Lords Sitting of 23 January 2001

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Blackburn.

Personality Disorder: Compulsory Treatment Orders
Baroness Perry of Southwark Baroness Perry of Southwark asked Her Majesty's Government:
Whether the extension of compulsory powers for treatment to those suffering from personality disorder, which is proposed in the White Paper Reforming the Mental Health Act, will violate the human rights of those concerned.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the Mental Health Act 1983 already applies to people with a psychopathic disorder. When implemented, the proposals set out in our White Paper will strengthen the rights of those who are subject to formal care and treatment. Therefore, through the introduction of independent decision-making in authorising the use of compulsory treatment, we consider that the powers will be fully compliant with the requirements of the Human Rights Act.
Baroness Perry of Southwark: My Lords, I thank the Minister for that reply. I declare an interest as a non-executive director of Addenbrooke's NHS Trust and the chair of its mental health committee. What guidance does the Minister propose to offer to psychiatrists up and down the country, who, as I believe the Minister knows, currently are very worried, in relation to the diagnosis which they will be asked to carry out as to exactly what is personality disorder when the people concerned have not committed a crime and are not mentally ill and when one person's personality disorder is another person's political dissident or freedom fighter?
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for that question. I am aware that concern clearly exists with regard to the assessment procedure. Perhaps I may reassure her that a standardised methodology will be in place for the assessment of personality disorder and the risk of serious harm to the public. That will be used as the basis, for example, of reports to a court. We expect that it will take some time to conduct assessments and, in particular, we shall need to ensure a consistency of approach throughout the system. However, I can
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assure the noble Baroness that we shall work thoroughly to ensure that the clinicians involved are fully aware of their responsibilities.
Lord Hylton: My Lords, will the Minister confirm that there will always be a right of appeal for affected persons and that those who are deprived of liberty will always be reviewed at reasonably frequent intervals?
Lord Hunt of Kings Heath: Yes, my Lords. The mental health tribunals which we propose to establish will be able to review all such cases. Those affected will have the right to ask the tribunal to review their position. When an order is made after the initial 28-day assessment, it will be reviewed automatically after the first six months, the second six months and then at yearly intervals. Therefore, I believe that clear avenues will be open for cases to be reviewed. In addition, independent advocates will be available to help people who seek a review.
Baroness Masham of Ilton: My Lords, can the Minister tell me whether systems are available in the community to monitor people with severe personality disorders?
Lord Hunt of Kings Heath: My Lords, first, I welcome back the noble Baroness to your Lordships' House. She will know that I have had to answer rather fewer questions while she has been away.
The noble Baroness has raised an important point. Although fears have been expressed about the number of compulsory treatment orders which may be issued, the reality is that, if our mental health services, particularly in the community, are made sufficiently effective, one hopes that there will be less need for such orders in the future. That is why the National Service Framework for Mental Health emphasises the need for effective community services. I particularly commend the assertive outreach teams. By April 2001, 117 places will be available to deal quickly with the type of problem to which the noble Baroness referred.
Lord Goodhart: My Lords, has the Minister considered the serious criticisms and concerns raised by the Royal College of Psychiatrists in its brief which has been circulated today? In particular in relation to the detention of those who are said to have a personality disorder but have not committed a crime, how does he envisage that it will be possible to order their detention without infringing their human rights?
Lord Hunt of Kings Heath: My Lords, I have not seen the document circulated by the Royal College of Psychiatrists but I shall, of course, ensure that we study it most carefully. However, I believe that overall the responses which the Government have received in relation to their proposals are positive. The safeguards are clearly in place. I am absolutely satisfied that the existence of the mental health tribunal by which a person may ask for a case to be reviewed and the

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automatic review of cases in the intervals which I have already mentioned provide an appropriate way of ensuring that no one's rights will be infringed. I believe that the people concerned will have their cases considered in the most effective way possible. As I mentioned, the provision of an independent advocacy service will also ensure that as much support as possible is given to people who ask for their cases to be reviewed.
Lord Ackner: My Lords, will it be a valid ground of appeal that the personality defect is not treatable?
Lord Hunt of Kings Heath: My Lords, the noble and learned Lord has raised an interesting question about the whole issue of what is described as "treatability". A problem which has arisen with regard to the current legislation is that it has not been possible to deal appropriately with people who are considered clinically not to be treatable. I say to the noble and learned Lord that clinical opinion may not be uniformly agreed as to how one describes treatability. Therefore, over the next two years we shall undertake considered work in order to develop an evidence base of research about the treatment of dangerous people with severe personality disorder. There is evidence that a range of interventions are available and that some of those are effective in treating different groups of people with severe personality disorders. On that basis, I believe that we shall be able to resolve the issue of treatability.
Baroness Howells of St Davids: My Lords, can the Minister give an assurance, when such powers are in use, that due regard will be given to the cultural differences between the citizens of the United Kingdom? Already there is a fear that misdiagnosis takes place among British Caribbean people.
Lord Hunt of Kings Heath: Yes, my Lords, I am aware of the issue that my noble friend has raised and which will have to be tackled in a number of ways. The National Health Service framework is designed to ensure a consistency of approach towards any person in this country who requires mental health services. I would expect that principle to be taken forward in relation to the assessment procedures that will need to be operated within the new system. The fact that a care treatment plan will need to work alongside compulsory treatment orders will also ensure a greater uniformity of approach. We would expect the tribunals themselves to be aware of the cultural issues that my noble friend has brought forward.
Lord Elton: My Lords, in view of the divergence of opinions on treatability and the fact that treatments evolve, will the new provision permit patients who are classified in a review as being untreatable to have their untreatability reviewed in such a review?
Lord Hunt of Kings Heath: Yes, my Lords, that is the point.

Misuse of Drugs Act 1971: Crack Cocaine
2.45 p.m.
Baroness Hanham Baroness Hanham asked Her Majesty's Government:
What steps they are taking to amend Sections 8 (in particular subsections (c) and (d)) and 9 of the Misuse of Drugs Act 1971 to include crack cocaine.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, Section 8 of the Misuse of Drugs Act 1971 makes it an offence for the occupier or a person concerned in the management of any premises knowingly to permit controlled drugs to be produced or supplied on the premises. However, it does not extend to the use of controlled drugs such as crack cocaine.
The Government are currently examining the scope for extending Section 8 to include the use of all controlled drugs, but are concerned to ensure that any such change proves effective. They are also mindful of the possible consequences for the voluntary sector and treatment services that work with drug misusers. The Government have no plans to make a similar amendment to Section 9 of the Act.
Baroness Hanham: My Lords, I thank the Minister for his reply. Does he accept that the police and particularly local housing authorities, such as the Royal Borough of Kensington and Chelsea—I declare an interest as a member of that authority—are hampered in their efforts to prosecute and evict those involved in the operation of crack houses because crack cocaine is not specifically mentioned in the relevant legislation? Crack cocaine is not mentioned in the 1971 Act because it was not a problem when the Act was enacted. Does he agree that it is absurd that opium dens can be closed on the basis of that Act but that crack houses, which generate violent crime, intimidation and prostitution, cannot be closed? I am glad to hear the Minister say that thought is to be given to amending the Act. I suggest that a simple amendment could be introduced to add crack cocaine to Section 8 and, I hope, Section 9 of the 1971 Act.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for her supplementary question. She raises an important issue. As she has no doubt heard, we are giving this matter careful consideration. At the moment the police have the capacity to intervene in a crack house where there is supply and production of drugs. I take her point about the historical nature of the section. It was designed for a time—1971—when opium smoking, in particular, was thought to be an issue. Of course, we need to keep such matters under review and I am grateful to her for drawing this out usefully in this short Question.
Viscount Waverley: My Lords, does the Minister agree that targeting consumption, although important, is only a small endeavour in the war against drugs? What notable achievements have been notched

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up by the security agencies in taking the fight to the front line of production, distribution and controlling precursor chemicals without which there would be no hard drugs?
Lord Bassam of Brighton: My Lords, it goes without saying that to be effective in this area there needs to be intense international co-operation. Of course, Customs and Excise, the police, international policing bodies and security services are all involved in that. Over the past few years there have been a number of stunning successes. It may be worth providing a few statistics. Seizures of cocaine, for instance, have increased from 799 in 1988 to nearly 5,000 in 1998. In 1988 to 1999 seizures of crack in terms of quantity have increased from just 30 to 2,436. There was an increase of 39 per cent in the number of crack seizures between 1997 and 1998. I believe that the international offensive against that dangerous drug is becoming increasingly successful and our law enforcement agencies and bodies are working well to secure those successes.
Baroness Young: My Lords, in view of the Minister's sympathetic reply to my noble friend Lady Hanham, perhaps I can press him to say when the Government will deal with this matter. Does he agree that crack is a dangerous drug and that it is widely used by young people? The point raised in the question is a real one. Does the Minister agree that an amendment to the law should not be too difficult and that that would clearly have the support of everybody?
Lord Bassam of Brighton: My Lords, the noble Baroness said that amending the law might not be too difficult, but it would be difficult to do so in the way in which she suggested. Her suggestion about use might make landlords of properties in some way responsible.
The noble Baroness, Lady Hanham, has, like myself, been a landlord of socially-owned premises. There is a problem in that context; for that reason, we are giving the matter careful and detailed consideration. We shall do so for a whole range of drugs, not simply crack. We see the problem as a major menace, and we want to tackle it. We are grateful for the support that we receive from all quarters for taking tough and effective action. The Government will always endeavour to take tough and effective action to deal with drugs.
Lord Cope of Berkeley: My Lords, the Minister said that the matter is under consideration. That is precisely the same answer as was given 12 months ago by the Minister of State in another place. The fact is that during the past five years crack-related deaths have gone up by 500 per cent and, we are told, last year in London alone there were 40 attempted murders which were crack-related. Yet crack houses are still treated by the law more leniently than opium dens or houses in which cannabis is involved. That cannot be right. My noble friend rightly said that such a move by the Government would have wide support.
Lord Bassam of Brighton: My Lords, the noble Lord returns to the point. However, he was a member of a government which had 18 years in which to make changes to the 1971 Act. I have already explained some of the difficulties associated with the use of Section 8. We are keeping the matter under review.
If we are persuaded of the case and agree that the proposed approach will make drug enforcement, so far as crack is concerned, more effective, we shall do everything that we can to secure that. We believe that effective policing on the ground and the use of powers that already exist are the best way forward. Targeted policing initiatives are directed towards that approach, and we have made extra resources available to achieve that end. Many excellent examples of best practice are being adopted by the police, who are taking the war against drug-related, and, in particular, crack-related, crime to those who are abusing the situation.

Weapons of Mass Destruction: Elimination
2.53 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they consider that more urgent action should be taken to reduce the danger that a war using nuclear or other means of mass destruction might render earth uninhabitable by mammals.
Baroness Ramsay of Cartvale: My Lords, the Government share the concern of my noble friend Lord Jenkins of Putney about the threat posed by weapons of mass destruction. Our efforts are devoted to the removal of that threat. We have led the way not just in terms of nuclear disarmament but in international efforts to eradicate all weapons of mass destruction and to address the causes of international conflict.
Lord Jenkins of Putney: My Lords, my noble friend will be aware that the Government have recently committed themselves publicly to securing the end of nuclear weapons. The problem is that that commitment has not been followed up by action. Do the Government have it in mind to take action along the lines suggested, for example, by the noble and gallant Lord, the Field Marshal, not many months ago in Canberra? He has also raised the matter in the House, but has not yet received an affirmative answer.
Baroness Ramsay of Cartvale: My Lords, I cannot agree with my noble friend that the Government have not taken action. We have made it crystal clear that our goal is the global elimination of nuclear weapons. The United Kingdom is already leading by example. The Government announced significant reductions in Britain's nuclear forces in the Strategic: Defence Review. We have only a single weapons system,

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Trident, the smallest arsenal of any of the five nuclear weapons states, and we have set the international standard in transparency.
Lord Marlesford: My Lords, does the Minister agree that the danger referred to by the noble Lord, Lord Jenkins of Putney, that nuclear weapons could,
"render earth uninhabitable by mammals",
is the basic reason that it is highly unlikely that such weapons will ever be used by, or against, people who have them? That is why they have kept the peace for 50 years, and it is questionable whether we want to eliminate them. If they were eliminated, that might result in wars that would not otherwise take place.
Baroness Ramsay of Cartvale: My Lords, we are all familiar with the theory of deterrence. We surely do not wish to conclude that to eliminate all nuclear weapons would be a bad thing; that, I do not think, could be possible. Some people have doubts about being able to verify the control of nuclear weapons, but we believe that there are ways of doing so. Our Atomic Weapons Research Establishment is examining ways of improving systems of inspection. Our aim remains the elimination of all nuclear weapons.
Lord Archer of Sandwell: My Lords, does my noble friend recollect that in 1995 there was an agreement to begin negotiations for a treaty to ban the production of fissile materials and that that call was renewed last year at the Nuclear Non-Proliferation Treaty Review Conference? While I appreciate that the Government have worked very hard on that matter—that is generally appreciated—will my noble friend say what progress has been made?
Baroness Ramsay of Cartvale: My Lords, we have been deeply frustrated by the lack of progress in Geneva at the Conference on Disarmament. That conference's failure to start negotiations on a cut-off treaty for fissile material thus far has certainly not been for want of effort and flexibility on our part. If there is no progress in the coming year, there will be increasing support for reform of the working practices of the Conference on Disarmament. We will have to be ready to look seriously at any ideas that might help to move the situation forward. As your Lordships may well be aware, the conference resumed yesterday in Geneva. The incoming Canadian chair has been trying to broker a compromise agenda during the break, and we of course support his efforts.
Lord Howell of Guildford: My Lords, has the Minister noted the comments of the new American Secretary of State, General Colin Powell? His comments were to the effect that a new strategic framework is required as a context within which to rethink the whole question of nuclear deterrence and the development of anti-ballistic missile defences.
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What contribution have the British Government made to that new framework of thinking so far, or are we content to leave it all to the Americans?
Baroness Ramsay of Cartvale: My Lords, we look forward to working very closely with the new American Administration. We have always said that we were sympathetic to the concerns of the United States. It would be premature to say how the United States will deal with the various problems that have been outlined. In fact, President Bush made it clear that he is perhaps committed to a national missile defence system as one element of his approach to tackling these problems. However, that Administration have also made it clear, even in the short time that they have been in office, that they have no firm views at this stage on a specific system. They emphasised—this is very important and most welcome—the importance of consulting the allies and the Russians before coming to decisions. We are very much involved with that, and we shall work closely with the Bush Administration. Our defence interests are, and always will be, closely linked with those of the United States.
Baroness Williams of Crosby: My Lords, further to the point that the Minister made about our relations with Russia, can she also say whether the still-open offer to reconsider disarmament under the Start 2 and Start 3 treaties, which together would bring a huge reduction in nuclear weapons held by Russia and, on the other side, the United States, is being pursued by Her Majesty's Government? Are we making representations to both sides to go ahead with that approach?
Baroness Ramsay of Cartvale: My Lords, as noble Lords are well aware, the Start process is a question for the Americans and the Russians. We have always made it clear that one of our important priorities is that there should be further cuts in the arsenals of the Americans and the Russians. We shall do everything that we can to work to that end.

Council Tax
3 p.m.
Lord Bowness Lord Bowness asked Her Majesty's Government:
Whether they are considering introducing any additional council tax bands.
Baroness Farrington of Ribbleton: My Lords, we believe that the council tax is working well as a local tax. It has been widely accepted by local taxpayers and is generally well understood, although we will keep the situation under review. A number of respondents to our recent Green Paper on local government finance raised the issue of the banding structure. Although that was not a matter on which the Government had consulted, we will consider what was said.
Lord Bowness: My Lords, I thank the Minister for that Answer. Are the reports which appeared in the

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Sunday Times on 7th January—that her right honourable friend the Deputy Prime Minister is studying a wide-ranging restructuring of the council tax system and has promised a White Paper later this year—correct or not?
Baroness Farrington of Ribbleton: My Lords, it is correct that we published a Green Paper in September. We shall consider the responses and as a result will be producing a White Paper later this year. In undertaking a process of consultation, the Government will consider all the points raised by respondents, but they have no plans to vary the tax band structure as proposed by the noble Lord.
Baroness Hanham: My Lords, is the new system of floors and ceilings to the council tax, which appears to have arisen, likely to continue in view of the unsatisfactory way it is working?
Baroness Farrington of Ribbleton: My Lords, the Government believe that in order to avoid major changes of between 1 and 10 per cent it is wise to allow the floors and ceilings to exist. They protect not only local authorities but local people from wide variations. At present, we cannot envisage a circumstance in which that would be necessary in all years but we shall keep the matter under review.
Lord Dixon-Smith: My Lords, given the preponderance of finance which comes from the centre to local authorities, the Government have my sympathy in dealing with local government finance. The Minister will be well aware of my views on the subject. Does she agree that such problems will continue and will be insoluble while the dominating position of central finance continues?
Baroness Farrington of Ribbleton: My Lords, I understand and have known for years the point of view taken by the noble Lord, Lord Dixon-Smith. The position which has faced local government during the past four years—that is, a 13.6 per cent real terms increase in grant—has enabled local authorities to respond more accurately to the needs of their communities. The noble Lord's view was expressed by other colleagues in local government and will be taken into account in considering responses to the consultation.
Lord Mackie of Benshie: My Lords, are the Government and the Minister thinking of taxing your Lordships' castles at a higher rate?
Baroness Farrington of Ribbleton: My Lords, I must admit that I do not know whether noble Lords' castles are in Scotland. If so, it will be a matter for the Scottish Parliament. If they are in Wales, it will be a matter for the Welsh Assembly. However, if they are in England I can tell him that at present we have no proposals to vary the tax bands.
Lord Stoddart of Swindon: My Lords, is not one of the reasons for the proportion of tax to be found by
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local taxpayers that the business rate was removed from local authorities? Are the Government considering properly returning that tax to be raised by local authorities?
Baroness Farrington of Ribbleton: My Lords, although I have not seen the responses to the consultation, I am certain that collectively and individually local authorities will have raised that point in response to the Green Paper. We must bear in mind two issues when considering the future of the business rate. The most important is the belief of some local authorities that all the business rate which would be collected within their areas would necessarily go only to that local authority. However, all in local government would accept that in equity it must be redistributed. The noble Lord's view has been expressed and no doubt will continue to be.
Baroness Maddock: My Lords, may I urge the Government to re-examine the position of park home owners? The Minister will know that in recent months a working party in which the DETR is involved has been examining the legislation and issues surrounding park home owners. One of the big issues raised by those owners was the level of council tax banding because many properties are at a lower rate than band A. I heard what the Minister said but the matter is urgent. Will she reconsider it?
Baroness Farrington of Ribbleton: My Lords, the issue was raised by my honourable friend David Borrow the Member for South Ribble in another place. Many people living in park homes have put the points expressed by the noble Baroness. We shall bear them in mind.

Standing Orders (Public Business)
3.6 p.m.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the Motion standing in my name on the Order Paper. It may be helpful for the House to know that all the amendments to Standing Orders were recommended by the Procedure Committee in its third and fourth reports of the last Session. The House agreed to those reports on 19th July and 13th November last year. The Motion which I am now moving is therefore consequential on the agreement that the House gave to those reports.
Moved, That the Standing Orders relating to public business be amended as follows:
After Standing Order 10 (hereditary peers: by-elections)
Insert the following new Standing Order:
Register of hereditary peers
Any hereditary peer (not previously in receipt of a writ of summons) who wishes to be included in the register maintained by the Clerk of the Parliaments pursuant to Standing Order 10(5) shall petition the House and any such petition shall be referred to the

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Lord Chancellor to consider and report upon whether such peer has established his right to be included in the register.
Standing Order 40 (arrangement of the Order Paper)
After paragraph (6), insert the following new paragraph:
("( ) Any motion relating to a report from the Joint Committee on Human Rights on a remedial order or draft remedial order laid under Schedule 2 to the Human Rights Act 1998 shall be entered before a motion to approve that order or draft order.")
Standing Order 64 (sessional committees)
After ("House of Lords' Offices Committee") insert ("Human Rights Committee")
Standing Order 72 (affirmative instruments)
In paragraph (1)(a), after ("Deregulation and Contracting Out Act 1994") insert ("or a draft remedial order or remedial order laid under Schedule 2 to the Human Rights Act 1998")
In paragraph (1)(b), after ("Delegated Powers and Deregulation Committee") insert:
("( ) in the case of a draft remedial order or remedial order laid under Schedule 2 to the Human Rights Act 1998, there has been laid before the House the report thereon of the Joint Committee on Human Rights:
Provided that the report is laid
(i) in the case of a draft remedial order, within 60 days of the laying of the draft order or
(ii) in the case of an order not approved in draft, within 119 days of the making of the original order,
such periods to be calculated in the manner prescribed by Schedule 2 to the Act;")
Standing Order 73 (Joint Committee on Statutory Instruments)
In paragraph (1), after ("Deregulation and Contracting Out Act 1994") insert ("and any remedial order or draft remedial order under Schedule 2 to the Human Rights Act 1998")
In paragraph (2), line 4, after ("but") insert ("not including any statutory instrument made by a member of the Scottish Executive or by the National Assembly for Wales unless it is required to be laid before Parliament or either House of Parliament and").—(Baroness Jay of Paddington.)
On Question, Motion agreed to.

Procedure of the House: Select Committee Report
3.7 p.m.
The Chairman of Committees (Lord Mackay of Ardbrecknish): My Lords, I beg to move the Motion standing in my name on the Order Paper. In presenting the report from the Procedure Committee, I should say
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a few words about items 2 and 3 before dealing with item 1, which is the subject of the amendment tabled by the noble Lord, Lord Rodgers of Quarry Bank.
Item 2 clarifies the guidance on Statements in the Companion to Standing Orders and will, I am sure, be welcomed by those who take part in Statements. Item 3 tidies up the procedure at the beginning of a Session when a number of Motions relating to the setting up of committees are taken. Those who remembered those Motions last month will recall that the Leader of the House had to move procedural Motions. As a result, she was questioned about the composition, not me. I did not complain about being able to shelter behind the Leader, but I believe that it is an untidy way to do business. The proposed change would rectify that.
The main item before your Lordships is item 1 of the committee's report. At our meeting, we had a joint paper from the noble Lords, Lord Carter and Lord Henley, proposing to move the general debate day from Wednesday to Thursday on an experimental basis. Wednesdays would then be used for government business.
It was also proposed that general debates on important issues could take place on a small number of Mondays, Tuesdays or Wednesdays during the Session. These changes would be made on an experimental basis until the end of the Session, when the committee and the House would be able to decide whether the experiment had proved successful.
The debate in the committee showed a wide range of opinions. The principal arguments for such a change were that it would give all Members of the House the flexibility of two consecutive non-government days to organise their commitments outside the House. That would be particularly helpful to those Peers whose outside interests and homes were well away from London as such Peers might be able to get away on Wednesday nights or first thing on Thursday mornings if they wished. They would therefore have two clear days to do whatever they wished to do outside the House.
The principal arguments against the change were: that general debates were an important part of the role of the House; that to move them to Thursday might diminish the number of Peers who wished to take part; that there would be reduced attendance, and hence the importance of those debates would be diminished; and there was a danger that the House would follow the other place in what is increasingly seen as a three-day week.
Rather than come to a decision on the matter in the Procedure Committee, it was decided that this issue should be considered by the House as a whole. The only way that the Procedure Committee could do that was to make a recommendation for change and thus report it to the House. If it had decided not to make any change there would have been no report and your Lordships would have been unable to express a view. Therefore, there is no recommendation to make this change but your Lordships should make the decision; in other words, it is a kind of collective passing the buck. I beg to move.

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Moved, That the First Report from the Select Committee be agreed to (HL Paper 16).—(The Chairman of Committees.)
Following is the report referred to:
1. The general debate day
The Committee considered a proposal to move the general debate day from Wednesday to Thursday for an experimental period from February 2001 to the end of the present parliamentary session, There would also be, subject to agreement in the usual channels, general debates on important issues on a few Mondays, Tuesdays or Wednesdays.
Certain members of the Committee were opposed to the proposal. They reported opposition among backbenchers they had consulted.
The Committee noted that there was opposition to the proposal, but decided that it was proper that the House itself should debate and decide the issue. If the Committee rejected the proposal, there would be no report from the Committee for the House to debate. For this reason, the Committee recommends the proposal to the House so that the House may decide.
2. Ministerial statements
In March 1999 the Committee recommended that "while there will be exceptions, the time for the two Opposition front benches and the reply to them should be limited to 20 minutes, as for the back benches." It is difficult in practice to define the exceptions, and the reference to exceptions has been omitted from the Companion to the Standing Orders. On some recent occasions, when long statements have led to long contributions from the Opposition front bench spokesmen, the rule has led to ministers cutting short their answers to the spokesmen, in order to comply with the 20 minute limit. The Committee approves the practice of the House that statements should not be made the occasion for immediate debate. However, the Committee recommends that ministers should not cut short their replies, even if this means going beyond the 20 minute limit.
3. En bloc appointment of sessional select committees
The Committee recommends that the Chairman of Committees should, at the beginning of a new session, be entitled to move en bloc the motions appointing select committees, deputy chairmen and any other bodies nominated by the Committee of Selection, without the need for a Business of the House motion. There should instead be an italic notice on the Order Paper of the day informing the House that the Chairman of Committees will, unless any Lord objects, move the motions of appointment en bloc.
Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank rose to move, as an amendment to the Chairman of Committee's Motion, at end insert "except for item 1".
The noble Lord said: My Lords, as is clear from the Order Paper, and made doubly clear by the Chairman of Committees, my amendment relates only to paragraph 1 of the report of the Procedure Committee which deals with the general debate day. I have tabled my amendment for two reasons: first, to draw attention to a proposal of major consequence, which might have been overlooked by the House given the bland item on the Order Paper, following normal precedent; secondly, to enable the House to take a view of an important matter without prejudicing the remaining paragraphs of the report. So often in this House we have a report from the committee, part of which noble Lords want to contest. That often involves a difficult debate and a muddled outcome. I hope that my amendment enables the matter to be made plain and decided upon accordingly.
The Procedure Committee met on 19th December on the eve of the Christmas Recess and its report was revealed for the first time in the Minute on the morning of Wednesday last, which is less than a week ago. Following precedent, there was no signpost to indicate the importance or character of any of the items to be debated today. That I became aware of it when I did I owe to the noble and gallant Lord, Lord Craig of Radley. I simply draw attention to how easily these things may slip by. Following precedent, the fact that we might have such a debate today was not indicated in the weekly schedule of forthcoming business.
This is too important an issue to be passed by the House through half-closed eyes. We should be particularly alert when both the Government and Opposition Chief Whips agree any course of action. Admirable though the noble Lords, Lord Carter and Lord Henley, are, there is always a whiff of sulphur about any suggestion made when they get together. I would have preferred this amendment not to stand in my name because it may confuse noble Lords into believing that it is a peculiarly Liberal Democrat initiative. That is not so. Members on my Benches will have as much freedom as, I believe, all noble Lords to vote whichever way they prefer entirely on the merits of the issue. This should be treated today as a cross-party issue.
A very similar Motion to switch Wednesdays and Thursdays was debated less than two years ago on 22nd March 1999. On that occasion the outcome was decisive: 87 Members voted for change and 224 voted against. I say in parenthesis, in case the issue arises, that on that occasion the Motion for change was not defeated by the hereditary Peers. Among those life Peers present and voting there was a clear majority against change. However, I accept the decision of the Procedure Committee to place the issue before the House today. Nearly 80 of those who voted in 1999 have left the House and over 80 new colleagues have joined us. It is right that the House should look at the matter again, and for my part I have no complaint on that account.
I also acknowledge that, on the face of it, there are substantial arguments on either side. On 22nd March 1999 the noble Lord, Lord Graham of Edmonton, was eloquent for change, as he often is. There was also a fair but forceful speech by the noble Lord, Lord Gordon of Strathblane. One particular phrase in his speech that I recall is "proportionate inconvenience", by which he meant that it was necessary to balance the inconvenience caused to Members who lived far from London against the inconvenience to those who lived in or near London if a change took place.
I recognise the argument of inconvenience and balance. I also understand the problems faced by colleagues who live in Scotland, or a hundred miles or more from Westminster, if there are late Thursday sittings. Although I am not in that category, many of my colleagues on these Benches live a distance from the House. Were that the issue I would have concluded that the balance of proportionate inconvenience favoured a change. But the crux of the matter before your Lordships' House is, on the one hand, the

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convenience of individual Members and, on the other, the future of this House itself. I respectfully suggest to noble Lords that that is the issue to be debated today.
Since the debate on 22nd March 1992 most of our hereditary colleagues have gone. Following election, 92 stayed from choice and there were about 10 others. They have opted to serve in your Lordships' House. In addition, some 80 new Members have joined us. They have opted to serve in this House not under duress and aware of the demands that it will make on their time and the level of inconvenience that they will be caused. With the greatest respect, personal convenience and an easier working week should not be in the forefront of our minds at any time in this House.
I am aware of the particular problem of Back-Benchers on the government side. To be Back-Benchers on the government side, whether in your Lordships' House or elsewhere, is the worst of all fates. One has the rather thankless task of attending day after day with very little to do except support the Government when asked. But that is a price that all of us have paid from time to time in order to sustain our government in power. On behalf of these Benches, that would be a small price to pay for such an opportunity. I shed no tears for those government Back-Benchers who find it a hardship to support the Government and would rather retire earlier to the country, their homes or other jobs outside.
What does the change mean if it occurs? It means that the House will begin to move, perhaps imperceptibly at first, towards a three-day week. Members are quite open about it; they want to be here on Monday afternoon and away on Wednesday evening or Thursday morning. The Chairman of Committees put the point very fairly: Members want to have fewer days when their parliamentary attendance is expected. Therefore, if we make the switch there will be poorer attendance on Thursdays for both general debates and Questions, and, although I do not have time to develop the point, the timetable for legislation will be cramped. That will not happen overnight. It will not happen during a short experiment. But ultimately there will be a diminution in the role of this House and thus in the effectiveness of Parliament. This decision should not be taken lightly, hence the amendment I have laid before the House. I hope that it will not be taken at all. I beg to move.
Moved, as an amendment to the Chairman of Committee's Motion, at end insert "except for item 1".—(Lord Rodgers of Quarry Bank.)
Lord Denham: My Lords, I rise in support of the noble Lord, Lord Rodgers. I have always taken it as a rule that one never changes the procedures in this House until one gets genuine cross-party agreement so to do. My worry is that Wednesdays have always been the prerogative of private Members of this House, a day when they have their debates. They have always been in total charge of Wednesdays. This Motion will alter that. Many very important Wednesday debates have taken place that have led to major legislation and reform, some of which your Lordships would not
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necessarily agree with. To put a Wednesday debate on to a Thursday in order that voting is more easily done on Monday, Tuesday and Wednesday would belittle the general debate in this House and prove an absolute disaster.
There is another issue. By having a general debate on a Wednesday, the government of the day—whichever colour—can only have two Committee days running, either Monday and Tuesday or Thursday and Friday. The idea of having three consecutive days on a major Bill when the Opposition parties and indeed, more importantly, the Back-Benchers do not have the back-up that Her Majesty's Government have, is intolerable. I hope that the Government do not press this issue. If they do, it will not be a proper test at all. We are almost at the start of February with the possibility—I say no more than that—of an early general election. If there is an early election, the certainty is that Private Members' days will be the first casualties in order to get the government business through. Therefore, can we not put this on one side and bring the matter back after the election, whenever that is? It is a terribly important issue.
Lord Waddington: My Lords, we should not ignore what has happened in another place. As a result of a change in the time for Prime Minister's Questions, I am told that there has been a great change in attendance in the House of Commons. People tend to be absent on Thursday and Friday. There are repeated allegations that the other place has become a part-time House. I am afraid that could happen here. That is why I support the arguments advanced by the noble Lord, Lord Rodgers of Quarry Bank, and my noble friend Lord Denham.
Lord Lipsey: My Lords, one cannot be long in this House before realising that there are two sides to every question. I had no intention of speaking today, but having heard three successive speeches on one side I felt that I should make a few quiet observations. First, it is a rather poor view to hold of Members of the House that they would not bother to stay around for a debate on a subject in which they had a keen interest if it was held on Thursday instead of Wednesday. That seems to me completely false. The debating days will be just as good. There will not be other people hanging around simply waiting for Thursday. It is the participation in those important debates that matters, not the number of people who are around the precincts of the House.
Secondly, with regard to Thursday night, it is not really about whether or not one is away on Thursday. It is that the present procedure involves many Members of the House staying, not until 7 o'clock or 8 o'clock, which might be tolerable, but until 10 o'clock, 11 o'clock or midnight by which time their trains may have left. That is not good for this House. It is particularly bad. If we are frank, we are rather London-oriented, and we could do with keeping up the numbers of people attending the House from outside London.

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There has been a reference to Back-Benchers. But noble Lords on the Opposition Benches may all be Government Back-Benchers one day, may they not? If, when one agrees to come into this House one is agreeing that one will be forced to stay until midnight, or 1 or 2 o'clock on a Friday morning after one's train has gone, one may think twice about coming here. We shall become a more London-centred organisation.
This is a brief experiment. I should be surprised if Wednesday debates die during the experiment. I believe they will flourish. If I am wrong, we can go back with the greatest of ease. Unless we try the experiment, how will we ever know if it could be successful? I have been in this House long enough to know how often it supports the argument that nothing must change, nothing must be experimented with—the doctrine of unripe time. I believe that the time is ripe to try what is proposed for the brief period until the election. If it goes wrong I shall be the first to support returning to our present arrangements.
Viscount Cranborne: My Lords, I wonder whether the noble Lord, Lord Lipsey, meant what he said when he suggested that he would be perfectly content if, effectively, the only people in this Chamber on what would become Thursday debates were to be those taking part in them rather than listening. Having spent time in both Houses, it seems to me that one of the more agreeable and sensible habits of your Lordships is to listen to arguments before voting.
Lord Lipsey: My Lords, I did not say those who were taking part in the debate; I said those who were interested in the debate. Many people will of course stay and listen to the debate.
Viscount Cranborne: My Lords, the noble Lord, Lord Lipsey, has perhaps a rather more sanguine view of human nature than I. Perhaps in the Economist they are so high-minded that temptations do not arise in the same way as they do for other Members of your Lordships' House. Of course we know how high-minded Members are in another place, but we know, as my noble friend pointed out, that in spite of their good intentions and their high-mindedness the changes which he described there have resulted in effectively a part-time House.
This Chamber was a part-time House for many years, indeed many centuries. In the opinion of many conservative—with a small "c"—Members of your Lordships' House, it was all the better for it. However, I suggest to your Lordships that in one important respect the nature of Parliament has changed. There has been an increasing avalanche of ill-prepared legislation which makes it virtually impossible for this House to be a part-time House any more. If the price of proper legislation is eternal vigilance, the eternal vigilance must be here rather than in another place, because another place is the creature of the executive. Therefore, anything that aids the Government's clear intention to make this House into a legislative "sausage machine"—to use the phrase of my noble friend Lord Strathclyde—is one that we should question.
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The point made by my noble friend Lord Denham is the key one here if we are to judge this issue by the correct standard, which is our effectiveness as a Chamber. It is very difficult if we are—in the best sense—an amateur House to have to consider three days in Committee on the trot. That will make the passage of legislation easier and more rapid. In view of the standard of legislation, I am not sure that I am in favour of that under governments of either complexion.
Lord Hughes of Woodside: My Lords, I am a comparatively new Member of this House and perhaps my memory is not as good as it might be. But is it the case that every Wednesday for the whole of the Session will be reserved for Private Members; is it the case that after Easter or at around mid-Whitsun there will be a four-day government week anyway?
3.30 p.m.
Viscount Cranborne: My Lords, I see that the noble Lord is very sensible. As an experienced politician he never asks questions to which he does not know the answer. The noble Lord knows as well as I do that traditionally in this House in order to fulfil the imperative that the Queen's Government must be carried on and that the Government should get their business, Wednesdays are handed over to the Government. That does not mean to say that because traditionally this House has done it towards the end of term, it should extend that habit to the beginning of term as well.
I have a final point. It is not a party political point because I believe it was true of the government of which I was a member as much as it is true today. We would be unwise, as proper parliamentarians, ever to trust a government. Governments are by their nature amoral. As such, the only way that they can be kept up to the mark is by parliamentary scrutiny and control of legislation in your Lordships' House. Like my noble friend Lord Denham, I suggest that this proposal would be a small and significant step towards increasing the control by the Government of the passage of legislation through your Lordships' House. In that respect it would be thoroughly undesirable.
Lord Barnett: My Lords, I wonder whether the noble Viscount would have said precisely that about his own government when he was sitting on this side of the House.
Viscount Cranborne: My Lords, the noble Lord has been a Cabinet Minister. He knows of the constraints. I hope that he will take it from me that I said so many times in private.
Lord Barnett: My Lords, I am sure that the noble Viscount did so in private. I understand that perfectly well.
I was rather surprised at the speech of the noble Lord, Lord Rodgers. I was pleased to hear him say that he was not speaking for the Liberal Democrat Party. If he had been, I would have been even more surprised

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by his remarks. We are talking about a small experiment. I should have thought that if anyone is in favour of a small experiment, it would have been someone in favour of some kind of radical change. Apparently, the noble Lord, Lord Rodgers, is not in favour of such change.
I find the grounds for the opposition to this proposal very interesting. For many of your Lordships, now as before, this House remains a part-time House. I understand that perfectly well. There are many of your Lordships who rightly and understandably need to earn some money outside. We do not receive a salary here. I declare an interest—I earn a bit myself! The policy of the House should not be decided by those Members who wish to be part-time Members; I think it was said in the other context, the other way. The plain fact is that our policy on sitting times should be decided by those who wish to attend. As has been said, those who want to attend a major debate on a Wednesday will do so on a Thursday.
I do not understand why, if we decided to make the switch to the Thursday, we could not have Committee stages on that day. Another place takes Committee stages upstairs. Why can we not do something like that here? I have always been very surprised that the Committee stages of all Bills have to be on the Floor of the House as well as Report and Third Reading.
The noble Lord, Lord Denham, and the noble Viscount, Lord Cranborne, referred to the fact that on Thursdays and Fridays the other place is empty. If one looks at a television screen, one sees that it is empty all the time— on Mondays, Tuesdays and Wednesdays as well. To suggest that this House should switch, as an experiment, from now until probably the beginning of April when Parliament will be dissolved for an election—
Noble Lords: Oh!
Lord Barnett: My Lords, I did not say it was going to happen; I said "probably". I have no idea when the election is going to be. All I know is that I am not standing; neither am I voting, for that matter. Peers and lunatics do not have a vote at general elections.
Lord Denham: My Lords, if Parliament is to be dissolved on 1st April, surely what will happen, as has happened at every dissolution in my memory, is that the Government will know in advance when they will call an election and the Private Members' days will stop. Therefore, the experiment which starts on 1st February is very unlikely to last more than a month—five weeks at the most, four weeks possibly. There will have been four "Wednesday" debates. That is not a long enough period in which to conduct an experiment.
Lord Barnett: My Lords, in that case, we can have another experiment when we return. Why not? No one
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is suggesting anything more than an experiment at the moment. We are not being asked to do this permanently.
Lord Denham: My Lords, if the noble Lord will forgive me for interrupting, it is being suggested that we continue the experiment until the end of this Parliament. If we are to do so, that will need another report from the Procedure Committee and another Motion to be passed by this House.
Lord Barnett: My Lords, what is wrong with that? Why should we not have debates? I love debating with the noble Lord, Lord Denham. I disagree with him most of the time. The plain fact is that we are now talking about an experiment and nothing more. It is astonishing to say that we should not have even the thought of a radical change—and how radical? Would not those who wish to speak in a debate on a Wednesday stay for it on a Thursday? It is astonishing that any one can suggest that such a change of such a modest nature should now be stopped because a few Members might find it difficult. I hope that we shall persist and switch debate days from Wednesdays to Thursdays.
Lord Elton: My Lords, I should like to follow the noble Lord, Lord Barnett, because I am drawn to my feet by his final remark that this experiment should not be denied the House on the whim that it is inconvenient for a few people. Convenience is the argument of those who want the experiment. Those who do not want the experiment are voluntarily submitting themselves to an inconvenience just as great as those who do want the experiment if it does not take place. The argument is that we are trying under difficult circumstances, as Parliament sees its power visibly leaching away from it year after year, to maintain a Chamber which can be effective in the scrutiny of legislation. And—because there is time to earn money elsewhere, as I do in order to maintain myself in the manner to which I have become accustomed; indeed, as many of us wish to do—we wish to be able both to scrutinise legislation and to earn a living.
We come to the question of the effect of the proposal on the Committee work of this House. The noble Lord, Lord Barnett, suggests that the work should be done outside this Chamber. He asked why that could not be done. I shall tell him why. This House is unique in that every Member has an equal voice in every sort of business. The Government are exposed to the expertise of every sort that is in the possession of this House. If one divided this House and had it functioning in two different ways in areas which are both important, one would diminish that element of scrutiny. At present, such off-the-Floor scrutiny is done—from my point of view, reluctantly—in the Moses Room, but in such a way that nothing controversial can be agreed there. That is an essential part of the functioning of this House. Therefore, that is not a reason for having the experiment. It is a reason against it.

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The next reason against the experiment also relates to Committee work and has been voiced already by two or three speakers. I refer to the danger that the result will be a succession of consecutive days in Committee. Most of your Lordships have experienced this in opposition and have had to cope with the flood of work. The noble Lord the Chief Whip shakes his head, but most noble Lords have experienced this in opposition. If they are on the Government side, and if they are lucky and are trusted by the Government to say only what the Government want, they are fed the material with which to make their speeches.
Those noble Lords who do not have that privilege have to get the information for themselves and devise their speeches for themselves. They have to read the Marshalled List for themselves, see how every amendment fits in, guess at what the motive of an amendment is and guess at what the consequences will be. For two days in sequence, that is difficult. If there is a third clay, noble Lords will put down amendments on the first day; and not only will one have to cope with the second day's debate but one will have to prepare for the third day's debate as well. Unlike a great many noble Lords, I have had that experience as a Minister. It is hell for the Minister. I say that and I hope that it is read by the Chief Whip's colleagues. It is a difficult thing to do and it is exceedingly hard work for the civil servants who brief Ministers. They often have to work into the weekend as a result. All of that adds to the tendency towards thoroughly badly prepared legislation and increases the importance of effective scrutiny. That will not happen if this proposal is introduced.
Lord Grenfell: My Lords, I shall be brief. I begin by apologising to the noble Viscount, Lord Cranborne, for having anticipated the end of his remarks. I am not sure that I want to be characterised as a Labour Back-Bencher with very little to do, as the noble Lord, Lord Rodgers, suggested might be the case as regards some of us here; and I am not against an experiment. But I am very doubtful whether this is the right way for the House to go.
I have not been a Member of the House for very long but I have gained a little experience. One of the great dangers we face is that we have not learnt the lesson of the past few years. Your Lordships' House has far too little time in which to complete its work. When I say "work", I do not just mean delivering the Government's business; I also mean all the other work which the House of Lords must do for it to be an effective revising Chamber. I therefore worry about that.
There are currently no fewer than nine Select Committee reports waiting to be debated. I do not know when time will be found for them. If we are to have this experiment, one of the results I fear, as has been mentioned by other noble Lords, is that attendance will inevitably tail off during the latter part of the week. Many noble Lords have referred to what might happen on a Thursday. God forbid what might
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happen if we were to debate a European Union Select Committee report on a Friday. It is pointless to have such reports debated only by those who prepared the reports. The reports are far too important for that to happen.
While I am not against an experiment—I believe that in the end experiments can and very often do throw up the right answer—I have grave doubts about the suggestion. I do not want to see a House that gives the appearance of being only a three-day-a-week House. That is not right for a revising Chamber. Our responsibilities are far too heavy to go down that route. I therefore issue a strong word of caution on this proposal.
3.45 p.m.
Lord Marlesford: My Lords, I should like to support the noble Lord, Lord Rodgers, rather on the same grounds as those put forward by my noble friend Lord Cranborne. The Government find, as all governments find, Parliament an inconvenience. But that is the function of Parliament. If it were not an inconvenience, it would be nothing. We have already seen introduced measures to reduce that inconvenience. My noble friend Lord Waddington referred to Prime Minister's Questions. There is another much more relevant example. It is again a limited experiment down the corridor. From the beginning of this Session, on an experimental basis, without all-party agreement, it has been decided that all votes, other than those on legislation, which would otherwise happen after 10 o'clock at night should be held as deferred Divisions after 3.30 p.m. on the Wednesday.
That is the antithesis of the role and functions of the House of Commons. Indeed, I wonder why, while they are about it, the Government did not seek to change the rules so that at the beginning of a Parliament each Labour MP could cast a proxy in favour of the Government Chief Whip to enable all votes to be cast on the Government's behalf. After all, such a measure could be claimed to be rooted in the Labour tradition of the trade union block vote, which was so convenient for so many years at Labour Party conferences. Actually, I think that it would be rather unwise because the time may come when the Labour Party is in opposition—just as it may come when the Liberal Democrats are in government! But I get the feeling that the Government would like their Chief Whip, in the Commons at any rate, to behave like a ring-master in a circus. They certainly seem to have reduced the Commons from being a lion to a pussy cat. But your Lordships' House is not a pussy cat and it must from time to time roar and bite. We have to be extremely vigilant when we see all these so-called convenience measures.
It is not long ago since I took some part in blocking a proposal from the Procedure Committee that any Written Answer in Hansard of more than two pages should not be printed at all. Luckily, with support from all sides of the House, we saw that one off. I

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strongly support the noble Lord, Lord Rodgers, and I shall happily vote for his amendment if he calls a Division.
Baroness Strange: My Lords, speaking as an hereditary Peer, I have always felt it my duty to be here and to be of such service as I can. Speaking as an elected Cross-Bench hereditary Peer, to that duty is added the honour and the gratitude which I owe to my fellow Cross-Bench Peers. As a Peer who lives in Scotland, I would certainly find it very convenient to have a three-day week. But I am alive, and because I am alive I am aware that things change all the time. I am not against change as such, but in this case I entirely agree with the noble Lord, Lord Rodgers of Quarry Bank. I do not think that just a short time before a general election—everyone seems to have a different idea as to when it will be—is the right time to make a drastic change. We should think about it and perhaps try later.
Lord Peston: My Lords, I intervene as a Labour Back-Bencher with very little to do. That is one of the reasons that I am sitting here listening to this preposterous debate. I echo the words of my noble friend Lord Barnett. The most preposterous part of the debate is the fact that the noble Lord, Lord Rodgers of Quarry Bank, whom I have known and admired for an enormous number of years, should have adopted this extraordinarily reactionary position. Before the debate I wondered who would make the most reactionary speech. I am looking around at several noble Lords. They spent 18 years in power unable even remotely to reform this House in any way and they are still at it. I am really sorry to see that the noble Lord, Lord Rodgers, has got himself mixed up with such people.
On the actual subject of the debate, I am astonished to learn that the future of the House depends on whether we have sixth-form debates on a Wednesday or a Thursday. What an astonishing view! I take part in those debates. I am taking part in one tomorrow—the debate of the noble and learned Lord, Lord Simon of Glaisdale. I am looking forward to it very much. But the notion that these debates are portentous and have major effects on the nation is staggering. I have spoken many times in such debates. I did not think that anyone was listening. I do not accept the idea that such debates affect something "out there". I would probably have spoken more carefully if I had realised that anyone was listening.
What puzzles me even more is this. What is wrong with the personal convenience of your Lordships? What is wrong with an easier working week? When did it suddenly become a crime or a sin? And what is wrong with having fewer days? Many of us who have been here for many years would have put our hands up for fewer days at all times.
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I find the arguments almost impossible to follow. As my noble friend Lord Barnett said, we are a part-time House—all of us, even those of us who are retired
Lord Campbell of Alloway: My Lords, I am very much obliged to the noble Lord for giving way. I shall be very brief.
Could the noble Lord address his mind to the fundamental argument about the Back-Bench day, the Wednesday, which we share with the Cross Benches, on which none of the Back-Benchers on this side of the House has been consulted, so that it is only today that we can express our opinion?
Lord Peston: My Lords, I am delighted that the noble Lord is expressing his opinion, but he does not realise how cynical I am. If the Back-Bench day had been a Thursday, my view is that all the noble Lords opposite would be arguing for a Wednesday, if that were being put forward. What they do not like is any change whatsoever. They automatically say "No". That is what the Procedure Committee does. This is our first attempt to try to do something sensible.
I have two other remarks. If the House is unable to find time—and I think even my noble friend Lord Grenfell was worried about how much we are able to do other things—why not abolish the Wednesday debates altogether? That would give us much more time, but no one is suggesting that and I do not think it would stand up at all.
My last remark is on the suggestion, which takes me back to my role as a Back-Bencher, of the legislative sausage machine. The present Government, despite their massive majority and their great victory in the country, have not attempted to obtain, and still have no intention of doing so, a majority in this House. We on this side have operated throughout this Parliament in a considerable minority compared with noble Lords opposite. Anybody who has sat here these years and can describe what has been going on as a legislative sausage machine cannot possibly have any experience of this place. I remember when we had a legislative sausage machine; it was all the time I sat on the Front Bench. We could not win a single vote without an ambush. We all found the idea of ambushes most distasteful, but it was the only way. If there is a legislative sausage machine, it is certainly not something that this side has ever put forward or in my judgment ever will put forward.
I look forward to the speech of my noble friend in reply, but I think that we should divide and test the opinion of the House on this matter.
Earl Ferrers: My Lords, I feel sorry for the poor, unfortunate noble Lord, Lord Rodgers of Quarry Bank, for being subjected to such castigation by the noble Lord, Lord Peston, who said that he could not understand why on earth the noble Lord should do this, that he is always against change and so on.
Oddly enough, the Government seem to want to change everything, whether it is good or bad, other than the parliamentary draftsman. I once put down an

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amendment suggesting that "a" should be replaced by "an" and all hell was let loose. I was told, "You can't possibly do that. This has been done for centuries and it must continue to be done in that way". Therefore, the idea that the Government are in favour of change goes only a certain distance.
I am grateful to the noble Lord, Lord Rodgers of Quarry Bank, for saying that it was the noble and gallant Lord, Lord Craig of Radley, who pointed this matter out to him. I am also grateful to the noble Lord because he pointed it out to me. When one sees the report from the Procedure Committee it all looks perfectly harmless, until one begins to read it. I had the privilege of being a member of the Procedure Committee, and I remember this great argument. On the whole, those who did not want the change tended to outweigh those who did, and then the report indicated nothing. It was decided that the committee should report the fact that there was a division of opinion and that therefore the matter should be considered by the House as a whole.
Musical bumps operate in all these matters, and I was shoved off the Procedure Committee. I was quite happy about that, but I did not know what happened thereafter, except that by chance I met the noble Baroness the Leader of the House. She will not think that I am giving away any government secrets when I report that she happened to say to me in the Prince's Chamber, "Well we managed all right in the Procedure Committee without you". I thought that that was charming; I was not certain whether it was a compliment or the reverse. It was only later that I discovered that the committee had decided to try to get the matter through your Lordships so that we should make the change.
I do not think, in a nice avant-garde way, that we should make this change. The noble Lord, Lord Barnett, said, "It's only a small change; it's just a little experiment". Well, the housemaid with her baby said that it was only a small baby, and tried to get away with it like that. The noble Lord says that it is only for an experimental period, but the 70 mph speed limit became permanent; it was never simply an experiment.
The point is that if the Wednesday debate, the general debate, is moved to a Thursday an awful lot of people who are not interested in hospitals in the South East, for instance, will not come on Thursday, and there will be a dead House. If there is Government business on Monday, Tuesday and Thursday, the Wednesday business is usually well attended. One of the privileges of this House is that people listen as well as speak. But if one is made a life Peer and is told, "You're a working Peer", how does one work? The answer is that it is by making speeches, and when one makes a speech one prolongs the debate for everyone else. That can be quite disagreeable. Therefore, I think that it would be bad to change the day from Wednesday to Thursday, because it would mean that Monday, Tuesday and Wednesday would all be occupied with government business, and those who are not interested in Thursday would buzz off.
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The noble Lord, Lord Lipsey, says, "That's quite a good thing, because some of us live a long way from here and we didn't realise that we would have to stay here till Friday". All I can say about that is that he should find out the temperature in the kitchen before he enters it. If he does not like the prospect, he ought not to come here. To suggest that if one comes here one should then curtail the hours of debate for reasons of one's own convenience is a bad thing.
Lord Lipsey: My Lords, my point was that some people might indeed find out what the heat in the kitchen was and decide not to come to this House, although they would have valuable experience representing the rest of this country—and not London—to bring to us. That is exactly the problem.
Earl Ferrers: My Lords, I fully realise that, and I am grateful to the noble Lord for re-emphasising such an elementary principle. However, the fact is that if people say, "If we had realised that we would have to stay up that long we would have denied Parliament the benefit of our views", that is a pretty selfish attitude. However, we shall not go down that path.
I agree with my noble friend Lord Elton that if there is government business on Monday, Tuesday and Wednesday, it is very difficult for the Ministers concerned. There may be only a single Minister involved. When I was at the Home Office we had six Bills to get through, and one Minister might be in charge of two of them running concurrently. Therefore, if one is involved with Bills on Monday, Tuesday and Wednesday it is hard for the Minister and the civil servants. I cannot see that it is necessary at all.
I would add in parenthesis that I was surprised that my noble friend the Opposition Chief Whip apparently said that he agreed with the proposal. I have great respect for my noble friend and for my noble friend Lord Strathclyde. I really think that between them they may have had a momentary lapse, because normally their senses are very comprehensive and lapses do not often occur. If my noble friend agrees that it is right to move the debate day from a Wednesday to a Thursday, I regard that as a considerable lapse of senses. I am sure that after hearing the debate my noble friend will realise the folly of his ways and alter his speech so that he does not indicate that the Opposition Front Bench is in agreement.
I really believe that we would be making a mistake if we accepted this change. It would alter the character of the House, and many people who at present attend on Wednesdays would not bother to attend on Thursdays.
Lord Graham of Edmonton: I have listened very carefully to the arguments, many of which were rehearsed in the debate two years ago. Not very much has changed. I do not wish to denigrate for a moment the value of the current Wednesday debates. Someone said that they are a valuable part of our procedures, and they are. They are listened to with attention by people outside the House. But I wonder whether there

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are many who share my experience of waiting Wednesday after Wednesday at five o'clock, six o'clock or seven o'clock for an eight o'clock cut-off to a five-hour debate, and finding that the only people in the Chamber are those who have spoken, are waiting to speak, or are waiting for the wind-ups.
The idea that because Wednesday is the debate day the House is packed is a nonsense. I do not know why some noble Lords do not accept the fact that, although the Wednesday debates are very important, they are not the be-all and end-all of what the House is about. Of course major matters are debated and, as the noble Lord, Lord Denham, pointed out, changes may have taken place as a result of those debates. As to the argument about Thursday and people going home, many Members of the House look upon Wednesday as a day when they can have a day off. They will arrive at 2.30 p.m., stay until perhaps 3.30 p.m., and then disappear because they have no reason to stay.
Perhaps I may now consider what the change would mean if we had a third legislative day on a Wednesday. It would mean three legislative days on the trot, but we would not be concerned with the same Bill. I would be astounded if the business managers allowed the same Bill to be dealt with on three successive days.
4 p.m.
Baroness Byford: My Lords, perhaps the noble Lord will give way. When we were taking the Food Standards Bill through the House, the Committee stage was held in the Moses Room—which was not the best of places for it to be held—and we considered that same Bill for three days on the run. I can assure the noble Lord that doing the preparation, coping with the Bill and trying to table amendments was very hard work. It was a real problem. That happened less than two years ago. Not a lot of people came into the Moses Room to support the Bill. It was extremely difficult to do the Bill justice and ensure that the correct legislation was passed.
Lord Graham of Edmonton: My Lords, the noble Baroness makes my point. I am referring to the Floor of the House; not the Moses Room. I would be appalled if the business managers placed upon Members an obligation to be here to support their party's point of view on three successive days on the same Bill. The noble Baroness referred to the Moses Room. That is a practice which has grown up and which has been accepted by the House.
I reinforce the view that this is no big deal. People are elevating the issue to a matter of major principle. In my view, it is not. Over the past two or three years, changes have been introduced which, although not major matters, assumed an importance among Members opposite far beyond anything I ever dreamt of. Noble Lords will remember when the House debated the issue of changing the introduction procedure. That was seen as something awful; the procedure should not be altered. When the question was asked of how long the procedure had been in existence, we were told "1621". I do not mean twenty-one minutes past four. The existing procedure was agreed in 1621.
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We then had the business of the Lord Chancellor's breeches. We were told that any change would shake the foundations of the nation. We had to brace ourselves, but we changed his breeches. Now the noble and learned Lord is able to dress otherwise.
I simply say to my colleagues that they are making a mountain of a molehill. I accept the point that the timing may not be of the best. The timescale is awkward, but there never will be a right time for those on the other side of the argument. This may not be the ideal time, but it is an opportunity for us to examine the issue.
When people argue that the proposal is for the convenience of the Government, I say to both parties opposite, "Oh ye of little faith". Do you not foresee the prospect that one day you, too, may form a government, and that any benefit which may accrue to the Government now may one day accrue to your good selves?
Lord Elton: My Lords, that is something that we have very much in mind. We do not trust them any more than we trust the Government.
Lord Graham of Edmonton: My Lords, the noble Lord should remember his silences on that point when he was a government Minister. It is funny how things change when one crosses the Chamber.
I believe that there may be some advantage to some Members who are currently inconvenienced. I live in Loughton in Essex. I am a four-day man. I dislike coming here on a Friday, but I am prepared to work and to do what is needed to keep the House going for four days in the week. I love to get away as soon as I can, but if my party asks me to stay later on a Thursday, I will. It may be that the change would be to my advantage; I might get home to Loughton a little earlier.
My noble friend Lord Peston made a valuable point. What is wrong with Members of the House thinking of their own convenience? The nature of the House and its procedures are changing. This is one small step. The proposal may or may not be accepted, but I shall certainly oppose the noble Lord, Lord Rodgers, if he presses his amendment.
Baroness Park of Monmouth: My Lords, I consider myself a quintessential Back-Bencher. I have never sat on the Front Bench; I never will. When I came into this House, I was proud to be brought into it. In my day, when our party was in power, I sat through until one o'clock in the morning many a time; it had to be done. I disagree strongly with the noble Lord, Lord Lipsey, if he thinks that people will not come because it will be inconvenient. The people we need in the House—and the people who, thank goodness, are normally appointed—are those who have something to say and something to offer. They are prepared to accept the heat of the kitchen in order to say it. I do not believe that we will lose good people simply because the hours are demanding from time to time.

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I strongly support what the noble Lord, Lord Grenfell, said about Select Committees. They are unique and produce remarkable reports. It would be a disaster if, as a result of this arrangement, we found ourselves having the debates on Select Committee reports on a Friday with no one to listen to them.
Like it or not, the most important thing is that we are all here because it is a privilege and an honour. It is something that is worth doing and worth suffering a bit for. That is all I have to say.
Lord Henley: My Lords, as my name has been mentioned, it may be appropriate if I say a word or two from these Benches—or, rather, from this Front Bench, as I sense that not all my colleagues on the Benches behind me are in total agreement with what I shall have to say.
It may be convenient if the Government Chief Whip follows me and the House then comes to an agreement on this matter. It is a very important decision for this House—this is not a minor issue—and it is a decision for the House itself to take. For that reason, the Government Chief Whip, myself and others thought it right that the matter should go through the Procedure Committee and that the House should discuss it. I therefore do not think it is necessary for me to apologise to the noble Lord, Lord Rodgers, for being in agreement with the Government Chief Whip on this occasion.
There are occasions when the Opposition Chief Whip, the Government Chief Whip and the Liberal Democrats' Chief Whip are in agreement—this is called "the usual channels"—and it is on that basis that the House operates. I understand that a great many Back-Benchers view with suspicion anything which seems to have the support of the two Front Benches. I can think of a number of Bills which, in the past, had the support of both Front Benches. They were universally wrong and bad. I shall not give examples at this stage.
As I said, I supported these propositions when they went before the Procedure Committee; I shall support them today. However, I should make it clear that on this side of the House—I trust the same is true on the Benches opposite and throughout the House—this is a matter for a free vote. It is a matter for the House itself to decide, not the Procedure Committee.
I would not want to recommend anything to my colleagues on the Benches behind me that would in any way diminish the standing of this House, nor would I recommend anything—and I speak as someone who has been in government and who is now in opposition—which would make it easier for the executive of the day to override this House and what the House wanted to do.
I suspect that in some areas the Government, regrettably, have some ambitions as regards procedure. They do not want a stronger House. We suspect that the Opposition want a weaker House—
A noble Lord: The Government!
Lord Henley: My Lords, even Homer nods! We suspect that the Government want a weaker House.
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We shall resist any changes put forward by the Government that are designed to weaken the House. We shall resist, for example, any suggestion that there should be checks on our right to vote in Committee, and any restrictions beyond those that are presently in place on what we can do at Third Reading. We should certainly recoil from suggestions, mentioned by my noble friend Lord Marlesford, that we should have deferred votes as happens in another place which separate decision-making from the debate itself. Certainly, with reference to an article in today's Guardian, we should resist any attempt by the noble Baroness the Leader of the House to suggest that the House should sit from nine to five Monday to Friday. We should certainly resist any suggestion—I refer to an article in The Times on 18th January—that ageing Peers should be bought off! The article did not specify at what age they should be bought off, or how much they are likely to get. That will no doubt be a matter for discussion. I do not know whether it will go before the Procedure Committee in due course.
Equally, we should not resist any reasonable—I stress the word "reasonable"—cause for change that did not advantage the Government. That is why we have agreed to matters as varied as a change in the dress of the noble and learned Lord the Lord Chancellor, or even the movements of the noble and learned Lord, who is now allowed to sit not only on the Woolsack but also on occasions on the Front Bench at the Report stage of various Bills.
We have not resisted the use of the Moses Room for legislation. During this Session, we have already agreed with the Government Chief Whip that it should be used for two important and major Bills: the Special Educational Needs and Disability Bill, and, I understand, the Common and Leasehold Reform Bill.
We believe that, on occasions, changes should be made and experiments should take place. I do not believe that this proposed experiment is part of any sinister plot by the Government to make life easier for them or to erode the powers of the House. I do not believe that such a change would assist the Government that much.
I understand that many colleagues believe that this change will disadvantage the House by detracting from the Wednesday debates—moving them to the Thursday, reducing attendance on those days, and reducing the attention that is given to them. I am not sure that that would be the effect. We have seen, for example, that moving Prime Minister's Question Time to Wednesdays—it used to take place on Tuesdays and Thursdays—takes away from the coverage that we receive for debates that take place in this House on Wednesdays. It may be that moving our debates to Thursdays would increase that coverage. However brief such an experiment might be—we might hear from the Government Chief Whip as to how long the experiment might last, because he may be able to assist us as to when the election might take place—it is certainly worth having.

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I am grateful for the statement by the Government in the Procedure Committee that, as part of this experiment, they will give time for more general debates on major topics on Tuesdays, and possibly occasionally on Mondays or Wednesdays. That would be a matter for the House to decide. However, I should like a categorical assurance and undertaking from the Government that that will be the case. I should like an assurance also that, if this experiment is to take place, on Mondays, Tuesdays and Wednesdays there will be no occasion, either in this Chamber or in the Moses Room, when the Government insist on the same Bill being taken on all three days.
A further point was taken up by my noble friend Lord Ferrers. He referred to an occasion when he was Home Office Minister and the Home Office introduced six Bills; and I understand that last year the Home Office had something like nine Bills. If, for example, the Home Office has that number of Bills every year, we do not want to see Home Office Bills scheduled for Monday, Tuesday and Wednesday. It might be easy for the government spokesmen, with all the support behind them, but it is certainly not easy for those on the Back Benches and the Opposition Benches who take an interest in these matters. Therefore, I hope that we can have an assurance from the Government on both those matters.
I return to what I said at the beginning of my remarks. This is an important matter. It is one to which all Members of this House should give serious thought. It is not a minor change, but it is merely an experiment. I hope that all will recognise that it is a matter for the House. I hope that any pressure that has come from the Whips—certainly there has been none on this side of the House—will be resisted by all the independent Back-Benchers on all sides of the House.
4.15 p.m.
Earl Ferrers: My Lords, before my noble friend sits down, will he be kind enough to clarify one point? I understood him to say that the Wednesday debates would take place on the Thursday, but did he say that there might also be other debates on Mondays and Tuesdays? If so, what is the point of the change? A great deal of the time that would have been used for Committee stages would have gone.
Lord Henley: My Lords, the reason I have asked for a proper undertaking from the noble Lord the Government Chief Whip is that there will be a general change from Wednesdays to Thursdays, but on other occasions during the year the Government will allow debates, particularly on Select Committee reports—something that this House does very well—or on White Papers, on Monday, Tuesday and Wednesday; that is, on days that are generally thought to be left for government business.
Lord Carter: My Lords, I am grateful to all noble Lords who have taken part in the debate. I begin by thanking the noble Lord, Lord Henley, for his
156
support. I assure your Lordships that, so far as our Benches are concerned, this is a free vote. It is a House matter.
Perhaps I may deal with a point made by a number of noble Lords which, frankly, completely baffles me. I refer to the suggestion that this will somehow change the timetable of legislation. There will be three days a week for legislation from Queen's Speech until June; then there will be four days a week. The three days will be Monday, Tuesday and Wednesday, if the House accepts the change; and there will be Monday, Tuesday, Wednesday and Thursday, as is the case now. So there is no change in the number of days that will be available for legislation. One day will change: the Wednesday debate will take place on Thursday, and we shall have Monday, Tuesday and Wednesday for legislation. The number of days in the Session available for legislation will remain exactly the same.
Lord Elton: My Lords, because the days for government business will be consecutive, the noble Lord will be faced with the awful temptation, when he needs to get an item of business through in a particular week, to give it three days rather than two in Committee.
Lord Carter: My Lords, I said in the Procedure Committee that I should not seek to have three consecutive days on legislation. I would point out that not once during the course of this Parliament has that happened. I have been responsible for three over-spills, in 1998, 1999 and 2000, when the House dealt with legislation for four days a week. Not once in that period were there three days on the same Bill. I take the point of the noble Earl, Lord Ferrers, regarding the Food Standards Bill being taken in the Moses Room. It was a special case agreed with the Opposition. Frankly, it was a part of the Weatherill arrangement to get the Food Standards Bill through in the over-spill. It is as simple as that.
Baroness Byford: My Lords, I am grateful to the noble Lord for giving way. Surely one of the problems is that if the Government have a great weight of legislation to get through, obviously there is greater pressure to get more of the business through—if not in this Chamber, in the Moses Room. That never happened before. I raise the example because it was less than two years ago that that Bill went through.
Lord Carter: My Lords, on occasions there have been three consecutive days of debate on Bills in the Moses Room; but the procedure is different, the day is shorter and the weight is less. I give an absolute undertaking that there will be no attempt to arrange three consecutive days on a particular piece of legislation in the Chamber. The number of Bills means that there is no need to have three consecutive days on the same Bill. I certainly take the point made by the noble Earl, Lord Ferrers, about the load on Ministers.
I am always frank with the House. This move is of no particular benefit to the government of the day, Labour or Conservative. It is not to their advantage. It

157
would actually make the management of business slightly harder. I am prepared to live with that if it is for the convenience of the House and the Back-Benchers.
The noble Viscount, Lord Cranborne, said that all governments are amoral. I suppose that, as a member of the Cecil family, he is better qualified to make that observation than the rest of us!
I am afraid that the noble Lord, Lord Denham, is just wrong in regard to what may happen when the House is prorogued. As I understand it, the Prime Minister goes to the Palace and asks the Queen's permission to dissolve Parliament, an announcement is made, and there are a few days left—just a week or so, which I believe is called a "wash up" period—in which there is a tidying up of the legislation when we might lose one such day. If, hypothetically, an election takes place perhaps on 3rd May—and I have no more knowledge than anybody else about whether that will happen—this experiment would last for eight or nine Wednesdays. That is a reasonable number of days in which to experiment until the end of this Session. The matter will have to come back to the House to be renewed. If it does not work, the House will quickly make its views known. Only one day would be lost in the event of an election being called. In fact, as Chief Whip, I am planning a full Session lasting until October.
With regard to the point about three consecutive days being spent on a Bill, I was on the Front Bench for over 10 years in opposition and have now been in government for over four years. While I was the spokesman on agriculture and on health and social security, I cannot remember a single occasion on which I was ever required to spend three days together on the same Bill.
An important point was made by my noble friend Lord Grenfell. I am pleased to repeat the undertaking that I gave in the Procedure Committee that I would occasionally attempt to find a Monday, Tuesday or Wednesday for general debate. We always used to do that. It was not possible in the last Session. I can tell the House that we are already looking for such a day in February.
The noble Lord, Lord Marlesford, made an extraordinary point about deferred Divisions in the House of Commons. That has nothing to do with this debate. I think that the chance of that being agreed to by this House is very slim. However, I have some good news for the noble Lord. He referred to the business of proxies. I can tell him that the ancient habit of proxies it was decided should not be revived in the House of Lords on 13th March 1868—yet another experiment. Of course, in the timescale of some of your Lordships, it is perhaps a little too early to say!
Lord Marlesford: My Lords, the noble Lord had no idea that I was going to make the point about proxies.
158
I wonder whether it is significant that the noble Lord has been looking up the history of proxies and the possibility of using them.
Lord Carter: My Lords, I am not sure whether it came in the form of a table. I was handed the Standing Orders, of which I was not aware, relating to the revival of proxies.
I know that your Lordships feel strongly about the proposal. It is quite a small and simple change. It is not the apocalyptic change that the noble Lord, Lord Rodgers, suggested. I believe that we should try the experiment for perhaps eight or nine Wednesdays to see how it goes. If noble Lords feel that the debates are important, they will be here on Thursdays just as they are on Wednesdays. If noble Lords are concerned about an empty House, I suggest that they come in at about 7 o'clock on a Wednesday evening when there is not a very attractive subject for debate and see how many Peers are here to listen. It is the quality of the subject that attracts your Lordships to speak in debates, and I am sure that that will happen on Thursdays.
The measure is intended for the convenience of the House. The House will tell us whether this is what it wants. I support it. The only way to find out for sure is to put it to the vote. I suggest that we do so, without further ado.
Earl Ferrers: My Lords, I have listened with great interest to the noble Lord's speech. He has not said what are the advantages of the change or the purpose of it. Will he explain that?
Lord Carter: The advantage to my colleagues on these Benches is that it would be more convenient for Back-Benchers—not for the Government—to have the three days, Monday, Tuesday and Wednesday, for legislation. If noble Lords are not interested in debates on Wednesdays, they do not attend, but they have to be available until Thursday in case legislation is to be dealt with on that day. There are Members of this House who live some way from London. I believe that they would find it more convenient to have that change.
Lord Chalfont: My Lords, this raises a question which has already been put twice from the Government Back Benches. What is wrong with Back-Benchers and Members of the House of Lords looking after their own interests? My Lords, everything is wrong. What we should be looking at are the interests of this House and the prestige and position of this House as a revising Chamber. There is already a great deal of ignorance about the way in which this House works, assisted by some rubbish recently in the press about the performance of Cross-Benchers. Before the noble Lord sits down, I should like to make the point that there is everything wrong about doing something in this House for the convenience of its Members and

159
everything wrong about anything that militates against the proper function of this House as a revising Chamber.
Lord Carter: My Lords, I fail to understand that. If this change is accepted, noble Lords will be engaged here for three days a week on legislation, for one day a week if they are interested in the subjects of the debates, and on Fridays if the House is sitting, which is unlikely to happen for some time yet. There will be no change to the present position, but it would be convenient for Members living in the North. They will still be doing the same amount of work. They will still be here on Thursdays if they wish to speak in debates. I believe that it is a more convenient arrangement of the week. It is as simple as that.
Lord Rodgers of Quarry Bank: My Lords, we have had an excellent debate and views have been very fairly expressed on both sides of this important argument. I now find myself almost grateful to the noble Lords, Lord Carter and Lord Henley, for giving us this opportunity. The noble Lord, Lord Carter, as always, gave a very reasonable explanation of why the matter is before the House. In summary, it seems to me that the case is a very simple one. We can adopt a course which would, I accept, result in greater convenience for many Members of the House. Alternatively, we can prevent any possibility of the influence of this Chamber and of Parliament itself being eroded through having a less active and well attended Chamber than has been the case. My Lords, I take the view that my amendment will enable the House to maintain its influence within our parliamentary system and its influence upon government. Therefore, I wish to test the opinion of the House.
The Deputy Speaker (Lord Ampthill): My Lords, the original Question was that the First Report from the Procedure Committee be agreed to, since when an amendment has been moved at the end to insert the words "except for item 1". The Question is that this amendment be agreed to.
4.28 p.m.
On Question, Whether the said amendment to the Motion shall be agreed to?
Their Lordships divided: Contents, 130; Not-Contents, 128.

Division No. 1

CONTENTS

Ackner, L.

Biffen, L.

Addington, L.

Boardman, L.

Allenby of Megiddo, V.

Bowness, L.

Alton of Liverpool, L.

Brabazon of Tara, L.

Ampthill, L.

Bradshaw, L.

Astor of Hever, L.

Bramall, L.

Avebury, L.

Bridgeman, V.

Baker of Dorking, L.

Brightman, L.

Barker, B.

Brougham and Vaux, L.

Beaumont of Whitley, L.

Bruce of Donington, L.

160

Burnham, L.

Marlesford, L.

Campbell of Alloway, L.

Masham of Ilton, B.

Carlisle of Bucklow, L.

Mayhew of Twysden, L.

Carnarvon, E.

Molyneaux of Killead, L.

Chadlington, L.

Monson, L.

Chalfont, L.

Montrose, D.

Clement-Jones, L.

Moore of Wolvercote, L.

Cockfield, L.

Noakes, B.

Cocks of Hartcliffe, L.

Northbourne, L.

Coe, L.

Northover, B.

Courtown, E.

Norton of Louth, L.

Craigavon, V.

O'Cathain, B.

Cranborne, V.

Oakeshott of Seagrove Bay, L.

Cuckney, L.

Oxfuird, V.

Dahrendorf, L.

Park of Monmouth, B.

Darcy de Knayth, B.

Patten, L.

Denham, L. [Teller]

Pearson of Rannoch, L.

Dholakia, L.

Peyton of Yeovil, L.

Elles, B.

Phillips of Sudbury, L.

Elton, L.

Plumb, L.

Ezra, L.

Prior, L.

Falkland, V.

Reay, L.

Ferrers, E.

Redesdale, L.

Flowers, L.

Rees, L.

Fookes, B.

Renfrew of Kaimsthorn, L.

Gardner of Parkes, B.

Renton, L.

Geddes, L.

Rodgers of Quarry Bank, L.

Goschen, V.

Roper, L.

Greenway, L.

Russell, E.

Hamwee, B.

Sandberg, L.

Harris of Richmond, B.

Scott of Needham Market, B.

Haslam, L.

Sharp of Guildford, B.

Hayhoe, L.

Shaw of Northstead, L.

Hogg, B.

Simon of Glaisdale, L.

Holderness, L.

Skelmersdale, L.

Hooper, B.

Soulsby of Swaffham Prior, L.

Hooson, L.

Strange, B.

Howe of Aberavon, L.

Swinfen, L.

Howell of Guildford, L.

Taverne, L.

Hutchinson of Lullington, L.

Tebbit, L.

Hylton, L.

Thomas of Walliswood, B. [Teller]

Jenkin of Roding, L.

Thomson of Monifieth, L.

Jenkins of Hillhead, L.

Tope, L.

Jopling, L.

Tordoff, L.

Kimball, L.

Trumpington, B.

Lang of Monkton, L.

Vivian, L.

Listowel, E.

Waddington, L.

Liverpool, E.

Walmsley, B.

Lucas, L.

Walton of Detchant, L.

Luke, L.

Watson of Richmond, L.

Lyell, L.

Weatherill, L.

Mackay of Clashfern, L.

Wilberforce, L.

Mackie of Benshie, L.

Williams of Crosby, B.

Maddock, B.

Winston, L.

Mancroft, L.

Young, B.

NOT-CONTENTS

Acton, L.

Carter, L.

Ahmed, L.

Clarke of Hampstead, L.

Alli, L.

Colwyn, L.

Amos, B.

Cope of Berkeley, L.

Andrews, B.

Crawley, B.

Archer of Sandwell, L.

David, B.

Ashley of Stoke, L.

Davies of Coity, L.

Barnett, L.

Davies of Oldham, L.

Bassam of Brighton, L.

Dixon, L.

Bernstein of Craigweil, L.

Dormand of Easington, L.

Blackstone, B.

Dubs, L. [Teller]

Blease, L.

Evans of Parkside, L.

Bragg, L.

Evans of Temple Guiting, L.

Brett, L.

Evans of Watford, L.

Brooke of Alverthorpe, L.

Falconer of Thoroton, L.

Burlison, L.

Farrington of Ribbleton, B.

Burns, L.

Faulkner of Worcester, L.

161

Filkin, L.

Molloy, L.

Flather, B.

Morris of Castle Morris, L.

Fraser of Carmyllie, L.

Morris of Manchester, L.

Fyfe of Fairfield, L.

Mowbray and Stourton, L.

Gale, B.

Nicol, B.

Gibson of Market Rasen, B.

Orme, L.

Gilbert, L.

Parekh, L.

Gladwin of Clee, L.

Paul, L.

Goldsmith, L.

Perry of Southwark, B.

Gordon of Strathblane, L.

Peston, L.

Gould of Potternewton, B.

Plant of Highfield, L.

Grabiner, L.

Puttnam, L.

Graham of Edmonton, L. [Teller]

Ramsay of Cartvale, B.

Randall of St. Budeaux, L.

Gray of Contin, L.

Rea, L.

Greengross, B.

Rendell of Babergh, B.

Hanham, B.

Richard, L.

Hardy of Wath, L.

Rix, L.

Haskel, L.

Rogers of Riverside, L.

Henley, L.

Roll of Ipsden, L.

Hogg of Cumbernauld, L.

Sainsbury of Turville, L.

Hollis of Heigham, B.

Sawyer, L.

Howells of St. Davids, B.

Serota, B.

Howie of Troon, L.

Shepherd, L.

Hughes of Woodside, L.

Shore of Stepney, L.

Hunt of Kings Heath, L.

Shutt of Greetland, L.

Hunt of Wirral, L.

Simon, V.

Irvine of Lairg, L. (Lord Chancellor)

Smith of Leigh, L.

Stallard, L.

Janner of Braunstone, L.

Stoddart of Swindon, L.

Jay of Paddington, B. (Lord Privy Seal)

Stone of Blackheath, L.

Strathclyde, L.

Symons of Vernham Dean, B.

Jeger, B.

Taylor of Blackburn, L.

King of West Bromwich, L.

Taylor of Gryfe, L.

Lipsey, L.

Tenby, V.

Lockwood, B.

Thornton, B.

Lofthouse of Pontefract, L.

Tomlinson, L.

Longford, E.

Turnberg, L.

McIntosh of Haringey, L.

Uddin, B.

MacKenzie of Culkein, L.

Wakefield, Bp.

Mallalieu, B.

Walker of Doncaster, L.

Mar and Kellie, E.

Warwick of Undercliffe, B.

Marsh, L.

Waverley, V.

Mason of Barnsley, L.

Whitaker, B.

Massey of Darwen, B.

Wilcox, B.

Merlyn-Rees, L.

Williams of Elvel, L.

Mishcon, L.

Williams of Mostyn, L.

Mitchell, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and the amendment to the Motion agreed to accordingly.
On Question, Motion as amended, agreed to.

Regulatory Reform Bill [H.L.]
4.39 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN of COMMITTEES (Lord Ampthill) in the Chair.]
Clause 1 [Power by order to make provision reforming law which imposes burdens]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 1:
Page 1, line 8, leave out ("affecting") and insert ("upon").
The noble Baroness said: In rising to speak to this amendment and to Amendment No. 2, perhaps I may, first, read out to the Committee the beginning of subsection (1) of the clause, which states:
"a Minister of the Crown may by order make provision for the purpose of reforming legislation which has the effect of imposing burdens affecting persons in the carrying on of any activity, with a view to one or more of the following objects",
and so on. We are all "affected", but it is not the effect upon me that should be any part of the threshold test for the use of this power. It is not about those of us who are indirectly affected by this Bill: it is, or at least it should be, about those of us who will be directly affected. It is those who will be directly affected by the burden of compliance who should be the focus of this Bill and it is their interests which should be paramount in our debate.
This amendment will give this clause that focus without inhibiting in any way the use of the power, and it will serve as a guide to those who will be tasked with what all are agreed is a worthwhile aim: the process of reforming our regulatory system; that is, to deregulate.
The power granted by this Bill should extend only so far as is necessary to achieve what all are agreed is a desirable object. It should apply only to cases in which a burden lies directly "upon" he who has to bear it. To apply the power to cases in which persons are "affected" is to grant a power of almost limitless scope. We are all affected, directly or indirectly, by most forms of regulation.
This clause needs to be more tightly drawn than that if it is to provide an effective threshold test for the use of subordinated legislative powers. There are constitutional implications in extending the power granted by this Bill to cover an almost limitless area, and clear dangers in allowing subordinate legislation to fulfil a primary role. It is for the purpose of providing the beginnings of an effective system of safeguards that I propose this amendment.
In turning to Amendment No. 2, I return to the matter that has already been raised with regard to the extent and scope of the power granted by the Bill and the attendant need for proper safeguards in the threshold test to be applied before that power may be used.
This part of this clause seeks to define what shall be the required intention of the legislature in order for a proposal to fall within the order-making power. To say that subordinate legislation should be being advanced "with a view to" achieving a particular object is to make the power, in our view, too wide. Amost all legislation can be said to be being advanced "with a view to" achieving any number of objects, some more important or more immediate than others.
The existence of numerous objectives may provide any number of good reasons why legislation should be advanced, but the existence of one particular object

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among many is not an appropriate threshold test for the exercise of the particular legislative power contained in this Bill. If used for that purpose, it is altogether lacking in rigour.
This clause as presently framed would grant power to permit the making of an order which has as only one of its aims the achievement of one of the objectives stated in Clause 1. Furthermore, that aim need not even be central to the aim of the Bill; it may be a wholly peripheral or entirely accidental one. That makes the power, as presently defined, too wide.
The order-making power in this clause should be limited to that legislation which has as its "sole" (or possibly "primary") purpose the achievement of that which this Bill is intended to provide: "regulatory reform". If it does not, not only is it not fulfilling the purpose we all intend, but it is open to abuse.
It may be suggested that the use of the power in this Bill should be available as a means of annexing regulatory reform to other new legislation. That may be a desirable objective: it will save parliamentary time. But it is no reason for seeking to procure what ought otherwise to be primary legislation by secondary means.
This amendment is a further safeguard upon the use of the power granted by this Bill. It is a safeguard which does not inhibit a proper use of the power, and so is inoffensive. Indeed, I would suggest that it encourages the proper use of the power and therefore ought to be thought desirable. It is an amendment of which, if unacceptable to the Government, one is bound to ask the question, "Why?" I beg to move.
Viscount Goschen: I support my noble friend's amendments, which go some way towards tightening the drafting of the opening clause. The Minister has come to Parliament asking for very broad powers—unprecedentedly broad powers—and against that he has put forward arguments that will be used only in very tightly controlled circumstances.
I have to agree with my noble friend because the drafting of the Bill in no way reflects that. The phrase "with a view to" is so broadly framed that one could not think of it being any broader. Of course it would be perfectly possible to prove that one did something "with a view to" achieving a certain outcome. This clause does need strengthening, and my noble friend's suggested wording does exactly that. I think that we shall come back to this issue time and time again as we go through the Marshalled List of amendments, all of which seek to tie not only the Minister but his successors in a type of instance when these powers, which effectively bypass the standard parliamentary procedures, can be used. I support my noble friend.
Lord Campbell of Alloway: This is the first in a series of amendments, all, in my respectful opinion, wholly requisite to curtail the width of the powers conferred
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here. For the reasons given, I wholly support this amendment, for a start. It is not by any means the main one.
Lord Goodhart: I should like to rise briefly to point out that, as the noble Lord, Lord Campbell of Alloway, has pointed out, this is one of a series of amendments. I think there are six groups covering Amendments Nos. 1 to 10 which are all in one way or another designed to try to limit the powers of a Minister of the Crown.
In those circumstances, I do not think any useful purpose would be served by my commenting in any detail on any of these amendments, except of course those which I shall move myself. We all share a common objective here, even though our methods may differ somewhat and some may be less effective than others.
Lord Borrie: With regard to the speeches just made from the Liberal Democrat and Conservative Benches, I feel that these amendments are not the most important ones, but they happen to be in a certain order which I can understand. However, just like other noble Lords, I should like to make one or two general remarks. Mine are entirely different from those made by others Members of the Committee: they are simply to say in relation to this matter and others yet to come that they are seeking to reduce the effectiveness of an extremely valuable Bill.
There are a number of parts of the Bill where I may seek amendment and argue that improvements might be made, as may others. I should like to make a general statement that this is a Bill concerning regulatory reform and it is a far better Bill, and a major improvement on the Act of 1992, if only because it does something to which the noble Baroness, Lady Buscombe, objected at Second Reading. In other words, it does not just deregulate, it does not just remove restrictions and burdens; it seeks to form a whole scheme of regulation. And when that is done, it is clearly in the public interest that not only should obsolete or bad regulations be got rid of but new regulations should be introduced which will inevitably involve placing burdens on certain people. This is the very "two-street" type of law to which the noble Baroness, Lady Buscombe, objected in her Second Reading speech. However, I consider it to be a mark of the way in which this Bill is a major improvement on the other one. Therefore, I suggest that several of the amendments which we are about to discuss in relation to the early clauses of the Bill are, in many cases, undesirable because they seek to undermine the Minister's ability to deal with regulatory reform in a more effective way than has been permissible to date.
Lord Skelmersdale: The noble Lord, Lord Borrie, is absolutely right: this is not only a deregulation Bill; it is also a regulation Bill. The question is whether Parliament, in its wisdom, should allow totally new burdens for totally new reasons to be legislated upon by statutory instrument. I made it clear on Second Reading that I do not believe that to be the case and I stick by that view.

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However, we digress somewhat from the two amendments tabled by my noble friend Lady Buscombe that we are now discussing. I certainly agree with her that we should very gently and very pertinently narrow the scope of the beginning of Clause 1(1) of the Bill.
Lord Falconer of Thoroton: First, I take up the point made by the noble Lord, Lord Goodhart. A number of amendments which were grouped together address the issue of what the detailed scope of the Bill should be. Quite fairly, the noble Baroness, Lady Buscombe, has degrouped them. Inevitably that means that we shall start to consider the amendments piecemeal. A point will come in the debate where we discuss the overall scope. I shall wait for a Member of the Committee to introduce that part of the debate and, at that point, I suspect that we shall sweep in all the amendments. At present, I shall simply address the issues raised by Amendments Nos. 1 and 2 in the name of the noble Baroness, Lady Buscombe.
The noble Baroness said that the word "affecting" should be changed to the word "upon". Perhaps I may give the three reasons why we do not consider that to be a good idea. First, the effect would be substantially to limit the range of reforms—in particular, deregulatory reforms—which we could introduce under the Bill if it became law.
Secondly, many pieces of legislation impose regulations, for example, on a local authority in relation to implementing environmental matters. In practice, the burden of those regulations will not fall heavily on the local authority; it will fall heavily on a group of people such as farmers. We believe that, rather than focus simply upon on whom the burden is placed by the legislation, one should be able to look wider to see whether or not the burden is such that it should appropriately be removed, reduced or replaced. We could lose that benefit if we were to move from the word "affecting" to the word "upon". I believe that that degree of flexibility is sensible. We have taken the word "affecting" from the 1994 Act. The draftsmen considered the word to be appropriate at that stage and we consider it to be appropriate, too.
My third point is that, if we were to go along with the proposal put forward by the noble Baroness, Lady Buscombe, we could lose all the major proposed reforms of regulatory regimes, such as fire safety, weights and measures, reform of public health legislation and reform of the civil registration service. Those matters concern not only the person upon whom the old statute or regulation places the burden but also the people who are affected by it.
I wish to make an additional, fourth point. The limitation that the burdens must be "upon" a person would knock out the use of many of our data-sharing examples. I hope that Members of the Committee have had an opportunity to look at the 51 examples where we believe the Bill would be of value. The limitation would knock out examples such as the one which would enable disabled drivers to renew their vehicle excise duty licence by telephone. In that example, the burden rests on the DVLA and the Benefits Agency in
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that they are prevented from sharing their data. That is no burden for them, but disabled drivers would be affected. That is why we believe that a wider scope is worth while. As the DVLA and the Benefits Agency are agencies, without the wider words this reform would be ruled out under the tailpiece to Clause 2(1).
We could also lose examples such as the invalid care allowance or the vaccine damage payments. In those cases, again the legal burden is on Ministers. One cannot rely on removing the burden from Ministers because Clause 2(1) prevents that. Therefore, one must rely on the burden on the wider person. Ministers are prevented from making payments to those who do not fall within the current rules. If one wants to change the current rules to help vaccine-damaged children —again, that example appears in the list of 51—one must go wider than simply the person on whom the burden is placed. That is why we chose the word "affecting".
I turn to the second amendment proposed by the noble Baroness, Lady Buscombe, which seeks to leave out the words "with a view to" and insert the words "for the sole purpose of achieving". As she said fairly and clearly, the purpose of this amendment is to ensure that the order cannot stray beyond the four objects laid out in Clause 1. We believe that the clause as it stands already ensures that any reform must deal with the four areas listed. If the purpose of a reform were only peripheral or incidental, plainly it would not comply with the terms of the Bill as presently drafted.
Equally within the corollary of this issue is the consequence of what the noble Baroness's amendment provides. If a reform had a peripheral or incidental purpose other than one of the four listed and, equally, if her amendment were allowed, the reform would not comply. Therefore, that does not seem to me to be either sensible or, in practice, workable.
In the light of what I have said, I urge the noble Baroness to withdraw Amendment No. 1 and not to move Amendment No. 2.
Lord Campbell of Alloway: Before the noble and learned Lord sits down, I understand his argument in relation to Amendments Nos. 1 and 2. I do not say that I totally agree with it, but I understand it. It is a totally different argument to that which will arise in relation to Amendments Nos. 3, 4. 5, 6, 7 and 8. I shall support all those amendments, but I have also tabled my own amendment—Amendment No. 10. After speaking in support of those amendments, I shall probably then deal with my amendment. When I speak in support of, for example, Amendment No. 3, will it be for the convenience of the Committee if I speak in support of Amendments Nos. 4, 5 and 6, or shall I be limited to Amendment No. 3?
Lord Falconer of Thoroton: I shall try to be of assistance. We proposed a group of amendments which would allow the noble Lord to speak to all of them after the noble Lord, Lord Phillips of Sudbury, had moved his Amendment No. 3. On behalf of the

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Conservative Benches, the noble Baroness, Lady Buscombe, said that they did not agree to that grouping, and she is entirely within her rights to say so.
Lord Skelmersdale: In responding to these two amendments, the noble and learned Lord mentioned Clause 2 and the words which appear after Clause 2(1)(b)—namely, that the burden,
"does not include any burden which only affects a Minister of the Crown or government department".
I may be jumping the gun, but that seems to me to be quite clear. Part of his defence against my noble friend's amendment was that it would preclude such matters as alterations to the vaccine damages arrangements. If a burden on the Minister of the Crown is excluded by the Bill, I do not understand how that would work.
Lord Falconer of Thoroton: It would work because the statute imposes upon a Minister a duty to carry out, for example, (a), (b), (c) and (d) before something can occur, say, in relation to delivering compensation for vaccine-damaged children. The people whom that burden affects include the vaccine-damaged children. Although one is concerned about the burden on the Minister, one could not rely on that as the basis for regulatory reform under Clause 2(1). However, one could rely on it under Clause 1(1) because the statutory obligation has the effect of imposing burdens "affecting" persons—namely, the people who apply for vaccine-damage compensation.
5 p.m.
Lord Kingsland: The Minister has used the word "burden" in two quite different senses. First, the burden on a Minister is partly a burden of expenditure and partly a burden of having to exercise a power. The other kind of burden to which he refers is, in my submission, rather different and is the consequence of the exercise of that power over a certain range of people. It may or may not be a beneficial exercise, but the use of the word "burden", in that case, has quite a different sense from the burden on a Minister. Does the Minister consider that the legislation should, in its definition section, distinguish those two meanings clearly?
Lord Falconer of Thoroton: With respect to the noble Lord, I believe that the matter is perfectly well distinguished. One has to consider the effect of the statutory restriction or the statutory matter that one is considering reforming in terms of burden. If that burden affects only a Minister—Clause 2(1)—it cannot be changed. If the effect goes wider, for example because it affects the applicants for compensation, it can be changed. It is as simple as that.
Lord Kingsland: I thank the Minister for his reply. Perhaps I may pose a question that may or may not be rhetorical. In that context, what burden could affect only a Minister?
Lord Falconer of Thoroton: Where there is a duty to do particular things in respect of which other people do not have to respond. The example that I have given of rules in respect of which one has to be satisfied before vaccine damaged children can apply for compensation seems to be an obvious example of a burden that affects both the Minister—it is explicitly imposed upon the Minister—and people who make an application. It seems to me that it is obvious in those circumstances that one needs a wider definition than simply "upon".
Lord Kingsland: With great respect to the Minister, he has answered my question as I suspected he would have to. There are two quite separate issues here. I repeat my submission that they should be better distinguished in the Bill.
Baroness Buscombe: In response, I turn first to what the noble Lord, Lord Borrie, said. He was concerned that the amendments were designed to reduce the effectiveness of the Bill. That is not the case. We are seeking to impose appropriate constraints upon the exercise of executive power. Much has been made by us of our wish to support regulatory reform, but the ultimate aim is to deregulate. Yes, there is a two-way street, but in this case it is very different from the Act of 1994, in that that provided for a one-way street that allowed for the reduction of burdens only. This Bill asks us to accept a much greater power, a power of the executive to impose burdens and to increase costs where necessary. We must view this matter with care to ensure that adequate safeguards, which need not interfere with its effectiveness, are put in place.
I hear what the Minister says with regard to the word "affecting"—that in his view this would limit the range of reforms and we do not want to lose the flexibility that was there in 1994. However, as we are all deeply concerned about this point, we are seeking to improve the Bill. While we are supportive of regulatory reform and deregulation that can be effective and speedy, we are concerned that we shall be accepting a wide power. We hear what the Minister says, but we believe that the parameters, as currently drafted, make the power too wide. So these two amendments were a way of seeking to narrow that power without reducing the effectiveness.
I shall refer to one example. We hear what is said about using the Regulatory Reform Bill in relation to a number of proposals that the Cabinet Office has already issued—for example, putting cautions, reprimands and final warnings on the same footing as other criminal records and giving offenders a clean sheet after a certain period. We want to be sure that that is done in that way and not by primary legislation.
I hear what the Minister has said and although I do not entirely agree with him, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 3:
Page 1, line 12, leave out paragraphs (b) and (c) and insert
("(b) the continuance of any of those burdens,
(c) the alteration or increase of any of those burdens or creation of new burdens, and").
The noble Lord said: Last night we sat in a Chamber that was packed to the rafters with Peers considering, with some passion, matters affecting the most fundamental issues of human life. Less than 24 hours later we few, we puzzled few, sit poring over one of the driest pieces of legislation that will go through your Lordships' House in many a year. For all that, it is not an unimportant measure and not a boring measure, as I believe I saw the Minister's lips describe it, but a crucial measure. Of course, he did not so describe it! It is one that could have great ramifications for us and for those for whom we legislate into the future.
I hope the Committee will forgive me if I deal carefully with Amendments Nos. 3 and 4, standing in my name, as Clause 1 is very much the heartland of this Bill. Apart from the amendment in the name of the noble Lord, Lord Campbell of Alloway, my amendment is the most radical. I am sure that the fact that any Peer has had the temerity to try to improve upon hard-considered wordage such as exists here will have caused a great groan in the offices of the parliamentary draftsmen.
I confess to being a long-in-the-tooth lawyer who has spent a good part of his career poring over constitutions. The reason why I have tabled these amendments is that I have sweated—that is the only appropriate word—for a long time to understand exactly what is the scope of Clause 1(1). As has already been said, Clause 1(1) defines the scope, the object, the purpose of the whole Bill. Unless a reforming order can be brought within the ambit of paragraphs (a), (b), (c) or (d) in Clause 1(1) it cannot be brought at all.
Clause 1(1)(a) is clear. It talks about an object which is,
"the removal or reduction of any of those burdens".
I believe that paragraph (b) is beyond safe and clear interpretation.
I hope that the Committee will allow me to go through this matter somewhat carefully. Not only do we few zealots who are here this afternoon need to understand what this Bill is about, but lawyers, citizens and even the Delegated Powers and Deregulation Committee will have to look at the consequences of these measures. Of course, Her Majesty's judges will occasionally, I am sure, have the task of deciding whether an application for a judicial review of a government seeking to use what will then be an Act is or is not well founded.
My first objection is that paragraphs (b) and (c) in Clause 1(1) deal with apples and pears. The four categories listed are supposed to be the four objects to be pursued by an order laid under this Bill. Yet under paragraphs (b) and (c) a condition of proportionality is put into the pot. I believe that that, of itself, is likely to confuse. For that reason, the proportionality condition would be much better placed in subsections
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(1) and (2) of Clause 3. Amendment No. 29, which has not been grouped with Amendment No. 3, would have that effect.
My second objection is that Clause 1(1)(b) as drafted is not construable. I hope that noble Lords will forgive me for quoting it. Clause 1 states that any order has to pursue one of various objects, including those in paragraph (b), which states:
"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".
The phrase "those burdens" plainly—this is the one provision in the clause that is beyond doubt—refers back to the burdens imposed by the legislation that is being reformed. Then we come to the phrase,
"the benefit which is expected to result from its retention".
What does "its" refer to? I have sought high and low through the clause to find an answer. It cannot refer to the "provision" because the provision is being re-enacted, and "its" refers to something that is being retained. It cannot refer to "those burdens", because "its" is in the singular, and "burdens" is in the plural. Moreover, what is the "retention'"? What is being retained?
I turned to the Explanatory Notes. I commend the Government and the officials who drafted them; they are, on the whole, tremendously good and useful, especially the tables at the back, which are useful to duffers such as myself, who find that approach much simpler. However, although the Explanatory Notes have 49 pages, this heartland provision of the Bill is dealt with in only one sentence, which states.
"Paragraph (b) allows burdens to be carried over from the legislation under reform, as in the DCOA"—
that is, the Deregulation and Contracting Out Act 1994—
"but only where they — pass the test of proportionality".
If that is what this provision is about, why on earth does not the Bill say so? That is what led me to the extraordinary presumption of proposing to replace paragraph (b) with the phrase,
"the continuance of any of those burdens",
which is contained in Amendment No. 3.
The Minister may well tell me that the amendment's wording does not satisfy the parliamentary draftsmen. Whether or not my proposed wording does the trick, I urge the Government to examine the clause with an open mind and to have sympathy and regard for all those hereafter who will have to understand it. The public are entitled to have clear legislation—or, at any rate, legislation that is as clear as the circumstances allow. Although I am the first to admit that this is an extremely difficult piece of legislation to frame, the difficulty of framing it must be matched by the clarity with which those difficulties are contended with. For reasons that I have endeavoured briefly to enunciate, that is simply not the case in this context.
My only comment on Amendment No. 55, which is grouped with Amendment No. 3, is that it is consequential.
Finally, I thank officials at the Department of Trade and Industry and the Cabinet Office for the assistance they gave me in my attempt to understand these provisions. I beg to move.
The Deputy Chairman of Committees: I should remind the Committee that if Amendment No. 3 is agreed to, I shall be unable to call Amendments Nos. 4 to 8.
5.15 p.m.
Lord Campbell of Alloway: I support the amendment for precisely the same reasons as were given by the noble Lord, Lord Phillips of Sudbury. He has moved the crucial, radical amendment. Like him, I found trying to get to the root of the Bill's proposals a somewhat agonising experience. I became concerned and horrified at its width, and about the want of safeguards in relation, in particular, to paragraphs (b) and (c) in Clause 1 (1).
To save much time, I seriously suggest that the noble Lord's approach, as outlined in Amendment No. 3, and in Amendment No. 29, which is the sister amendment—Amendment No. 55 is merely consequential—as a matter of principle is right. If that principle were agreed to, it would become impossible for me to move Amendment No. 10 in its present form because Amendments Nos. 3 and 29 would subsume proposed new paragraph (1 A) in my amendment. That would involve a form of double counting with the same approach. I firmly support the noble Lord's amendment. If that goes home—if it is agreed to—that would alter my whole approach to the Bill.
Lord Borrie: I want to raise one query with the noble Lord, Lord Phillips of Sudbury. I know that he is seeking to improve, and has carefully examined, the paragraphs in Clause 1(1). He criticised the wording in paragraph (b). He said that its concluding words, "its retention", could not refer to "burdens" because that is in the plural. However, the second line of that paragraph—line 13 on page 1 of the Bill—refers to "burdens" and to "burden" in the singular. Does not "its retention" mean the retention of that burden?
Lord Phillips of Sudbury: The word "burden" in the singular would be a new one, and to talk of its retention is therefore a contradiction in terms.
Lord Lea of Crondall: I do not know whether it is convenient at this moment to ask a slightly broader question that arises in relation to the amendment moved by the noble Lord, Lord Phillips of Sudbury. It concerns the general philosophy vis-à-vis regulations and primary legislation, or the power to amend regulations versus primary legislation. I ask my noble and learned friend the Minister to put on the record the Government's philosophy in terms of intentions. Of course there could be a qualitative criterion relating to the importance of primary changes of policy; it would match the need to have primary legislation. One would assume that many broad fields of policy are
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compatible with the thinking that lies behind the Bill. As the noble Lord, Lord Phillips, said, the Bill is as dry as legislation gets in terms of drafting. It will be difficult to spell out in the Bill the point that the noble Lord is getting at. Will my noble and learned friend make a slightly broader statement clarifying the position that lies behind the points that we are discussing?
Viscount Goschen: I welcome the initiative of the noble Lord, Lord Lea of Crondall. I remind him that the Minister offered several explanations of the type of circumstances in which the Bill's philosophy would be used. The argument from this side of the Committee is that the Minister is asking for such extraordinarily wide powers that it is not good enough to say, "Well, it is our intention to do this and that, and we can explain the philosophy that lies behind the Bill". We need to convert some of those assurances, which we take in good faith, into specific provisions in the Bill.
In our debate on the previous amendment, the Minister said that he did not feel that the amendment moved by my noble friend Lady Buscombe, which proposed changing the words, "with a view to", was the most important of amendments. He said something to that effect; perhaps he said that there would be other amendments that were of equal importance. In fact, it may have been the noble Lord, Lord Campbell of Alloway, who said that. I apologise to the Minister. We will come back to this matter again and again. I welcome the initiative of the noble Lord, Lord Phillips.
Lord Campbell of Alloway: Perhaps I may put the record straight. I did not say that the amendment was not important. I said that it was the first of a series of amendments and was in a somewhat different category.
Viscount Goschen: I wholly accept the words of my noble friend. My memory fails me. One Member of the Committee—I shall check Hansard to see who it was—said that there were more important amendments to come. If I am wrong, I shall write to whoever it was who did not say that!
The noble Lord, Lord Phillips, attempted to clarify the wording of paragraph (b) and I welcome that initiative. I am not sure whether his wording is the best possible but the burden lies on the Minister to clarify the jumbled mess we have in front of us. We need clarity.
I now turn to the point made by the noble Lord, Lord Borrie. Under certain circumstances, the proposals which are emanating in this succession of amendments limit the occasions on which the measures in the Bill can be used. That is wholly to be welcomed. If the Committee is presented with a clear Bill indicating specific circumstances under which the powers can be used, it is more likely to pass the Bill.
Lord Falconer of Thoroton: Perhaps I may deal first with the general philosophical point made by the noble Lord, Lord Lea. As has been made clear throughout

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the passage of the Bill in this House, and as was made clear throughout the passage of the 1994 Bill, it is not intended to use these powers under the Bill for matters which will be regarded as significant and controversial in political terms; matters of policy. Therefore, it would be wrong, for example, to use this Bill to make any changes in relation to controversial employment law.
The Bill is intended to provide a process under which regulatory regimes which need reform can receive it. There can be differences of opinion about the best way of dealing with that; not political-type issues but issues of substance as regards the best way of doing that. Therefore, the procedure envisaged in the Bill is a wide and statutory period of consultation; a hearing before the committees in both Houses of Parliament which can call evidence, decide what they think and make a report; and then each House of Parliament will approve the regime or not, as the case may be.
The process involves many more stages than the ordinary process which applies to secondary legislation. It is a process in which there can be detailed scrutiny of the legislation being passed. What it allows to occur, which presently cannot occur, is a detailed reform of, for example, fire or weights and measures legislation which would not otherwise find parliamentary time and would require it because the kind of amendments envisaged would require primary legislation.
It is most important that these new provisions are given new scrutiny by both Houses of Parliament because they will have an effect on what can be done by this form of secondary legislation and what must be done by primary legislation. Therefore, I welcome the kind of amendment tabled by the noble Lord, Lord Phillips, because it gives me an opportunity to describe precisely what the Bill seeks to achieve.
However, I utterly reject two aspects of what the noble Lord said. First, parliamentary draftsmen are delighted when they hear that there is a "Lord Phillips' amendment" to consider. Secondly, with respect, I believe that the noble Lord is wrong in saying that there is a lack of clarity in relation to the Bill. There can be a legitimate debate about whether the safeguards and scope of the Bill are adequate but the idea that the Bill is not clear is misplaced.
Paragraph (b) allows the re-enacting of an existing burden. The Bill uses the word "re-enacting" rather than the word "continuance" because in many cases where one is creating a new regulatory regime one would want to do so in one piece of legislation rather than leaving littered all over the statute book bits and pieces which must be examined in order to discover one's statutory obligations. In those circumstances, it seemed sensible to allow for the re-enacting of existing statutory burdens. That is why the word "re-enacted" is used rather than the word "continuance".
The noble Lord raised a point about the word "its". With respect, there is no difficulty in relation to that. "Any of those burdens" is in the singular. The provision refers to a burden which it is envisaged will
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continue to exist. The fact that "any of those burdens" is in the singular is exemplified by the fact that a subsequent paragraph provides for cases in which the burden—that is singular—
"is proportionate to the benefit which is expected to result from its retention".
I see no difficulty whatever in relation to the clarity of the provision. With the greatest respect, the noble Viscount, Lord Goschen, was wrong in saying that there was a lack of clarity.
Viscount Goschen: That must be a matter of judgment. If at a dinner party table I read out paragraph (b), I suspect that some people might think there was a lack of clarity. If I sat down with a team of parliamentary draftsmen cross-referencing to other parts of the Bill, I suspect that they would say that there was perfect clarity. Between the two extremes of the argument—and I have deliberately polarised it in order to illustrate the point—the issue is not clear. The noble and learned Lord believes that it is.
Lord Falconer of Thoroton: It is interesting to identify the kind of dinner parties the noble Viscount attends—those at which people read out paragraph (b) of this clause! I suspect that its clarity would depend on the time of evening it was read out.
I turn to the next point raised by the noble Lord, Lord Phillips of Sudbury; the removal of the proportionality protection to Clause 3. It may be useful now to identify the safeguards in the Bill—they appear in Clause 3—in order to see how they relate to the proportionality provision. The safeguards in Clause 3 are a fundamental part of the Bill.
Clause 3 provides, first, that no order may remove "necessary" protection; secondly, that it cannot remove a right or freedom which people could reasonably expect to continue to enjoy; and, thirdly, that any order-imposing burdens must strike a fair balance between the rights of the individuals affected and the more general—
Lord Goodhart: With respect to the noble and learned Lord the Minister, Clause 3 does not provide that. It does not provide that the order cannot remove any necessary protection; it provides that the order may be made only if the Minister is of the opinion that it does not remove any necessary protection.
Lord Falconer of Thoroton: That is correct and I was not seeking to indicate otherwise. I am seeking to identify the stages which must be gone through as a matter of fundamental safeguard. However, the noble Lord is right to make that point. Those three safeguards, which depend upon the opinion of the Minister, are limitations. No order can be made which, in the opinion of the Minister, offends those safeguards.
The proportionality test in Clause 1 is in a different category for precisely the reason identified by the noble Lord, Lord Goodhart. It is one of the objectives which must be satisfied before an order can reach the

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stage where the safeguards apply. Each new or continued or increased burden in an order must be proportionate to the benefit expected to result from it. There is more protection in that respect if it comes in Clause 1—namely, it is the objective of the proposed order—than if it is dealt with under Clause 3. Therefore, the objective of proportionality is to be satisfied before one reaches the safeguards identified in Clause 3. We believe that that is the right format before we get to the point when an order can be considered either by a parliamentary committee or Parliament itself.
The result of the proposals of the noble Lord, Lord Phillips, is to reduce the protection provided by the Bill. There is no lack of clarity which requires to be dealt with. In those circumstances, I invite the noble Lord to withdraw his amendment.
5.30 p.m.
Lord Phillips of Sudbury: I do not believe that Standing Orders prevent me saying, "Hands up all Members of the Committee now present who still understand Clause 1(1)(b)?" Not a single hand is raised, not even that of the noble Lord, Lord Borrie.
Lord Borrie: I did not wish to play games in Committee.
Lord Phillips of Sudbury: For the Minister to say that Clause 1(1)(b) is clear is a statement that I shall cherish, especially falling from his lips. It is not clear. I ask the noble and learned Lord to reflect on my attempted analysis of the clause as drawn to satisfy himself that, quite apart from the language, it achieves its intention.
Lord Norton of Louth: I am in grave danger of being helpful to the Minister. I think that I understand what the Minister is getting at, but I see a problem with the drafting. One wonders whether the deletion of "retention" in paragraph (b) and its replacement with "re-enactment", which refers back to the beginning, would make the provision internally consistent.
Lord Phillips of Sudbury: I am obliged to the noble Lord. That is precisely the kind of point which requires reflection. On the face of it, that would be an improvement. I entirely reject the suggestion that the protection is reduced by putting the proportionality test into Clause 3. It does not in any way reduce the effect of it. In any event, the noble and learned Lord will have noted that Amendment No. 29 removes the subjective test. In the circumstances, time for reflection is the better part of valour, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 4:
Page 1, line 13, after ("is") insert ("necessary and").
The noble Baroness said: In rising to move Amendment No. 4 and speak to Amendment No. 7, I should like to consider the question of whether one of
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the tests which a burden must satisfy before it is imposed by the means proposed in the Bill is that it is necessary, or that the appropriate test is merely that it should be proportionate. In our law the concept of proportionality is relatively new. As far as my researches have taken me, the first time that the term was used in your Lordships' House in the sense in which it appears in this Bill was in the speech of Lord Diplock in the Council of Civil Servants v The Minister for the Civil Service in which he said:
"Judicial review has I think developed to a stage today when … one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review.
The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'.
That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality', which is recognised in the administrative law of several of our fellow members of the European Economic Community".
That was in 1985.
There have been further case-by-case developments in which the concept of proportionality has been used as a kind of touchstone in the application of the Wednesbury test, but the examples are relatively few and far between and the law still seems to be in the early stages of development. Yet here we are being asked to introduce the concept of proportionality into a Bill with wide-ranging implications, without any form of definition at all. It is simply assumed that all will know and understand the term. This is to do with clarity.
As I indicated at Second Reading, as far as I am able to understand the matter, "proportionate" has a quasi-technical meaning, although it is far from precise. It connotes the striking of a balance between the interests of the individual and the interests of the public at large, and in addition that any particular burden is to be no greater than that which is judged necessary to achieve a particular object; in other words, one is required to engage in a balancing act in order to determine the net effect. But how is such a balancing act to be used as the test under the Bill to determine whether or not a burden should be imposed in the first place? I suggest that it is no answer to say, for example, that because the net effect of private burden versus public benefit is nil, that is a reason for introducing the burden in the first place. That would amount to regulation for regulation's sake. It must follow that there should be a threshold test based on the measure of the net benefit achieved.
What is missing in the formulation of this clause is a primary requirement that the imposition of a burden should be necessary, not merely that it should be proportionate. Let us consider an example. A requirement may be imposed that in order to practise a particular trade, a licence is required for which a fee should be paid. The level of the fee may be reasonable in the context of the profits of the trade and the regulatory burden that it places upon the persons involved. But it should be a requirement of any regulatory reform which brings with it the imposition

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of such a system of licensing that the introduction of such a system is conditional upon the achievement of an identifiable measure of net benefit.
In the light of the deregulatory aims of the Bill—I stress those words—we propose that the measure should be one of necessity. If the Government argue that proportionality subsumes necessity, they should say so in terms; alternatively, if the addition of the word "necessary" has merely declaratory force, let the Government so declare. In this way any doubts will be dispelled. I beg to move.
Lord Campbell of Alloway: I support my noble friend's amendment. Surely, the Minister accepts that one may have a provision where the burden is clearly proportionate to the benefit but it is wholly unnecessary. When one approaches this situation, does one not initially have to decide whether what one intends to do is necessary in all the circumstances? Although I may oversimplify it, this matter goes to the root of the problem. Does the Minister accept the proposition that there may be a burden that is proportionate to the benefit which in the circumstances is wholly unnecessary?
Lord McIntosh of Haringey: I do not intend to stand up and say that the Government favour unnecessary reforms to legislation. To that extent I agree with the argument, but not the amendment. The noble Baroness, Lady Buscombe, was good enough to respond to my challenge earlier this week to provide an example of a case which was proportionate but unnecessary. I shall turn to that in a moment.
Without being a lawyer, I should like to say a word about the meaning of "proportionality" and whether it is too subjective to provide a quantifiable test. I am grateful to the noble Baroness for her quotation from 1985. I believe she will agree that, whether or not Lord Diplock is quoted, proportionality is a recognised legal term which means that any new burden that an order imposes must be in proportion to the benefit gained from it. Therefore, an order cannot be used to impose any new burdens without a clear indication that they are justified. However, it would not make any sense for the Bill to define proportionality too narrowly; for example, it would be too limiting to say that there should be a fixed ratio between benefits and burdens that could not be exceeded. Perhaps we can turn to that point in more detail when we consider a later amendment. It should be for Parliament and its committees responsible for the implementation of the Bill to decide in each individual case whether the proportionality test has been met. I have then to ask whether there are any meaningful examples of a case where "proportionality" is met but "necessary" is not. The noble Lord, Lord Campbell, is very clear that there are examples, but does not give any.
The noble Baroness, Lady Buscombe, gave me an example of where, in order to practice a trade, one has to impose a licence and require a fee for that licence. She suggests that that is an identifiable measure of net benefit. That is exactly what is meant by proportionality. That is exactly what is achieved by
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proportionality. The word "necessary" does not add anything to it. Her example is precisely the point that the Bill and the Government are making. 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. I firmly believe that the word "necessary" is needed on the face of the Bill—
Lord Kingsland: I thank the Minister for giving way. Is he aware that the phrase he has just used, that if it is not necessary to do something it is necessary not to do it, is a phrase first used some 300 years ago by the great Conservative political philosopher Viscount Falkland?
Lord McIntosh of Haringey: I am aware that there is a history to that phrase. I would not have used it in parenthesis if I had not been aware of that, although I did not know it was Viscount Falkland who said it. I am grateful to the noble Lord, Lord Kingsland, for educating me on that.
Clause 1 is concerned with the scope of the Bill. That scope is at all times subject to the safeguards and the processes which are provided later in the Bill. A major element of the consultation and parliamentary scrutiny process will be to ensure that the reform is necessary. In that sense, I accept the use of the word. But the proportionality test already covers that issue.
Lord Phillips of Sudbury: I have no wish to prolong this matter, but it is an important point. The Minister indicated that scrutiny by Parliament would be partly through the Delegated Powers and Deregulation Committee and partly through Parliament itself. Does the Minister accept that if the word "necessary" is not in Clause 1 of the Bill it will not be an issue which the Committee would or should consider and it will then only be a matter for parliamentarians to consider?
Lord McIntosh of Haringey: There is nothing added by the word "necessary" which is not already available in the legal concept of proportionality.
Lord Campbell of Alloway: I wonder whether that is quite right. The Minister said there is nothing needed; there is no meaning that can be given to the word "necessary" if noble Lords accept the amendment because there are safeguards later on in the Bill. That is a fairly circuitous argument. Surely there is no objection to including the word "necessary" on the basis that the submissions made by noble Lords are right? Supposing they are wrong? It is an obvious measure of clarification; it is a matter of logic. What is the objection to it?
Lord McIntosh of Haringey: The noble Lord, Lord Campbell, would not say that if he had the noble Lord, Lord Renton, sitting in front of him, as he so often does.
As the noble Baroness, Lady Buscombe, correctly said, proportionality requires any burden to be no greater than necessary. That is why proportionality is adequate for the purpose and does not require the word "necessary" to be on the face of the Bill.
5.45 p.m.
Viscount Goschen: The wording of Clause 1(1)(b) says that the burden must be proportionate to the benefit. Does the Minister accept, therefore, that if there was an example where a burden was lifted, a benefit, say in monetary terms, of £5 million, and another burden was imposed, say of the equivalent value, that could be said to be proportionate? The burden would be proportionate to the benefit which is expected to result and it would be perfectly in proportion. However, under those circumstances it might not be necessary to impose that second part of the burden on some particular group. Therefore, there is an example where there is proportionality but there is not necessity.
Lord McIntosh of Haringey: You would hardly do it if in order to remove a burden with a weight of x you were imposing a burden of 10 times x on the same or on different people. That would not be permitted under Clause 1(1) anyway.
We introduce proportionality in subparagraphs (b) and (c) of Clause 1(1). The reason is that it is recognised that in the spectrum of legislation which needs to be considered for the overall purpose of improving the lot of our citizens, whether corporate or individuals, there are the simple cases of the removal or reduction of burdens; the removal of inconsistencies and anomalies in subparagraphs (a) and (d); the more difficult cases where there have to be burdens which are re-enacted for the greater good of the greater number; and the even more difficult case of subparagraph (c) where new provision has to be made to impose burdens, again for the greater good of the larger number. That is what proportionality means.
Baroness Buscombe: I am grateful for the debate on the subject. I cannot and do not agree with the Minister. A number of noble Lords are clearly articulating that proportionality is different from necessity in the sense that something might well be proportionate but not necessarily a necessity. Therefore, what is wrong with adding it anyway? If there is no problem with the use of the word, is it such a problem to add it to the Bill because in our view it adds clarification?
Lord McIntosh of Haringey: If that is other than a rhetorical question, the answer is that one does not add words when the existing words are adequate for the purpose. If the concept of proportionality is as I claim, and as the draftsman has provided to deal with those matters which are necessary for the purpose of the Bill, one does not add words. The noble Lord, Lord Renton, if he were here, would agree with me.
Baroness Buscombe: I hear what the Minister says when he says "if the use of the word proportionality is adequate for the purposes". But we are questioning whether that is the case. I will not get far on that point. But I want to add that one of the reasons for pressing the point is that we are continuing, as we shall right through the Bill, to be mindful of the fact that this is a
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Bill with a very wide scope. We believe that it makes absolute sense to ensure that when these different orders arise to be discussed, in large part outside the two Houses of Parliament, not only is there a proportionate benefit but that it is necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 5:
Page 1, line 14, at end insert ("and strikes a fair balance between the public interest and the interests of the persons affected by it").
The noble Lord said: Amendment No. 5 is grouped with Amendment No. 8. Both of these amendments are in the nature of probing amendments and seek to add at lines 14 and 19 respectively of page 1 the expression,
"and strikes a fair balance between the public interest and the interest of the persons affected by it".
It had been my intention to engage in a long series of questions about the meaning of the word "proportionate". However, such has been the brilliance of the exposition, by my noble friend Lady Buscombe, on the meaning of the word, that I feel that it would be inappropriate for me to pursue that line with the noble and learned Lord the Minister. I shall content myself with asking him to explain to the Committee the distinctive role that proportionality, on the one hand, and the striking of a fair balance between the public interest and the interests of the persons affected by the burden being created, on the other, have in the application of the rules in Clauses 1 and 3. I beg to move.
Lord Falconer of Thoroton: The amendment seeks to add the fair balance test in Clause 3(2) and to insert it in Clause 1. We think that that is a bad idea and the noble Lord has abandoned that as a basis for the amendment. He is nodding so I do not need to deal with the basis of the amendment. As far as concerns the point he raises, "proportionate" has a legal and a clear meaning. The noble Baroness, Lady Buscombe, read extracts from cases which was very helpful from our point of view. My noble friend Lord McIntosh read a prepared brief which defined what "proportionate" means. It has legal meaning. The noble Baroness and my noble friend defined it clearly.
The test that is laid down in subsection (2) is about the public interest being balanced. Before the Minister can propose an RRO he has to be of the opinion that the provisions of the order taken as a whole—not just looking at the individual burden—strike a fair balance between the public interest and the interest of the persons affected by the burden being created. What the statute is directing the Minister to look, if it becomes law, is this: here is a burden that is going to be placed on particular people; before I can move to an RRO, in my opinion, can this burden on the people affected be justified when looking at the whole order to be proposed, and is that burden justified in the public interest? That is a wholly different kind of test from

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that so eloquently defined by the noble Baroness, Lady Buscombe, and defined by my noble friend Lord McIntosh.
Lord Kingsland: I am much obliged to the noble and learned Lord for his response. Can I conclude that, at least in respect of the matters to which he referred in his response, there is a clear two-stage process? First, the criterion of proportionality must be satisfied. If it is not satisfied, that is that. Secondly, even if it is satisfied the Minister must still go on to Clause 3(2) and further satisfy himself that a fair balance is struck between the public interest and the interests of the persons affected by the burden being created.
Lord Falconer of Thoroton: Yes. I hope that I made it clear in my earlier response to the noble Baroness, Lady Buscombe. Clause 1, when it refers to proportionality, is defining an objective of the order, so the order proposed has to satisfy that. It is one of the objectives that if there is a burden, whether it be continued or newly imposed, it has to be proportionate as defined in Clause 1. That is a separate requirement from the Minister having the opinion, looking at the RRO as a whole. It should be remembered that "proportionate" in Clause 1 refers only to burdens and that Clause 3(2) refers to the order as a whole. So separately from satisfying the proportionate test in paragraphs (b) and (c), the Minister has to have the opinion that Clause 3(2) is satisfied. They are two separate requirements, but we would describe them as having one objective. Once the objective is satisfied, one still cannot do it unless one satisfies the requirements in Clause 3.
Lord Kingsland: I am most grateful to the noble and learned Lord for that reply. Will he confirm that the expression "taken as a whole", in Clause 3(2), which occurs just before the expression,
"strike a fair balance between the public interest and the interests of the persons affected by the burden being created",
in no way dilutes the proportionality test?
Lord Falconer of Thoroton: Yes.
Lord Kingsland: I am much obliged. In those circumstances, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Viscount of Oxfuird): In calling Amendment No. 6, I must advise the Committee that should it be agreed to, I cannot call Amendments Nos. 7 and 8 due to pre-emption.
6 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 6:
Page 1, line 15, leave out paragraph (c).
The noble Lord said: My Lords, I rise to move Amendment No. 6 and to speak also to Amendment Nos. 9, 54 and 56. Amendments Nos. 54 and 56 are minor consequential amendments and I shall say no more about them.
As we indicated at Second Reading, my party gives general support to the objectives of this Bill. The Bill gives wide powers to the Government to legislate by order rather than by primary legislation. Therefore, it needs to be looked at with a great deal of care. The Deregulation and Contracting Out Act 1994 provided for the removal of burdens and allowed new burdens to be imposed only if they were imposed on the same persons or bodies but were less onerous than the previous burdens which they replaced.
A number of orders—many of them very useful—have been made under the 1994 Act, but the number has declined in recent years, allegedly because the obvious targets for deregulation have been hit and nothing much has been left. I am not sure that that is entirely true. Appendix C to the Memorandum of the Cabinet Office, which is printed in the report of the Delegated Powers and Deregulation Committee on the Bill, lists 24 reforms that the Government either intend to bring forward or could bring forward under the powers in this Bill. As the Appendix itself points out, 10 of them could be brought forward under the 1994 Act. However, the Government want to create further powers. We have been told that Clause 1(1) lists the four objects on which powers can be exercised. Clause 1(1)(a) restates the existing powers under the 1994 Act.
I do not have as serious an objection to Clause 1(1)(b) as my noble friend Lord Phillips of Sudbury. It seems to me that this is directed to the rationalisation of existing legislation. It is a power to re-enact legislation imposing burdens, and if it goes no further than that, I can see no serious objection to it; nor do I see any objection to Clause 1(1)(d) which deals with the removal of inconsistencies and anomalies.
I am seriously concerned with Clause 1(1)(c) which allows a government to use a procedure to make new provisions imposing burdens if the burden is proportionate to the benefit which is expected to result from its creation. That is not very much of a restriction because governments of any hue are not in the habit of imposing burdens which they believe are disproportionate to the benefits which will result from those burdens. Other parties may have a different belief but a government will normally believe that they are acting in the public interest. I accept that there is further protection in Clause 3, to which we will come later in Committee, but I am unhappy about the general power to increase existing burdens by order even if the new burden is not balanced by a reduction in other burdens.
At the heart of this debate is the fact that the aim of the Bill should in general be one of deregulation. If the Committee wants evidence of that, I merely need to point out that deregulation was the main theme of the Second Reading speech of the noble and learned Lord, Lord Falconer of Thoroton. Perhaps I may refer to various passages of the speech. The noble and learned Lord opened by saying:
"The Bill will provide a major tool for this and future governments to reform entire regulatory regimes and to tackle unnecessary, overlapping, over-complex and over-burdensome legislation".
He went on to say:
"It facilitates reducing the burden of regulation".
He continued:
"The Panel for Regulatory Accountability is pursuing vigorously its remit of modernising the regulatory system, simplifying existing regulation and easing regulatory pressures on business and the public sector".
He went on to say that,
"we need a wider-ranging reform power so that we can over-haul and reduce burdens on business".
Later in his speech the noble and learned Lord said:
"We want the Bill to bring about the sensible reform of regulatory regimes, and such rebalancing will often involve the redistribution of burdens".—[Official Report, 21/12/00; cols. 851–853.]
There is nothing in those remarks about the increase of burdens. They are all directed towards deregulation.
Clause 1(1)(c) its present form goes well beyond deregulation. Amendment No. 6 therefore proposes the removal of paragraph (c). The noble Lord, Lord Norton of Louth, supports that amendment. However, unlike the noble Lord, I think that the simple removal of paragraph (c) would be too draconian. I accept that there is a case for using a power under the Bill to rearrange burdens by, for example, imposing a new burden on A in place of an existing burden on B. I have therefore proposed Amendment No. 9. The effect of the amendment is that where powers under Clause 1(l)(a), (b) or (d) are exercised, a new burden may be imposed but only if that burden is proportionate to the benefit from the removal or reduction of other burdens under the order. The result is that the new burden must be balanced against the removal of other burdens and the emphasis remains broadly on deregulation or rationalisation of an existing regime.
I do not believe that my amendments would significantly reduce the powers to make appropriate orders. I have already referred to the 24 proposals in Appendix C to the Cabinet Office memorandum. So far as I can see, none of them would be excluded by the proposed amendment. There could be a few cases in which the Government could be prevented by the amendment from taking what might otherwise be regarded as reasonable action.
One case which was put to me and which appears on a different list was an order requiring more information, such as mandatory mileage recording to be given by car owners to the DVLA to inhibit cheating by the sellers of second-hand cars. That undoubtedly imposes new burdens both on the DVLA and on those who have to submit reports to it. That would be an increase in burden not matched by a reduction in other burdens. I accept that that would be a desirable objective and in itself I would think it a legitimate subject for legislation by order. But I believe that such cases would be few and far between and that it would be better to accept an inability to legislate by order in those few cases as the price for reducing the risk that this wide and extensive power given to the
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Government could be abused. I hope that the Government will give serious consideration to my amendments. I beg to move.
Lord Borrie: As I indicated at the beginning of our debates today, I feel that this is perhaps one of the more fundamental amendments to the Bill. Although the points made by the noble Lord, Lord Goodhart, are somewhat modified by his second amendment, Amendment No. 9, Amendment No. 6 standing by itself appears to strike at the very roots of the Bill. The noble Lord, Lord Goodhart, quoted the Second Reading speech of my noble and learned friend the Minister. While the Bill is very much concerned with making it easier to improve and develop the deregulatory objectives of the 1994 Act, it is something more. It is meant also to enable the Government in the first place and Parliament and its scrutiny committees in the second place to examine the possibility and desirability of making a regulatory reform order that involves imposing new burdens as well as deregulating.
Lord Goodhart: I am grateful to the noble Lord for giving way. I should make it clear that for me, although obviously not for the noble Lord, Lord Norton of Louth, Amendments Nos. 6 and 9 are Siamese twins. I would in no way wish to see Amendment No. 6 accepted without Amendment No. 9.
Lord Borrie: I am delighted to hear that. Otherwise I would wish to make my remarks more extreme in terms of condemning Amendment No. 6. In relation to both amendments, my noble and learned friend the Minister, the noble Baroness, Lady Buscombe, and others have helped to explain the use of the word "proportionate", which is one of the key safeguards in Clause 1. We have also had discussion on Clause 3, particularly Clause 3(2), which states that the Minister must be of the opinion that the provisions of the order strike a fair balance.
One could go on to talk about all the other safeguards in the Bill which many Members of the Committee may think are stronger in reality than the safeguards of parliamentary control over an ordinary Bill as it passes through both Houses—the tremendous safeguards of the so-called super- affirmative procedure process, the role of the scrutiny committees and so on. Those safeguards are vital.
It is true that Amendment No. 6 does not stand by itself but is grouped with Amendment No. 9. I do not wish to be condemnatory of the amendment but it strikes me as being somewhat narrow. I shall be interested to hear my noble and learned friend's response to Amendment No. 9. However, I think that I would prefer Clause 1 as it stands.
Lord Norton of Louth: I rise to speak to Amendment No. 6, to which I have added my name. I agree with the noble Lord, Lord Borrie, to the extent that I think it is a fundamental amendment, along with one or two others that we shall discuss later. I should like to respond to some of the points that the noble Lord made.

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The noble Lord, Lord Goodhart, will be pleased to know that I agree with him to a greater extent than he thinks. I did not put my name to Amendment No. 9, as I too was looking for an alternative formulation of words, but looking through it I cannot find a better form of wording than the noble Lord has brought before the Committee. Therefore, I support Amendment No. 9, and I take the noble Lord's view that the two amendments are indeed Siamese twins. I want to put the case against paragraph (c) as it stands, which is the basis for then making the case for Amendment No. 9.
The Bill, as we have heard, is designed ostensibly to facilitate deregulation. That was the thrust of the noble and learned Lord, Lord Falconer, in moving Second Reading. The Government propose to use the provisions of the Bill to reduce the burden of regulation on business, charities, the voluntary sector, individuals and legal persons. That is commendable. In order to achieve that goal, we have a measure that introduces what the Delegated Powers and Deregulation Committee has described as an unprecedentedly wide power.
Given the scope of the Bill, it requires detailed scrutiny by the Committee. We need especially to force the Government to justify those provisions that appear to go beyond, or at least to stretch, the purpose of the Bill.
Paragraph (c) deserves particular attention. It takes the Bill beyond the ostensible purpose of deregulation. It permits the making of,
"new provision having the effect of imposing a burden".
Prima facie there is a case for subjecting it to critical scrutiny and asking whether it should, as it stands, remain in the Bill. Is there a case for the paragraph? Let me anticipate the Minister's justification.
The case for the Bill—I have no doubt that this is in the Minister's briefing—is that the power to impose new burdens is necessary in order to achieve an even playing field. There may be occasions on which ensuring that a regulatory regime is equitable involves burdens being imposed on bodies not previously subject to regulation. Furthermore, as I am sure the Minister will remind us, the provision is subject to the safeguards written into the Bill, and indeed to the additional test of proportionality. My problem with this defence is twofold: first in terms of scope and secondly in terms of appropriateness.
I pointed out on Second Reading, echoing the noble Lord, Lord Goodhart, that the paragraph is a free-standing one. Winding up for the Government on that occasion, the noble Lord, Lord McIntosh, argued that it was not free-standing, in that it was subject to the other provisions of the Bill. In arguing that it was qualified by other parts of the Bill, he was correct. However, his comments did not negate the truth of the assertion that the paragraph is free-standing in relation to the other subsections of the clause. There is no specified link between the subsections. A Minister may make an order for the purpose of reforming legislation,
"with a view to one or more of the following objects".
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In other words, the order may be confined solely to achieving the object of paragraph (c):
"the making of new provision having the effect of imposing a burden".
As I pointed out on Second Reading, it would be possible—unlikely, but possible—for Ministers to rely solely on this paragraph for introducing orders under the Bill. That would render the Bill a means of imposing only new burdens rather than a tool for getting rid of unnecessary burdens. The making of a new burden under the paragraph has to be proportionate to the benefit that is expected to result from its creation. It also has to meet the tests stipulated in other parts of the Bill. There are thus hurdles, but I am not sure that the opportunity to get even to the starting line should exist. The scope is far too broad. The paragraph is not confined to the purpose for which the Government wish to use it.
The paragraph should, at a minimum, be redrawn to provide that new burdens can be introduced only as a corollary of the removal of a burden and the need to achieve equity in regulation. That is the purpose of Amendment No. 9, and I welcome it. It is clear from the memorandum submitted by the Cabinet Office to the Delegated Powers and Deregulation Committee that the objectives of the clause are meant to tie in with one another. However, it is not clear that, as drafted, they do so.
If the scope is not limited, in the way suggested by Amendment No. 9 of the noble Lord, Lord Goodhart, there is an important question as to the appropriateness of retaining this provision in the Bill. I can see the case for achieving a level playing field. However, I am not certain that a free-standing power to introduce new regulations should be possible through a measure such as this. New regulations should derive from some clearly defined statutory objective.
I appreciate that orders under the Bill—this is the point made by the noble Lord, Lord Borrie—will be subject to rigorous parliamentary scrutiny. However, there is an important principle at stake. The power to impose new regulations should derive from specific primary legislation identifying the purpose for which regulations may be made. Primary legislation has a higher political profile than the order-making process, and it affords more opportunity for all Members to discuss it and propose changes.
Paragraph (c) as it stands is, on the face of it, a step too far within the context of a Bill that imposes such unprecedentedly wide power. I therefore support Amendment No. 6, and as a corollary warmly support Amendment No. 9.
Lord Skelmersdale: Is not that to the point? When one is making new provision, as the paragraph tells us, one is by definition imposing new burdens. If one is imposing new burdens, one is almost always changing policy. If one is changing policy, it should be by primary legislation. Is it not as simple as that?
Lord Falconer of Thoroton: It is not as simple as that for the noble Lords, Lord Norton of Louth and Lord

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Goodhart, as I understand their submissions. What they are both saying, as I understand it, is that there should not be an objective in the Bill that allows one to impose a burden where there is not some relationship with the removal of a burden. Both noble Lords are prepared to accept provisions whereby new burdens can be imposed, but only in the context of an order that also removes some other burden. The two do not need to be connected, but the order as a whole has to remove some burdens in order for a new burden to be imposed.
In his second amendment, Amendment No. 9, the noble Lord, Lord Goodhart, proposes a test of proportionality in relation to any such new burden, a test which I understand the noble Lord, Lord Norton of Louth, to support.
I should like to deal with the matter in two stages. First, is it right that there is the free-standing objective in Clause 1(1)(c)? I accept the analysis of the noble Lord, Lord Norton of Louth, that it is, as a matter of drafting and construction of the Bill, a free-standing objective. That means that one can get through the objective requirement—the requirement of Clause 1ߞin relation to something that only imposes a burden. It obviously must satisfy all the other safeguards, which are fairly important, but I think we need to address that particular issue.
We believe that it is right for there to be such a provision. I made it clear on Second Reading that it would be used only very rarely, but we believe that there will be circumstances in which it is worth using it. I should also make it clear that in the explanatory notes, at paragraphs 40 and 41, we also said that it would only be very rarely used.
I should like to illustrate the circumstances in which the provision would be used, by way of an example. School governing bodies have responsibilities for some aspects of the repair and maintenance of voluntary aided school buildings. Disagreements often ensue as to who should pay for what—whether it should be the governing body or a local authority. These are time-consuming and frustrating disputes, which lead to an administrative burden on all those concerned. The DfEE could propose a regulatory reform order under the Bill to impose burdens on school governors, making them responsible for all the repairs. Any additional cost burden that they incur under that would be offset by grants. So a burden would be imposed on school governing bodies, but there would be no additional financial burden. It would get rid of the administrative problems that arise in relation to that process.
Additional grants are given on a discretionary basis, and so there is no legal burden to be removed in relation to those. Initial analysis suggested that, in legal terms, this proposal—which is a beneficial proposal and is number 11 in the list that we have—would amount solely to the imposition of burdens.
The noble Lord, Lord Goodhart, referred to another example in relation to the DVLA. I have not had a chance to check whether that is an example of where there is no reduction in burden. It could well be. I shall need to check and write to the noble Lord.
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Taken in the round, the result in relation to the school example would be a system that is clearer and simpler for all. It would save the time spent on resolving disputes.
Further analysis has identified the existence of a burden in legislation that can be removed—by which you could justify it—but that is not central to what is being done. It is plainly not inconceivable that this kind of proposal would occur again, where you could not identify some collateral burden which could also be removed.
The question we ask ourselves in relation to this is whether we should really seek to eliminate the possibility of a class of reforms where the imposition of a small legal burden removed a massive administrative one. That would be the effect of Amendment No. 6, which is proposed by the noble Lord, Lord Goodhart.
Lord Norton of Louth: I thank the Minister for giving way. The example of imposing a burden on schools—and I speak as a school governor and a former chairman of the governing body—is fine if the Minister then exercised the discretion to provide the funding for the schools to fulfil the new burden imposed on them. But what if he does not exercise that discretion? Under this measure, one could impose that burden with no compensating grants to schools at all. If that route was taken, I would regard it as extremely negative.
The Minister intends to come up with other examples of burdens with a beneficial effect, but they have to be offset against the potential of that kind of negative burden, which could be imposed without any compensating benefit to those affected.
Lord Falconer of Thoroton: At the moment I am saying that the position under the existing law is that you are dependent upon the discretionary grant being given. What you achieve by this is that you get rid of the massive administrative and bureaucratic problem by identifying clearly where responsibility lies. Inevitably, if the repairs were justified, no doubt the discretionary grant would be given—although, of course, I should not be taken as in any way tying the hands of the Department for Education and Employment in that respect.
The example I have given is a case where, by making clear where responsibility lies, you lift an administrative, bureaucratic burden. That does not justify under the terms of the Bill because the Bill is concerned exclusively with legislative burdens. We accept that the circumstances in which this would apply would be rare. The example that I have given looks to me, quintessentially, like something for which it will be very hard to get time in primary legislation. It is something which, after consultation and consideration by the two committees of both Houses, would be worthwhile to do by RRO. It is something that people on the ground would appreciate being done because it reduces a burden.
One, maybe two, examples have been given—I shall have to check in relation to the one given by the noble Lord, Lord Goodhart—of where it is worthwhile.

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Should it be dependent, as the noble Lords, Lord Goodhart and Lord Norton, suggest, on being able to identify somewhere a burden? It does not matter if the burden is not connected with the burden that is being reduced; there has to be some burden somewhere. What is the sensible course in relation to that? We think that the sensible course is to include paragraph (c) because it allows you to do the kinds of sensible things that I have described.
Lord Skelmersdale: Before the noble and learned Lord leaves that point and that example, surely the example he has given, at some length now, is exchanging one burden on A, the school governors, to a burden on B, the education authority, perhaps, or the education committee of a local authority. That is exchanging one burden for another. It is not a new burden. It is a new burden on A, taking one away from B, but it is not an altogether new burden. I understand paragraph (c) to be concerned with totally new burdens. That is why my argument about primary legislation comes into play.
Lord Falconer of Thoroton: The effect of the proposal that is being discussed is that there is no burden on the local authorities at the moment but there are constant rows as to precisely who is responsible. You therefore make it clear that the school governors have the burden. You could not do that under the proposals made by the noble Lords, Lord Goodhart and Lord Norton, unless you could identify some existing burden on local authorities. As the noble Lord, Lord Norton of Louth, as a school governor, will confirm, you cannot identify such a burden. Ergo, you cannot do it for purely technical reasons.
Moving on to the second part of the amendment of the noble Lord, Lord Goodhart, which seeks to alter the test of proportionality in relation to any new burdens that might be imposed by order, this would, of course—as I think he recognises—be a different test of proportionality to that which would exist in relation to the re-enactment of existing burdens. His amendment, as I understand it, leaves Clause 1(1)(b) in place and proposes different tests for new burdens as opposed to re-enacted burdens.
I believe that the test of proportionality as it stands in Clause 1(1)(c) is a stronger test than that proposed by the noble Lord. We believe that it is important in terms of proportionality that any new burden should be looked at in terms of what it achieves in itself and at what cost, not by weighing it against the burden that has gone.
Perhaps I may take the example of reforming fire safety. Current fire safety legislation is bewildering and complicated. It is spread over more than 120 different statutes and a similar number of regulations, and much of the legislation overlaps. Although theoretically on different people—owners and occupiers—it is in practice frequently the same person on whom different overlapping burdens are imposed. So the burden being removed is only the excess of whichever is the greater of the two where both apply.
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But there is also confusion. People have to work out, and take advice on, which burden they have to comply with.
The reform, if it goes through under the regulatory reform order, would sweep away much of this legislation and create a single fire safety regime that everyone could understand. It is important to know that the burdens imposed by the new regime are proportionate to the benefits resulting from it. It would be a very difficult exercise to assess whether the burdens in the new scheme were proportionate to the removal of the confusion under the old scheme, which is what the proposal of the noble Lord, Lord Goodhart, suggests. Surely people want to know whether or not the burden imposed on them is worthwhile for the benefits they get, rather than some difficult comparison with the old burdens that they were under.
Lord Skelmersdale: Why can that not be done under paragraph (b)?
Lord Falconer of Thoroton: That refers to existing obligations. This involves a new obligation.
Lord Skelmersdale: It deals with the reform of obligations. The Minister has just said that.
Lord Falconer of Thoroton: What we are dealing with here is where a new burden is being imposed. Paragraph (b) deals with continuing existing obligations. These are two separate issues. I do not think that the noble Lords, Lord Goodhart and Lord Norton, have any problem with paragraph (b); they accept that there is no problem if you are just continuing an existing burden.
I appreciate the noble Lord's concerns that there must be some assessment of the overall pack age. That is the function of the fair balance test at present; to weigh up the benefits to all against the burdens on those affected. So what we currently provide is stronger than the amendment proposes because we have tests that the burden must be proportionate and that there must be a fair balance between benefits for the many and burdens for the few. Whereas under the amendment it would be possible for huge benefits to lead to disproportionate burdens, it would achieve all that is done under the fair balance test at present but would lose the proportionality test.
Let me further reassure Members of the Committee that their concerns are addressed in the Bill. Clause 3(2) provides that the Minister must be of the opinion,
"that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burden being created".
This means comparing like with like.
We can return to this matter when we debate Clause 3. It is worth pointing out that two other safeguards also apply to orders, irrespective of whether they impose burdens. The Minister must be of the opinion that the order maintains any necessary protection and that it preserves any rights and freedoms that any

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person might reasonably expect to continue to exercise. That opinion is to be informed by the thorough consultation required by the Bill; it will then be tested rigorously by the two scrutiny committees and the two Houses of Parliament.
For those reasons, we believe that the provision in Clause 1(1)(c) should remain an objective of the Bill, even accepting, as was pointed out by the noble Lord, Lord Norton of Louth, that it is free-standing. We believe also that the proportionality test proposed by the noble Lord, Lord Goodhart, is not as effective as the proportionality test that we have already imposed. We also ask noble Lords to bear in mind that that is all in the context of the safeguards in Clause 3.
6.30 p.m.
Viscount Goschen: Will the Minister give an indication of the extent to which he feels, in having prepared the Bill, that the provision in paragraph (c) would be brought forward? Does he think that any such eventuality would be extremely unlikely—perhaps in the region of 10 per cent or so of the type of orders that he has considered? Or does he think it likely that all the provisions in paragraphs (a), (b) and (c) will be used? I do not expect a mathematically defined answer, but some indication would help the Committee. We clearly have some real difficulties over the issue of imposing new, free-standing burdens. The Minister has gone to some lengths, and we appreciate his effort, to describe a relatively complex example relating to a specific circumstance in which it might be necessary to use the provision in paragraph (c). It might also be argued that, if this provision gives so much difficulty and is not expected to be used very often, the Minister might have to accept a clipping of his wings in this area. I should appreciate some guidance from the Minister.
Lord Falconer of Thoroton: As I said, the provision is expected to be used very rarely.
Viscount Goschen: I hoped that that would be the reply. I tried to quote the Minister previously and was shot down in flames. It was worth his restating it. In that case, is it worth the bother of creating a provision which clearly causes Members of the Committee considerable difficulty. An administration that is not guided by the philosophies and principles that the Minister so eloquently describes may use it to impose wholly fresh burdens.
Lord Falconer of Thoroton: My Lords, the answer to that is "very rarely". We believe that in the context of the safeguards and the close parliamentary scrutiny to which these orders will rightly be subjected, the benefits to be obtained from the provision are worth having.
Lord Phillips of Sudbury: I should be grateful if the Minister would explain a little further the example that he has used again and again of a school where there is disagreement between the school itself and the
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education authority as to which is responsible for the buildings. Under the existing provision in paragraph (c) what benefit is expected to result from the creation of the burden? Plainly, it cannot be said that the repair of the buildings is the benefit, because one or other of the bodies, the LEA or the school, will do the repairs. Therefore, am I right in thinking that the benefit that will flow from this provision will be a reduction in hassle between those two bodies and the administrative expense associated with it? If that is correct, how can it be said that there is proportionality, as that will be a relatively minor matter compared with the cost of repairing the school buildings? Under the model mentioned by the Minister a school would, beyond peradventure, then have the burden of repairing the buildings. That burden could run into half a million pounds a year—as against the burden of the removal of the administrative hassle, which may amount to £20,000.
Lord Falconer of Thoroton: The benefit is the removal of time and money spent on determining who is responsible. The burden will not involve a school in any additional expenditure, because in practice it will always receive grants to do the work. Therefore, the burden of there being no way out of the legal burden is matched by the fact that there is no administrative hassle and no additional expense in relation to the repair of the school.
Lord Norton of Louth: Before the Minister finally sits down, perhaps I may return to the point about education. The Minister is almost using tunnel vision in this case: in saying that a burden might need to be imposed but not recognising that, in the context of education, we could identify a large number of burdens that schools would be happy to have removed. So in that example a balance could be struck.
The Minister says that the provision in paragraph (c) would only rarely be used. But there is nothing in the Bill that ring-fences its application. Potentially, it could be used a great many times—indeed, it might be the only provision that could be used. That is the worry. The Minister has given examples of where the provision could be beneficial. I can think of plenty of examples where this route might be attempted. The Minister's point is that it might not succeed because of parliamentary scrutiny. But it might succeed. This route might be used to impose a large number of undesirable burdens.
Lord Falconer of Thoroton: First, in relation to the noble Lord's point about education, let us suppose, as is the position, that the DfEE legitimately identified the issue of the responsibility of voluntary aided schools in relation to repair of the buildings as causing a problem. Is it wrong for them to say, "Let us see if we can solve this problem?", rather than saying, "Let's see if we can solve this problem—oh, in order to solve it we have got to look around for some other burden". That does not appear to be a direct or sensible approach.

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The second point relates to whether the provision could be used for "bad" purposes. First, the Minister has to have an opinion on the three matters set out in Clause 3; secondly, there must be a consultation, statutorily defined in the Bill; thirdly, having gone through that consultation, the Minister must reconsider whether his draft order is right or wrong; fourthly, he must publish the results fairly of the whole of his consultation; fifthly, he must satisfy the committees in both Houses that it is an appropriate course to take; and sixthly, he must satisfy the Chambers of both Houses that it is appropriate. Is that a satisfactory series of protections to ensure that a "bad" order does not go through? A decision and a judgment have to be made.
Lord Norton of Louth: Perhaps I may quickly respond on the latter point about the procedure. I shall not take up the Committee's time now; I shall return to the point in relation to later amendments. Will the Minister confirm a fairly straightforward point. He has dealt with the qualitative dimension, but what about the quantitative one; namely, that the Bill provides no limitation on the extent to which this provision can be employed? It could be used extensively.
Lord Falconer of Thoroton: That is why 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.
Lord Phillips of Sudbury: I apologise for returning to this point. I am grateful to the Minister for a tour de force, but getting into the guts of these provisions will be helpful in future. In the example of the school, the Minister said that in applying the proportionality test there will be no burden in terms of the cost of maintenance of the school because there will be grants.
Lord Falconer of Thoroton: Taking up the point made by the noble Lord, Lord Kingsland, the burden that is being imposed is a statutory obligation to be responsible for the repair of the school. When I said "burden" in terms of there being no extra financial cost because there will be discretionary grants, I meant "burden" in a loose sense, not by reference to a legislative burden, which is what the Bill is concerned with.
Lord Phillips of Sudbury: I think that working through the provision in paragraph (c) will be extremely difficult, especially when it comes to proportionality—because it is a burden in one sense and not in another. I merely point out to the Minister that this becomes something of a riddle.
Lord Goodhart: We have had a pretty full debate on this group of amendments. I am grateful to those who have contributed to it. I am particularly grateful to the noble Lord, Lord Norton of Louth, for the support that he has given. I agree with everything that he said. I agree in particular that where you are increasing
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burdens—where you are relying on Clause 1(1)(c)— there should be clearly defined statutory objectives in primary legislation. A general, free-standing power, not so limited, appears to me to be unacceptable.
The Minister suggested that improvements could be made to the legislation involving an increase of burdens without a corresponding reduction in other legislative burdens. In opening this debate, I accepted that possibility. However, I believe that my noble friend Lord Phillips of Sudbury made a number of strong points to indicate that the example of the school is perhaps not as clear cut a case as it might be. I believe that it is agreed by everyone that reliance is likely to have to be placed on Clause 1(1)(c) on only rare occasions. As it now stands, it raises important constitutional issues that need to be very carefully considered. I beg leave to withdraw the amendment on this occasion. However, we may well need to reconsider the matter on Report.
Amendment, by leave, withdrawn.
[Amendments Nos. 7 to 9 not moved.]
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 10:
Page 1, line 20, at end insert—
("(1A) Subject to the procedural requirements of subsection (1 B) below, no provision may be made under subsection (1) above (other than by remit conferred by statute) to 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 to increase the burden of any sanction, in force on the date on which this Act takes effect.
(1B) The procedural requirements before any provision referred to in subsection (IA) above may be made areߞ

(a) that the Minister seeking to make such provision shall have laid a draft order in both Houses of Parliament;

(b) that a report shall have been received either from a Select Committee of each House of Parliament, or from a Joint Select Committee of both Houses of Parliament, as to whether such provision would be required and the burden would be proportionate to the benefit, whether such a provision would be appropriate in all the circumstances; and if so whether the order should be subject to any sunset provision;

(c) that both Houses of Parliament shall have debated and approved the making of such order as laid in draft, or (if so advised) as amended.

(1C) The provisions of this section shall not prevent consolidation of subordinate legislation it' within the remit conferred by statute.").
The noble Lord said: Having listened to the debate on this Bill, it is perfectly apparent that there are basically two key amendments to Clause 1(1). One is the Amendments Nos. 3 and 29 route. The other is the Amendments Nos. 6 and 9 route. Having attended to the argument on both, your Lordships may consider that the amendment moved by the noble Lord, Lord Goodhart, is worthy of the most serious consideration.
However this Bill is amended, there is no doubt that the amendment standing in my name would have to be substantially amended in the light of this debate, and that my consequential Amendments Nos. 64, 65 and

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74 would not be moved. Nevertheless, I want very shortly to make the point that, however Clause I is amended, only due scrutiny can afford an ultimate effective safeguard, and that that scrutiny cannot effectively be conducted without reports from a Select Committee.
At Second Reading, considerable emphasis was placed on this point by the noble Lord, Lord Dahrendorf, by my noble friend Lord Norton of Louth, and by my noble friend Lord Skelmersdale, who suggested that a sub-committee of the deregulation committee should be set up. Other than the noble Lord, Lord McIntosh of Haringey, no one in that debate queried the need for this type of meticulous scrutiny. The noble Lord, Lord McIntosh of Haringey, side-stepped this assumption as misconceived, only applicable to control freak governments. But it is precisely with regard to the "freak control" of the executive under any government—not this Government in particular—that this assumption as to due scrutiny is conceived.
I mention that matter because, having redrafted this amendment in the light of this debate, I should like to return to the question of scrutiny, which is not dealt with in any other amendment. On that basis, I respectfully beg leave to withdraw the amendment.
A noble Lord: You have to move it first!
Lord Campbell of Alloway: I thought I had.
A noble Lord: No, you did not.
Lord Campbell of Alloway: I apologise to the Committee. I understand that I may move the amendment and then beg leave to withdraw it. In that case, I beg to move.
Lord Falconer of Thoroton: I am not going to reply to the amendment, on the basisߞ
Lord Kingsland: If the Minister does not propose to respond to the amendment, it places me in a difficult position because I wanted to ask him a question about it.
Lord Falconer of Thoroton: I do not propose to respond because I understand that the noble Lord, Lord Campbell of Alloway, is suggesting that, in the light of our debate, he wishes to return to the scrutiny issues with a different amendment. In those circumstances, there does not seem to be much point in replying to that which has not yet been formulated.
Lord Campbell of Alloway: I wholly accept that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Viscount Goschen Viscount Goschen moved Amendment No. 11:
Page 1, line 23, after ("Act") insert (", save for this Act,").
The noble Viscount said: This amendment is extraordinarily simple. It is connected to subsequent amendments, particularly Amendment No. 13 standing in the name of my noble friend Lady Buscombe, which would make my amendment unnecessary.
Fundamentally, the debates that we have had on earlier amendments have stressed the concern that Members of this Committee have about the breadth of the powers that are being sought. As the Minister has said, there is a very valid argument about limiting the scope of those powers. The effect of my amendment is extremely simple. It proposes that this Bill, when it becomes an Act, should not be able to be amended under its own provisions. It avoids the question of circularity. I can find no reason why the Minister might come forward with "resist" written on the top of his piece of paper, apart perhaps from the fact that he prefers my noble friend's amendment.
Surely if even a fraction of the concerns that Members of the Committee have put forward about the scope of this Bill are valid—I certainly believe that they are—it is absolutely necessary to have in place a measure ensuring that this Bill could not be amended by itself. That would be tantamount not only to giving the Minister the key to the room where the statue book is held and a fresh supply of biros to change it as he wishes, but also to allowing him to cut a new key. That would be wholly unacceptable. I hope that the Minister realises that the intention of my amendment is to help him to make his Bill more palatable. I beg to move.
Lord Kingsland: There are two amendments standing in my name and in the name of my noble friends Lady Buscombe and Lord Northesk; namely, Amendments Nos. 12 and 13, both to page 1, line 23. The effect of those amendments would be to make Clause 1(2)(a) read,
"'legislation' means the law contained in any provision of … any Act which was passed before this Act".
The effect of the clause as it presently stands, in conjunction with the remainder of Clause 1, is to permit amendment by subordinate legislation of primary legislation which contains burdensome measures of one kind or another.
No doubt that is its precise aim, but it fails to maintain one very obvious safeguard which appears in the 1994 Act. That Act applied solely to pre-existing legislation. As Members of the Committee are well aware, this Bill applies not merely to pre-existing legislation but also to future legislation.
No one can say—not even, with great respect, the Minister—what the future holds, not least the extent to which future legislation may deliberately be framed in order to take advantage of a power exercisable subsequently to impose regulatory reform by subordinated means.

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Let us suppose, for example, that it were thought desirable that a particular form of human activity, while not demanding outright prohibition, should be made the subject of a system of licensing and regulation. That activity might be one upon which feelings ran high on all sides of the political spectrum. Primary legislation might be passed whereby that activity became the subject of what is sometimes described as "light touch" regulation.
Then, two years later, the responsible Minister forms the view, or is of the opinion, that light-touch legislation is no longer appropriate and that firmer measures are required. The freedom that was envisaged by the former legislation passed by primary means is now turned on its head, not by the same means as it was passed but by subordinate means.
For example, as the Committee is well aware, one of the options proposed by the Government for hunting with dogs is that that activity should become the subject of regulation and licence. If that option were to become law, enshrined in primary legislation, then, instead of having to face the rigours of primary legislation to amend the licensing of fox hunting, a Minister intent on a regulatory reform would be able to use the subordinate procedure proposed by this Bill to add substantial burdens.
As presently framed, this clause will permit the passing of primary legislation with a view to its amendment by way of subordinate legislation within two years, whether or not that primary legislation has ever come into force. It will apply to legislation the form or content of which not one of us is able at present to predict.
I am well aware that at some future time there is likely to be a change in the complexion of the government of the day. None the less, when pondering this clause, the words "hostage" and "fortune" or, possibly, "blank" and "cheque" spring to mind.
Lord Norton of Louth: My Lords, I rise to speak to Amendment No. 14 which has been placed in what, in many respects, is a slightly strange grouping. I have no problems with Amendments Nos. 11 and 12. Indeed, I very much support the amendment moved by my noble friend Lord Goschen, which ties in with my Amendment No. 26, as regards ring-fencing measures that cannot be dealt with under this legislation.
I shall direct my comments to Amendment No. 14, which provides that an order under this measure cannot be applied to any Act of Parliament passed in the three years prior to the day upon which an order is made. As the Bill stands, the period is two years. As I said earlier, I appreciate that the purpose of this Bill is to get rid of unnecessary and unworkable regulations. There is no disagreement as to the desirability of that goal. I realise that there is a case for saying that it should be possible to get rid of a regulation as soon as it becomes apparent that it is burdensome beyond the extent intended, or has ceased to be necessary. Quite clearly, that reasoning would appear to justify the two-year provision in subsection (2).
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However, I believe that there are two persuasive reasons why the period should be longer. First, there is the danger that the existing provision for two years may encourage laxness in legislative drafting. Ministers and their officials may be tempted to rush through measures, knowing that if there is a problem it can corrected a few years down the road. As we have already seen, the drafting of Bills can be rushed, resulting in the Government re-writing legislation as it goes through Parliament. Indeed, the Political Parties, Elections and Referendums Bill stands as a notable example in that respect.
We should be wary before doing anything that may encourage that tendency. The example that the political parties Bill suggests is not that we should introduce provision for correcting mistakes two years after the event; but rather that we should strengthen the capacity for parliamentary scrutiny of Bills to ensure that poorly drafted provisions are not passed in the first place.
The second reason for extending the period is that it will usually take a couple of years before the full effects of a measure can be seen. On occasion, we legislate in haste. Government and Parliament sometimes succumb to a moral panic and very quickly pass legislation. The most cited example of a measure resulting from such a panic is the Dangerous Dogs Act. I realise that some may argue that it is pa rticularly apt to make provision to change such a rushed measure two years after it has been enacted. But the counter-case is that there is a danger of rushing into change before the effects are seen. Indeed, it is always possible that government may be subject to a moral panic favouring change.
Under the provisions of the Bill it is possible that a regulation may be introduced—possibly in haste—and then removed two years later, only to be re-enacted a year or two subsequently when it is realised that, after all, some regulation is necessary. It may not be realised, but the potential is there for chopping and changing. If that occurs, the likelihood is that the law will be brought into disrepute.
For those reasons, I believe that there is a case for extending the period under Clause 1(2)(a) from two to three years. This is a modest amendment. The reasons that I have given would support an amendment for four or five years. I am undertaking a balancing act of the sort that the noble and learned Lord would no doubt approve. I see the argument behind the existing provision and do not want to build in too excessive a barrier to introducing orders. However, I believe that problems will arise if the period after which orders may be introduced is too short—hence my amendment. I readily concede that I may not necessarily have got the balance right, but I believe that my amendment is a move in the right direction.
Lord Goodhart: I rise briefly to say that I shall be unable to support Amendments Nos. 12 and 13 tabled by the Conservative Front Bench. I believe that this must be a rolling power and not one that can affect only Acts passed before this legislation itself comes into force. However, Amendment No. 11 moved by

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the noble Viscount, Lord Goschen, and Amendment No. 14 tabled in the name of the noble Lord, Lord Norton of Louth, both address important issues that require some serious consideration. They certainly raise a case to answer.
Lord McIntosh of Haringey: I hope that I can reassure both the noble Viscount, Lord Goschen, and the noble Lord, Lord Norton of Louth, about their amendments. That applies particularly to the noble Viscount. This group of amendments addresses issues of principle upon which we may not reach agreement. However, as far as concerns Amendment No. 11, I hope that I can assure the noble Viscount that his proposed revision is unnecessary. The Bill is already excluded from the power as it does not satisfy the definition of "eligible legislation", which is set out in what my briefing refers to as the chapeau—the bit in italics at the top of Clause 1 which also appears in Clause 8.
This Bill does not have the effect of imposing burdens affecting persons in the carrying on of activity. Of course, an order made under this legislation could have that effect, but the Bill itself will not have that effect. Therefore, the Bill does not fall within that scope and, thus, cannot be amended by a regulatory reform order. The Bill achieves what the amendment of the noble Viscount, Lord Goschen, wishes it to achieve.
Amendment No. 12 is an interesting and particular case. It would exclude Acts that are on the statute book but not yet commenced. I do not need to go back as far as the Easter Act 1928. I am not sure whether that imposes any burdens, but if I go back to 21st March 1997 I hope the Committee will understand what I am saying.
There are Bills which have been found to be defective. One in particular was the Sexual Offences (Protected Materials) Act, which was passed on the 21st March 1997 in a spirit of genuine outrage at the circulation of pornographic material in prisons. It has never come into force because, as drafted, it makes it impossible for defence lawyers to have proper access to certain materials that may be central to the case. As the purpose of the Act was to enhance protection for the victims of sexual offences, the fact that the deficiency has prevented its commencement is a heavy burden on such victims.
I would put it to the Committee that since we have the procedures involving prior public consultation, detailed parliamentary scrutiny and approval by both Houses, this is a good way of enacting the necessary reform, rather than waiting for a legislative opportunity. Of course, in an ideal world legislation would always be right first time, but those who have spoken on these amendments have made it clear that they have the same scepticism as I have about that. We do have an opportunity here for correcting these errors, although they may be rare. I hope that Amendment No. 12 will not be pressed.
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Amendment No. 13 is much more wide ranging and would exclude all legislation before this Bill receives Royal Assent: in other words, it would repeat the self-imposed restriction which exists in the 1994 Act. If I may explain our thinking, regulatory reform problems have many causes. Sometimes there are problems because legislation passed some time ago no longer meets modern requirements, but they can also be the result of the interaction of overlapping legislationߞlegislation already on the statute book for some time and much more recent legislation. Fire service legislation is a very good example of that. It is spread over 120 Acts, as has already been referred to this afternoon, passed over many years. It is the interaction and overlapping nature of these Acts that is part of the problem.
As I am sure the Committee is aware, the 1994 Act limited eligible legislation to that passed before the 1993–94 parliamentary session. This was a significant limitation, and it is one of the reasons why it is running out of steam and there are fewer and fewer deregulation orders under that Act. When we consulted over reforming this Act in 1999 we tackled this very issue, and there was unanimous support for the idea of extending the range of eligible legislation to that passed after Royal Assent to the Bill.
What we have done instead is to opt for a two-year cut-off period for legislation. I will come to the actual period when we consider Amendment No. 14, but it means that there can be no question of a "knee-jerk" reaction to amend legislation newly placed on the statute book. It also means that we have a tool with which to tackle as yet unforeseen problems arising from burdensome legislation: indeed, better ways of solving problems than imposing burdens. If we agreed this amendment we would be limiting our ability to do that.
The noble Lord, Lord Norton, made a very rational case, if I may put it that way, for Amendment No. 14. The 1994 Acts stipulate that no order can amend any Act passed before the 1993–94 session, and we have sought to remove that restriction. Again, for the reasons I have given about overlapping legislation, we need to be able to tackle older and more recent pieces of legislation at the same time. We realise that the exact period will be a matter of judgment, but we think that two years is the right period to avoid what might be called laxness in drafting.
There are two kinds of safeguard against that. First of all, the two-year cut-off means that it is not a "quick fix", because we have to live with the effects of the legislation for two years or for such time as the legislation is in effect. Of course there may be delays. Secondly, it is a high price to pay for making mistakes if you go through the very lengthy and difficult procedures involved in the super-affirmative resolution provided for in this Bill. I really do not think that any Minister in any government would embark on this route without careful thought. It is a balancing act, but we think we have the balance right.

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I am advised that in relation to what I said about the amendment of the noble Viscount, Lord Goschen, the "chapeau" is the paragraph immediately after Clause 1(1) and is the important element which ensures that this Act is not covered by itself.
Viscount Goschen: Certainly the term is not one I have come across before. I do appreciate the Minister's attempt to reassure me on this issue; and to some extent he has reassured me on certain parts of it. I think it is clear that this Bill imposes burdens, not just on the Government but on Parliament. Whether or not you consider Parliament to be under the control of a Minister of the Crown (and I suspect it is not) the noble Lord will be able to give me a definitive judgment. There are also many burdens imposed by the consultation process on various statutory bodies, including the Scottish Law Commission among others.
One can imagine circumstances where an order is brought forward under this Bill and someone says, "This is a burden we could well do without and so we shall bring forward an order which removes a burden under this very Act". I do not suggest that the Minister should respond to that specific point at this stage, but I feel that he did not fully explain how this Act could not be used to amend itself. If there is any shadow of a doubt, I would suggest that the position should be made crystal clear.
The noble Lord might well say that to do this might offend my noble friend Lord Renton by using a small number of extra words. I believe our primary consideration should be how strong are the safeguards contained in this Bill.
On the arguments deployed against Amendment No 13 proposed by my noble friend Lady Buscombe, there is a strong argument which says, "Let this Bill deal with prior mistakes anomalies or inconsistencies that have built up—as, for example, over the 120 statutes which contain fire legislation"—unless the Government propose to come forward with another 120 statutes covering fire legislation, which I am sure they would not. Surely this Bill must be focused on the vast breadth of the statute book which lies behind us.
To say that this Bill, when enacted, can be forward looking would be an incitement to sloppy drafting, and I am quite sure that Ministers would receive briefing from officials to the effect of "Never mind if you get it slightly wrong here: we have a joke get-out-of-jail-free card under the Regulatory Reform Bill and we will use that." Just occasionally I have spied briefs saying, "Don't worry about the appeals process: there is always judicial review." To that, the noble Lord, Lord McIntosh, and his colleagues, when they were on the Benches on this side of the Chamber, would say, "Oh, but that's a cumbersome process." I think the same type of argument would apply in present circumstances.
I feel that this is a genuine issue that we shall need to return to at a later stage of the Bill. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 14 not moved.
Lord Norton of Louth Lord Norton of Louth moved Amendment No. 15:
Page 2, line 18, leave out ("includes") and insert ("is confined to").
The noble Lord said: This amendment is straightforward. It is similar to Amendment No. 1 moved by my noble friend. It provides for provision made by order under this clause to be confined to fulfilling the objects stipulated by the clause. Under subsection (1), the Minister may by order make provision with a view to one or more of four objects. We have already discussed that point. By stating:
"The provision that may be made by order under this section includes",
subsection (5) appears to provide scope for orders which fulfil purposes other than those envisaged under subsection (1). My amendment deletes the word "includes" and inserts the words "is confined to". I believe that that makes the clause internally consistent and removes the possibility of seeking to make an order which goes beyond what is intended by the clause. The Minister may say that that is not necessary. However, I suspect that my wording would remove any doubt and, therefore, would be preferable to the wording of the Bill as it stands.
In any event, my instinct is to be wary of the use of the word "includes" in legislative provision. I believe that we should be sceptical each time that word appears. The meaning of the provision should be stated clearly and, wherever possible, it should be exhaustive in terms of what it encompasses. That is especially so when it confers powers and where the creation of a criminal offence may be involved. Given the significance of this measure, we need to ensure that it is as clear and precise as possible. The use of the word "includes" appears to provide a much wider scope than clearly is intended. For that reason, I bring the amendment before the Committee. I beg to move.
Lord Phillips of Sudbury: I identify myself wholly with what the noble Lord, Lord Norton, has said.
Lord Falconer of Thoroton: I pause to see whether the noble Baroness, Lady Buscombe, is going to move the amendments in this group which stand in her name.
Lord Kingsland: I am grateful to the noble and learned Lord for giving way. It is our intention not to move these three amendments.
Lord Falconer of Thoroton: Perhaps I may give the noble Lord, Lord Norton of Louth, the reassurance that he requires in relation to his amendment. Of course, it would not be possible to include in an order anything which was not within the objective set out in Clause 1(1). It is not intended that Clause 1(5) should include wider objectives. It is a question of how Clause 1(1), not Clause 1(5), is put into practice.
Although I can understand the noble Lord's suspicion of the word "includes", if that word is not inserted, anything in the new order which is not

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amendment or repeal, does not impose a burden on a Minister only, or is not incidental or consequential is excluded. Therefore, any new material is excluded from an order if the words "confined to" are used instead of "includes".
I hope that I have reassured the noble Lord and that I have indicated what the consequences would be if his amendment were to be pursued. Therefore, I ask him to withdraw it.
Lord Norton of Louth: I believe that I am persuaded by what the Minister says. I shall want to reflect upon it, but I see some force in what he says. I shall consider whether there is a way in which the wording can be ring-fenced so that it still includes the points which he mentioned and, thus, is internally consistent. However, on that point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Before I call Amendment No. 19, I should tell the Committee that the noble Lord, Lord Goodhart, wishes his Amendments Nos. 27 and 31 to be withdrawn from this group and taken separately.
[Amendments Nos. 16 to 18 not moved.]
7.15 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 19:
Page 2, line 25, leave out ("the Minister thinks") and insert ("is").
The noble Baroness said: In moving Amendment No. 19, I wish to speak also to Amendments Nos. 20, 27, 31, 41, 46, 47 and 50 to 52.
Lord Goodhart: But not Amendments Nos. 27 and 31, which are in my name.
Baroness Buscombe: I apologise. During the course of the debate at Second Reading, the Minister indicated that tests existed to de-limit the scope of any use made of the order-making power introduced by the Bill. He spoke in terms which moved the noble Lord, Lord Goodhart, to comment that the noble and learned Lord, Lord Falconer, had spoken as if the requirements in Clause 3(1) were objective; that is, that the scope of any secondary legislation introduced pursuant to the Bill would be dependent not upon an expression of subjective ministerial opinion but upon objectively judged compliance with the tests laid down in paragraphs (a) and (b) in this clause.
However, it is plain that it is not intended that that should be the case, the tests being, as they are, scattered about the Bill. They are all intended to be subjective, not objective. What is the effect of this and other clauses, as presently drafted, which are dependent for their effect upon ministerial opinion? This matter is of great practical importance. Plainly the lawful scope of any exercise of the power granted by Clause 1 is to be determined by reference to the limitation set out in Clause 3.
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When referring to Clause 1 earlier, I spoke of the need for adequate policing of regulatory reform measures not only during their passage through Parliament but also subsequently. If the limitations set out in paragraphs (a) and (b) are capable of being satisfied by an expression of ministerial opinion, the scope for policing the limitations intended to be imposed upon the use of the power by that clause will be severely limited. Any expression of ministerial opinion, provided it could not be said to be based upon wrong reasons or, for some reason, to be wholly untenable, would pass the test.
That is not an appropriate approach to matters as important as these. It is commonplace for regulatory matters to cause serious and, in some cases, grave hardship. Those affected, particularly where they have no other form of redress, should be enabled to challenge the imposition of regulation in the courts.
The Minister told the Select Committee:
"If you did not have the opinion test but had an absolute test, then the lawyers would rub their hands every time there was a deregulation order and there would be a trial on each occasion".
Plainly, the purpose of the introduction of the opinion test is to avoid deregulation orders being challenged in the courts. However, I say with the greatest respect to the Minister that the fact that lawyers may be rubbing their hands has nothing whatever to do with the matter. I have never heard of a person going to court to challenge the Government because they have removed a burden from his shoulders. There will be a challenge in the courts only if a deregulation order imposes a burden which those upon whom it is imposed see as unfair and unjust. As I said at the outset, those who will be required to bear burdens cast upon their shoulders in the guise of regulatory reform should be the focus of our debate.
Legislation which is protected by an expression of ministerial opinion, if burdensome, is likely to provoke resentment, and the lack of effective redress is likely to increase such resentment tenfold. What are the Government afraid will happen in the courts to their deregulation orders? If they are properly thought out and accord with the provisions of this Bill, why should it be necessary to seek to hide behind the refuge of ministerial opinion? Again, I propose that proper safeguards are introduced to protect those who are likely to be affected by the burden of compliance with regulations created by the secondary methods anticipated by the Bill.
In the case of these clauses, such safeguards are introduced by the removal of reference to ministerial opinion so that compliance with the limitations placed upon the order-making power in Clause 1 can be achieved only by observance, judged objectively, of the limitations expressed in paragraphs (a) and (b). That is what the amendment and those with which it is grouped seek to achieve.

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I wish to make particular reference to Amendment No. 41 concerning the words on page 3, line 40 of the Bill:
"contains a statement that".
A subordinate provision order is an order that comes into force through the negative resolution procedure. It is not subject to the affirmative or to the super-affirmative procedure envisaged in the Bill. Such an order can be made only if it contains a statement that it makes provision that either modifies a subordinate provision of an order previously made or that it is incidental, consequential, transitional or supplemental to the modification.
The fact that the provision may go further than merely modifying the subordinate provisions of the previous order, or further than containing provisions that are merely incidental, consequential, transitional or supplemental to the modification, is completely irrelevant. As drafted, all that is required is a statement in the order, however wrong that statement may be.
We believe that that is unacceptable. Either the provisions in the subordinate provision order fall within paragraphs (a) or (b) or they do not. If they do not fall within those paragraphs it cannot possibly be right that those provisions become law merely because it is wrongly stated in the order that the provisions fall within those paragraphs. That is an important point but it is not one that is made against the Minister. I have no doubt that were he to be responsible for a subordinate provisions order it would not contain a statement that the provisions fell within either paragraph (a) or paragraph (b) if the provisions did not fall within either of those paragraphs.
However, this Bill is not just for Christmas; this Bill is forever. Who knows what politicians will be like in 50 years' time. I cannot rule out a future Minister making a statement that the provisions fall within paragraph (a) or paragraph (b), either through ignorance or worse, when in fact they do not fall within either of those paragraphs. If such a Minister were to make such a statement the order would be subject to the negative resolution procedure only and not to the affirmative or super-affirmative resolution procedure. My comments are directed solely at such future Ministers.
Therefore, I ask the Government to reconsider this matter. Present Ministers have nothing to fear. This will not affect them in any way. If the provisions fall within paragraphs (a) or (b) the order containing such provisions will be a subordinate provisions order. The only people prejudiced by my proposed amendment will be such future Ministers who feel able to make the statement that the provisions fall within either of those paragraphs when they do not.
I turn finally to Amendments Nos. 46,47,50,51 and 52. The rationale behind those amendments is to minimise the damage that could be caused by an incompetent Minister. As presently drafted, Clause 5 imposes an obligation on a Minister to consult organisations that appear to him to be representative of interests substantially affected by the proposals, to consult statutory bodies or organisations that appear
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to him to be representative of those bodies and to undertake further consultation, but only if it appears appropriate to the Minister.
Those amendments protect against incompetence. A competent Minister will probably get it right. A competent Minister will be able to recognise organisations representative of interests affected by his proposals and the relevant statutory bodies or organisations. A competent Minister will know when it is appropriate to undertake further consultation. Unfortunately, an incompetent Minister may not be able to recognise such organisations or bodies. Worse still, an incompetent Minister may not even notice that it is appropriate and necessary to undertake further consultation. People need protecting against incompetent Ministers. These amendments achieve that object. I beg to move.
Lord Norton of Louth: I shall speak briefly to Amendment No. 20 which is grouped with these amendments. I do not need to take up much of the time of the Committee because my amendment is similar in effect to Amendment No. 19. The objective—to remove the subjective element of paragraph (c) and replace it with an objective test is the same.
Orders can be made under this clause with a view to achieving one or more of the objects listed in subsection (1) as this is designed to ensure that orders may be made to provide for such incidental, consequential, transitional or supplemental provision as is necessary to achieve those objects. I see no reason why that should not be made explicit. Thus my amendment is designed to replace the subjective element with an objective one and to remove any ambiguity.
Lord Borrie: Surely the advantage of the phrase "in the Minister's opinion" in the context of this Bill—I leave aside those concerned with the amendment tabled by the noble Lord, Lord Goodhart, which is not in this group—is that it emphasises that the Bill is designed around parliamentary scrutiny and control and with a great deal of emphasis in detailed clauses, to which we have yet to turn, concerning the scrutiny committees of both Houses.
The speech of the noble Baroness, Lady Buscombe, emphasised throughout the desirability of people being able to go to the courts. I would be the last person to suggest that it is undesirable to go to the courts in appropriate situations. But it seems to me that, to a considerable degree, the parliamentary scrutiny that is emphasised is ministerial accountability to Parliament and to its scrutiny committees. In my view that should not be undermined.
The advantage of the phrase "in the Minister's opinion" is that if one then goes to court to seek a judicial review one has to establish a fairly heavy burden of proof that the Minister acted in a way in which no reasonable Minister would have acted. In other words, as the noble Baroness said earlier,

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according to Wednesbury principles as to reasonableness, that is quite a heavy burden for a person to overcome.
As has been suggested by the noble Baroness and by the noble Lord, Lord Norton of Louth, in theory, and in many cases if people wanted to, in practice, the courts could have a much greater involvement in hearing arguments as to whether, on the merits, something was appropriate or desirable if the phrase "in the Minister's opinion" were deleted from wherever it appears in the Bill. It seems to me that the efforts of noble Lords opposite are designed to undermine the thorough parliamentary scrutiny that is intended for regulatory reform orders and to introduce in an inappropriate manner the possibility—lawyers would no doubt encourage the probability—of legal action in the courts.
Lord Falconer of Thoroton: I shall take up the point that appears to me to be at the heart of this issue—the extent to which the courts should be involved. We are proposing a parliamentary procedure. Without repeating what I have already said, I shall indicate that procedure. First, the Minister who wants to make the reform has to reach the opinion that it does not remove any necessary protection, does not interfere with any reasonable expectation that a person may have of continuing to exercise rights and freedoms and in the case of new burdens they must be proportionate. The Minister must also be of the opinion that they strike a fair balance between the public interest and the interest of those affected by the burden to be created.
There is then an obligatory consultation period that will probably last for 12 weeks. If there were no consultation, it could not proceed. Once the consultation is complete, the Minister must assess the responses and reassess his opinion. If the weight of evidence from the consultation were that the proposal removed ministerial protection or interfered with a reasonable expectation that someone may continue to exercise a right or freedom, or if the balance were not struck, a notional wicked Minister in the future—according to the noble Baroness, Lady Buscombe—rather than a current Minister, would bash on, despite the fact that the consultation would tell him he was wrong in his opinion, and he would stick to his opinion.
The next step for that wicked Minister would be to publish in full and objectively the result of his consultation. Having done so, it would be for the two Committees to consider what the result of the consultation was. The document that the Minister published would also explain why he thought he had given the right course, despite the consultation. The proposal may impose new burdens but not replace others, or it may impose new burdens and replace others. If he somehow got through that process, he would have to persuade both Houses of Parliament that the order should be approved. That is basically the scheme of the legislation.
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The noble Baroness wished to add to that approach the right to consider objectively in the courts whether or not the necessary protection was available, whether that interfered with any reasonable expectation, and whether or not the proposals struck a fair balance between the public interest and the interest of those affected by the burden that will be created.
With the greatest respect to the noble Baroness—the amendment was plainly moved with the best of intentions—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. The noble Baroness said that that provision would apply only to people on whom burdens were imposed; only they would seek to do that. With the greatest respect, she does not realise what goes on in courts now. There are pressure groups and interest groups, which frequently want to keep burdens that others would oppose. The noble Lord, Lord Kingsland, will break that news to the noble Baroness.
7.30 p.m.
Lord Phillips of Sudbury: Is the situation that the Minister described a result of the fact that the Government introduced contingent fees for every type of legal action?
Lord Falconer of Thoroton: I am glad that the noble Lord regards the solicitors' profession simply as an interest group or pressure group in that respect.
A serious point is raised in this context; it does more than raise questions about on whom burdens are imposed or about the role of pressure groups, which might think that the right course was to go to the courts. For example, under one proposed order, the provisions will make the circumstances in which trustees can invest more liberal. If a trustee invested in accordance with the terms of that wider provision, and it suited someone financially to challenge the investment, the person would have a financial interest in challenging the basis of the regulatory reform order.
The noble Baroness displayed touching faith in the fact that the only people who would be affected would be those on whom burdens were imposed. However, that does not reflect the nature of litigation these days. Although this is a matter for the House to decide, I do not think that we want a process that involves a mixture of the courts and Parliament. We have faith in the fact that Parliament will appropriately scrutinise the orders. If Parliament does not like what it sees, it will be able to prevent the orders from going through. That is the right approach—Parliament should be the body that determines such matters, not Parliament and the courts. The courts will have a role in relation to judicial review—if no reasonable Minister under all the circumstances could have that opinion—but that is a different and more limited role than that involved in addressing the primary issues of necessary protection, the balance between public interest and the interests of

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those affected, and the possibility of depriving people of rights that they would otherwise reasonably expect to exercise.
Lord Kingsland: I am grateful to the noble and learned Lord for giving way. I am delighted to hear the Minister's faith in the process of parliamentary scrutiny. Such amendments under the Bill, if it is enacted, would be introduced on the Government's initiative. The Government are the Government only because they have a majority in another place. Therefore, if any scrutiny were to be effective, perhaps to the extent that the measure was rejected, the measure would have to be rejected in your Lordships' House. Is the Minister happy for that to happen, if necessary?
Lord Falconer of Thoroton: I have made it clear throughout that the position under the Bill, if it is enacted, is that there will not be a regulatory reform order unless it is passed in the House of Commons and the House of Lords. That is made absolutely plain in the Bill. We have made it clear at all stages that we are dealing with orders that are not politically controversial, although there may be controversy about the detail. If they were politically controversial to a serious extent, that would not be appropriate for a regulatory reform order. We are discussing matters that would otherwise have to be dealt with in primary legislation, although it would be difficult to find time in legislative programmes, which are often crowded. I am more than happy to agree; yes, the orders would need to be passed by both Houses. If an order was not passed by the House of Lords, it would not get through.
Lord Norton of Louth: I want to pick up a specific point relating to the noble and learned Lord's earlier comments on parliamentary scrutiny. He said that a Minister would have to persuade both Houses to approve an order. He rightly said that both Houses would have to approve it—it would come before both Houses for a vote—but if the Select Committee on Deregulation in the other place did not divide on an order, it would not be subject to debate in the other place. Although there could be a vote in certain circumstances, the House of Commons might not debate it at all. I realise that that may be regarded as a rather narrow point—it is premised on agreement in the Deregulation Committee, although there may be disagreement in the House of Commons. I seek to clarify the fact that there are circumstances in which the other House would not have an opportunity to debate a draft order.
Lord Falconer of Thoroton: I am reluctant to comment on procedures in the House of Commons. The Bill does not seek to specify the precise procedures by which a regulatory reform order should be processed through either House. It is for either House to decide how it best wants to deal with that. It can respond as it sees fit, if the Bill is enacted.
Lord Norton of Louth: The Minister is correct. That matter is not dealt with in the Bill. I was relating the matter to intended practice, as that appears in the explanatory memorandum. The Minister was right—it is up to the two Houses of Parliament to decide how to proceed.
Lord Falconer of Thoroton: I move on to two other points, the first of which involves the comments of the noble Baroness, Baroness Buscombe, on Clause 4(4). Should a subordinate provisions order be triggered by something that "contains a statement" from a Minister? Her interpretation of the effect of the law is correct. There will very rarely be cases in which that provision gives rise to problems. If there are genuine doubts, we believe that initially the right person to decide the matter is the Minister. If Parliament disagrees with the Minister—again, this should be a parliamentary issue, not a court issue—Parliament can reject the provisions on those grounds.
The form of words adopted is frequently used in parliamentary drafting. For example, I refer the noble Baroness to paragraph 26(2) of Schedule 2 to the Financial Services and Markets Act 2000, of which she is no doubt already aware, where that form of words is used. There is nothing sinister or odd with their use.
Secondly, consultation depends on making a judgment about who the affected parties might be. In addition to the Minister's opinion on that matter, the committees can seek guidance and advice and take evidence from anyone. The Cabinet Office will put on the website the details of the consultation that is going on, and anyone who is not consulted at the behest of the Minister or the committee can make submissions and express his views. Other than by involving those whom the Minister thought were the appropriate people to consult, it is hard to see how one would trigger the consultation process. That is a parliamentary process, not a process which should be driven by court decisions.
I hope that in the light of those explanations the noble Baroness will withdraw her amendment and not move her other amendments in the group.
Baroness Buscombe: I thank the Minister for his response. I shall read with care what he said in answer to my proposed amendments. If the executive acts responsibly, it should have nothing to fear from the courts. I shall also read with care paragraph 26(2) of Schedule 2 to the Financial Services and Markets Act 2000. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Lord Burlison: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage should begin again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Legal Advice and Assistance (Scope) (Amendment) Regulations 2001
7.41 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach)The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach): rose to move, That the draft regulations laid before the House on 11th December be approved [2nd Report from the Joint Committee].
The noble Lord said: My Lords, these regulations will extend the assistance by way of representation scheme to cover applications to a judicial authority for an extension of detention under the Terrorism Act 2000. The Government are making this change to the scheme in order to ensure that appropriate representation is available to detained individuals when these applications are heard.
Before explaining the amendments in a little more detail, I should first give some background on the procedure to which they relate. A person suspected to be a terrorist may be arrested and held for up to 48 hours by the police under powers contained in the Terrorism Act. During this time the detained person is entitled to consult a solicitor for advice at any time unless a senior police officer authorises a delay in such a consultation. Where permission is given to consult a solicitor, help will be available under the existing police station duty solicitor scheme for the detained person to consult either a quality assured solicitor of his or her own choice or the solicitor on duty at the time. Such help is available without reference to the means of the detained person. I should make it clear that free legal advice in these circumstances is provided under the arrangements as they exist now without the need for any amendment to the scheme.
Where the police wish to extend the period of detention of a terrorist suspect an application must be made to a judicial authority for a warrant of further detention. In England and Wales the application will be made to the senior district judge, or chief magistrate or her deputy, or any other district judge (magistrates' courts) designated for the purpose by the Lord Chancellor. Such a warrant, or an extension of it, will authorise further detention for a specified period of time not exceeding seven days.
This is a new procedure and so we have looked carefully at the form of legal help that should be provided. The hearings for an extension of detention under the Terrorism Act may well take place at very short notice and so it will be essential that help is available without any avoidable delay. For these cases we are therefore proposing that a solicitor will be able to give assistance by way of representation without the need for approval by the Legal Services Commission, or anyone else, and without the need to assess the detained person's means. This means that in these particular circumstances a solicitor acting for the detained person will be able to provide advice and representation straightaway.
This form of help is already available to a person in connection with an application to a magistrates' court for a warrant of further detention under the Police and Criminal Evidence Act 1984. The new regulations
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effectively extend these current arrangements so that they will also cover applications to a judicial authority under the Terrorism Act. The regulations are compatible with the rights conferred by the European Convention on Human Rights. I commend this instrument to the House. I beg to move.
Moved, That the draft regulations laid before the House on 11th December be approved [2nd Report from the Joint Committee].—(Lord Bach.)
On Question, Motion agreed to.

Access to Justice Act 1999 (Bar Practising Certificates) Order 2001
7.45 p.m.
Lord Bach Lord Bach rose to move, That the draft order laid before the House on 15th January be approved [3rd Report from the Joint Committee].
The noble Lord said: My Lords, the draft order before this House amends Section 46(2)(b) of the Access to Justice Act 1999 which currently restricts the purposes for which the General Council of the Bar may raise fees from the issuing of practising certificates to the purposes of the,
"regulation, education and training of barristers and those wishing to become barristers".
The basis for the proposed amendment to Section 46(2)(b) can be found in Section 46(3)(a) of the Act which provides that the Lord Chancellor may, by order made by statutory instrument,
"amend subsection (2)(b) by adding to the purposes referred to in it such other purposes as the Lord Chancellor considers appropriate".
Section 46 of the Act was intended by the Government to resolve the unfairness of the current system whereby some barristers do not contribute to the costs of regulation by the General Council of the Bar; regulation from which all barristers benefit. Section 46(1) of the Act enables the General Council of the Bar to make rules requiring all barristers to hold a practising certificate in order to practise, and requiring them to pay fees for those certificates. The intention behind this order is to extend the purposes for which these fees may be raised.
In contrast to the position of the General Council of the Bar, by virtue of Section 11 of the Solicitors Act 1974, the Law Society has long had the power to require solicitors to hold a practising certificate in order to practise, and to require solicitors to pay fees for those certificates. But the Law Society has not been restricted as to the nature of the purposes for which it sets those fees. As the noble and learned Lord the Lord Chancellor said during the passage of the Access to Justice Bill,
"our belief is that it is right in principle that a professional body should be able to spend money generated from compulsory subscriptions only on certain activities".
Section 47 of the Act provides for the Lord Chancellor, by order made by statutory instrument, to limit the

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purposes for which fees may be raised by the Law Society to:
"(a) the purposes of the regulation, education and training of solicitors and those wishing to become solicitors, or
(b) both those purposes and such other purposes as the Lord Chancellor considers appropriate".
Such an order has yet to be made, but the noble and learned Lord the Lord Chancellor is currently considering an application from the Law Society which seeks to extend the purposes set out at Section 47(1) of the Act for which it may raise fees in the event that the Lord Chancellor exercises his power to amend the Solicitors Act 1974, thereby ending the ability of the Law Society to raise fees for any purpose. The purposes proposed by the Law Society are similar to those proposed by the General Council of the Bar. If the Lord Chancellor decides to approve the Law Society's application, he will lay a separate order before this House for its approval.
However, in the context of considering the order now before this House and the additional purposes sought by the General Council of the Bar, I draw your Lordships' attention to statements made by my noble and learned friend the Lord Chancellor when debating the implementation of Sections 46 and 47 of the Access to Justice Act 1999. He said:
"I make it clear to the House that 'practice support' or practice management and the 'raising and maintenance of standards' will be covered by compulsory fees for both the Bar and the Law Society. These activities are entirely compatible with the role of the regulatory body and should be included in any order made under any of these amendments".
He went on:
"Those functions of the Law Society and the Bar Council that we can agree are in the public interest will qualify for funding from compulsory subscriptions".
He also made the important point:
"The Government have no wish whatsoever to stifle the many useful functions in the public interest that both bodies currently perform and from which both the public and the Government benefit".
While the Access to Justice Act 1999 restricts the raising of fees from practising certificates to an amount necessary for the,
"regulation, education and training of barristers and those wishing to become barristers",
importantly it also includes a provision to extend those purposes to add,
"such other purposes as the Lord Chancellor considers appropriate".
The Lord Chancellor made it clear during the debates on the implementation of Section 46 in this House on 14th July 1999 that the wording of the Act was constructed in this way so as to avoid creating a vague and unalterable category of purposes for which fees might be raised. He made it clear that he would be prepared to consider extending those purposes listed in Section 46(2)(b) of the Act. He said:
"I much prefer agreeing activities that justify compulsory fees on a case-by-case basis to creating a rather vague and problematic category".
The General Council of the Bar has recognised the need for a clear statement of purpose in raising fees from barristers. Following discussions between
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officials of the Lord Chancellor's Department, the General Council of the Bar and the Legal Services Consultative Panel, the General Council of the Bar submitted an application to my noble and learned friend for the approval of rules made under Section 46(1) of the Act to prohibit barristers from practising unless authorised by a certificate issued by the General Council of the Bar. After taking advice from the Legal Services Consultative Panel and the designated judges, the Lord Chancellor has signalled his approval for the new rules to be made.
But the General Council of the Bar has also invited the Lord Chancellor to make an order under Section 46(3)(a) of the Access to Justice Act 1999 to add the following purposes to those specified in the Act for which fees may be raised: the participation by the General Council of the Bar in law reform and the legislative process; the provision by barristers and those wishing to become barristers of free legal services to the public; the promotion of the protection by law of human rights and fundamental freedoms; and the promotion of relations between the General Council of the Bar and bodies representing the members of legal professions in jurisdictions other than England and Wales.
My noble and learned friend is of the view that all of these activities, which are already undertaken by the General Council of the Bar on the basis of subscriptions from its members, are useful functions clearly in the public interest, and that provision should be made within the General Council's new practising certificate rules for them to continue to be undertaken on that basis. Having taken advice from the Legal Services Consultative Panel and designated judges as to the suitability of the proposed additional purposes and consulted the General Council of the Bar and parliamentary counsel as to the specific wording of the proposed amendment, my noble and learned friend has signalled his approval to the further purposes sought by the General Council.
The Lord Chancellor is aware that parliamentary approval of this draft order is required under Section 46(4)(b) of the Act. I believe that the provisions of this order which amends Section 46(2)(b) of the Act are compatible with the rights set out in the European Convention on Human Rights. Since an amendment of this nature adding to the purposes for which fees might be raised by the issuing of practising certificates was anticipated during the implementation debates on Section 46 in this House, and Section 46(3) makes specific provision for the exercise of these amending powers, I therefore invite the House to approve the order. I beg to move.
Moved, That the draft order laid before the House on 15th January be approved [3rd Report from the Joint Committee].—(Lord Bach.)
7.55 p.m.
Lord Brennan: My Lords, during 1999 had the honour to be chairman of the Bar Council of England and Wales. That task required me to sit across to the right of your Lordships' Chamber beyond the Bar for

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many hours as this House debated reform of my profession. Of all the reforms that the Access to Justice Act 1999 achieved, this small step may turn out to be one of the most significant. The Bar is not a statutory body and, until this Act, did not have the power to require its members to pay an annual subscription. That they should, anyone else would regard as self-evident.
In the years since I was chairman, and, before that, my noble friend Lord Goldsmith, we sought to modernise the Bar. This step furthers that task. It is little known, but deserves mention, that by raising subscriptions the Bar can better serve the public interest. It does it in education by ensuring that members of the Bar who represent the public have achieved a reasonable measure of professional training. It also does it in regulation by a system of professional discipline which the legal ombudsman regards as the most successful of the schemes with which she must deal. Her assessment is that there is well over 90 per cent satisfaction in those cases where we deal with the public.
Last but not least is the importance of general education and training. The last time I looked at the Bar's annual budget about one third of its total income was spent on education and training. The order seeks to enlarge the purposes on which subscriptions and income can be spent. These purposes are not new but are characteristic of the Bar in times past.
It is little known but well recognised in government that the Law Reform Committee of the General Council of the Bar regularly submits private memoranda to government and civil servants about proposed changes in the law. That contribution has always been welcomed. It deserves to be better known—I am sure that my noble friend Lord Goldsmith will refer to it—that one of the main features of the Bar's services to the public is the provision of free legal services. The aspect to which I refer—I hope that my noble friend will mention the other with which he has closer connection—is the Free Representation Unit. Every young member of the Bar is encouraged to undertake work in representing the public at no cost to them.
The final matter may in years to come be very important. I refer to the international role of the Bar. Lawyers in this country, as in many others, are vilified day by day because of the obsessional media interest in what they earn. The fact is that solicitors and barristers achieve invisible earnings in this country and abroad of over £1 billion a year. The Bar plays its part in that achievement by expanding its relations with Bars in other countries around the world. I have mentioned just some of the purposes for which this order will allow subscriptions to be raised. I welcome unreservedly this extension. There are occasions when there is a happy union between government action and
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professional interest, and this is one such. I welcome the order and ask noble Lords around me to forgive me if I do not stay to listen to their contributions.
Lord Goldsmith: My Lords, I declare three interests. First, I am a practising barrister who will have to pay these fees. Secondly, I am a former chairman of the Bar Council. It was some years ago, probably in my time, that this problem first came to a head and we had to grapple with the question of how to enforce subscriptions. Thirdly, for five years I was chairman, and am now president, of the Bar's Pro Bono Unit which is one of the organisations that benefits from assistance from the Bar Council. Since its inception that organisation has received over 2,000 applications for assistance from members of the public. More than one in 10 barristers agree to provide their services free and commit themselves for a minimum of three days a year. The income from the certificates will not be used to pay them in any way, but it is necessary to support the administrative expenses. In those respects the order represents a fair balance between the income the Bar Council will continue to raise on a voluntary basis for its representational activities and that raised through the practising certificate.
My noble friend the Minister said that regulation, which is what the Bar Council does, benefits all barristers. He went on to say that it benefits the public interest. That is what justifies the compulsory nature of the order.
I understand from the present chairman of the Bar that the Bar Council has agreed that its accounts will be subject to external audit after one year and every three years thereafter so that there is assurance that the split between voluntary and compulsory contributions is properly looked at. Subject to that matter, I agree entirely with my noble friend Lord Brennan and have nothing further to add.
Lord Goodhart: My Lords, I too have to declare an interest as someone who is likely to pay a compulsory fee for a practising certificate.
As both noble Lords who have spoken before me made clear—I have some trepidation in following two former chairmen of the Bar Council—this is a matter where the public interest is very much concerned. As the noble Lord, Lord Goldsmith, explained, the income of the General Council of the Bar will be divided into two main sources. One is compulsory income from practising certificates; the other is the voluntary subscriptions paid by members of the Bar. Up to now the majority of the Bar have paid voluntarily.
Income received from the voluntary subscriptions will be available to the Bar Council for what may be loosely called its professional, its trade union functions—advancing the professional interests of the Bar—rather than primarily for the purpose of protecting the public interest.
The compulsory income obviously should be devoted to the activities of the Bar Council which are in the public interest. I have no doubt that the

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regulatory functions contained in the Access to Justice Act are in the public interest. But it is necessary for the activities of the Bar to be regulated in the same way as are members of other professions.
The order contains a number of additional purposes for which money raised by practising certificate fees can be spent and which therefore can be taken into account when fixing the level of fees to be charged for practising certificates. As the noble Lords, Lord Brennan and Lord Goldsmith, have pointed out, the council participates actively in law reform and in the legislative process. It makes valuable contributions. I believe these are very much in the public interest.
Certainly, the provision of free legal services through the Free Representation Unit and through the Pro Bono Panel, in which the noble Lord, Lord Goldsmith, has played so important a part, are very much in the public interest. It is therefore wholly justifiable that the administrative costs of these should be paid by the compulsory practice certificate fees.
The promotion of the protection by law of human rights and fundamental freedoms is very much in the public interest. It seems entirely justified that, for example, the subvention paid by the Bar Council to the Bar human rights committee should be capable of being taken into account.
The final issue, the promotion of relations between the council and bodies representing the members of legal professions in jurisdictions other than England and Wales, caused me a little more difficulty. That issue comes much closer to the dividing line between the representational and the public interest functions.
It is perhaps not self-evident why it is necessarily in the public interest to pay for attendance by representatives of the Bar Council at, let us say, meetings of the Commonwealth law conference or the annual meetings of the American Bar Association or other similar regions. However, it seems to me that, in an age of globalisation, although these come close to the line, I am persuaded they are on the right side of it and that it is not only in the interests of the Bar itself, but in the interests of this country through encouraging, for example, the use of the English courts by foreign commercial lawyers and foreign commercial clients. Therefore, I give my support to this order and am happy to endorse it.
Lord Kingsland: My Lords, the outstanding contributions to this debate by the Minister, the noble Lords, Lord Brennan, Lord Goldsmith, and, Lord Goodhart, have mercifully left little for me to say.
Those of us who remember the passage of the Access to Justice Act will recall that there were occasions when the relationship between the Bar Council and the noble and learned Lord the Lord Chancellor was perhaps somewhat less than totally harmonious. Therefore, it gives me particular pleasure to hear two distinguished former chairmen of the Bar, the noble Lords, Lord Brennan and Lord Goldsmith, give this order their full support. I also give it my support. On
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31st January when I pay my fee for my practising certificate I shall feel that I have fulfilled the wishes of all parts of your Lordships' House.
Lord Bach: My Lords, I am most grateful to noble Lords who have spoken, particularly to those who spoke briefly on the subject. I am grateful to the noble Lord, Lord Kingsland, for indulging us this evening by having the debate at this time. But I am more grateful for the support that all noble Lords have shown for the order, both from the Opposition parties, and particularly from my two distinguished noble friends who served the Bar so well during their time in office. It is a great boost for the order that both have spoken on it. All that is left for me to do—certainly not to rise to the bait about the Access to Justice Act which the noble Lord, Lord Kingsland, so temptingly puts before me—is to commend the order to the House
On Question, Motion agreed to.
Baroness Amos: My Lords, I beg to move that the House do adjourn during pleasure until 8.40 p.m.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 8.9 to 8.40 p.m.]

Regulatory Reform Bill [H.L.]
House again in Committee on Clause 1.
On Question, Whether Clause 1 shall stand part of the Bill?
Baroness Buscombe: We debated this clause at some length but it is appropriate that we have this opportunity to return to some of the major effects of Clause 1 in terms of the Bill as a whole. There is obviously deep concern on this side of the Committee as to the scope and extent of this Bill and its implications.
There are two points that I wish to make in particular. The first concerns the policy that underlies this clause. The second concerns the methods by which we are accustomed to legislate, the changes that this clause will make to those methods and the constitutional impact which those changes will have unless appropriate safeguards are put in place.
My first point is this. The purpose of regulation is to advance the public interest; it is not to promote state control. This Government have spoken more and more frequently in recent days of imposing regulation with a "light touch". That is their phrase, not mine. While that may be their stated intention, that is not the impression that I get from this clause. It is true that the Bill speaks of the public interest, but it also speaks of burdens and much more of the imposition of burdens than the relieving of them. It seems to me that this Bill and the powers envisaged by this clause anticipate regulation in ever increasing circles so that legislation—and I use that word in its very widest sense—might become the province no longer of Parliament but any number of public and semi-public bodies. I am left with a distinct impression that control

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of the individual by the state by means of a network of statutorily authorised regulated bodies—I am tempted to call them busy bodies—lies at the very heart of the policy of this Government as expressed in this Bill. That emphasis is in marked contrast to the Act of 1994 which had as its sole purpose the removal of regulation.
This Bill—proposing as it does the creation of a power to impose fresh burdens and to do so by means of subordinate legislation through a network of regulatory authorities, not effectively answerable to the legislature—is a different animal entirely. Comparisons between this Bill and the 1994 Act in terms of overall effect are, for these reasons alone, wholly inapt. Any attempt to compare the safeguards provided in this Bill with those contained in that Act for the purpose of demonstrating an adequate level of security would be wholly inappropriate.
Of course we are in favour of the advancement of public interest. It is clearly expedient that we should all be protected from bad practice and equally clear that we should all receive the benefit of good practice. We accept that this may be achieved by means of regulation. This aim of enhancing the public good by regulation is only achievable at the expense of those upon whom the burden of compliance with regulation is cast. It is they, those who must bear the burden of compliance, who are immediately affected by it. It is they whose jobs are made more difficult and whose lives are often turned upside down by it.
As presently framed, this Bill, and this clause in particular, seem to me to divert attention away from those who will suffer from the impact of new regulation or, at the very least, to mask the effect this Bill will have upon our lives. Regardless of the appropriateness of primary or secondary procedures, how are we to know what is a suitable candidate for the procedure envisaged by this Bill?
My second point is of greater constitutional significance. To extend the power to legislate regarding burdens affecting persons is to extend the power to create subordinate legislation too widely. We are all agreed that subordinate legislation is a valuable legislative tool. However, it should not be permitted to be used as a by-pass enabling those who are so minded to avoid the less speedy and altogether more traffic-congested route of primary legislation where such is the appropriate route. Primary legislation benefits from—or perhaps suffers from depending upon your perspective—the sometimes critical nature of public debate. Secondary legislation, on the whole, does not. Furthermore, whereas the passing of primary legislation is a process attended with a degree of thoroughness and intellectual rigour, there is perhaps a tendency for the same processes not to be brought to bear in the case of secondary legislation. These are both good reasons to prefer the paths of primary legislation where appropriate.
The Select Committee on Delegated Powers and Deregulation was told by the Minister that there would be a practical limitation upon the choice of areas upon which to practice the use of the power
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granted by this clause. That limitation will take the form of an "elephant" test. What that means is this. We may not be able to define an elephant but we know one when we see one; likewise, an area appropriate for regulatory reform. We are told that this is the test which will be applied by Ministers before subordinate legislation is thought fit to be introduced under the scheme envisaged by this Bill. This test is proposed because no satisfactory threshold definition can be drafted.
What all this means is that the test that is proposed is so ill-defined as to be of no practical effect and certainly it provides no impediment to an abuse of the power. It is, in truth, no test at all. We believe that this is a wholly inappropriate approach—even when used informally as a threshold test for the application of subordinate legislative procedures—to the amendment of primary legislation especially in a field so wide-ranging as that envisaged by the Bill.
What means are we to be given to enable us to identify our elephant? That is something that we should be told. This Bill does not bear comparison with the Act of 1994 and it takes little imagination to recognise the opportunity for the arguments, once it is passed, that may be applied to justify wide-ranging subordinate legislation along lines as yet unimagined. Much concern has been expressed, for example, that these powers could be used to abolish or at least radically revise licensing laws, that is, beyond the proposals listed by the Cabinet Office which are currently under preparation that could be implemented by this route. That is one small example.
Let the Bill make its aim of reform clear, lest we are all at risk of being submerged in a flood of regulation for regulation's sake. I beg to move.
Lord Norton of Louth: I rise to make one or two points on the motion that the clause stand part. It is appropriate that we do so largely for the reason that was touched upon by the noble and learned Lord, Lord Falconer, in opening our proceedings earlier. Because of the way the amendments have been scattered around—some touch on rather important issues—there has been no one amendment on which we can stand back and reflect upon the measure of a particular clause as a whole. It is appropriate that we take the opportunity to stand back and remind ourselves of the nature of the Bill.
There are two important points I should like to make. First, this is a Bill with important constitutional implications. We should, therefore, see it as a constitutional Bill, one that should be subject to very special scrutiny by your Lordships' House.
There is a problem that is part of a wider problem. It is something I plan to touch upon in another debate tomorrow. It is that in this country in post-war decades we have lost the capacity to engage in constitutional discourse, to talk about the constitution as a constitution. We used to have it and we lost it in post-war decades. Despite various attempts at constitutional reform and despite the various attempts that have been made over the past 20 or more years, we

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have not recovered that capacity to talk about the constitution. We need to recover it, and to recover it quickly, if we are to discuss the constitution in terms of not just how it is changing but where we think it is going and the shape that we believe it should take in the future. There is a real danger that we discuss constitutional issues in a rather disparate way. That is exacerbated when we have to discuss a Bill through specific amendments. That is a general point but it is relevant in the context of the Bill. It is a constitutional Bill. It has to be seen in that wider context. I look to the Government for a little greater sensitivity as to the constitutional implications of the measure.
That leads into my second point, which is related but distinct. This is not a managerial Bill. It has managerial implications and there is the danger that one sees it solely as a managerial Bill rather than as a constitutional Bill with managerial clauses. That is an important point. If one sees it narrowly in that sense, it becomes easy to become complacent about the Bill. One then sees it as a mechanism for achieving particular good intentions. As I said earlier, we are not arguing about the Government's intentions but about whether this is the appropriate means for realising those intentions. There is the danger of seeing this as a nice managerial Bill. There is also the danger of complacency, particularly if one takes the view, "This is what we want to achieve. The Bill allows us to achieve it". The problem is that the provisions of the Bill allow the Government to achieve far more than what the Government intend by the measure. That is what we have to be sensitive to.
What could the Bill be used to achieve in terms of what the Government have not been contemplating? As the example given by the Minister revealed, the Government intend it to achieve deregulation. The examples given are frequently difficult to disagree with. The problem with the examples that are given relates to the wider totality of other cases that could come up in the future. There is the danger of simply relying on ministerial assurances. I realise that a balance has to be drawn and that not everything can be written into legislation. In many respects, we proceed on the basis of there being to some extent a self-denying ordinance of the part of government in respect of how we proceed and that provides the context within which Parliament can operate.
None the less, given the nature of this measure, there has to be that wider sensitivity. What worries me is that, in respect of Clause 1, the Government have not indicated any give in relation to the worries that have been raised. There has been an explicit acknowledgement that paragraph (c) of Clause 1(1) is free-standing in relation to the other subsections. Potential problems derive from that. That is the kind of sensitivity we need to have. We need to think through the matter. To what extent can the Bill be ring-fenced in order to achieve the intentions for which the Government have argued they want to use the Bill? That is not at issue. What is at issue is whether the Bill could be used to achieve other purposes.
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At this stage, I do not want to delay the Committee any further. I just want to put down a marker. Given the nature of the Bill, we have to be sensitive to what the Bill could be used for. I urge the Government to be sensitive to the concerns that have been raised. If they cannot promise to go away and come back with something, they should at least promise to go away and reflect on the matter.
Lord Skelmersdale: We have heard a great many words about the circumstances in which the noble and learned Lord the Minister believes that it would be appropriate to use the Bill. What I have not heard from him is when he believes that it would not be appropriate to use the Bill. I return to the matter of policy. The noble and learned Lord has placed total reliance on the work of the Delegated Powers and Deregulation Committee—and quite rightly so. That is the parliamentary backbone to the Bill. However, as I said at Second Reading, it is already an overworked committee. At the very least, its manpower will need to be increased in order to encompass what the noble and learned Lord wants to do with the Bill.
As I have probably just proved in my previous three sentences, I am a bear of very little brain. Therefore, I shall have to do as the noble and learned Lord enjoined us to do at the beginning of the debate on Clause 1 and take the amendments and his utterances as a whole. I cannot do that at this moment. I shall read them very carefully. But I have no doubt that I shall come back to Clause 1(1)(c), which has the effect of imposing burdens of various kinds. It still seems to me that the noble and learned Lord's defence of the provision was that he was seeking to transfer burdens rather than creating new ones. I shall read carefully what the noble and learned Lord said, but that is my instinct at the moment.
Lord McIntosh of Haringey: I am grateful for this reprise of the relevant parts of the Second Reading debate. I do not in any way object to having the fundamental issues behind Clause 1 exposed in the Committee. It is a welcome opportunity. It is true that debate has been somewhat fragmented, although to some extent I blame the noble Baroness, Lady Buscombe, for that. We could have had larger groupings with more coherent content.
Baroness Buscombe: It would be more appropriate for the noble Lord to thank me because I think it was important to take some of these issues separately. They are of profound importance to us on this side of the Committee.
9 p.m.
Lord McIntosh of Haringey: I do not doubt the importance and I do not doubt the sincerity. I just think that it would have been easier if we had proceeded subject by subject rather than speaker by speaker. That is a tiny and unworthy thought and I do not pursue that issue. However, I pursue very seriously indeed the issue raised by the noble Baroness in her speech. She said that she has two problems with Clause

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1. The first is the policy behind the clause and the second is the process of legislation. I want to comment on both of those points.
The noble Baroness started by saying that our claim is—she is right—to advance the public interest and to do so by a light touch of legislation. She then said that in contrast to those stated aims, we are imposing more burdens—unlike the 1994 Act which concentrated on the removal of burdens. I think that I have represented the noble Baroness correctly. What the noble Baroness suggests is simply not the case. What has happened is that in the six years or so since the 1994 Act was passed, the Act has run out of steam. It has run out of steam for the most obvious reason: it does not apply to any legislation passed after the 1993–94 Session.
I acknowledge that that could be overcome readily not by a new regulatory reform Bill, but simply by an amendment to the 1994 Act to bring it up to date. But it has also run out of steam because it has become apparent in the intervening years that, whatever good work had been done in the few years immediately following the Act, we have come to the end of what can be done using those methods and that the kinds of problems which we need to address with regulatory reform, with deregulation, are more complex than had originally been thought. The answer does not simply consist of removing or reducing regulation; it does not simply consist of removing anomalies or inconsistencies, as provided for in paragraphs (a) and (d). If we are to take serious regulatory problems seriously, they need a combination of the obvious and simple things which were already provided for in the 1994 Act, with bolder attempts to rationalise a regulatory system, with the intention of reducing burden. That is what paragraphs (b) and (c), which have come under such criticism, are for.
I am not sure that I was right in speaking of the greatest good of the greatest number. I think Bentham was a simplifier. I am a simplifier in a way, but I do not think that that applies to this legislation. However, I do think that the principle of reculer pour mieux Sauter is appropriate here. In other words, it is necessary, in order to achieve our wider objectives, in order to achieve a significant number of those 51 proposals which have been presented to the Committee, 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. That is the only way in which, on the really complex problems such as fire safety—and many others are immediately apparent—we shall achieve those objectives.
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
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facilities and abilities and powers available to us to more effectively reduce burdens than the 1994 Act made possible.
Lord Norton of Louth: The noble Lord has hit upon the point where the problem arises, because he keeps saying "intentions", and what we are concerned with is the potential effects of the clause. That is the big difference. The noble Lord is making a case for going beyond the 1994 Act. I have no problem with that. It is a question of how far one goes, particularly since the Delegated Powers and Deregulation Committee said that in order to achieve the objective the Bill created unprecedentedly wide powers, not just wide powers. Therefore, it is being taken to a new paradigmatic plane in terms of powers. The problem is not with intentions; it is with the potential effects.
Lord McIntosh of Haringey: I was responding to the noble Baroness, Lady Buscombe, who sought to identify a difference between our intentions and what we are doing. I acknowledge what the noble Lord, Lord Norton of Louth says. I acknowledge that if it were possible to provide a simple test for the wide powers which I think it is agreed are necessary in order to extend the demolition of burdens we would adopt it. The noble Lord, Lord Norton of Louth, said in his Second Reading speech that he thought he could provide it. I do not think he has done so in the amendments he has put before the Committee. If he did, we would listen very seriously. I am not saying for a moment that we would necessarily accept it, or believe that it would have to be on the face of the Bill, but I understand the natural suspicion—after all, I spent 14 years in opposition prior to four years in government—of government intentions and the natural suspicion of future government intentions. I understand the desire to have some sort of screening test. If any of us can come up with something that is workable and plausible and does not actually restrict the beneficial scope of the Bill, we shall listen very carefully to what is proposed. That is the first issue, the issue of power, following the agenda of the noble Baroness, Lady Buscombe.
The next issue is what the noble Baroness calls the constitutional issue, which is the issue of the process of legislation. The noble Baroness says that this is too wide an extension of subordinate legislation. Let me first sound a note of doubt about the efficiency of public debate on primary legislation. Again, having spent 14 years in opposition as well as four years in government, I have seen how primary legislation can go through on the nod without adequate scrutiny late at night. I have seen the way in which the scrutiny depends on chance in primary legislation. I think that the very detailed procedures here—their length, the extent to which they involve public consultation, which is not necessarily involved in primary legislation, the extent to which they involve committees of both Houses, the extent to which they come back in draft and are then produced in detail, with a series of consultations—in many ways provide better public debate than primary legislation. So I do

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not accept the argument that there is anything backdoor or undercover about the measures proposed in the Bill. Primary legislation is in many ways easier than the super-affirmative procedure proposed here. I think that. Ministers in any government will discover that and will retreat to primary legislation. I can assure the Committee that the Labour Government in their second term, when it starts, will have just as crowded a primary legislation programme as before, for exactly that reason.
Lord Norton of Louth: I do not want to prolong this debate, but I should like to pick up on the point about parliamentary scrutiny. I take the noble Lord's point that there is a very real balancing act in terms of the benefits proposed under this measure replicating the 1994 Act and existing methods of primary legislation. I see the argument and recognise the benefits that derive from the process that the noble Lord is outlining. However, one has to weigh that against the fact that primary legislation concentrates the Government's mind far more in that they have to find a slot. Primary legislation, whether one likes it or not, none the less has the potential of gaining the oxygen of publicity, because more time is usually spent on the Floor. That is an important point.
The other point concerns the extent to which Members can be involved, particularly in the other place. The process is very much confined to committees. I have nothing against committee scrutiny—that is invaluable; it is when it is then linked to debate in the Chamber. There are limited opportunities for that, particularly in the other place when it comes both to debate and amendment. That is where the difference arises.
I recognise what the Minister is saying. I recognise that there are benefits in that process against primary legislation. What I draw from that is that there is a case for reforming the way in which we deal with primary legislation in order that the scrutiny through that process is improved.
Lord McIntosh of Haringey: I love this stuff, but we are getting beyond the scope of the Bill. I shall gladly come and take part in a debate with Lord Norton of Louth, at Hull or anywhere else. If I were not in government, I might charge a fee!
I started from the point that the contrast that was being made by the opposition between what is claimed to be a stealthy backdoor procedure and the public debate of primary legislation is not all that it seems. I shall not press the argument further than that.
In this Bill we have the special scrutiny demanded by the noble Lord, Lord Norton. I think he is anticipating his speech tomorrow. If we are to ensure that the effect of the Bill is not merely managerial but improves the effect of the Government's relationship with the citizens of this country—which it is capable of doing—we must take seriously any specific amendments which help to achieve that. The amendments that we have had before us today go no way towards achieving that.
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Clause 1 has survived unscathed the scrutiny of the Committee. I hope that the Committee will agree that it should stand part of the Bill.
Baroness Buscombe: I do not think it is quite true that Clause 1 has gone unscathed. It is clear that there has been a lot of opposition to the drafting of Clause 1 in view of the points that have been raised. I should like to thank my noble friends Lord Norton of Louth and Lord Skelmersdale for their support.
This is not only about the extent to which the Bill can be used to ring-fence the purposes currently intended; it is, in essence, what the Bill could permit which is the problem. What my noble friend Lord Norton of Louth had to say in relation to the future of our constitution should give Ministers cause to reflect on the wider totality of cases that may arise in the future.
When the Deregulation and Contracting Out Bill was passing through Parliament, the then Opposition was apoplectic with rage in regard to its constitutional ramifications. It is therefore worth making the point that our response to this Bill has been measured and, dare I say, proportionate. The Bill raises serious and significant constitutional concerns. We would be remiss if we did not expose them to scrutiny.
Let me conclude my thoughts on Clause 1 for today by referring to the final report of the Select Committee on Delegated Powers and Deregulation dated 18th December 2000. In its conclusion it stated:
"The potential gains are considerable—but so too, without stringent safeguards, would be the risks inherent in this unprecedentedly wide power".
On that basis, for today, I shall not press my objection to Clause 1 standing part of the Bill.
Clause 1 agreed to.
Clause 2 [Meaning of "burden" and related expressions]:
Lord Kingsland Lord Kingsland moved Amendment No. 21:
Page 2, line 28, leave out ("includes") and insert ("means").
The noble Lord said: This clause purports to define. That being so, it should define and not merely include. The appropriate word to use is "mean". The meaning of the word "burden"—surely the most important single word in the Bill—must be accurately and clearly defined. If the word "burden" is only said to include these meanings, what else is to be included? Are we to be told—or is that to be left to the imagination? If other burdens are envisaged as falling within the ambit of the Bill, let us identify them. I beg to move.
Lord Falconer of Thoroton: I agree with the noble Lord that the definition of "burden" is key to the way the power in the Bill will work and to ensuring that we are able to implement important and wide-ranging reforms. I do not think that the amendment as proposed would add anything. The word "includes" has been put into Clause 2 quite deliberately. It ensures that, while the definition of "burden" given in Clause 2 gives the framework within which each order would operate, "burden" retains its natural meaning. That is

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obviously the right way to do it. It would be wrong to impose artificial restrictions on the word. It is one that we all understand.
The word "includes" is taken from Section 1 of the 1994 Act. That is where the approach came from. Experience with that Act has shown that the safeguards are more than robust enough to prevent any abuse. There has been no difficulty in defining the meaning of "burden".
Additionally, the effect of the amendment would be to limit the removal as well as the imposition of burdens. So the scope for deregulatory measures, which is important to both sides of the House, could well be diminished. I ask the noble Lord to reflect on my response and to withdraw his amendment.
9.15 p.m.
Lord Kingsland: I am grateful to the noble and learned Lord the Minister; however, I must confess that I am not happy about what he has said. For example, even if one looks at what is included in Clause 2(1), one is surprised to see that one of the definitions of "burden" is,
"preventing the incurring of expenditure".
That seems to be an unusual expression of a burden. If paragraphs (a) and (b) of Clause 2(1) are not totally comprehensive, can the Minister give some examples of other categories of burden that might be envisaged by the Bill?
Lord Falconer of Thoroton: The use of the words,
"preventing the incurring of expenditure",
is to deal with the vaccine damage type case, where the regulation imposes conditions pursuant to which compensation payments can be made. An expenditure cannot be incurred unless the conditions are satisfied. That has the effect of imposing burdens on the payee. That is why the definition is included.
A very common form has been used in Clause 2(1). One deals in the definition section with matters that might otherwise cause room for doubt. The prevention of expenditure is a matter which, at first blush, would not be thought of as a burden, but once it has been explained it can be seen as such. Clarity is achieved by including such definitions.
There are many things that could be burdens that are not specifically defined: appeals mechanisms are one such example; an absolute prohibition on doing something is plainly a burden. But it would be otiose, and unwise, to try to include everything. The best bet must be to rely on the ordinary meaning of a word that people well understand.
Lord Kingsland: My Lords, I am much obliged to the Minister for elaborating on his original explanation. I shall reflect on his remarks and I may return to the matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 24 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 25:
Page 2, line 35, leave out ("only").
The noble Baroness said: I have a number of concerns about the use of the word "only" in this part of the clause. Indeed, the variety of my concerns is perhaps surprising, given that we are here concerned with a single word.
First, it will not have escaped the attention of the Committee that there appears a similar phrase in Clause 1(5)(b). Only there, the words "only" and "affects" are transposed. I do not know whether it is intended that this short phrase should carry the same meaning in each instance, but I must tell your Lordships that as a matter of correct interpretation it does not.
Where the phrase appears in Clause 1, it is permissive in its effect and removes what might otherwise have been thought to be an inhibition. It allows the imposition of a "burden" (in the technical sense) upon a Minister or government department, even though such, by reason of the definition in Clause 2, ought not to be so described.
I have no difficulty with that approach and the meaning is clear. What is not clear is the meaning to be given to the words as they appear in Clause 2. First, the definition in Clause 2 is infinitely narrower than if the words were, "does not include any burden which affects only a Minister of the Crown". That is so because, in the Bill as presently drafted, the word "only" qualifies the word "burden", and so means that not only does the burden affect "only" a Minister of the Crown, but it affects no one else and nothing else at all. I have tried to identify a burden which "only" affects a Minister and has no other effect on anyone or anything whatsoever, and I confess that I am unable to do so.
I now turn to my second point. It is possible that this intensely narrow construction is not what is intended and that, in truth, the words should be transposed. I shall assume that that is so. Perhaps I should say at this point that this is a probing amendment. But, even if it is, these words produce an exceptionally narrow exception to the definition of the word "burden". We have already heard that the word "affects" in Clause 1 is to be given as wide a meaning as possible. That being so, the words "burden which affects only a Minister of the Crown" are again productive of only the narrowest exclusion from the definition of the word "burden" in the case of a burden imposed on a Minister. There can be very few burdens indeed that affect, in the very broad sense that is intended, only the Minister.
It follows that the word "burden", as here defined, is likely to include almost any burden borne by a Minister of the Crown. The Government accept that this Bill should not be available to Ministers as a vehicle by which they may divest themselves of their responsibilities to provide essential services. The prevention of its use for that purpose is indeed the aim of this part of this clause. Unfortunately, upon careful analysis, it does not seem to me to fulfil that purpose.
I have one further concern, which is a serious one. Whatever may be the limit on the use of this Bill as a vehicle for the removal of burdens upon Ministers, there is one use that is not limited in any way, which is to relieve Ministers of the obligation to observe the requirements imposed upon them with regard to the passing of secondary legislation. I take as an example the burden placed upon a Minister by Clause 4 of this Bill to lay a draft order before each House of Parliament, as part of any regulatory reform process. That seems to me to represent a burden. It may be said that it is a burden borne solely by the Minister, and thus not susceptible of "regulatory reform", but it takes little imagination to think of a form of words that could impose such a burden on the Minister and AN Other.
Once such a burden had been jointly imposed, the Minister could make use of the power granted by this Bill to divest himself of that burden. I cannot imagine that it is the intended purpose of this Bill to permit such an activity, whatever other safeguards may be in place to prevent it. But I cannot presently see how it can be said not to be within the power that this Bill will create. The truth may be that insufficient thought has gone into the drafting of this part of the Bill. Plainly, while the aim is worthy, the result is inadequate. I beg to move.
Lord Falconer of Thoroton: I am grateful to the noble Baroness for the opportunity to set out the justification for the drafting of the Bill on this point. As currently drafted, the Bill provides, in the tailpiece to Clause 2(1), that "burden",
"does not include any burden which only affects a Minister of the Crown or government department".
I deal immediately with the point that the word "only" is in a different place in the sentences at line 35 and line 22 on page 2. I have heard the explanation given by the noble Baroness. To follow it, I shall need to read it. It was, albeit very sophisticated, incredibly complicated. I am not suggesting that it was unclear. I accept that it is a tricky argument and that it has therefore been necessary to explain it in some detail. The placing of the word "only" does not seem to me to make any difference. The noble Baroness suggests that it does. I shall therefore take time to explore and consider the points that she has made. I appreciate that there may be validity in the point that if it appears in a difference place and it tends not to have the same meaning, it may not look right and that one may need to do something about it. That may be a valid point, which I shall consider.
I deal with the points of substance. The Bill is drafted with the tailpiece in Clause 2(1) to prevent Ministers divesting themselves of their responsibilities. Perhaps I may give an example. The Department for Culture, Media and Sport had intended to use a regulatory reform order to remove the requirement on the Secretary of State to run part of Osborne House as a convalescent home for members of the Armed Forces and the Civil Service.
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Under the Osborne Estate Act 1902, as amended by the Osborne Estate Act 1914, the Secretary of State is currently obliged to open to the public that part of Osborne House which, was occupied by Queen Victoria, and to use the remainder of the House and grounds for the benefit of members of the Armed Forces and the Civil Service. The lifting of the second of those obligations will enable the Secretary of State to find new uses for those parts of the house and grounds currently used as a convalescent home, for the benefit of a much wider range of people.
However, the measure cannot be effected under an RRO (a regulatory reform order) because it would remove a burden that applies only to the Secretary of State at the DCMS. He is the only person under an obligation to run Osborne House as a convalescent home for members of the Armed Forces and the Civil Service. As a result, any change in his obligation must be effected by primary legislation because the obligation is created by the earlier Act to which I referred. Indeed, that is now happening. The matter is before this place at present by way of the Culture and Recreation Bill.
There are many burdens on Ministers that affect others; for example, the provisions of the Bill as drafted mean that we could enable disabled drivers to renew their vehicle excise duty licences by telephone. Although this is a great burden on 900,000 disabled motorists, it is the burden on the DVLA that currently prevents them from being able to verify entitlement by using the Benefits Agency computer. That is what prevents them from obtaining licences in that way. Therefore, it is vital that we do not restrict the provision in the way proposed by the amendment. I trust that the noble Baroness will reconsider her amendments, just as I shall seriously consider the point she made about the position of the word "only". In the light of my response, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Buscombe: I thank the Minister for his explanation, and especially for his agreement to reflect upon what I said in relation to the placement of the word "only" in the Bill. I hear what the noble and learned Lord said in relation to the substantive part of my introductory remarks. In turn, I shall reflect upon that aspect of the matter. On that basis, I beg leave to withdraw the amendment this evening.
Amendment, by leave, withdrawn.
Lord Norton of Louth Lord Norton of Louth moved Amendment No. 26:
Page 2, line 36, at end insert ("nor any burden contained within an Act of Parliament affecting the powers, privileges, tenure or responsibilities of the Crown, Her Majesty's Courts or either House of Parliament").
The noble Lord said: According to the Explanatory Notes to the Bill the new order-making power is intended to be wide enough, but no wider than necessary, to deal with regulatory reform measures that the Government wish to achieve. That point is stressed more than once in the Explanatory Notes. As we discussed earlier, the Government wish to achieve

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the removal of unnecessary burdens and, in some cases, regulatory reform in order to achieve an even playing field.
We are told that it is the Government's policy intention to direct the order-making power to the benefit of business, charities, the voluntary sector, individuals, legal persons and the wider public sector. In order to achieve that aim, they propose a wider gateway than that created by the 1994 Act. The Explanatory Notes also say that in order to ensure that the gateway is no wider than necessary to achieve reform of regulatory regimes, the gateway will be limited by two particular requirements.
The first requirement is that the reform must be carried out "with a view to" the "objects" set out in Clause 1(1)(a) to (d). Given the discussion that has already taken place on subsection (c), I am not sure how this constitutes a significant limitation.
The second requirement is that the reform must meet the policy test of "appropriateness". The noble and learned Lord, Lord Falconer of Thoroton, told the Delegated Powers and Deregulation Committee that there is no precise line to be drawn between matters in respect of which it is appropriate to legislate by way of order and other matters in respect of which it would not be appropriate. He said that it would be for Ministers to decide whether or not the use of the power would be appropriate. As my noble friend Lady Buscombe has already said, he used the elephant test: you know it when you see it. I appreciate that both Chambers would be called upon to agree with the Minister that what was before them was, indeed, an elephant. However, I am not sure whether that is a particularly novel safeguard. I would have thought that the test of appropriateness applied to every single measure brought before this Chamber and another place. We have to decide whether a particular measure or procedure is appropriate, and so to subject an issue to that test may be seen as no more than a statement of the obvious. We would be entitled to wonder what sort of government we have if such a test were not applied.
The gateway is therefore not limited other than by Ministers' good intentions and good intentions have to be put alongside the observation of the comment by the Delegated Powers and Deregulation Committee in paragraph 35 of its Fifteenth Report in the last Session. I quote:
"It would be open to a future Government of a presently unknown political complexion to propose changes of potentially great significance by means of an order."
Indeed, as it notes in the concluding paragraph, the Bill could allow much of the legislative programme to be implemented by orders rather than by Bills. That is not the intention of the Government: we have assurances of that. However, those assurances are not sufficient to meet the claim. Some might regard them as necessary, but they are not sufficient to meet the claim that the order-making power is no wider than necessary to obtain the regulatory measures that the
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Government wish to achieve. The order-making power in the Bill is much wider than is necessary to achieve the Government's ostensible purpose.
The question then arises: how can the provisions of the Bill be crafted in such a way as to limit them to those necessary, and no more than that, to achieve what the Government wish to achieve? The Minister argues that it is not possible to limit the provisions further and that we must rely on the appropriateness test. To be fair to the Minister, the Delegated Powers and Deregulation Committee has also said that it has not found a way to limit the provisions of the Bill while at the same time enabling the substantial reform of the statute book which it would facilitate. I acknowledge that.
As I said on Second Reading, it may be an impossible task but we must not let this Bill through simply on the basis that we believe it to be so. I therefore place before your Lordships an attempt to limit the Bill. It is one of two options that I believe we can pursue. The first, embodied in this amendment, is to identify what are in effect class exemptions. The term will be very familiar to the noble and learned Lord the Minister. I have sought to identify Acts covering particular aspects of our constitutional arrangements that should not, indeed must not, be changed by means of secondary legislation.
I appreciate that the amendment is not exhaustive. By that I mean two things. The first is that Acts covering other aspects of our constitutional arrangements, such as devolution, are not, but perhaps should be, included. Secondly, even if we extend the scope of my proposed amendment, it will still not include everything that should be exempt from change by secondary legislation.
This amendment is an initial attempt to limit the scope of the order-making power. I bring it forward to prompt discussion. If there is agreement that there is a move in the right direction, it may be felt that it should be extended to include other class exemptions. Another amendment could be brought forward on Report. As I concede, it will almost certainly be impossible to draw a clear line between what should and should not be excluded. In that respect, the noble and learned Lord is quite right. However, that is not an argument against putting certain areas beyond the reach of the Bill. The Minister will doubtless reiterate that the amendment covers areas that the Government have absolutely no intention of seeking to change through the order-making power of this Bill. In that case, I see no reason why the Minister should not accept the amendment. Furthermore, unpalatable as the truth of the assertion may be to the Minister, I would remind him that no government are in power in perpetuity. The Minister's assurances do not carry forward to a future government.
If the Minister would like an example, since we are very keen this evening on examples, I will offer one. I can think of another one, which should come straight to the minds of Ministers. The Bill as it stands could be used by a future government to achieve the purpose of the Parliament Acts (Amendment) Bill introduced by

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the noble and learned Lord, Lord Donaldson. The burden imposed on this House by the Parliament Act 1949 could be removed by order. Some in your Lordships' House may well find that attractive, but I doubt if the noble and learned Lord does.
Another example has occurred to me, which I suspect will focus the minds of Ministers enormously. It occurred to me that one could use the powers of this Bill. A future Conservative government, if the Ministers were so minded and thought it was in the public interest, could undo the provisions of the House of Lords Act. It imposes a burden on excluded hereditaries. Why not get rid of that burden? As I said, it could be seen as being in the public interest. I do not believe that it is caught by any of the stipulations in the Bill; therefore, it could be done in that way. Some people may believe that that is most unlikely, but it does not have to be likely, merely to demonstrate the truth of the assertion that I am advancing.
If the approach which I have adopted in this amendment—the class exemption approach—is felt to be flawed, the second option would be to exclude from the provisions named Acts listed in a schedule to the Bill. It would be quite possible, for example, to stipulate that any Act passed before 1900 is excluded and then to list all the Acts passed in the 20th century which should also be excluded: the Parliament Acts, the Life Peerages Act, the House of Lords Act, particular Representation of the People Acts, the European Communities Act, and so on. That approach would perhaps provide more flexibility. It may be the approach that we wish to consider if the one adopted in this amendment is not acceptable.
Whichever approach is taken, we must amend the Bill in order to ensure that its provisions justify the claim that the order-making power is no greater than is necessary to achieve the Government's stated intentions. I believe that this amendment at least moves us in the right direction. I beg to move.
Lord Skelmersdale: I put my name to this amendment for a very simple reason. Obviously I agree with the general tenets advanced by my noble friend Lord Norton of Louth. However, the real reason why I put my name to this amendment was the extraordinary comment, as I see it, in paragraph 57 on page 18 of the Explanatory Notes to the Bill, which states:
"The remainder of subsection (1)"—
that is what the noble and learned Lord called the "addendum", or whatever, to Clause 2—
"excludes from the definition of 'burden' any burden that only affects a Minister of the Crown or government department".
We have dealt with that and understand it. However, the note goes on to say,
"This means that, while local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies could be the sole beneficiaries of an order, Ministers and government departments cannot be the sole beneficiaries".
However, the problem is that local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies are in the province of a
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Minister of the Crown. I do not see why there should not be different arrangements for Ministers of the Crown to those which exist for the bodies which come under the individual Ministers of the Crown.
Lord McIntosh of Haringey: I too have just been reading paragraph 57 of the Explanatory Notes. I read the part which the noble Lord, Lord Skelmersdale, did not read out. It says that,
"while local authorities, schools, hospitals, non-departmental public bodies and other public sector bodies could be the sole beneficiaries of an order, Ministers and government departments cannot be the sole beneficiaries; someone else must … benefit".
The difference is that Ministers and government departments are involved in putting through legislation and making decisions; all the rest provide the services. It seems to me entirely appropriate that deregulation powers should apply to public sector bodies which provide services, because that benefits those for whom the services are provided. Therefore, I do not find paragraph 57 at all extraordinary.
In a sense, with this amendment we are going back over our discussions in relation to the issue of Clause 1 stand part. Clearly I did not make an adequate impression on the noble Lord, Lord Norton. I hoped that I had, but I accept that it is entirely legitimate to return to the issue of ministerial intentions and how those intentions are adequate. The noble Lord, Lord Norton, has exposed the problems in relation to this issue now as he did, and as I did, when we debated Clause 1. The difficulty is in how to craft—to use his word—a test which excludes those matters which should not be included.
The defence that I used when debating Clause 1, which I repeat now, because it is fundamental to the Bill, was twofold. First, the Bill is concerned only with burdens and a large number of the constitutional matters that the noble Lord has raised could be described as burdens only by the most extreme stretch of the imagination. Secondly, the procedures and safeguards in the Bill are such as to make it unattractive to seek to choose this route in contrast to primary legislation unless there is a genuine advantage, not particularly to government but to the populace as a whole.
The noble Lord, Lord Norton, has acknowledged that the Delegated Powers and Deregulation Committee said that this appeared to be an impossible task. I repeat my offer and the offer made by my noble and learned friend Lord Falconer that if anyone comes up with an adequate definition we shall listen seriously to it, but nobody has yet. It is quite clear, as the Bill confirms, that we would not and could not use the Bill for constitutional changes.
The amendment includes the Crown, the courts and Parliament, but can anyone imagine how we could make a regulatory reform order to make a change., for example, to the law of primogeniture for the Crown or to the quinquennial Act for the lifetime of a Parliament? Of course not, and that applies to more fundamental issues such as the mode of trial legislation that relates to the courts. That legislation, which came before Parliament in the past two sessions, is not a

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suitable subject for regulatory reform orders and nobody could conceivably claim that it was. That Act would not get through the procedures provided in the Bill because it would be rejected by public consultation, by the committees and, in the end, by Parliament.
On the other hand, I am not at all expert on the Crown, not even the one that sits in the Tower of London, so I do not know what examples the noble Lord, Lord Norton, has of measures that wicked Ministers may put forward affecting the Crown, but not Ministers of the Crown. I know that there are plenty of examples of reforms of court procedures that would be suitable for regulatory reform orders. In respect of Parliament I have not heard of any examples of the kind of parliamentary legislation that the noble Lord has in mind.
I applaud the attempt. I am willing to listen to future attempts, but this amendment does not achieve anything like the purposes that it sets out to achieve.
Lord Norton of Louth: I find that a disappointing answer and I give three reasons for saying so. First, the noble Lord said that the amendment would not have the effect that I claimed because of the definition of "burdens". However, the definition of "burdens" under Clause 2(1) is enormously broad. I also draw attention to the fact that in its opening line the clause uses the word "includes". I believe that the definition is such that most legislation falls within the scope of this measure. That is the first and quite fundamental point.
The second point is that the Minister advanced examples of when it would not be appropriate to use the amendment in relation to those areas that I have mentioned. That is fine, but I am not concerned with that. I am concerned with those examples of when it could be used. To give instances of when it could not be used does not exclude the possibility of its use in relation to other aspects of the areas covered by my amendment.
My third point is, as the noble Lord rightly said, that consultation is in doubt. I have already conceded what I recognise is a serious point about parliamentary scrutiny. Consultation in the process is advisory. Of course, it has to be fed in and the Minister has to report, but that is the extent of it. If the two Houses of Parliament were in favour of the proposal, it could go through.
The Minister's response to my argument is extremely disappointing for the reason that I have just given. He referred to our clause stand part debate on Clause 1. My argument in this context is closely linked with the points that I advanced then. I have the specific problem that I have mentioned, but I also have a wider problem. The Minister said, "Yes, if anyone comes forward with a way to limit the effect, that would be fine". However, his comments make it clear—this follows on from the report by the Select Committee on Delegated Powers andDeregulation—that he does not think that there is any way to ring-fence the matter. That is extremely disappointing. That returns us to my
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point about greater sensitivity on the part of the Government. They should say, "No, we do not think that that proposal meets the point, but we are sensitive to it and we shall further reflect on it". I concede that the Minister said, "Yes, come forward", but that is very much a reactive stance. It does not really engage with the argument about the constitution.
9.45 p.m.
Lord McIntosh of Haringey: In that case, I apologise. It was certainly not my intention to suggest that it is only for the noble Lord, Lord Norton, or the Delegated Powers and Deregulation Committee, or anyone other than the Government, to think about a test. Clearly, that issue concerns the Government—the matter will actively concern us between now and later stages of the Bill's passage.
Lord Norton of Louth: I want to pursue that extremely important point. On the Minister's first suggestion, I was not implying that he said that it is only up to others to take the approach that he described, or that only the Government could think it through. The second part of his answer involved the way in which the Government will reflect on what I regard as a very important issue. I argued that constitutionally this is an extraordinarily important Bill. I hope that the Minister will return to the Dispatch Box and go a little further than he did earlier.
Lord McIntosh of Haringey: I may not do so in a positive manner. The noble Lord suggested two ways of ring-fencing, the first of which involved what he called class exclusions. He will appreciate the difficulties that are associated with that. To be honest, he will appreciate the difficulties that are associated with his first attempt at class exclusions. His second approach involved ostensive exclusions. He gave the example of legislation enacted before 1900 or particular Bills. He will appreciate the difficulty with that; we all share them.
Lord Norton of Louth: The Minister has not quite assuaged me, because he did not really respond to or pick up on my second point, which I offered as an alternative. Strictly speaking, he is correct, because I was moving Amendment No. 26, rather than the alternative that I suggested. He might say, "The alternative has something to offer". There are advantages to both approaches. The Minister's point is that there are disadvantages to both. The advantage with the second approach is that it is slightly more finely honed in some respects, although it would create a substantial schedule. However, that is not in itself a conclusive argument against it, because there was an enormously long schedule to the Freedom of Information Bill, when we debated it. That is one route forward.
The Minister might say, "Yes, we are sensitive to the matter; we shall go away and think about it actively. We shall not simply be open to suggestions". If he did so, I should be prepared to withdraw the amendment.

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However, without such a commitment, I should be inclined to press the amendment. I want a slightly more positive response from him.
Lord McIntosh of Haringey: I do not want to have to respond under such pressure. Frankly, I do not mind if the noble Lord divides the Committee; that would not displease me at all. I thought that I had said that I accepted that a serious issue is involved, and that it is the Government's responsibility to pursue the matter actively between now and later stages of the Bill's passage. If that does not meet the noble Lord's wishes, he must do as he thinks fit.
Lord Norton of Louth: I am grateful for that response. It goes somewhat further than the previous answer.
Lord McIntosh of Haringey: It was not intended to.
Lord Norton of Louth: I shall do the Minister a great favour and pretend that I did not hear his last comment. His previous comment at the Dispatch Box is on the record. My concern is not with forcing a Division for the sake of it but to try to engage the Government in discourse on what I believe to be a crucial point. Prompting the Government to do that will be an achievement.
I do not care whether I do so by persuasion, by Division or whatever, but I find the Minister's previous response encouraging. It takes us forward and I look forward to further discussions between now and Report. I believe that I have pushed the Government further forward in a way which I appreciate. On the basis of the Minister's final point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Limitations on order-making power]:
Lord Goodhart Lord Goodhart moved Amendment No. 27:
Page 3, line 1, leave out from ("if") to third ("the") in line 2.
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 31. I begin with a few words of explanation. When I saw the draft groupings this morning I noticed that Amendments Nos. 27 and 31 were grouped separately, and that seemed to be appropriate. Subsequently, the revised groupings, which had been settled without further consultation with me, grouped those amendments with others which had only a tenuous link. I therefore asked for them to be degrouped, although I am conscious that as the debate has developed a certain amount of the argument was made by the noble Baroness, Lady Buscombe. I apologise for failing to make clear to her my intention.
The purpose of the amendments is to remove the reference to the Minister's opinion in subsections (1) and (2) of Clause 3. The amendments are central to the Bill because they deal with an important feature of it. The amendments will make the test which must be satisfied objective rather than subjective. In reply to the noble Baroness, Lady Buscombe, the Minister said
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that the amendments would lead to judges being given too much power by way of judicial review. It is said that as the clause now stands the courts can intervene if a Minister's opinion is irrational.
However, it is said that if the Minister's opinion is rational, it should be for the Minister to decide whether the order strikes a fair balance between the public interest and the interests of the person being subjected to the burden under Clause 3(2). It is also said that it is always open to either House to refuse to approve the order if it disagrees with the Minister.
I do not find that argument totally persuasive but I believe that there is some force in it. If I were satisfied that your Lordships' House would retain a power to block the orders, my reaction might be different. But one must face the shadow of the Wakeham report whose proposals the Government have shown every sign of wanting to enact. If the Wakeham proposals were adopted as they now stand, this House would have no power to block an order; indeed, it would have no power to delay it for a significant period. Any order blocked in this House could be sent back to the Commons immediately and the views of your Lordships would be overridden. As a result, a government with a working majority in the other place would be subject to no effective control by Parliament. That is why I believe that control by the judges is needed.
But there is a further and somewhat different objection to the reference in Clause 3 to the Minister's opinion. Although it does not formally so provide on the face of the legislation, the procedure requires the order to be referred to Select Committees of both Houses. In this House that would be at present the Delegated Powers and Deregulation Committee which, if deregulation became more active, might be required to split into two separate committees. When that committee looks at a proposal for deregulation it does not consider the Minister's views on whether the draft order removes necessary protection, or whether those views are rational or irrational. The committee looks at the question itself and expresses its view. That is what happened in the previous Session with the draft order concerned with Sunday licensing. I and other members of the committee did not believe that the draft order provided necessary protection for local residents where licensed premises were situated in residential areas. As a result, the order was revised to take our views into account and a suitable arrangement was reached. Therefore, the Minister's views do not stand alone and he must persuade the Select Committee that they are correct.
If the committee believes that the draft order removes any necessary protection, or fails to strike a fair balance, the Minister must either amend the draft or risk defeat on the Motion to approve, whatever his own opinion. Therefore, the references to the Minister's opinion in Clause 3(1) and (2) do not really represent what happens on the ground. In reality the opinion of the Minister is not decisive. The position is, therefore, already more objective than that for which the Bill provides. I believe that it would only be to give effect to the true position if that fact was recognised by

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removing the reference to the Minister's opinion. The Bill as it stands puts forward an analysis of the situation which does not represent reality, and I believe that it should.
I also believe that that has a very important impact on the question of judicial review. If the Select Committee agrees with the Minister that the order satisfies the statutory requirements it is most unlikely that a court will hold that the statutory requirements have not been satisfied, even if it looks at it on an objective basis. Conversely, if there is a division between the two it is likely that the order will not take effect. In practice one would not have a situation in which the Minister forced his own opinion on the House against the advice of the committee. There is no serious likelihood that the courts will intervene here, even if it is stated as an objective matter. Therefore, I believe that to state it as an objective test provides better constitutional protection and reflects the reality of the situation. I beg to move.
10 p.m.
Lord Borrie: The noble Lord, Lord Goodhart, has an uncanny knack of firing at a vital part of a Bill and shooting it dead. It would be most unfortunate if this vital part of the Bill where reference is made to the Minister's opinion in Clause 3(1) were shot dead. For example, I believe that on the matter of determining how to strike a fair balance between the public interest and the interests of the persons affected by the burden being created, it is extremely apt for a Minister to so determine, providing the Minister is adequately accountable to Parliament. At this stage of our debate I need not stress the many parliamentary scrutiny provisions.
It is not suitable that judicial review should go beyond the power to determine that the Minister's view is wholly unreasonable and perverse. If it was possible to ask the court on an objective test, such as that which the noble Lord proposes, to determine what is the fair balance and the various other matters in Clause 3(1), that would not be at all apt.
At one point in the speech of the noble Lord, Lord Goodhart, I was encouraged when he said that he was not totally persuaded by the noble and learned Lord's earlier answers to the noble Baroness, Lady Buscombe. But he went on to refer to particular passages in the Wakeham report on House of Lords reform and the power of the House of Lords to reject such orders as we are discussing in the Bill. The future of the Wakeham report is speculative. The future of one or two of its paragraphs is highly speculative. Here, today, we must deal with issues as they are. It is clear from the provisions in the Bill that the Government's intentions are that there should be adequate parliamentary scrutiny by both Houses of Parliament.
Baroness Buscombe: I rise to speak in support of the noble Lord, Lord Goodhart. The two amendments stand in my name also. It would be otiose for me to repeat the arguments that I made when speaking to the
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amendments grouped with Amendment No. 19. I look forward to hearing what the noble and learned Lord says in response, regardless of what the noble Lord, Lord Borrie, said about the Wakeham report being speculative. Its implications are real. There is every possibility that key aspects of the Wakeham report will be adopted by this House. Therefore, it is important that the noble and learned Lord responds to this particular point.
Lord Phillips of Sudbury: I agree with the point made by my noble friend Lord Goodhart about the Wakeham report. I do not see how the noble Lord, Lord Borrie, can rest content with a situation whereby, if my noble friend's worst fears are found to be true, an enormously powerful function in relation to secondary legislation would be removed from this House. Surely, the right course for us is to protect against what would be an unacceptable concentration of power in the House of Commons. Therefore, unless the noble and learned Lord can give us some assurance on this—that might be difficult because he is not the arbitrator of the future consideration of the report and subsequent legislation—caution is the right course.
The issue of an objective or subjective test is one that is dealt with in Amendment No. 29 standing in my name. I do not propose to speak to that amendment, but I am content to support my noble friend Lord Goodhart on his two amendments.
Lord Falconer of Thoroton: I do not intend to repeat the arguments we have just had but will deal instead with the new points raised by the noble Lord, Lord Goodhart. We have already had a debate on this matter in which the burden of my argument was that this is a parliamentary procedure and that it would be wrong to involve the courts in making judgments on a basis which is not simply, "Is it irrational?" or what the right or wrong answer is in relation to necessary protection.
The noble Lord, Lord Goodhart, advanced two separate arguments in addition to those already advanced. First, he said that it was appropriate for the courts to have a greater role because we do not know what will happen in relation to the Wakeham report. With the greatest respect to the noble Lord, Lord Goodhart, I submit that that is a totally wrong approach to take in principle. We must decide on the basis of the current position what are the appropriate ways to deal with regulatory reform orders. If both Houses of Parliament take the view that it is preferable for this to be a process where Ministers form an opinion about the relevant matters and then submit that opinion, in effect, for consideration by the detailed parliamentary processes that are described, Parliament will decide whether to go ahead with the order. It will be broadly unattractive for the courts to become involved as a separate player in determining, for example, whether there are necessary protections. That is the view that we take at present.
If reform of the House of Lords came forward, which might well happen if, after an election, there was to be a second term for the Labour Government, then

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surely the right course at that stage would be for Parliament to consider what was the appropriate course to take in relation to regulatory reform orders. The idea that we legislate against what might happen in the future, in a form we know not, at a time we know not, does not, with respect to the noble Lord, Lord Goodhart, seem an appropriate way to deal with the matter.
For the reasons I have given I should say that it is not a good approach to bring in the courts when otherwise they would not be appropriate simply because of some possibility of the kind identified by the noble Lord, Lord Goodhart. That is how I deal with his first argument.
I turn to his second argument. He was tantalising in his speech because he gave me the impression, wrongly as it transpired, that but for the Wakeham point he was with us. Having suggested that that was the position, he went back to a prepared script. I am not saying that he read it, but he went back to the old mind-set before he had heard the argument. He added one point to the argument. He said that if the committee rejected the view of the Minister it would not go ahead. If, on the other hand, the committee accepted the view of the Minister then there was no prospect—assuming it to be an objective test— of the courts striking down the Minister's opinion. One has no idea whether he is right or wrong. What every Member in the Committee knows is that the courts would approach the issue in a totally different way from the way in which the deregulation committees would approach it. They would hear evidence; there would be litigants fighting out the issue. I can conceive of situations where the courts, looking at the matter through their eyes, having regard to the evidence presented to them and to the adversarial process, could easily come to a different conclusion from that reached by the Minister in his opinion and the committee, which I accept is not bound by the opinion of the Minister, which can look at the matter completely afresh.
With respect to the noble Lord, I do not think his answer that if both committee and Minister reach the same conclusion the courts may never intervene is right. The Wakeham reason is a bad reason. His second reason is based on an over-optimistic view of how the courts would operate.
I return to where we started in this debate. This is a parliamentary process and it should be for Parliament to decide whether it likes and is prepared to approve the orders and it is for Parliament to decide whether the Bill should become law.
I want to make one final point. It was not raised by the noble Lord but it is germane to this matter. The "in the opinion" approach is the one adopted by the 1994 Act. In that Act, on the question of necessary protection, which is one of the important points raised by Members of the Committee, it was decided by the Government that the appropriate course was to start the process by the opinion of the Minister on those
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issues. That reflects the reality. It has worked well in practice. One would need a good deal of persuading that a different approach was appropriate.
Baroness Buscombe: Perhaps I may interrupt the Minister to suggest that it was working in practice because the parameters of the 1994 Act were much more narrowly defined. That is the fundamental difference between the 1994 Act and what we are discussing today.
Lord Goodhart: I found the Minister's response disappointing. I cannot agree with him. I do not think that we can stick our heads in the sand and ignore Wakeham. It is not as if this is purely hypothetical. This concerns the report of a Royal Commission which was placed before Parliament and on which the Government have indicated they look with some favour. Whether the particular provision with which I am concerned will meet with the favour of the Government is uncertain. It is there and I do not think that we can ignore it, whatever is the appropriate weight to put on it.
On the question of necessary protection, the noble and learned Lord suggested that the Select Committee and a court would look at it in very different ways. He said that a court would hear evidence. But so may the Select Committee. The Select Committee has the power and does indeed hear evidence. We heard evidence on the Sunday licensing order. It is highly likely that, in the case of an order which aroused a great deal of public interest or possibly some controversy, the Select Committee would take evidence and would approach these questions In very much the same way as a judge would approach them. Therefore, I do not think that the arguments stand up.
However, I do not wish to divide the Committee on this occasion. We may wish to come back to the issue again, particularly in view of the support given by the Conservative Front Bench. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
The Deputy Chairman of Committees (Lord Boston of Faversham): In calling Amendment No. 29, I have to point out to the Committee that, if it is agreed to, I cannot call Amendments Nos. 30 to 35 inclusive.
[Amendment No. 29 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 30:
Page 3, line 7, after ("if") insert ("it is necessary in order to achieve the objects set out in subsection (1) of section 1 and").
The noble Lord said: It may well be that the Minister will accept that he has already conceded the point that lies behind the amendment. He will recall our discussion earlier in the day—it seems a long time ago now—about whether proportionality is a precondition to the test set out in Clause 3(2). The noble and learned Lord will remember that I asked him whether the test in relation to striking a fair balance between the public

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interest and the interest of the person affected by the burden being created was in addition to the test of proportionality. If I remember rightly, he agreed.
Proportionality is a component part of paragraphs (b) and (c) of Clause 1(1), but not of paragraphs (a) and (d). Given that the Minister is already on record on the question of the relationship between proportionality and Clause 3(2), I seek only his agreement to go on record in relation to paragraphs (a) and (d) of Clause 1(1) to the same effect. If he is prepared to do that, I shall be happy to withdraw the amendment.
10.15 p.m.
Lord McIntosh of Haringey: I have to suspect a trap, and I think it will be better if I respond to the amendment as it is on the Marshalled List and see whether the noble Lord, Lord Kingsland, feels that my response squares with anything that he thinks my noble and learned friend has said.
The amendment would add the "necessary" test, which we have debated in relation to Clause 1, to Clause 3(2) which currently ensures that any order creating a new burden should, in the Minister's opinion, maintain a fair balance between the public interest and the interests of the persons affected by the burden being created.
What the amendment proposes is to make the imposition of any burden possible only if it is necessary in order to remove other burdens. This would be a major restriction on reform. In other words, it goes against the formulation in Clause 1(1)(a) to (d), which we have already debated at considerable length. What we are seeking with the Bill is the power to reform entire regulatory regimes. We have given the example of fire regulations, and there are obviously many more. It is simply not possible to do this under the narrow restriction that the amendment would impose.
The imposition of a burden, however well justified and reasonable, can rarely be linked in a simplistic way to the removal of a burden somewhere else. Overlapping and over-complex pieces of legislation do not allow such a link to be made. The amendment would impose an unnecessary straitjacket.
The safeguards already on the face of the Bill are more than stringent enough to prevent any misuse. As we have heard, every new burden must be proportionate, and every order creating a burden must maintain a fair balance between the public interest and the interests of those affected by the burden. This is in addition to the two tests taken from the 1994 Act: the maintenance of the necessary protection and the preservation of rights and freedoms. Those are tough tests, and they have stood the test of time.
The amendment would unnecessarily limit the Bill, and it would bring no real benefits. I hope that the noble Lord will not press it.
Lord Kingsland: I am much obliged to the noble Lord the Minister for his comprehensive response to the amendment, but I do not think that the
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amendment has the effect that he thinks it has. I do not believe that it has the effect of adding back an additional obligation in Clause 1. It simply seeks to confirm that the tests set out in Clause 1 must be met before the tests set out in Clause 3(2) are met.
Lord McIntosh of Haringey: I cannot agree. The amendment would add a "necessary" test to the face of the Bill. Orders could be made only if they could be shown to be necessary to meet all the objectives of Clause 1. Of course that is significant. The amendment would imply that a burden would have to be necessary in order to remove another burden or replace an anomaly. We have made it clear all along that the four elements in paragraphs (a) to (d) of Clause 1(1) stand on their own and cannot necessarily be linked.
If we were to accept the amendment we would be rewriting Clause 1.
Lord Kingsland: I am much obliged to the noble Lord the Minister for his further clarification. If I were to draft an amendment for Report reflecting what I believe my amendment was intended to achieve, and not what the noble Lord believes it was intended to do, would he give it serious consideration?
Lord McIntosh of Haringey: I give all the noble Lord's amendments serious consideration.
Lord Kingsland: Despite the fact that my experience of the noble Lord's treatment of my amendments has not been entirely the same as his, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 34 not moved.]
Lord Norton of Louth Lord Norton of Louth moved Amendment No. 35:
Page 3, line 8, leave out from ("whole,") to end of line 10 and insert ("are in the public interest and that the public interest substantially outweighs the interests of the persons affected by the burden being created").
The noble Lord said: The clause as presently drafted provides that an order under Clause 1 may create a burden affecting a person in the carrying on of an activity only if the Minister is of the opinion that the provisions of the order, taken as a whole, strike a fair balance between the public interest and the interests of the person affected by the burden being created.
I say straightaway that I appreciate this is not a free-standing provision. The interests of those affected by an order achieve some protection, as we have heard already, under subsection (1) of the clause. So an order may not remove any necessary protection; nor, as the Minister said, prevent any person from continuing to exercise any right or freedom which he might reasonably expect to continue to exercise. Those are important limitations on the order-making power. We have just discussed whether they should be subject to the opinion of the Minister, but I accept that they are important and necessary limitations.
However, the reason I bring the amendment forward is that I think that there may be a case for extending the protection of those likely to be affected

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by the order-making power. Instead of making it a simple balancing test, I believe that the public interest needs to outweigh substantially the interests of those affected by an order. I believe that that is necessary given the nature and scope of the Bill.
As we have already discussed—and as the Minister will doubtless remind us at some length—with this measure we are saying that secondary legislation may be employed to add or remove burdens. We are saying that through this order-making power criminal offences may be created, in some cases carrying a maximum penalty of two years' imprisonment. The use of secondary legislation in this way may be acceptable if the measure is fairly tightly drawn or has a fairly specific purpose, as with the Deregulation and Contracting Out Act 1994. However, in terms of scope, the Bill is not tightly drawn. As I have already argued, the definition of a burden means that most statutes fall within its scope. Given that, the potential for persons to be affected by orders made under this Bill is vast—and I stress the word "potential". For some the effect will be beneficial; that is the point of the Bill. However, for others it may be detrimental.
Clearly I can see the force of the argument that the public interest should be put against the detrimental impact. I understand completely the reasons for the subsection. However, my argument is that, given the nature of the Bill, the interests of those affected by an order perhaps need greater protection than would be the case with primary legislation, or even with secondary legislation deriving from a clearly specified object of the parent Act.
With primary legislation, or even orders under a clearly focused Act, we are likely to have some idea of the consequences, detrimental as well as positive, that the measure may have for particular individuals. With this Bill at this time, we have no idea as to the impact—certainly not the negative impact—which it may have on certain individuals. The balance between the public interest and the interests of those affected by an order may be an extremely fine one. Those affected may have had no idea that they might be affected adversely by an order made under this measure. Given that, there is a case that the thresholds designed to protect individuals need to be higher in this Bill than is the case with other measures. Injecting the higher hurdle created by my amendment builds in a degree of protection.
If a proposed order does not satisfy this test but a Minister believes that, on balance, the public interest does outweigh the interests of those affected, it is open to the Government to introduce primary legislation. As I argued earlier, that will give the issue a much higher visibility. I appreciate that the scrutiny of orders under the Bill will be intensive, but requiring the introduction of primary legislation imposes a greater burden on government and is likely to attract far more attention than is the case with orders dealt with under the provisions of the Bill.
Given the scope of the Bill, I believe that there is a case for giving the benefit of the doubt to provisions
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designed to protect the individual, perhaps more so than the present provisions of the Bill. As I say, I recognise that some safeguards are built into subsection (1), but my amendment goes a little further by introducing another important safeguard. I beg to move.
Lord McIntosh of Haringey: This is an interesting proposal and I am grateful to the noble Lord, Lord Norton, for attempting it. I see what he is trying to do and I am not unsympathetic. However, I should like to place his proposal in the context of Clause 3 as a whole.
Clause 3 is a series of limitations on the scope of Clause 1. Subsection (1) is about necessary protection, which we have debated—or, in the case of some of the amendments on the Marshalled List, not debated. Subsection (2) relates to the fair balance between the public interest and the interests of persons affected by the burden. That is the provision that the noble Lord, Lord Norton, seeks to strengthen. Subsection (3) goes on to limit the penalties if criminal offences are created. Subsection (4) again limits the punishment for offences that are triable either way. Subsection (5) prohibits provisions for forcible entry or compelling the giving of evidence. I think it will be generally agreed that all of these are restrictions, and in some cases severe restrictions, on what can be done in regulatory reform orders.
In this amendment, the noble Lord seeks to strengthen the "fair balance" test. The issue of providing adequate safeguards against potential future misuse of the order-making power is important. In effect, it is almost the only issue that we have debated all day. The Bill contains a wide power that is matched by tough safeguards governing the use of the power. I believe that the noble Lord, Lore Norton, recognises that. Those safeguards are robust and were created with that protection in mind.
The amendment proposes that the test of "fair balance" should be removed and that it should be replaced with a new test of "public interest". Let me first assure the Committee that the existing test of fair balance takes account of the public interest. The current position is that a new order may create new burdens only if, in the Minister's opinion, they strike a fair balance between the public interest and those affected by the imposition of the burden. The Minister must apply his mind to the public interest and may not create a new burden unless he believes that a fair balance is struck between the effects of the burden and the public interest.
I suppose that, strictly speaking, "fair balance" is neutral; it could mean that the burdens are greater than the benefits but the Minister may consider that to be a fair balance. I do not think that he would get away with that. I do not think that a common-sense interpretation would suggest that he would gel: away with it in consultation, in the committees and before Parliament. It clearly means that the fair balance must be to the benefit of the public interest.

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The amendment seeks to strengthen that provision by adding the words "substantially outweighs". I do not think that that adds anything. What it does is to make the test a different one, so that the public interest,
"substantially outweighs the interests of the persons affected by the burden being created".
That means that we should have a quantitative test where the existing test is qualitative. It would allow a benefit for the many to override almost any detriment to the few, provided that there were few enough. I do not think that would be fair. It may be fair to impose a minor obligation on the many, even if the benefit is limited. Bearing in mind the number of parameters that must be taken into account, the existing test is a better one. It will ensure that the balance between the public interest and those affected by the new burdens is fair.
I am grateful for the opportunity to say that, and I am grateful to the noble Lord for bringing this amendment forward. However, I hope that he will not press it.
Lord Norton of Louth: I am grateful for the Minister's response. It has clarified matters, certainly in my own mind, in terms of the clause. As he rightly said, and as I conceded, there are other safeguards written in. In terms of drafting, I had certain doubts about the phraseology that I was employing. Therefore, I do not want to press the matter. In an earlier amendment, I was trying to push the Government; with this one, I was trying to give them a gentle nudge to call attention to the point. I am extremely grateful to the Minister for his response, which I believe meets the points that I have made. In the light of what he has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 36:
Page 3, line 15, at end insert (", or
(c) in the case of a new criminal offence which replaces an existing offence, with any sentence greater than the maximum which could have been imposed for the existing offence").
The noble Lord said: This is a short point. The Delegated Powers Committee has always taken the view that it is inappropriate to use delegated powers to increase the maximum sentence provided in any statute. Under this Bill, it is not possible completely to avoid the creation of new offences. But it seems to me that where the offence that is created merely replaces an existing offence, and where that offence is punishable by a maximum penalty less severe than that referred to in Clause 3(3)—for instance, if the existing offence is not punishable by imprisonment at all—it would be inappropriate to use this power to enable the maximum sentence to be increased up to the limit provided in Clause 3(3). It would therefore be
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desirable to exclude the possibility of using these powers to increase the sentences for existing offences, where these are re-enacted. I beg to move.
Lord Falconer of Thoroton: This is a short but important point about criminal offences and powers under regulatory reform orders. The noble Lord's proposal would create a new safeguard in relation to any criminal offence created by an order in the place of an existing criminal offence, or offences, which that order repealed.
Although there is a superficial attraction in the noble Lord's points, his proposal does not sit easily with the type of reform proposals that this Bill will, and I believe should, be capable of delivering. The Bill is capable of achieving large-scale reforms. I return to the fire safety example. A regulatory reform order could sweep aside much of the existing legislation and create a single fire safety regime that could be understood by everyone. It would move to a common sense, risk-based approach and, in the course of doing so, would almost inevitably repeal quite a large number of criminal offences. But, in order to function effectively, the new, streamlined, risk-based regime would doubtless create new offences. It would be very difficult to compare old and new criminal offences that may deal with different sorts of mischief. A new approach would also bring with it a different sort of approach to the criminal law in relation to offences.
Similarly, we can envisage a situation in which we might want to replace a number of technical offences with civil sanctions, thus entirely sweeping away some aspects of criminality, while a part of that reform imposed a higher criminal penalty for deliberate wrongdoing. They are perfectly sensible situations, for which we believe that the existing safeguards in the Bill provide adequate protection. Those safeguards include the provision that no new criminal offence can, on indictment, be punishable with more than a two-year prison term and, on summary conviction, with no more than a level five fine or a six-month term of imprisonment. Obviously, that is an additional safeguard to all the others we have already discussed and, indeed, to all the other processes we have debated on many occasions in this place.
Although I believe it to be an important issue and one that should rightly be aired, when one considers what the Bill is trying to achieve and the protections that already exist I do not think that this would be an appropriate safeguard. Therefore, I invite the noble Lord to withdraw his amendment.
Lord Goodhart: I am grateful to the noble and learned Lord for his response. I, too, believe this to be an issue of some importance. I am glad that the noble and learned Lord acknowledged that fact. However, I can see some difficulties arising in this respect. It is probably an issue that we shall have to leave to be covered by the appropriate scrutiny of the Select Committees, and, perhaps, other bodies. In those circumstances, it is not my intention to press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 37:
Page 3, line 30, at end insert—
("(6) An order under section 1 must be followed two years later with a report to Parliament giving the actual cost of implementation compared to the original estimated cost, and if the actual cost is more than 25 per cent. higher than originally estimated, the Minister is to take the necessary steps to annul the order.").
The noble Baroness said: This is very much a probing amendment, which we have tabled in order to flag up what we believe is a real need to introduce a duty to review the workings of the orders. A regulatory assessment, to which I shall speak in regard to particular data in the Bill, and detailed proposals (such as those that will be required to be set down in relation to Clause 6) are fine as far as they go. However, can the Government foretell the future? One wonders.
Regulatory impact assessments are estimates—more accurately, "guesstimates"—and are usually compiled by civil servants, who are doing the best they can. Indeed, no more than that can be expected of them. But the proof of the pudding is in the eating. Hence this probing amendment in which we have allowed for a two-year period in which to assess how the order has fared. After two years, we believe that the pudding will be well and truly eaten. In which case, instead of having mere "guesstimates", as set down in the regulatory impact assessment, we shall know the true position. For example, we shall know if a mistake has been made in the order. In such a case, we believe that the Government should be mature enough to own up and accept that the original cost estimates were wrong: the grounds upon which the original decision to make an order was based were wrong because they were based upon an incorrect assessment.
However, the question is whether it is possible to draw the line at, say, a 25 per cent increase, as we propose in the amendment. We say, in the amendment, that if,
"the actual cost is more than 25 per cent higher than originally estimated, the Minister is to take the necessary steps to annul the order".
Alternatively, perhaps the Minister can offer other suggestions as to how we approach the matter and how we devise an appropriate line to be drawn whereby we say, "Well, we have introduced an order; but, after two years, it is clear that the original cost estimates were wrong. Therefore, there must be some form of review".
We suggest that there should be an opportunity for the Minister to take the necessary steps to annul the order, as set out in our amendment. This means that if the original order turns out not to be entirely wrong—indeed, it may have been good in parts—it need not be annulled without another order replacing it; in other words, the decision to make the order in the first place may have been correct, but the order could, and should, be improved upon based on new and correct information, as well as being subject to a two-year review of its workings. In such a case a new and improved order could be introduced once the Minister had taken steps to annul the old order. I beg to move.
Lord McIntosh of Haringey: The amendment raises two issues that the Government take most seriously. I
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am grateful for the opportunity to say something about them. First, how do we know whether or not it has worked; and, secondly, what do we do if we have got it wrong? I do not in any way regret the fact that the amendment has been put forward in this way. I realise that it is a probing amendment and I shall, no doubt, have some criticisms to make about the detail, but the issues remain important.
The amendment would require a report to be made to Parliament two years after an order came into force which would detail the actual costs of the regulatory reforms. Then it would "sunset" the order if the costs proved to be 25 per cent more than originally estimated.
Let me first talk about the issue of a report. I have to do it in the context of saying that this is a Bill about regulatory reform. It is not a backdoor route to making new legislation: it simply amends existing legislation. So in the case of fire safety, which we have gone on using because it is the easiest but there are plenty more, there are 120 statutes and as many statutory instruments. We want to make it easier for all and to move to a risk-based system.
This is a different thing from what might otherwise be done by a consolidation Bill, which does remove the different origins of legislation but does not change the effect of them. The sort of re-balancing that we would achieve in a regulatory reform order would undoubtedly mean that some people would pay less and others more, while there would be no change for some. It is not an easy exercise to estimate the cost in these cases; but, more fundamentally, on that point the amendment says nothing about the benefits that a regulatory reform order had brought. Surely the costs should be assessed in relation to the benefits delivered. For example, if we had an order in which the cost turned out to be 30 per cent higher but the benefits were 100 per cent greater than estimated, the amendment, taken literally, would mean that the order would have to be annulled. I am sure that is not the intention.
I certainly agree that we should not neglect to check these things. All departments should keep their legislation under review. That is why we have set up a panel for regulatory accountability and why we have regulatory reform Ministers in each of the main regulatory departments. And of course behind that we have my noble friend Lord Haskins, with his better regulation task force, keeping an eye on them and keeping them on their toes. I think anyone who has read his reports knows that he is no respecter of persons and certainly no respecter of Ministers or of governments.
In addition, the guidance on regulatory impact assessment says that the RIA must detail the arrangements for review. Of course this is only appropriate in certain cases. To take an example at random, how would you look at the cost of implementing the removal of the restriction that requires the publication of corn returns data in the London Gazette? Or what about an order relaxing the licensing requirements for New Year's Eve 2001? There is no sense annulling that in 2003.

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One can see that I have difficulties about the wording of the amendment, because it will be a rare case when the order has no merit at all. Uncertainty is bad for business. It would create greater uncertainty if businesses waited with bated breath at the two-year stage to see whether the costs enabled them all to continue, and the effects of sunsetting a regulatory reform order would be to leave the statute book full of holes. Measures that had been repealed or annulled by the regulatory reform order would not be automatically reinstated and that would cause complete confusion.
I realise that the noble Baroness said that "necessary steps" could allow an order to be amended rather than annulled, and I agree entirely with that. Surely it would be better to amend an order that was not working in the way that had been intended and it is perfectly possible for a department to amend its regulatory reform order with another one under the Bill as drafted.
I do not think that we could accept the kind of uncertainty and sometimes perverse results which would arise from an amendment anything like the one we have before us. I do not accept that there is anything magical about two years or 25 per cent, or anything like it, but I do accept that it is incumbent on government to review the effectiveness of regulatory reform orders, and we have measures in place to do that. I accept that we have to bear in mind the possibility that if something is going wrong, we have to put it right. However, we have the power to do that by amendment. I hope that I can take the noble Baroness, Lady Buscombe, at her word when she says that this is a probing amendment.
10.45 p.m.
Baroness Buscombe: Indeed, it is a probing amendment. However, I did not agree with the
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Minister when he said that it was remiss of me not to include the word "benefit" in relation to the amendment. The costs are relative to the benefits.
There could be tremendous benefits, but benefits which no one could afford. I believe that that point should be made. In addition, as I said at the beginning, the purpose of the amendment was to flag up the need to question whether the opportunities to review the workings of the order are sufficient. Obviously I shall read with care what the Minister said on that point.
I turn to the Minister's comment that it is rare for an order to have no benefit at all. Many in the business community would say that we continue to witness regulations coming on to the statute book which have no benefit. Therefore, it may be wishful thinking to believe that none of the orders that will be passed in the future will have no benefit—or is it burden?—at all. Perhaps I am wrong in what I have said.
Lord McIntosh of Haringey: The noble Baroness, Lady Buscombe, is of course quite right that there is a difference between, for example, tax legislation—the Finance Bill—which undoubtedly imposes financial burdens on some people, and regulatory reform orders whose whole raison d'être is otherwise.
Baroness Buscombe: I believe that the Minister can see where I am coming from. This amendment was tabled purely for the purpose of probing and the need to question how we intend to review the workings of the order. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Lord Burlison: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twelve minutes before eleven o'clock.