath water.

The reason why only one Motion to annul has been passed in, I believe, over 50,000 statutory instruments is precisely that the absence of a power intelligently to amend deters most noble Lords from simply striking down what is, in most of its detail, a sensible and constructive instrument. That is the reason why, on rereading Hansard, I was wholly dissatisfied with the argument put forward by the noble Lord, Lord McIntosh. One part of his argument with which I agree is that, it is right that both the House and individual Peers should have the power to propose amendments that are thought necessary to a particular draft regulatory reform order. That is essential to proper parliamentary scrutiny".—[Col. 37.]

That is the point. Such a power is essential, and we do not have that power. As a result, Alice in Wonderland circumstances arise, as happened last Thursday, when there was extraordinary confusion in relation to the Local Authorities (Executive Arrangements)(Access to Information)(England) Regulations 2000. That is a natty little title. The House considered two Motions alongside each other, both of which, if passed, would have had the effect of killing the instrument.

Those comments and this amendment, far from containing any implied criticism of the work of the Delegated Powers and Deregulation Committee, endorse the committee's conclusions. Perhaps I may quote the end of conclusion 65 to the committee's second report on the Bill: Only Parliament itself can decide whether this guidance from the Committees"—

here and in another place— and the unfettered and important power of either House to refuse to approve the final draft order makes this unprecedentedly wide power acceptable".

My amendment builds on that and gives your Lordships power to make real improvements. I believe that it would be extremely helpful to the work of Parliament under the provisions of the Bill. I beg to move.

Lord McIntosh of Haringey

My Lords, if I had said only what I am quoted as having said by the noble Lord, I would have been dissatisfied with it. However, I said a great deal more, which I shall try to repeat as efficiently and with as little time-wasting as possible. What I said then was that the power of amendment was achieved by the power of a Member of this House to table a companion Motion to the Motion seeking approval of the order. The companion Motion could propose an amendment. If the amendment was agreed the Minister would have to take up the order and lay it in amended form, abandon it, or start again and decide to use primary legislation. Those are the three options which the noble Lord, Lord Phillips, fairly set out in his speech.

The special parliamentary procedure for regulatory reform orders involves a greater degree of parliamentary scrutiny than the ordinary affirmative resolution procedure and, in the way that I describe, affords the opportunity for amendment. The amendment does not add anything to what we already have.

The point about taking it away and re-tabling it is that, if there is general disapproval of the regulatory reform order, the Minister would have to take it away and start the whole process again right from the very beginning. He would have to go through the consultation process, produce the results of that consultation and go before the committees of both Houses. In that way, certainly, there would be the equivalent of a fatal Motion; in other words, exactly what happens to an affirmative resolution now or a Prayer to annul a negative resolution.

However, there is an alternative option. If an amendment is proposed and carried in the House on a companion Motion to the Motion to approve the Delegated Powers and Deregulation Committee report, then, because at this stage the order has not been formally laid, the Minister could take up and incorporate the amendment. He need not go through all the earlier procedures. He could come back to the House rather quickly with an order which incorporated the order that had been approved in the House. That is an improvement on a fatal order. Therefore, I argue that the House has the power to amend an order. I know that that is not in quite the formal sense that the noble Lord, Lord Phillips, looks for, but it achieves the same effect.

Lord Phillips of Sudbury

My Lords, with respect to the Minister, it achieves the same effect, which is to kill off effective parliamentary scrutiny. The proof of the pudding is in the statistics. It is no accident that only one annulment order has ever been ever passed in this House. That is precisely because it is such a laborious procedure, which half the Members of the House do not understand. The Government wish to have greater executive freedom, but it is unsustainable from the parliamentary point of view to continue down this route. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Lord Goodhart moved Amendment No. 28: Page 3, line 45, at end insert— ("( ) Sections 1(2A) and 3(2)(b) do not apply to a subordinate provisions order.").

The noble Lord said: My Lords, this is another amendment relating to the new protection that is given through Clause 3(2)(b). The amendment was not included in the original group because it goes somewhat outside the field covered by those groups. It therefore seemed appropriate to deal with the amendments separately.

The position here—a point raised by the Government—was that in the case of a subordinate provisions order it is possible that although the order as a whole will satisfy all the conditions in the now amended Clause 3(2), there may be certain circumstances in which a subordinate provisions order merely imposes, let us say, a transitional burden without containing any offsetting transitional removal or reduction. It will probably happen relatively rarely, indeed, if at all, but the subordinate provisions orders seem to play a useful part as orders which do not require the full treatment. It would be unfortunate if, merely because some minor provision increased a burden without any offsetting reduction or removal of burdens, the subordinate provisions order procedure could not be used and it had to be included as part of a full order going through the full and really rather elaborate consultative procedure. I beg to move.

6.15 p.m.

Lord McIntosh of Haringey

My Lords, I am grateful to the noble Lord, Lord Goodhart, for pulling the amendment out of his earlier group. I can see the reasons for doing that. Not only does it deal with a related but different point, but also it refers to new Section 1(2A) which was introduced by the noble Lord's amendment earlier today.

It is sensible to exclude subordinate provisions orders from the new limitations. If we were to insist that a subordinate provisions order cannot only impose burdens, we would be preventing fee increases. Those are exactly the kind of examples that we considered in Committee and on Report. We do not want to burden Parliament with a full regulatory reform order every time we seek to increase a fee. Again, the scrutiny committees will have recommended in their reports to each House on the main order what could be included in a subordinate provisions order. They have that power. On that basis, we are happy to accept the amendment.

On Question, amendment agreed to.

Clause 5 [Preliminary consultation]:

[Amendments Nos. 29 and 30 not moved.]

Lord Norton of Louth moved Amendment No. 31: Page 4, line 45, at end insert— ("( ) In fulfilling the requirements of subsection (1), the Minister shall comply with the provisions of the code of practice for written consultation in force at the time at which the Minister decides to consult on his proposal.").

The noble Lord said: My Lords, in moving Amendment No. 31, I shall speak also to Amendments No. 35 and 43 which are grouped with it. In Committee, I moved an amendment to provide that the Minister should publish an invitation to all interested parties to make submissions. The intention was to ensure a more open process. Instead of empowering the Minister to consult certain specified bodies and those that he thought appropriate to consult, the amendment sought to permit all those who wished to make submissions to do so. In so doing, I sought to bring the provisions of the Bill into line with the Government's draft code of practice on written consultation. The code states, as one of its criteria, that documents should be made widely available and effectively drawn to the attention of all interested parties.

On that occasion the noble Lord, Lord McIntosh, made clear that it was the Government's intention to publish the fact that consultation was being carried out and he outlined ways in which the announcement could be made. I have no objections to what he proposed. On the face of the Bill I would like to see some requirement for that to happen.

At that stage, the Minister's objection to my amendment was twofold. The first was that it was difficult to decide what was meant by a "general announcement". It may well be difficult to define what we mean by a general announcement but as my amendment did not use those words it is not a crucial objection. The second was that the code of practice could change over time and therefore its wording should not appear on the face of the Bill. As I pointed out, my amendment imposed a requirement to publish an invitation and it was difficult to see how that might change over time.

The Minister resisted the amendment. He nonetheless conceded that there might be a case for specifying that the Minister should comply with the code of conduct issued from time to time. Amendment No. 31 therefore provides for that. The Minister said that he would consult with other departments because the requirement would apply more widely than the Bill. Strictly speaking, it would not as the provision is specific to the Bill, but it would doubtless make it difficult for Ministers not to comply with it in consulting on proposals brought forward under the provisions of other Acts. That, I should have thought, is an argument for the amendment. I suspect the Minister probably thinks so too. If he is not able to accept the amendment, with which he has indicated some sympathy, then the House may wish to help the Minister to get his way in his dealings with departments by pressing it. So I believe that there is a strong case for the amendment.

I turn now to Amendment No. 35, which is logically grouped with Amendment No. 31. I appreciate that in bringing forward this amendment as well it may appear that I am now wanting my cake and eating it. At Committee stage I proposed an amendment stipulating that there must be a minimum period of eight weeks for consultation. I recognised then that there were possible objections to the proposal. I outlined them and the Minister, the noble Lord, Lord McIntosh, kindly repeated them. I also indicated that an alternative was to stipulate a 12-week norm, with the Minister having to make a special case for shortening the period. My amendment today embodies that alternative approach. In so doing, it also meets the points raised by the Minister.

The 12-week requirement is in line with the provisions of the code of practice for written consultation. As I mentioned a few moments ago, I know that the Minister does not want the precise provisions of the code to appear on the face of the Bill. However, I think that there is a case for a period to be stipulated—that is, independent of a requirement to abide by the code.

The case for some specified period appearing m the Bill was made rather well by the Minister himself, albeit in another context. He advanced the case that those who wanted to make representations should have priority and that they should have some certainty in knowing how long the period of consultation should be. He made that argument (at col. 400 of the Official Report on 25th January) in respect of the 60-day period for parliamentary consideration of a draft document. I am sure that the Minister would not wish to argue that there should be one rule for parliamentary consultation and another for government consultation. There is thus a case for having a specified period. Those who are being consulted, those whom the Minister says should have priority, will know the time that there will be for consultation.

In Committee, the Minister argued that there would also need to be some flexibility. There may he occasions when rapid consultation is necessary; for instance, as a result of a court judgment. My amendment allows for that. The Minister may provide for a shorter period, but he will need to make a case for it. He will have to report to Parliament his reasons for judging the circumstances to be exceptional. He will need to be in a position to justify his actions.

My amendment thus provides for both flexibility and transparency. Stipulating a norm on the face of the Bill makes it difficult, but not impossible, for Ministers to reduce the period. I believe that this creates a more powerful discipline than that imposed by the code of practice. It should therefore appear on the face of the Bill, in addition to a general requirement to comply with the code of practice.

I turn to Amendment No. 43, which can be seen as complementary to my earlier amendment, stipulating a period for consultation. However, I wish it to be treated as a free-standing amendment. It requires the Minister, in supplying details to Parliament of the consultation he has undertaken, to state the period allowed for consultation.

We have discussed already the recommendations embodied in the draft code of practice. The norm is 12 weeks and the minimum is eight weeks. I think that there is a simple and straightforward case for the Minister to tell Parliament how long the period for consultation was. The Minister, one presumes, will usually state that it was 12 weeks. If he says that it was a shorter period, then Parliament will be alerted to that fact and can require the Minister to explain the reasons for reducing it.

In responding to the amendment, the noble Lord may well say that, if the consultation period is eight weeks, then the Minister will normally explain the reasons for it being that short. The circumstances are likely to be exceptional and therefore will form part of the Minister's report to Parliament. That may well be the case, but it is not an argument against the amendment. I want to ensure that the use of the eight-week period is kept to a minimum. Knowing that the period will have to be included in the information supplied to Parliament acts as a useful discipline. Ministers are less likely to go for a shorter period, except when the case clearly justifies it, if they know that the period will be drawn to the attention of Parliament.

The amendment itself stipulates no norm or minimum period. It merely requires that the period of consultation is notified to Parliament. That strikes me as sensible and unobjectionable. One knows when it is one of those days and nothing goes right. So far, it has been one of those days. I am hoping that, on this occasion, the Minister will make my day. I beg to move.

Baroness Buscombe

My Lords, I rise to speak in support of my noble friend Lord Norton of Louth in relation to Amendment No. 31 and to speak also to Amendment No. 36, which is similar to Amendment No. 31. Indeed, in Committee, the noble Lord, Lord McIntosh of Haringey, pointed out that an amendment tabled by my noble friend Lord Norton of Louth was based on criteria laid down in the Cabinet Office code of practice on written consultation exercises. The noble Lord, Lord McIntosh of Haringey, went on to say that he would be prepared to consider whether a provision should be included in the Bill specifying that the Minister should comply with the code of conduct which is issued from time to time. I have taken that as an invitation to table this amendment so that the noble Lord, Lord McIntosh of Haringey, can now tell us the result of his considerations and his reasons for coming to whatever conclusion he may have come to.

I sincerely hope that he has come to the conclusion that the right course is to impose an obligation on the Minister to observe the criteria laid down in that code of practice as issued from time to time so there can be no doubt that the consultation exercise envisaged in the Bill is conducted properly.

Lord McIntosh of Haringey

My Lords, I am grateful to the noble Lord, Lord Norton, and to the noble Baroness, Lady Buscombe, for the care that they have obviously given to this matter since the Committee stage and for the way in which they have not simply come back with existing amendments but have thought through the issues involved. I have done the same. The trouble is that it does not lead me to the same conclusion. I am sorry for that because I know that in the end we all want to achieve good consultation.

Perhaps I may deal first with Amendments Nos. 31 and 36, which, as the noble Baroness, Lady Buscombe, said, have very much the same effect. The code does not have any legal status and in that sense it lacks legal force. The effect of including on the face of the Bill a requirement of compliance with the code would be to give it legal force. At the moment, the provisions of the code merely set out what is currently accepted as good practice. It is generally agreed that that could change from time to time—possibly for wicked reasons but much more likely for benign ones. If we were to include it on the face of the Bill to give it legal force, we would be giving Ministers, when they were changing the code of conduct, the power to legislate. That cannot be right. Any such power should be subject to scrutiny by Parliament.

Quite apart from that constitutional point, I am of the view that there is no need to place this requirement on the face of the Bill. Ministers are committed to observing the code of practice scrupulously when there are proposals under the Bill. They should depart from it only where exceptional circumstances justify them doing so. I can assure the House that Cabinet Office instructions on these matters are taken very seriously indeed. If it is argued that exceptional circumstances justify them departing from the code, they will give reasons for the departure and they can be challenged on those reasons, both here and in another place. The scrutiny committees decide whether the consultation has been carried out properly and they have not in any way shied away from saying that consultation has been inadequate—whether in terms of the amount of time provided or in terms of the people who are consulted. Therefore, for both constitutional and practical reasons, I really am opposed to having a provision of this kind.

Amendment No. 35 puts the 12-week minimum consultation period on the face of the Bill. However, it rather loses effect by giving the Minister the power to vary the time if, he is of the opinion that it is essential to do so". If the Government were to put such a wide-ranging ministerial power on the face of a Bill, they would be ferociously attacked. In any case, what does the Bill actually say? Clause 6(1)(b) states that the Minister has to give details of any consultation undertaken as required by Clause 5(1) or Clause 5(3). What does "details of any consultation" mean unless it includes the time taken for the consultation; and if that is in conflict with the Cabinet Office code of conduct, the reasons for departing from that. This answer applies also to Amendment No. 43, which concerns the length of consultation in the Minister's report. What else could Clause 6(2)(j) specify, if not the time taken and those consulted?

Given the care taken not to make the provisions unworkable, I do not think that these amendments would add anything to the Bill. I regret that my consideration between the Committee stage and Report has not led to a more favourable result.

6.30 p.m.

Lord Norton of Louth

My Lords, I, too, regret that the Minister has not been able to make my day. I may have to follow in the same vein. A conflicting commitment means that I may not be able to be here to move my next amendment.

I see the force of the Minister's words as regards the legal implications in his response to Amendment No. 31. He has made a valid case. However, I am far less persuaded by his response to Amendments Nos. 35 and 43. He used the same argument to respond to both; namely, that under Clause 6(2)(j) the Minister is bound to give details and therefore the period will be stipulated. I do not think it follows at all that the Minister will have to specify the time period. As the Bill is presently drafted, the Minister may choose to do so, but if I were the Minister I am sure that I would be able to think of a great many other details to include here, without feeling that it was necessary specifically to mention the period.

Lord McIntosh of Haringey

My Lords, I, too, can think of many other details to include here, but does the noble Lord really believe that I would be able to get away without specifying the length of the consultation period and those who were consulted? I think not.

Lord Norton of Louth

My Lords, I should like to think that that would be the case. However, if the necessary scrutiny provisions were in place, then that would be the case. It is dependent on us, in a sense, to ensure that that is what will happen. That is the reason why I should like to reinforce the point, rather than simply relying on the hope that the mechanisms will be in place and that the members of the relevant committee will be able to check that it is the case. I see no objection whatever to placing a requirement on the Minister to state the period of consultation. I cannot see what objection could be raised to that.

Obviously the Minister will give other details. I ask only that, among those other details that must be provided, he will also provide the period for consultation. That strikes me as completely unobjectionable. I should like to place on the record that I do not feel that the argument which has been advanced by the noble Lord answers that point. I believe that a case can be made for putting a more precise form of words on the face of the Bill. For that reason, I am disappointed with the Minister's response and hope that there may still be time for wiser counsels to prevail. In the interim, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 36 not moved.]

Clause 6 [Document to be laid before Parliament]:

Lord Goodhart moved Amendments Nos. 37 and 38: Page 5, line 23, leave out paragraph (b) and insert— ("(b) how the proposals further the object mentioned in section 1(1)(a),"). Page 5, line 24, after ("proposals") insert ("also").

On Question, amendments agreed to.

[Amendment No. 39 not moved.]

Lord Goodhart moved Amendment No. 40: Page 5, line 35, leave out from ("satisfied") to end of line 36.

On Quest ion, amendment agreed to.

The Deputy Speaker (Lord Allenby of Megiddo)

My Lords, before calling this amendment, I should point out that if this amendment is agreed, I shall not be able to call Amendment No. 42, tabled in the name of the noble and learned Lord, Lord Falconer of Thoroton.

Baroness Buscombe moved Amendment No. 41: Page 5, line 41, leave out ("and, if so, either the estimated amount or") and insert (", the estimated amount and").

The noble Baroness said: My Lords, Amendment No. 41 arises from a contribution made in Committee by the noble Lord, Lord Goodhart. The noble Lord pointed out the curious detail in Clause 6(2)(h)—namely, that the matters specified which the Minister has to lay before Parliament include the estimated amount of any savings or increases in costs estimated to result from these proposals, or the savings or increases in costs to be expected, but not both.

I can see no reason why details both of the estimated amount and of the reasons why savings or increases in costs are to be expected should not be laid before Parliament. That said, I am pleased to note on the Marshalled List Amendment No. 42 proposed by the Minister. I look forward with interest to hearing what he has to say in relation to both this amendment and his own amendment. I beg to move.

Lord Goodhart

My Lords, not surprisingly, I, too, am grateful to see that the noble and learned Lord has responded to the point I raised in Committee. I shall be happy to support either of these amendments, but I anticipate that the noble Baroness will feel able to give way to the amendment tabled by the noble and learned Lord.

Lord Falconer of Thoroton

My Lords, as the noble Baroness graciously told the House, this matter was first raised by the noble Lord, Lord Goodhart. He pointed out the anomaly that she has repeated in her contribution today. I was lost for words when the noble Lord first raised it and said that I would write on the matter. I was unable to come up with an explanation. My response has been to table Amendment No. 42.

The only difference between the amendment tabled by the noble Baroness and my amendment is that I have put in the words "wherever practicable". That appears to be sensible. Amendment No. 42 recognises that it may not always be possible for a cost estimate to be made with great precision. How does one value, for example, the cost savings gained by making it easier for people to book weddings at registry offices? What savings would arise from making it easier for people to register births in Welsh? These are important matters, but I am sure that we all recognise that they may not be easy to quantify with great precision. That is why it is sensible to include the words "wherever practicable".

As always, it will be for the committee and the House to satisfy themselves as to whether any particular case meets the requirements of the Bill and, in particular, the provisions of the amendment. I invite the noble Baroness now to withdraw her amendment, on the basis that I shall then move Amendment No. 42.

Baroness Buscombe

My Lords, I thank the Minister for that response. I shall be pleased to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 42: Page 5, line 41, leave out from ("so") to end of line 42 and insert ("—

  1. (i) the reasons why savings or increases in cost should be expected, and
  2. (ii) if it is practicable to make an estimate of the amount, that amount and how it is calculated,").

On Question, amendment agreed to.

[Amendment No. 43 not moved.]

Clause 7 [Representations made in confidence or containing damaging information]:

Lord Kingsland moved Amendment No. 44: Page 6, line 9, leave out ("shall") and insert ("may").

The noble Lord said: My Lords, in Committee, we expressed our concern as regards the obligation on the Minister to disclose the fact that a person had made representations, even when such disclosure might result in reprisals. We took from the Explanatory Notes the example of an elderly person living near a public house who had previous complained about the noise made by its clients. It was suggested that such a person might want to give details of further disturbances that might be caused if a proposal to extend the opening hours succeeded. It was pointed out that, if a Minister was obliged to disclose the fact that a particular person had made representations in those circumstances, it would be easy to work out that that particular person had objected. He or she might then risk reprisals.

The noble Lord, Lord McIntosh of Haringey, did not deny that it was conceivable that a regulatory reform order was so precise in its application that disclosure of the identity of a respondent to consultation could damage the respondent. However, he then went on to say that he believed that that would be highly unlikely.

However, if what the noble Lord, Lord McIntosh, said was right—namely, that such a risk is highly unlikely—nevertheless there is still a risk. Moreover, the risk in question is one that the Government themselves identified in their own explanatory statement. In our submission, those who make representations as part of the consultation process must be protected from reprisal, however infrequent that risk of reprisal might be.

The noble Lord, Lord McIntosh of Haringey, continued in his speech to give an example of situations in which it would be right for a Minister to disclose the representations made. He said: If someone approached a wicked Minister, not of this Government or even the previous one, and asked him not to proceed with a particularly regulatory reform, or, worse, to proceed with it because it would assist his despicable financial interests, should the Minister be able not to disclose those representations? Surely, the case for open government must be that when a consultation process is in place Ministers are not at liberty to pick and choose the representations or the names of respondents to make available to Parliament. That is the case on the other side, which I believe is a stronger one".—[Official Report, 23/1/01; col. 398]

His example supports the proposition that in certain circumstances the Minister should be able to disclose representations. However, in our submission, it does not address the issue as to whether or not a Minister should be obliged to disclose the fact that a particular respondent has made representations. In other words, the noble Lord's example deals with whether or not the substance of a respondent's representations should be disclosed. Clause 7 already prohibits that, if the respondent requests the Minister not to disclose the representations.

This amendment suggests a compromise, which will give the Minister discretion as to whether or not to disclose the identity of the respondent. A good Minister will be concerned about elderly persons who risk reprisals. In that case, he will not disclose the fact that the respondent has made a representation. By contrast, a good Minister will want to expose those who make representations to assist their own financial interests. In those circumstances, the good Minister will be able to disclose the fact that those respondents have made representations. In the spirit of compromise, I beg to move.

Lord McIntosh of Haringey

My Lords, when I have a particularly good argument in Committee, I like to repeat it on Report. When the noble Lord, Lord Kingsland, repeats my arguments for me, I am not sure what to do. In Committee I argued that I recognised the difficulty of the elderly lady. However, the alternative which would result from Amendment No. 61, tabled by the noble Lord, Lord Kingsland, in Committee, and this amendment would be very much worse. That is not dependent on disclosing the substance of the representations made; it could be dependent on disclosing the name of the person making the representation.

Let me outline the situation as it appears in the Bill. In circumstances where a respondent has requested that the Minister should not disclose his representations, the Minister shall disclose the fact that the respondent has made representations but shall not disclose those representations unless, first, he has consent to do so and, secondly, those representations are anonymous or are made sufficiently anonymous as not to identify them with that respondent. So the name is given but the details of the response are not given without consent, unless made anonymous.

The purpose of requiring Ministers to disclose the names of respondents to the committee is to prevent them from being subjected to undue pressure to make particular changes to legislation. I repeat that a weak or corrupt Minister might want to keep secret representations that were to the financial or political advantage of the Government and might influence his judgment. We would certainly wish to head off concerns about the possibility of secret representations from those with financial interests. Although it is a matter of protecting Ministers, it is also a matter of protecting the public from Ministers who might misrepresent the consultation process for their own ends.

The effect of the amendment would be to allow the Minister to choose not to disclose the name of a particular respondent who had asked that his representation should not be disclosed. He could be pressurised, intimidated or influenced by the strong representations of someone with a particular financial interest. In the interests of fair and open dealing, the committee should be able to see that such a person had made representations. As I have said, a wicked and corrupt Minister may take advice from unsavoury people with strong interests in a particular proposal. It will be sufficient for the committee to see that suchand-such a person had made representations. It could draw its own conclusions about what representations had been made.

A balance has to be struck—and there is no perfect answer—between openness and protection. I acknowledge the point about the elderly lady. However, I believe that, in 99 cases out of 100, the elderly lady who, to use the noble Lord's example, is upset about changes to the licensing law, will make her appeal to Parliament or to Ministers, not in the context of a regulatory reform order but in the context of a particular application for a licence. That situation is not covered by the amendment. In the balance, the principles of thorough, open consultation and intense scrutiny must surely outweigh the difficulties identified by the noble Lord, Lord Kingsland.

Lord Kingsland

My Lords, I am most grateful to the Minister for his reply. I had hoped that he would with open arms accept my compromise amendment, which seems to meet both his and my concerns. However, that is not so. I prefer the amendment that I tabled in Committee to the amendment that I have now tabled on Report. I therefore intend to return to the former at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Parliamentary consideration of proposals]:

Lord Norton of Louth moved Amendment No. 45: Page 6, line 43, at end insert— ("() The period for parliamentary consultation may be extended by a period not exceeding twenty days if a committee of either House, vested with responsibility for considering the document, resolves prior to the expiration of the sixty days specified in subsection (2) that such an extension is necessary.").

The noble Lord said: My Lords, I have tabled this amendment in the light of the discussion that took place in Committee. It seeks to provide some flexibility in terms of the time taken by the Select Committee on Delegated Powers and Deregulation to complete its consideration of the draft documents laid before it. As was acknowledged in Committee, the burden on the Delegated Powers and Deregulation Committee is likely to be considerable. Much may be done through the provision of additional resources. However, we may need to provide additional time, which may be necessary because of the sheer volume of documents under consideration or because a particular document requires extended scrutiny.

The amendment also seeks to meet the objection raised in Committee by the noble Lord, Lord McIntosh, to my amendment allowing a shorter period. The noble Lord said that the people who want to make representations should have priority and need to know what period would be involved. My amendment retains the 60-day period. Therefore, people will know that there is a 60-day period. The amendment allows for that period to be extended if a committee considering the document decides that it needs the extra time. No one will be in a position to claim disadvantage as a result of the 60-day period being shortened, because there is no provision for that.

I appreciate that the 60-day provision may have been sufficient for documents considered under the provisions of the 1994 Act. I appreciate the point made by the noble Lord, Lord Borrie—referred to by the Minister at col. 400 on 25th January—that the procedures under the Bill may provide for a greater level of scrutiny than that afforded to most Bills. However, neither point argues against this particular amendment. We are dealing with a new situation in which the burden on the Select Committee on Delegated Powers and Deregulation may be extensive and in which a greater level of scrutiny is desirable. To say that the super-affirmative procedure provides better scrutiny than that undertaken on primary legislation is no reason for suggesting that the scrutiny should not be even further improved. I beg to move.

Lord Skelmersdale

My Lords, my noble friend Lord Norton of Louth is absolutely right. The noble Lord, Lord McIntosh, earlier told me that it was not unlikely that the committee would want to have more resources. I put it no higher than that. He quite rightly framed his words very carefully because, as I understood it, he was not speaking as a Government Minister but in a personal capacity.

The extra resources involved may well mean an extra 20 days for consideration of a vast consolidation measure such as fire safety—I hate to mention it again after the criticisms earlier—or, indeed, weights and measures. I have not done an exhaustive study of how many statutes and regulations there are involved with weights and measures, but there might be almost as many. It seems to me that the extra resources could be of time rather than of money or personnel. I think that my noble friend is absolutely right.

Lord McIntosh of Haringey

My Lords, the reason why I then refused to express an opinion on the resources of the House as a member of the Government is exactly the reason why I refuse to do so now. The resourcing and structure of the committee is a matter for the House, not for the Government. My noble and learned friend Lord Falconer and I have both said more than once that we support any move to look in detail at the issue of the resourcing of the committee. That is as far as we can go.

The argument for resourcing—which is not the only argument being put forward with this amendment—is not one which we can accept. It would involve the Government usurping the privilege of the House. We are not in a position to dictate to the House how it should run its own affairs. If the resourcing argument is being pursued, I shall have to recall what I said before: that exactly the same fears were expressed about the 1994 Act; it was thought that the committee would be overwhelmed by orders under the DCOA—and it was not.

If the thing is wildly possible, as Lewis Carroll said, if there were to be a risk of that, then, quite apart from the resourcing possibilities, there is a relatively easy remedy—and that is for the committee to insist on a queue. It could say "We have not got time for this. You cannot present it until next month or the month after", or whatever. The issue of resourcing is not a strong argument for this amendment.

The argument against this amendment concerns transparency. We have a 60-day period, which is well recognised; everyone understands it; everyone who has to respond to any invitation from the committee knows the time-scale. If we suddenly introduce the possibility of an extension of 20 days—even setting on one side the difficulty which might arise if the committee of one House stuck to 60 days and the committee of another House went to 80 days, which is a serious problem—you lose transparency. I do not think that there is anything to be gained by this amendment.

Lord Norton of Louth

My Lords, I am extremely disappointed by the Minister's response. I take his point about resourcing of the committees in general terms, but in terms of providing extra time I do not accept his argument. This is not limiting Parliament, it is strengthening it. It is not usurping it because there is already a 60 day provision in the Bill. I do not accept the argument that for transparency people must be clear about the 60 days because, as I said, they will still get 60 days. This is just adding on.

Furthermore, to repeat a point that I mentioned in an earlier amendment, the Government are saying "We must have 60 days—no more, no less—so that people know that there are 60 days"; but, when it comes to consultation by Ministers, the norm should be 12 weeks, but it can be reduced to eight weeks. Where is the transparency in that? It is one rule for the Government and one rule for Parliament.

I do not intend to press the amendment today. I only wish to put on record that the arguments against it have no weight at all. I shall rest on the transparency of my argument in response to what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Codes of practice relating to enforcement of regulatory requirements]:

Lord Vinson moved Amendment No. 46: Leave out Clause 9.

The noble Lord said: My Lords, in moving the amendment, I make no apology for returning to the amendments that were brought forward by myself and others in Committee. For those who were not present then, the 1994 Act recognised the problem that there were occasions when the regulator was over-zealous in the application of regulation; that the regulatee had no simple remedies and that many an injustice was done. Many of these instances had been recorded in the past; they are now happening much less. I believe that the 1994 Act is working rather well. The Bill as it stands reverses that and changes what was a statutory right of the regulatee to certain appeal procedures and to know where he stood to a voluntary code that may or may not be incorporated.

The 1994 Act effectively gave the regulatee the right to know, in the broadest terms, under which law or statute he was being regulated. If this was contentious, there was a right to discuss the problem with the regulator's immediate superior; and if and when he was to be prosecuted, he was to be told the rights of appeal. To repeat what I said in Committee, this brought a fair balance between the regulator and the regulatee in that those applying the regulation had to be certain that they had got it right. They had to think twice as they applied it and they had to be fair in its application knowing that the matter could ultimately be taken to appeal.

As our amendments indicate, I totally accept that the previous law was over-prescriptive. The reason for bringing the matter back on Report is that I had hoped to see a scintilla of a recognition of the problem from the noble Lord, Lord McIntosh. I am sure that he believes that small businesses should be given some protection. The difference between us is that he would leave it to a voluntary approach, whereas many of us on this side of the House feel that the protection should be statutory.

I was unfortunately not in the Chamber when the noble Lord, Lord Haskins, was here. I understand that he cannot be here this evening. He has had the great courtesy to let me see his speech. I am sure that he will not mind if I quote a couple of paragraphs from it. He said: Those being regulated constantly complain that they do not understand their obligations; that they are not given enough time and help to comply; and that enforcers have too much of an inclination towards retribution".

Exactly. He continued: However, we also recognise that voluntary agreements need legislative support where things go wrong. That is where the enforcement provisions in the Bill should help. They are intended to assure business that the Government can bring pressure to bear on enforcers who fail to apply best practice as agreed in the concordat".

There is nothing between us—but the concordat is voluntary, the code is voluntary, and what goes into it is voluntary. Although the Minister can press ultimately for certain provisions to go into the code, if we have not got in place the enforcement procedures that we would like to see, it will probably not be until something goes wrong that the Minister will press for those provisions to be included, by which time the harm will be done.

The object of these amendments—I am grateful to the House for allowing me to take them together—is to maintain a statutory approach to the problem so that a fair application of the law can be made. The approach on offer from the Government is the reverse of that; they favour an entirely voluntary approach. I accept that there are instances when the voluntary approach is good, but I see no reason why the essence of Schedule 1 to the 1994 Act should not be repeated in the new Bill and made mandatory. The whole issue should be reflected in the new codes as a right. I beg to move.

7 p.m.

Lord Freeman

My Lords, I begin with an apology to the noble Lord, Lord McIntosh of Haringey, for being absent at the Committee stage. I hope that he will indulge me, as I hope your Lordships will, if I try to outline arguments in support of my noble friend Lord Vinson as regards this set of amendments. They are arguments which I could have deployed at an earlier stage.

I was the Minister responsible for the implementation of the 1994 Act in the period 1995 to 1997, principally concentrating effort on the number of orders brought forward. In retrospect, I admit that there was some delay in seeking to bring forward the orders under the enforcement provisions of Section 5. The noble Lord, Lord McIntosh, indicated that there had been very few examples of Section 5 being used. In fact, those matters were incorporated in the food standards legislation. I do not believe that there were any direct examples.

The essence of my argument in support of my noble friend Lord Vinson is as follows. First, the Government say that Schedule 1 to and Section 5 of the Act have not worked. But the truth is that it has never been tried. There are reasons for that. The consultation that was under way when the previous administration left office related to the extension to different areas, such as home care and environmental health, the provisions of Section 5 of the 1994 Act. The election intervened and the new Administration, the present Government, considered the results of the consultation exercise that had been set in train and reached the conclusion that a new approach was needed.

Secondly, to a certain extent the wrong people were questioned in the consultation exercise. There is an impressive list of some 550 organisations and individuals. But I believe that the point my noble friend Lord. Vinson is making is that the very person whom Section 5 of the 1994 Act was designed to protect was the small businessman, who, by definition, is very difficult to consult. If the Minister would glance down the consultation list—I am sure he is already familiar with it—he will see that it is very difficult to pick out all the organisations representing very small businesses that one would normally expect to find. It was a perfectly proper consultation exercise. However, it largely consulted the regulators and representatives of business, not the very people whom that section was designed to protect: the small businessman, who stood to be protected by a procedure under the Act involving a minimum of two written notices and a maximum of three. The first was at the request of the person who was to be regulated when the regulator said that he had concerns about a particular factory, restaurant or shop. I speculate, because the Act was never extended to those fields.

At that stage the person affected had the right to ask, in writing, for the justification and explanation of the reasons. There were two other mandatory processes to which my noble friend has referred; namely, the right of the person affected to have the regulator spell out his rights of representation and also the right of appeal when the enforcement notice was delivered.

I grant that all these are referred to in the concordat and, I assume, in the proposed code of practice. But the two fundamental concerns that I share with my noble friend Lord Vinson are, first, that a concordat can never, by definition, be accepted by 100 per cent of the universe affected. No voluntary code ever has been. Even if we reached 95 per cent or 99 per cent, I would argue with the Minister that the voluntary code is not as secure or protective of the individual small businessman as a statutory code. That is the first reason.

The second reason is that the code itself, referred to in Clauses 9 to 11, is a permissive code. I grant that its operation is certainly more flexible and universally applicable than the more constrained procedure in Section 5, where the Minister has to pick specific pieces of legislation in order to trigger the application of the statutory protection. But the code is permissive. To say to the affected small businessman, "If the regulator has not proceeded in accordance with the code, you have the right, when you appeal to the tribunal, to draw its attention to the fact that the procedures have not been followed", is simply not as protective as a statutory code.

Therefore, I believe that the solution that I commend to the Minister for reflection is reasonable in that it suggests minor word changes to the provisions in Clause 9 relating to the code; namely, it would change "may" to "shall". I shall not specify which particular lines are appropriate because goodwill is needed in terms of the expertise of the Civil Service and the Minister in deciding, if he is persuaded by the argument, that a mandatory code is right. It should be ensured, either by a commitment made by the Minister or on the face of the Bill, that the code itself will include the steps that were included by Parliament in the 1994 Act They are very clear steps. I know that there was controversy over the expression "minded to". My noble friend has proposed an amendment in an attempt to clarify that. The noble Baroness on the Benches opposite was concerned about precisely what that meant. There may have been ambiguity in the minds of some of those who were consulted. I believe that the matter can be dealt with by sensible amendment.

I commend this approach to the Government. We do not propose these amendments lightly. In essence, they are designed to protect the small businessman, even if only once. An amendment to the Bill to provide a statutory mechanism of controlling enforcement will be justified if only one small businessman believes that he is not aggrieved and that the correct methods have been followed. Therefore, I intend to lend my support to my noble friend.

Baroness Gibson of Market Rasen

My Lords, I oppose this group of amendments. I am a firm believer in codes of practice: they are universally accepted, and they are a way of explaining legislation. I accept that a code must be clear and well written. Then, it can be of great help to those who have to comply with the regulatory requirements. I fall back once more on the knowledge I gained from my work on the Health and Safety Commission. In many cases we issued codes of practice. Ironically, the response was that they were helpful and gave comfort to those trying to understand new legislation. They were particularly popular with smaller and medium-sized enterprises which did not have their own legal departments to consider legislation. They therefore fell back on guidance from bodies which helped the Health and Safety Commission to draw up the codes of practice it brought forward. To remove references to codes of practice from this particular Bill would be counterproductive. I urge that the codes remain.

Lord Skelmersdale

My Lords, I certainly join the noble Baroness, Lady Gibson, in her belief in codes of practice, but they should be guaranteed codes of practice. As my noble friends have said, the trouble with this Bill is that it is a permissive code of practice. The Government may well respond and say, "Well, this was consulted upon and these are the arrangements that were ultimately decided upon". But I have a cartoon on the wall of my office at home which depicts one man answering the telephone, who is very red in the face and becoming more and more flustered. On the shelf above his head there are five hats, each of which has a name on it—for example, Sales Manager, Personnel Manager, Accountant, telephone answerer and Order Clerk. Noble Lords will recognise the scenario of a very small business.

The point that my noble friend Lord Freeman made was that a very small business is not a member of any organisation. The person concerned is on his own. Therefore, by definition, he cannot have been consulted—but even if he were consulted, he certainly would not have answered. So the people for whom these codes of practice are meant to be useful have not been involved in their creation. Indeed, I wonder whether the Minister can guarantee that we shall have such a code of practice.

Lord Borrie

My Lords, when we discussed Clause 9 of the Bill in Committee on 25th January, the noble Lord, Lord Vinson, made what I thought was a remarkable statement at col. 407 of Hansard. Indeed, he said something rather similar this evening; namely, that the enforcement procedures enshrined in the 1994 Act were responsible for improvements in the previously over-zealous behaviour of enforcement officers.

However, Section 5 of that Act, which deals with enforcement, was in fact applied only once. I should point out to the noble Lord, Lord Freeman, that I have gained this information from paragraph 16 of the Explanatory Notes on the Bill which states that the section, has been applied directly only once, in the Deregulation (Improvement of Enforcement Procedures) (Food Safety Act 1990) Order 1996". After all those years, it was only applied on the one occasion. When stressing the significance of removing over-zealous enforcement from legislation and the importance of the Act, the noble Lord, Lord Vinson, failed to mention this evening that it was an enabling Act only and that it meant absolutely nothing unless and until it was applied to particular pieces of legislation.

The noble Lord, Lord Goodhart, who has had to leave the Chamber for the moment, said that Clauses 9, 10 and 11 of the Bill, which are meant to replace Section 5 of the Act, are a considerable improvement on the previous legislation, whether or not they are amended as proposed. The noble Lord, Lord Vinson, is quite right to say that enforcement procedures have been improving and that it is now commonplace for discussion and negotiation to take place between enforcement officers and businesses, whether small or big, before an enforcement officer rushes in, so to speak, to take court action. But that may be because enforcement officers themselves have realised the sense of that approach as, indeed, have the local authorities who often employ them.

The enforcement concordat has been somewhat belittled by the noble Lord, Lord Vinson. However, it incorporates best practice as it exists in enforcement and underpins the new clauses of the Bill; indeed, it is fully in line with it. I give way.

Lord Vinson

My Lords, I thank the noble Lord for giving way. One cannot measure the number of burglaries that have not happened as a consequence of a piece of legislation stating that burglars would be hanged. When the 1994 Act was introduced, the whole of the regulatory world was "abuzz", not least thanks to the excellent work of Christopher Booker, because it realised that the reason for the Government introducing these clauses in 1994 was that things had gone seriously wrong in terms of the fair application of regulation. Therefore, to state that the power has been used only once is to miss the entire point that the whole atmosphere was changed as a result of the 1994 Act. The concordat had not even been thought of at that time. So we can say with all honesty that the Act has done a great deal of good, but we cannot measure it by the specific times that the conditions were used. If I may say so, I believe that the noble Lord is barking up the wrong tree.

7.15 p.m.

Lord Borrie

My Lords, I do not believe that there is that much between us. If the noble Lord is saying that the 1994 Act contributed to a change of climate and of culture whereby enforcement officers became accustomed to discussing and negotiating instead of rushing in immediately with an enforcement order, I entirely agree with him. But we are now in the year 2001, we are living at a time when the culture that prevailed nine or 10 years ago has changed enormously. The present position is surely such that it emphasises the case for the Government's determination today to secure best practice results in an enforcement concordat, which can be readily changed from time to time as desired, and—as I was about to say before the noble Lord intervened—to back it up with a statutory reserve position in Clause 9. That seems to me to be perfectly satisfactory.

I expressed concern at Second Reading on a point that the noble Lord, Lord Freeman, mentioned this evening; namely, the proportion of local authorities that have signed up to the concordat. At that time, November 2000, the figure stood at only 75 per cent. However, I was reassured in that respect because the Minister said in Committee that the figure had risen to 84 per cent a nd that it is expected to reach 100 per cent by July. Therefore, it does not seem to me to matter very much if there is some slippage and one does not achieve that 100 per cent. The Government have made out their case for the voluntary approach backed by a reserve statutory power that can be brought into effect if anything should go wrong. That is both the best and the correct way to go forward.

I turn finally to Amendment No. 52, which I believe would make the position of the previous legislation worse. In reply to the consultation that the previous government conducted in December 1996, businesses said that they were puzzled when they received a "minded to" enforcement notice. They were confused between that notice and enforcement action. If we changed the wording from "minded to" to "intends to", l should have thought that the risk of confusion would be even more likely to occur. I see no value at all in that amendment. Unless the Government have suddenly changed their mind as a result of this afternoon's debate, I believe that their view is the correct one.

Baroness Buscombe

My Lords, I shall speak briefly and entirely in support of my noble friends Lord Vinson and Lord Freeman. I also support what my noble friend Lord Skelmersdale said in this respect. I should emphasise the fact that we are trying to make some progress on these issues. I trust that the Government will accept that we are deeply concerned about these clauses as they stand. I hope that the Minister will carefully consider the suggestion put forward by my noble friend Lord Freeman in relation to Clause 9. As the Bill is currently drafted, we are talking about codes of practice that do not have statutory force.

It would be otiose to repeat the arguments put forward this evening by my noble friends. However, it is important for us to reiterate the fact that, as we see it, there is currently no reserve statutory power in Clause 9. We are in favour of codes of practice but the present code of practice is something that could be entirely ignored; indeed, it does not have to exist at all. All we are doing in suggesting that the word "may" be changed to "shall" is emphasise the need to include in the Bill this reserve statutory power to give the code of practice some statutory force.

Also I would stress that it is regrettable that the noble Lord, Lord Haskins, is not in his place at this time when we are debating important issues which are highly relevant to his role as chairman of the Better Regulation Task Force.

Lord McIntosh of Haringey

My Lords, this debate has followed very closely that which we had at Committee stage. In addition there was the suggestion made by the noble Lord, Lord Freeman, which was followed up by the noble Baroness, Lady Buscombe, that we should change "may" into "shall" in Clause 9(1) in line 24. I shall deal with that point later.

In general, I do not think that the arguments have differed significantly from those which were advanced in Committee. The amendments seek to remove the new enforcement provisions in the Bill. They would retain the old Section 5 of the 1994 Act, including the "minded to" provisions, and modify the old minded to" provision. However, the objectives behind our provisions in Clauses 9, 10 and 11 are very similar to those behind Section 5. Here we are all together; we are intending to counter bureaucratic, inflexible and overzealous enforcement. I do not think there is any difference between us on that.

However, it is the case that the old Section 5 procedures were hardly used—I would go so far as to say that they were never used—and that is why the previous government launched a consultation exercise on using Section 5 in respect of legislation in the field of trading standards, care services and environmental health in December 1996. The noble Lord, Lord Freeman, was the Minister in the Cabinet Office—I guess he was Chancellor of the Duchy of Lancaster—and he referred to Section 5 of the DCOA 1994 because he had responsibility for it.

It has been said that the consultation could not have covered small businesses, and indeed I acknowledge it is difficult to cover individual small businesses—I say that as somebody who ran a small business for 30 years myself and I really know about the problems of small businesses. I am not saying I was the only one, but I have done that. The responses to the consultation included the Better Regulation Task Force, which itself certainly has excellent contacts with small businesses, and a whole range of other people involved in small business. These included the Dorset Local Business Partnership, the National Association of Funeral Directors, the National Federation of Residential Landowners, the National Market Traders Federation, the Office of Fair Trading, which is in constant contact with small businesses, the Restaurants Association, the Royal Institution of Chartered Surveyors, the Scottish Licensed Trade Association and so on. A serious effort was made by the department of the noble Lord, Lord Freeman, to contact small businesses; and it had a degree of success.

The feedback showed, first, that local authority enforcers felt the "minded to" provisions were too bureaucratic and could be manipulated by illegitimate businesses. It also showed that businesses were not entirely convinced, and sometimes confused the "minded to" notice with total enforcement action. The noble Lord, Lord Borne, reminded us of that.

That is why we decided not to pursue the Section 5 procedures, but to draw up the enforcement concordat. The noble Lord, Lord Haskins, apologises for not being here tonight because of another engagement. He did want to take the opportunity to express his support for the Government's proposals and the enforcement concordat. The noble Lord, Lord Vinson, has a copy of his speech and will, I am sure, acknowledge that.

The enforcement concordat has now been adopted by over 84 per cent of local authorities and 80 per cent of central government enforcement agencies. We expect the rate to be virtually 100 per cent, and I can assure the House that if there are central government enforcement agencies that have not signed up by next July we have ways of making them talk and we will undoubtedly do so.

There was a further consultation exercise in September 1999 on the specific issue of the "minded to" provisions, with the reserve power to issue a code of practice. Most businesses and enforcement organisations which responded to the consultation supported the proposal: they welcomed the extra protection that good enforcement practice would provide against over-zealous and inflexible enforcement.

The noble Lord, Lord Freeman, said that the code is permissive. Signing up to the code is permissive—although we shall make sure that it is not very permissive—but once the code has been signed up to, it is not permissive. You have signed up to it and you have to abide by it: you can expect to come under fire if you do not abide by it. It is a more flexible tool to counter bureaucratic, inflexible and over-zealous enforcement than either the old Section 5 or any amended Section 5.

Let me say why this is more flexible and more effective. First, the new power is not limited to specific pieces of legislation. It could be applied where necessary by geographic area or by type of enforcer. Incidentally, I am told that the list I read out in relation to Section 5 of the DCOA 1994 referred to our consultation in September 1999 and not that carried out by the noble Lord, Lord Freeman. I am sorry about that but I do not have information about the previous government directly to hand.

Section 5 can be applied only by specifying each individual piece of legislation to which it should apply. It cannot target intervention on specific problems without imposing unnecessary bureaucratic burdens on other organisations where intervention is not necessary.

Secondly, the new power does not specify the procedures in advance. They could be tailored to address the circumstances in any code of practice, and they could be consulted on. So we can develop the code with a particular problem in mind where difficulty has been proved. That is a good deal more flexible and effective.

Thirdly, any code of practice on enforcement set out in the Bill, once enacted, would almost certainly include procedures like those in the concordat, because the concordat includes procedures similar to those in the Act, but less cumbersome and bureaucratic. For example, the concordat says: Before official formal enforcement action is taken, officers will provide an opportunity to discuss the circumstances of the case and, if possible, resolve points of difference, unless immediate action is required. So the concordat provides for enforcement officers to explain what action is necessary and over what timescale. They can also give an explanation of the right to appeal. We could have other "best practice" from the concordat, if we had a code under the Bill, which would go further than the provisions of the 1994 Act. We could require enforcement officers to distinguish legal requirements from best practice advice and we could require enforcement officers to provide suitable opportunities for discussion. We could require them to provide useful information to the business, or to work with businesses to assist in compliance. None of these is possible under Section 5, and they seriously weaken a provision which was made but never actually enforced.

I hope I have convinced the House that what we are proposing here is more effective and enforceable in the issue of "may" versus "shall". I have assumed that was in line 24, but it could be line 40 on page 7. I am not sure if that is what the noble Baroness, Lady Buscombe, meant. If she meant to alter line 40, that would not give any greater legal force to the code; the code would be statutory anyway. There is a statutory right to take breaches into account. If that is thought to be material, it will be taken into account. If that is not thought to be material, introducing the word "shall" will not give the provision any greater weight. If line 24 were meant to be altered, I repeat that we shall pursue non-compliance with vigour. We use the word "may" to allow the Minister to exhaust all other non-statutory avenues to improve the practice being followed by enforcement officers in the field.

Earlier this afternoon the noble Lord, Lord Haskins, on behalf of the Better Regulation Task Force, welcomed the non-legislative approach. The Minister could ask the enforcement organisation voluntarily to commit itself to adopt and implement the enforcement concordat. That would involve the enforcement organisation producing an implementation plan, monitoring reports and explaining progress. That voluntary approach would not be possible if the wording were changed from "may" to "shall".

The arguments for the provisions in the Bill and against retaining or restoring the provisions of the 1994 Act are overwhelming. They are practical, principled and very much in support of the small businesses whose interests are represented by those on the other side of the House. I acknowledge their sincerity in producing them, but I hope that they will not pursue the amendments.

7.30 p.m.

Lord Vinson

My Lords, I think that the only thing between us is means rather than ends. I shall deal with one or two of the points that were raised. As regards the so-called "minded to" provisions, as far as I can see in the original Act the words "minded to" were not used at all. The word "considering" was used and it metamorphosed into the term "minded to" which has a more subtle meaning but misses the point.

I accept that that Act was over-prescriptive and overdone, but, undoubtedly—I think that we can perhaps all acknowledge this—its very presence led to a marked improvement in the fair application of regulation. That is what we all want to see preserved. By suggesting in our Amendment No. 52 that the word "considering"—which is in the original measure—be changed to "intends" you have to consider the point at which the provision was to be used. By changing the wording to "intends", the regulating officer does not at that point have to spell out the appeal procedures. What I think bugged the regulating officer—I can see the problem—was that at the point when he was just threatening (a threat is an important part of his armoury and a perfectly fair one) he had to spell out the appeal procedures and it rather pulled the rug from underneath his threat. If he was considering bringing the full weight of the law against someone who had probably done something seriously wrong, he had to spell out the appeal procedures. By changing the wording to "intends" he can threaten without weakening his position. That measure is designed to help. It has possibly been misinterpreted by noble Lords on the other side of the House. I am not a lawyer and perhaps we did not express the measure as well as we should have done, but the change of wording seeks to strengthen the position of the regulating officer.

That said, I hope that we can agree that there has been a marked improvement in the application of regulation thanks to the schedules to the 1994 Act. We on this side of the House want to see that position preserved. We do not want to see any slippage. We believe that that position is best preserved either by maintaining the provisions of that Act, or by changing "may" to "shall" in the relevant places so that the procedures introduced in the earlier legislation are consistently incorporated into any new voluntary concordats or any new voluntary codes. We do not think that it is satisfactory for them to be voluntary; they should be mandatory. This section of the Bill removes the statutory protection that small firms had against aggressive, unfair and unreasonable practice in this regard. We think that that protection can only be preserved by inserting "shall" instead of "may" in the relevant parts of Clause 9. I hope that the Minister will reconsider the matter.

We on this side shall not press the amendments at this hour, but we will certainly return to the matter at Third Reading. To repeat myself, although we are all trying to achieve the same ends, the means suggested to achieve those ends by the noble Lord opposite are inadequate and are not sufficiently strong. We wish to make a better job of them. I shall withdraw the amendment but intend to return to the whole subject at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Making of codes of practice by Ministers of the Crown]:

[Amendment No. 47 not moved.]

Clause 11 [Making of codes of practice by National Assembly for Wales]:

[Amendment No. 48 not moved.]

Clause 12 [Repeals and savings]:

[Amendment No. 49 not moved.]

Lord Dahrendorf moved Amendment No. 50: After Clause 12. insert the following new clause—

REPORT TO PARLIAMENT

(". A Minister of the Crown shall lay before both Houses of Parliament from time to time a report on the operation of this Act, including a report on the operation of orders made under the Act, and any need for their amendment.").

The noble Lord said: My Lords, on two occasions we have debated the safeguards which could be built into the operation of the Bill once it is enacted. It seemed to me then, and it seems to me now, that a report to this House with a subsequent debate is a modest but important contribution to such safeguards.

In Committee the Minister told us that the Government were, as he put it, open-minded about the issue and would consider it further. I have also considered my amendment further and have changed it in two respects. First, I accept that to lay a report every year is too rigid a provision. It is sufficient for one to be produced from time to time, especially if it is understood that the first such report would be made after two years or so. Secondly, in phrasing the amendment I have preferred to use the wording which the delegated powers committee used in paragraph 20 of its second report. I hope that noble Lords and, of course, the Government will find this an acceptable way forward. I beg to move.

Viscount Goschen

My Lords, the amendment of the noble Lord, Lord Dahrendorf, is certainly an additional safeguard as regards the correct implementation of the Bill. I look with sympathy on his efforts to make it more attractive to the Government, which is clearly important if one is to succeed in changing "resist" to "accept" on the Minister's brief.

However, given that the measure is supposed to be a stricture and one that puts the government of the day under pressure to conform, and to demonstrate that they have conformed with assurances that were given and with the spirit of the legislation, to say that they should report from time to time is in my view not sufficiently powerful because they could simply decide not to report. If the noble Lord, Lord Dahrendorf, intends that the first report should be produced after two years, perhaps the amendment would benefit from having that written into it.

Lord Skelmersdale

My Lords, I am slightly confused by the arguments of my noble friend and of the noble Lord, Lord Dahrendorf, because it has become the practice of the Select Committee to produce an annual report itself. I am unsure what extra measures a government report would produce. There is no earthly reason, of course, why the annual report of the Select Committee could not be debated in your Lordships' House and the government of the day could put whatever slant on it they felt appropriate at that time.

Lord Falconer of Thoroton

My Lords, with respect to the noble Lord, Lord Skelmersdale, I do understand the rationale of the noble Lord, Lord Dahrendorf. The order-making process which the Bill sets out—the process is in the 1994 Act; the scope of the Bill is wider than the 1994 Act—is plainly an important procedure. It depends upon a close working relationship between the Government, the scrutiny committees and each House. I do not think that the noble Lord's point would be met simply by a report from the scrutiny committees or Parliament—a somewhat vague phrase. If there is to be a consideration of how the Act is working, the Government should be compelled to say how they see it working. That process is not suited to adversarial politicking. The right approach is for the Government to set out how they see the Act working, with a free flow of information from the committees and Parliament.

Having said that, I do not think that it is appropriate to put the report requirements on the face of the Bill. However, I can and do undertake on behalf of the Government that a Minister of the Crown will report to this House three years after enactment—I say three years rather than two years; I am not sure that that is a critical point between us—on the operation of the regulatory format should it become an Act. I undertake that that report will cover the operation of the order-making process and any associated constitutional and procedural issues. As the debates to date have indicated, these are areas of key concern to your Lordships' House. It is right that the government of the day should address them fully.

After that first report, it would be for the government of the day and the House to decide on the need for any further report. The timing, scale and scope of the next report seems to me a matter best decided after that. I do not think that it would be right for such reports to reopen matters of policy which had been debated fully during the consultation, scrutiny and approval stage of the order-making process. There would be no point if a reformed regulatory regime order was working smoothly. Indeed, it could cause uncertainty. But the process—how the system is working—needs to be looked at.

I hope that I have reassured noble Lords, in particular the noble Lord, Lord Dahrendorf, about our intentions and that our views are the same. Our undertaking could not bind future governments. It would be helpful to the House if the noble Baroness, Lady Buscombe, were to indicate the attitude of her party were it to be confronted with the need to produce a report. The House would be reassured if the noble Baroness indicated that it would be the present intention of her party to produce a report at the appropriate time.

Lord Dahrendorf

My Lords, I am grateful to the Minister for that undertaking. Although an undertaking is second best, it is significantly better than nothing. We have an important and unusual Bill before us. Therefore I believe that special procedures should be in place to enable Parliament, and above all your Lordships' House, to scrutinise progress when the Bill is enacted.

I accept the undertaking in the spirit in which it was given. I hope that it will be accepted by others. It is an undertaking which would be accepted on these Benches. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 13 [Consequential amendments]:

[Amendment No. 52 not moved.]

Forward to