Regulatory Reform Bill [H.L.]

HL Deb 23 January 2001 vol 621 cc161-210

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 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 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 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.

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 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 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 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 (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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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". 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 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.

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.

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.

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 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 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.

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 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 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

1. (a) that the Minister seeking to make such provision shall have laid a draft order in both Houses of Parliament;
2. (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;
3. (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 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 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.

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).

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 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.

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.

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 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 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 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.

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.

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 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, 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.

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 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.