Sitting of 6 June 1994

Preamble
Reassembling after the Spring Bank Holiday Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St. Edmundsbury and Ipswich.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I have accepted an invitation to receive an honorary degree at the University of Glasgow on Wednesday 15th June. Accordingly I trust that the House will agree to grant me leave of absence for Wednesday, 15th June.

House of Lords: Forms of Address
2.37 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked the Leader of the House:
Whether the use of the term "My Lords" to address a chamber of men and women Peers of equal status is a breach of the: Sex Discrimination Act 1975.
The Lord Privy Seal (Lord Wakeham): My Lords, no. The Sex Discrimination Act does not apply to terms of address, nor to proceedings in Parliament. It covers discrimination on grounds of sex in employment, education, the provision of goods, facilities and services and the management and disposal of premises.
Baroness Castle of Blackburn: Will the Leader of the House agree that at the very least it violates the spirit of the 1975 Act, which in Section 38 opposes and outlaws sexual connotations in advertisements for jobs as encouraging discrimination? Does he not agree that it is time that we followed the lead of the Master of the Rolls, who recently declared that the practice of addressing a woman judge in the Appeal Court as "my Lord" was, in his words, plainly absurd and should be discouraged? Cannot we have the same approach?
Lord Wakeham: My Lords, the whole House of course will respect the achievements of the noble Baroness in reducing sex discrimination. Those of us with long memories will remember her success in another place 25 years ago in introducing legislation dealing with equality in pay between the sexes. That was a real issue and the noble Baroness deserves full credit for her part in those advances. However, I wonder whether this is an issue of similar magnitude.
These are questions for your Lordships' House. However, my briefing tells me that, although the word "lord" can have a gender specific meaning, it can also have a non-gender specific meaning. Thus the term "my Lords" should be regarded as applying to all Members of your Lordships' House regardless of sex.
Lord Campbell of Alloway: My Lords, is my noble friend aware that as a matter of strict construction the male embraces the female, even on the Floor of your Lordships' House?
Lord Wakeham: My Lords, I am extremely grateful to my noble friend for having pointed that out so clearly. Of course there are nothing like as many noble Baronesses in this House as there are noble Lords. However, looking at their contributions to our proceedings, the noble Baronesses certainly make their mark in virtually every area of this House's activities. As one who spent the bulk of his political career with a woman as his boss, at one time one wondered whether a man would ever achieve the top job again.
Lady Saltoun of Abernethy: My Lords, does the noble Lord by any chance know upon what occasion my father—he was a stickler for correct procedure—having been taken to task for referring to a noble Baroness as "the noble Lord", said that he was perfectly correct because this was a House of Lords and not a House of Lords and Ladies or a House of Lords and Baronesses?
Lord Wakeham: My Lords, I knew the quotation but I am afraid I do not know the date of it. However, my noble friend is right to draw it to the attention of the House.
Lord Jenkins of Putney: My Lords, all being well perhaps we shall soon be addressing each other as "senators", a title which I take to embrace both sexes. However, I suggest quite seriously that your Lordships consider introducing the term "my Peers" as a temporary measure.
Lord Wakeham: My Lords, whether this House will be converted to a senate or some body of that kind is an issue which would have to be debated extensively; the question of whether we change the title with which we address ourselves does not seem to me to rank in the same order. As a matter of fact, technically speaking I am advised that Bishops are not Peers, although they are in the House. Even the noble Lord's suggestion runs into some technical difficulties. I believe that he would be wise to join with me in leaving matters as they are.
Lord Ashley of Stoke: My Lords, the. noble Lord is a highly respected Leader of the House. However, is he aware that with his pedantic circumlocution he sounds like a second-rate lawyer?
Noble Lords: Oh!:
Lord Ashley of Stoke: My Lords, he sounds like a second-rate lawyer; I do not say that he is.
We are not arguing about the use of language as such but about the spirit of the language. That is what my noble friend seeks to change. I should have thought that the noble Lord, being such a splendid Leader of the House, would accommodate her in some way and, instead of dodging and weaving and evading the issue, find a way of dealing with a legitimate question.
Lord Wakeham: My Lords, the noble Lord and I have been friends for many years. He has, never said anything remotely disagreeable to me up to this

945
moment. I am glad that he referred to me as a second-rate lawyer and not as a first-rate lawyer. That is something that I could not have tolerated.
In relation to this Question there are some major issues. I have done my best to say to the noble Baroness —for whom I have a great affection because for many years she and I used to pair together in another place —that the term "Lord" in your Lordships' House covers noble Lords of all genders.
Lord Hailsham of Saint Marylebone: My Lords, does my noble friend remember from his gender rhymes that there are certain words which, like opifex and artifex, are common to either sex? Is not the salutation by which we know one another one of those words?
Lord Wakeham: My Lords, my noble and learned friend is right to come in at this moment. I happen to have a briefing which includes an extract from Hansard of 17th March 1994, when this matter last arose. On that occasion my noble friend also said some wise but different words. I am glad that he is still of that consistent view.
Lord Kennet: My Lords, as the word "Lord" has a non-gender-specific use, as the noble Lord the Leader of the House has just stated, why is it that we refer to colleagues who are women as "the noble Lady" and not as "the noble Lord"? Would it not be less cumbrous if we addressed them as "the noble Lord"?
Lord Wakeham: My Lords, if the noble Lord makes a proposal I shall see to it that the Procedure Committee looks at the matter. However, I am not sure that he is making such a proposal. I am perfectly content with the present arrangement. If others want to change it there is an appropriate way of doing so. It is entirely a matter for your Lordships as to how the matter should be dealt with.
Baroness Miller of Hendon: My Lords, can the Minister inform the House whether Her Majesty has ever been asked to exercise her prerogative regarding the status of the husbands of Baronesses and Dames, because when a man holds a title the wife shares the title of the husband? I declare no interest. My husband is not interested in that aspect. He says that having the parking space is more than enough for him.
Lord Wakeham: My Lords, in her final remark my noble friend shows a practical touch which I suggest is of much greater value than some of the theorising about these matters.
Lord McIntosh of Haringey: My Lords, is the noble Lord the Leader of the House aware that some of us who have difficulty with legislation in which the Secretary of State is always referred to as "he" tried to follow the example of several states in the United States which call their equivalent to the Secretary of State "it"? Is there not a lesson for us in that?
Lord Wakeham: My Lords, so long as spokesmen for the Opposition are content to be called "it" as well I am sure that the House would not object.
946
We should allow the noble Baroness to have a final word, but then perhaps we should move on.
Baroness Castle of Blackburn: Is the Leader of the House aware that he is becoming more sexist by the minute? How would he and his male colleagues like a situation in which in every speech and every debate they were addressed as "my Ladies"? Can he not therefore say why he considers that the word "Lord" embraces women but "women" cannot embrace Lords?
Lord Wakeham: My Lords, I did not say that it did. For what it was worth, I responded with the briefing that I had. I was not sure whether it was sound or whether it was not. I do not believe that this is an important issue. The achievements of the noble Baroness over a lifetime of distinguished public service in improving the status of women are something which we shall all remember and admire. But this is not an issue of anything remotely like the same order of merit.

Value Added Tax
2.48 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
What is the precise date in 1996 from which the United Kingdom will be obliged to impose VAT on books, newspapers, children's clothing, public transport and house purchase, in accordance with the EC 6th Directive 1977 and Articles 7a and 99 of the Treaty of Maastricht.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, there is no requirement under the provisions of the 6th EC VAT Directive or any other agreement for the UK to surrender its current zero rates of VAT at any future date.
Lord Monson: My Lords, I thank the noble Lord for his rather surprising reply, given that the 1977 directive, as enlarged upon by the Treaty of Maastricht, appears to impose a clear obligation on member states to harmonise their VAT almost totally by the end of 1996. Does he agree that that obligation has been effectively endorsed by all three main political parties in this country by virtue of their acceptance of the terms of the Maastricht Treaty and that therefore the opposition parties' indignation at the extension of VAT to domestic fuel needs to be taken with a pinch of salt?
Having said that, does the Minister agree that the present Government are at fault in having agreed in June 1991 to impose a minimum VAT rate of 15 per cent., given that a lower rate could be imposed raising the same revenue if extended to a wider range of goods and services, which would also help the consumer considerably?
Lord Mackay of Ardbrecknish: My Lords, the position is perfectly clear. Article 99 of the Treaty of Rome, as amended at Maastricht, states:
"The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament … adopt provisions for the harmonization of legislation".

947
I can assure the noble Lord that we have no intention of moving from the position that it must be done unanimously. In other words, our veto remains—unlike any positions taken by any of the parties opposite.
Baroness David: My Lords, is the Minister saying now that no VAT will be imposed on books and the other items mentioned in the noble Lord's Question before the end of this Parliament?
Lord Mackay of Ardbrecknish: My Lords, the answer that I gave was quite clearly one about the EC directive. The position is exactly as my right honourable friend the Prime Minister said yesterday on "The Frost Programme". He said:
"I see no likelihood that we are going to extend VAT or have to extend VAT".
I point out to the noble Baroness that if, however, we go down the road of removing our vetos, then indeed our European partners—all of whom, with the exception of Ireland and ourselves, have VAT on books, for example —may well ask us to follow their lead.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us regard VAT as a very bad and harmful tax, and are very relieved to hear the clear indication that he has given that Her Majesty's Government are under no obligation to extend its scope?
Lord Mackay of Ardbrecknish: Yes, my Lords. I simply reaffirm what I said earlier to my noble friend. As he rightly points out, the Government are very clear about the position that we have taken; namely, that it will require unanimous agreement and we do not intend to give away that right of veto.
Lord Rippon of Hexham: My Lords, is my noble friend aware that in a recent debate in the European Parliament there was a vote in favour of a constitution proposing not only the abolition of the veto but also the restoration of simple majorities in all cases, including taxation? Will he further confirm that all the Conservative MEPs, except one who abstained, voted against that, and that the vast majority of socialist MEPs, and also the Liberals, voted for it? Will he try to persuade the Liberal and Labour spokesmen to make it clear that they will never support their MEPs in this view?
Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure that one could rely on commitments from the party opposite about that matter. It seems to me that in this election campaign for the European Parliament the whole question of our veto is very obscure so far as the parties opposite are concerned. I simply say that, in sharp contrast to their desire to have everything decided by majority vote, we are perfectly clear that in certain cases the right of veto for member states—not just the United Kingdom, but any member state—is important and should remain.
Lord Stoddart of Swindon: My Lords, does the Minister agree that on "The Frost Programme" the Prime Minister ruled nothing out? Does that mean that he rules everything in, including children's clothing,
948
food and all other items? How can we trust anything that the Prime Minister says when during the last election he pledged absolutely that the scope or the rate of VAT would not be extended if the Conservatives won the election under his leadership?
Lord Mackay of Ardbrecknish: My Lords, I simply point out to the noble Lord the remarks I made and the quotation I gave from my right honourable friend the Prime Minister yesterday:
"I see no likelihood that we are going to extend VAT or have to extend VAT".
Of course, because of the economic situation and the need to get the budget into better balance, my right honourable friend the Chancellor felt obliged to put VAT on fuel. However, if one compares that to the situation on the Continent, all our European friends already have VAT on fuel. And the parties opposite: have always been very keen on something called a carbon energy tax, which seems to me simply to be value added tax by another name.
Lord Peston: My Lords, I did not realise that we were supposed to be involved in electioneering this afternoon. But, if the noble Lord insists, I might follow him on that point. I would certainly accept it if the Minister says definitively two things: first, that this particular directive does not oblige us to do this (I am not convinced that that is so, but let us accept for the moment that it is so) and, secondly, that the Government would use their veto if there were any pressure on us to extend VAT. Is the noble Lord then aware that in the Treasury's own Red Book on the future of taxation there has to be a very considerable rise in taxation, according to the Treasury, in order to bring the Budget into balance, and therefore in rejecting these Budget increases the noble Lord commits the Government to a great many other tax increases, presumably on direct taxation?
Lord Mackay of Ardbrecknish: My Lords, one of the interesting aspects in regard to government income is that with our economy coming out of recession— indeed it is very much ahead of the economies of our European partners—the income to the Exchequer will be considerably increased at the current levels of taxation.
So far as the first part of the noble Lord's question is concerned, the UK has always made it clear that one of the conditions for our agreement to replacing the arrangements for the definitive VAT system must be our right—I underline the word "right"—to continue with existing zero rates.
Noble Lords: Next question!

M. Jacques Delors: EC Speech
2.55 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon asked Her Majesty's Government:
Whether they consider that it was proper and consistent with his position as President of the European Commission for M. Jacques Delors to

949
describe those who are opposed to a federal Europe as racists, and the British Prime Minister as a schizophrenic.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, no.
Lord Stoddart of Swindon: My Lords, I am glad to hear that. Is the noble Baroness aware that the remarks of M. Delors were deeply insulting to the 70 per cent. of the people of this country who do not share his view of a centralised, corporatist Europe? Is she further aware that some of us were rather surprised to find the following day that the French Assembly wanted to ban anglicised phrases from the language? Finally, will the Minister advise her right honourable friend the Prime Minister that if he averred and insisted that he wanted to be at the heart of Britain rather than at the heart of Europe, he might get a few more votes on Thursday?
Baroness Chalker of Wallasey: My Lords, I must say that I think that many of the reports that have appeared recently in the British press misrepresent what was actually said. Let me just tell the House which of M. Delors' remarks were the most important before they were misrepresented. At the end of his remarks about the future of Europe and the European Parliament he said:
"To work together is to allow other continents to exist and to avoid the civil wars which were the shame and the misery of Europe in the past".
On the 50th anniversary of D-Day of all days, it is invidious to harangue the European ideal, which did begin to bring Europe together and ensure that we should never have another war in our continent.
So far as French and English phrases are concerned, I do not believe that we have seen the end of the thé dansant. Also, I believe that my right honourable friend the Prime Minister is absolutely clear that Britain should have its interests put at the heart of Europe. That is why his candidates for the elections on Thursday are the right ones to be elected.
Baroness Oppenheim-Barnes: My Lords, will my noble friend the Minister agree that that pompous little pipsqueak, the President of the European Commission, does more to encourage European scepticism than almost any other single person?
Baroness Chalker of Wallasey: My Lords, I do not think that it is the time for name-calling. All I can say is that at the beginning of next year we shall have a new President of the European Commission. We believe that Sir Leon Brittan would be much the best choice, even though there are other well qualified candidates.
Lord Richard: My Lords, the noble Baroness rejected what M. Delors is alleged to have said—I emphasise the word "alleged". Will she now please condemn the remarks that have just been made by her noble friend?
Baroness Chalker of Wallasey: My Lords, I do not think that the House should take those remarks quite so seriously. This is a time of electioneering. Many things are said which are regretted at leisure.
Lord Bruce of Donington: My Lords, is the Minister aware that the outrageous remarks of the president of the Commission are wholly inconsistent with the role under the treaty that the Commission is supposed to have? Ought not the Government, rather than taking this mutely, to issue some kind of official objection; otherwise, this will go on being the licence which the President of the Commission has from time to time allowed himself when speaking about the United Kingdom in particular. Will the noble Baroness also take into account, in mitigation of M. Delors' outburst, the fact that it was delivered to the European Parliament, but that instead of 518 Members being present, only 40 were there at the time, of which 30 gave him a standing ovation?
Baroness Chalker of Wallasey: My Lords, I see no merit in trying to secure retractions whenever a public figure says something with which we do not agree. We may object to it. I accept that. I share the noble Lord's feelings, as I made clear in my initial Answer. But I do feel that M. Delors' remarks were unfortunate. I have read his speech to the European Parliament. Many of the reports which we saw in the British press were totally different from those in the French and German press and misrepresented the tone of his remarks. But he did make remarks which I believe he should and will regret at leisure.
Lord Monson: My Lords, does the noble Baroness agree that the civil servants in Brussels, among whom M. Delors is to be numbered, should be persuaded to adopt the same code of political impartiality as applies to civil servants in the United Kingdom?
Baroness Chalker of Wallasey: Yes, my Lords.
Lord Pearson of Rannoch: My Lords, does my noble friend agree that only a man of the doubtful sanity of M. Delors would be so foolish as to describe my right honourable friend the Prime Minister as a schizophrenic? Does she further agree that my right honourable friend's recent support for a two-speed or indeed three-speed Europe is entirely in agreement with his excellent article in the Economist of 23rd September last? Finally, does she agree that the only truly dangerous lunatics on the European scene are those who favour further political and monetary union?
Baroness Chalker of Wallasey: My Lords, I believe that the whole country would be wearied if we were to continue this debate about schizophrenia and other unwise accusations. We want a free trading Europe, a competitive Europe, and a Europe in which subsidiarity must be rigorously applied, where there is flexibility based on what can be done, but where the core disciplines of all countries are deregulation, decentralisation and mutual recognition rather than harmonisation. We must make the single market work in the best

951
interests of Britain. We must help all the new countries as well as existing countries to grow together at their own speeds.
Lord Stoddart of Swindon: My Lords, in the light of the Minister's reply to the noble Lord, Lord Monson, will she advise the Government to work towards a situation in which the European Commission simply becomes a civil service rather than the government of Europe?
Baroness Chalker of Wallasey: My Lords, there are many things to be done in the European Commission, as Sir Leon Brittan has already clearly enunciated. Yes, those things must be considered and we shall see what can be done.

Law Commission Proposals: Legislative Programme
3.2 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What action they propose to take to deal with the substantial delays now occurring in placing Law Commission proposals before Parliament.
The Lord Chancellor: My Lords, the Government have to consider the claims of such Bills to a place in the legislative programme against the competing claims of other important and desirable measures. The principal difficulty in bringing Bills before Parliament relating to Law Commission proposals is the amount of parliamentary time for legislation generally. It is always open to Members of this House and Members of another place to promote such Bills if they wish to do so.
Lord Harris of Greenwich: My Lords, I thank the noble and learned Lord for that reply. May I draw his attention to the recent report of the Law Commission which drew attention to its anxieties about the ever-lengthening queue of proposals from the Law Commission that have not been implemented by Parliament? Is he aware of its view that the gap between published reports and implemented reports has widened since 1985 and increased remorselessly since 1989? What action does he propose to take to change that situation?
The Lord Chancellor: My Lords, the Law Commission's annual report, to which the noble Lord drew my attention—it is of course not the first time that my attention has been drawn to it—lists some 30 unimplemented law reform reports. Of those, 15 have been accepted. Of the 15 accepted reports, six are presently before Parliament, two of which were introduced in another place as Private Members' Bills, and the third was an amendment to a government Bill by a Peer in your Lordships' House. Nine reports have been accepted but have not as yet secured a parliamentary place. So far as the other reports are concerned, they are under consideration. I hope that decisions in respect of a good number of them will be capable of being intimated before the end of this year. It must be
952
remembered that, in addition to proposals for law reform, the Law Commission initiates proposals for consolidation and statute law repeal. In the five years prior to the current Session, 23 consolidation Bills or statute law repeal Bills emanating from the Law Commission were enacted under the special procedure rules.
Lord Hailsham of Saint Marylebone: My Lords., will my noble and learned friend consider two aspects of this rather urgent and important matter? First, many of the reports of the Law Commission which are held in abeyance are without party political or controversial content. Through the Procedure Committee or by some other means, could they be given, if I may coin a phrase, a fast track treatment, possibly on the analogy of the Second Reading Committee in another place? Secondly, will he bear in mind that the Ministers carrying responsibility for some departments, particularly the Department of Trade and Industry and the Home Office, are not under the supervision of my noble and learned friend and are becoming rather more out of date than they should be in some matters?
The Lord Chancellor: My Lords, it is certainly true that Ministers in the Department of Trade and Industry and at the Home Office are not under the supervision of the Lord Chancellor. As Members of the Government, they are responsible for matters within their areas of responsibility. With regard to the first matter, your Lordships have approved, as an experiment, a new procedure for dealing with Bills such as Law Commission Bills under the Jellicoe procedure. We are seeking to implement a Bill along those lines at the present time. I hope that if that is successful, it will meet the kind of concerns expressed by my noble and learned friend.
Lord Irvine of Lairg: My Lords, does the speedy implementation of the Law Commission's proposals for the radical reform of the archaic 19th century offences against the person legislation have a high priority for the noble and learned Lord in seeking space in future legislative programmes?
The Lord Chancellor: My Lords, as was mentioned by my noble and learned friend Lord Hailsham of Saint. Marylebone, the policy responsibility for matters such as that is not with the Lord Chancellor. The priority associated with it is a matter for the Home Secretary to determine. For my own part, I believe that the Law Commission has done a very valuable piece of work. It is highly desirable that it should be enacted. So far as I am concerned, from my personal perspective it has a high priority.

Deregulation and Contracting Out Bill
3.8 p.m.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, I beg to move that the Bill be now read a second time.
It is always a pleasure to introduce a new Conservative Bill, but is a particular pleasure to

953
introduce one which will do so much to help British business to win. The Bill before your Lordships today is important for Britain's competitiveness. It will help to reduce unnecessary burdens on industry and especially on small firms. It will also help charities and individuals. It will remove certain statutory obstacles to contracting out and thus provide value for money gains in the public sector. It has to be seen in the context of the Government's wider deregulation initiative and drive for reform of the public sector.
At the outset, I should make clear that deregulation is not about reducing standards of health and safety or removing necessary safeguards for consumers or employees. It is about ensuring that where regulation is necessary it is provided in the least burdensome way. Businesses, and particularly small businesses, are fed up with struggling against red tape. This is not just whingeing. Coping with unnecessary burdens affects competitiveness and costs jobs.
Throughout government we have therefore been reviewing all the rules and regulations which affect business. There are over 3,500 of them. We asked task forces from business and the voluntary sector to identify priorities for legislation which could be amended or repealed. I am delighted that my noble friend Lord Sainsbury of Preston Candover is in the Chamber this afternoon. I look forward to hearing his contribution to this debate. The business task forces, which he led, made over 600 recommendations of which we have accepted 359 and are still considering 168; 78 were rejected by the Government, because we felt that the public interest demanded that the requirements should stay. The Task Force on Charities and the Voluntary Sector is now completing its work and we expect its report to be published soon.
As a result of the task force recommendations and the departmental reviews of regulation, we are taking action across government to reduce the burden of rules and regulations. Many proposals do not require changes to primary legislation. Some can be achieved by secondary legislation. Others are changes to administrative action. The changes we have already decided upon will save British companies many millions of pounds. Examples include halving the waiting period for claiming VAT for bad debt tax relief: boosting total business cashflow by £150 million; 85,000 fewer employment survey forms now need to be completed every year and related costs have fallen by 25 per cent. since 1990.
The Health and Safety Commission—a tripartite body—has also undertaken the most comprehensive examination of health and safety regulation for 20 years. It recommended that over 40 per cent. of the legislation which affects the generality of business should be removed. The large volume of legislation would be replaced with fewer, simpler, clearer, goal-setting regulations.
We are also taking action to make sure that before regulation is proposed, the costs it will impose are fully thought through and taken into account. We introduced a small business litmus test so that the effect of any proposal on a few typical small firms is considered. The business task forces identified three main themes which
954
should be applied to regulation: "proportionality", "think small first" and "go for goal-based regulations". The Government endorsed those themes.
We are also working with other member states to ensure that legislation from the European Union reflects conditions in the real world and does not diminish our firms' competitiveness in global markets. We want to ensure that deregulation is at the heart of European policy-making and we are making steady progress in persuading our partners of its importance. The forthcoming German presidency listed deregulation as one of its priorities.
How a regulation is implemented and enforced can be just as crucial for business as what it actually says. Local business partnerships have been developed to encourage business organisations to work with their local authority to make it easier for businesses to comply with regulations enforced by local government. Most of the enforcement agencies in central Government have now published codes of practice. The aim is to make sure regulations are applied in a common-sense way and that those they affect understand how to comply with them.
Legislation is often open to interpretation. We have to make sure it is interpreted sensibly. Let me give an example related to the sale of broccoli. Weights and measures regulations could be interpreted as meaning that if broccoli was wrapped for sale it attracted onerous labelling requirements; that is not true of broccoli sold loose. That may seem insignificant but it matters to business to minimise the burden of compliance. In the case of broccoli alone it would cost the market £10 million a year in labelling costs. The example illustrates that how rules are applied can be important.
The new Deregulation Task Force, led by Francis Maude, which is carrying on the task of providing a business viewpoint on deregulation, is at our request looking at what more needs to be done to make sure that enforcement is not over-zealous and does not needlessly jeopardise businesses. Thus this Bill is only part of our continuing campaign. We are taking action across the board to remove bad regulation, to reduce the burden of continuing regulation and to ensure that unnecessary new regulation is avoided. That is the context against which this Bill must be seen.
I turn now to the provisions of the Bill. Chapter I of the Bill provides an order-making power to effect deregulatory change. We identified a significant number of changes which could usefully be made to primary legislation to reduce burdens on business. Why, for example, should poultry slaughtermen need a licence from every local authority in whose area they work rather than obtaining one licence valid throughout Great Britain? Why should purchasers of small, statistically insignificant annual tonnages of corn have to make a weekly return on their purchases? Why should retailers of methylated spirits and surgical spirit in Scotland still have to keep a record of every sale of those products? Why should companies still have to file information about their directors at Companies House, when computerisation now means that Companies House can collate those details without them being separately

955
provided? Those are just a few examples. At the moment those changes would require primary legislation.
We believe that there is a vital need for a special mechanism to allow the timely amendment or repeal of outdated or unnecessarily burdensome legislation—and that is what is provided in Clauses 1 to 4 of the Bill. The power could be used where burdens could be removed or reduced, whether affecting businesses, charities and voluntary organisations or individuals. The power could not however be used if any necessary protection would be removed. That would encompass, for example, necessary protection for consumers, or for employees, or for the environment, or protection which is necessary for any other reason.
An order could change the regulatory regime which applies, which may require changes to penalties or enforcement powers. Under Clause 2, limits are placed on the new penalties which could be created by an order under this power, and on enforcement procedures. Before an order can be brought forward, consultation is required, under Clause 3, with representatives of those likely to be substantially affected. The Minister then has to provide an explanatory document to Parliament and at the same time lay a draft of his proposal. Details of the consultation which has been undertaken have to be given in this document, together with an explanation of the way in which it has been taken into account. The nature of the order-making power is that it could cover a wide range of subject matter; but I can assure the House that the power would not be used to effect large and controversial measures. I have already given some examples of the sort of measures for which we believe it would be appropriate. Fifty-five such measures are described in the document, Cutting Red Tape; which we published when the Bill was introduced in another place, and which is available in the Library.
We recognise that it is an exceptional use of secondary legislation. In addition therefore to the constraints on the use of the power and the requirement for consultatiÓn that I have already explained, there would be a unique form of parliamentary scrutiny. We have provided in the Bill an additional period during which such scrutiny would take place. The Procedure Committee made recommendations on the form such scrutiny might take. We welcome its prompt report and I can tell the House that the Government accept all the committee's recommendations. The Procedure Committee recommended that the House should refer proposals for deregulation orders to a Select Committee, which it recommends should in the first instance be the Delegated Powers Scrutiny Committee. The committee would be able to take evidence from whoever it wished.
It was always our intention that sufficient time should be provided for this special scrutiny. We therefore intend to bring forward an amendment to extend the period allowed for this in the Bill to 60 days in all cases as the Procedure Committee recommended. After the period of scrutiny, it would be for the Minister to consider again whether to proceed with the order and whether to amend it in any respect. Once the final draft of the order is laid, the scrutiny committee would again consider the order. It could, for example, consider
956
whether any amendments made to the order were a sufficient response to its earlier comments. Each draft order would then have to be approved by affirmative resolution.
We agree with the Procedure Committee that any Member of this House should be able to table a Motion in respect of the report of the committee on the draft order, that such a Motion should be amendable, and should be debated together with a Motion to approve the draft order. If the outcome of this debate were a resolution of the House to the effect that the order should not be approved, the Motion to approve the order would not be moved. In this way, the House need not depart from its convention that it does not divide on secondary legislation. The Minister would then have the option of bringing forward his proposals in the form of a Bill, changing his proposals, or not proceeding at all.
Some of the recommendations of the Procedure Committee would require changes to Standing Orders. The Government will therefore be proposing that such changes be adopted.
The Delegated Powers Scrutiny Committee has, in an initial report, drawn the special attention of the House to the provisions in Chapter I. It has noted that these provisions are unprecedented in time of peace and has invited the House to consider whether the special parliamentary procedures provide adequate safeguards against use of the power for inappropriate purposes. We recognise that the power we are seeking is an unusual one. We believe however that there is a substantial need for this power to effect deregulatory change. We also believe that while the procedures and safeguards we are proposing are new and unique, they will provide a full opportunity for the House to give thorough and effective: scrutiny to any proposal.
The noble Lord, Lord Peston, who is opening this debate on behalf of the Opposition, was reported on the: front page of The Times as saying, when the Bill was originally published in another place, that these powers were a "constitutional outrage". That was far from the mark then, and—if it is still his position—is far from the mark now. I fully recognise the need for rigorous scrutiny by this House, and our proposals provide for this. When the noble Lord made his remarks, it was of course before the Procedure Committees in both Houses had studied the matter in detail. I look forward to hearing whether he still believes it is a constitutional outrage to take action to allow amendment or repeal of burdensome legislation which is impeding our firms' competitiveness.
Clauses 5 to 27 deal with a range of useful and specific deregulatory changes which we will be considering in detail during subsequent stages of the Bill. For example, Clauses 5 to 10 introduce more streamlining and flexibility into competition law without removing the ability of authorities to take action where necessary.
Clause 17 would remove the prohibition on betting on Sundays both on and off course. This clause was agreed on a free vote in another place as is usual in matters of Sunday observance, and I can confirm that we intend to provide a free vote on the clause in this House. We also intend to provide a free vote on Clause 18. That

957
would allow off-sale premises in Scotland to sell alcohol on Sundays between 12.30 p.m. and 10 p.m., thus rectifying an anomaly that allows hotels and pubs to sell alcohol for consumption off the premises on Sundays, but not off-licences.
Clause 20 responds to anxieties raised by the Deregulation Task Force on Charities. The charities deregulation task force is now completing its work. As was noted in another place, the Government are examining carefully the case for including further provisions in the Bill in the light of the task force's recommendations.
Other measures in this chapter relate to matters such as lending by building societies, the permit regime for lorries in London and the grounds of selection for redundancy.
Chapters III and IV of this part of the Bill would remove unnecessary burdens from operators of goods and passenger vehicles in respect of the licensing system. The main change is a move from licences granted for a maximum of five years to licences which can last for the lifetime of a person or of a company. This will give significant cost savings to operators while still enabling checks to be made, and disciplinary action to be taken where necessary.
The contracting out provisions in Part II of the Bill provide for the removal of obstacles to the use of contractors in discharging statutory functions; and so facilitate the process of market testing and contracting out of central and local government functions. They will thus make a significant contribution to the Government's successful "Competing for Quality" programme. This programme seeks to increase the value for money obtained by taxpayers for the public services they pay for. "Competing for Quality" has already achieved recurring savings of £135 million per annum. Estimated savings in a typical test are over 25 per cent., and quality is expected to be maintained or improved in all cases. A further £830 million worth of services are included in the "Competing for Quality" programme this year. Part II of the Bill will allow the further extension of competition into the provision of public services thus allowing further value-for-money gains to be realised.
Clauses 58 and 59 would allow Ministers to make an order, subject to the affirmative resolution, to specify a central or local government function, which contractors could then be authorised to carry out, thus allowing Ministers and local authorities to use contractors for work which can currently be delegated to officials. Clause 60 expressly excludes most functions which affect fundamental liberties of individuals, or which involve making subordinate legislation. The Bill contains other important safeguards.
Clause 61 ensures that the Ministers, office-holders and local authorities remain properly accountable and legally liable for the exercise of their statutory functions in the same way as at present.
Clause 64 allows the release to contractors of information restricted by statute or obligation of confidentiality, so that contractors can carry out work involving the use of such information. But it does so
958
while ensuring that all existing safeguards would continue to bind contractors—including any criminal sanctions for unauthorised disclosure. It goes further to require contractors to take all reasonable steps actively to safeguard this information, providing a sanction against negligent disclosure of the information.
Clause 65 and Schedule 14 address other specific obstacles to contracting out in the existing legislation. Some of these would still need an order to be made to enable use of contractors, while others would permit this without need for a further order.
Before I conclude, perhaps I may just mention my noble friend Lord Thorneycroft, who died this weekend. Lord Thorneycroft was a former President of the Board of Trade, now the Department of Trade and Industry, albeit some 40 years ago. He had a magnificent political career and was chairman of the Conservative Party when my noble friend Lady Thatcher became Prime Minister. As a great Conservative I hope very much that this Bill would have met with his approval, because this Bill is important for the economy. In particular, the deregulation order-making power is vitally needed. We recognise that this power is exceptional, and that is why we have also provided exceptional and unprecedented safeguards. The CBI has welcomed the Bill. It has said that the Government have provided an opportunity to cut back on red tape and so remove unnecessary costs on companies, consumers and the taxpayer. The Federation of Small Businesses has described the Bill as,
"a long overdue and much needed measure".
The Bill is only a part of the Government's wider initiatives to achieve deregulation, reform the public services and improve Britain's competitiveness. But it will make a valuable contribution. On that basis, I commend it to the House.
Moved, That the Bill be now read a second time. —(Lord Strathclyde.)
3.29 p.m.
Lord Peston: My Lords, I associate myself and my noble friends with the near concluding words of the noble Lord, Lord Strathclyde. It would be true to say that, politically, and in particular in his views on the economy, Lord Thorneycroft and I were somewhat apart, but he always spoke sincerely and said exactly what he thought in no uncertain manner. In my first days in your Lordships' House he made some of the best speeches I have ever heard here, combining a degree of acerbity and good humour, which most of us would like to but could not really begin to equal. I—indeed all of us—will miss him very much.
Noble Lords: Hear, hear.
Lord Peston: My Lords, the Bill itself contains various disparate elements. Part I, Chapter I is at the very heart of the Bill. It is the most controversial and most threatening to parliamentary democracy. I do not modify in any way my immediate, original remarks that I believe it to be a constitutional outrage. I shall return to that theme later on.
In my judgment, Part II of the Bill is nearly as damaging to democratic government and public accountability. It too uses a blanket order-making power

959
to facilitate the contracting out of functions hitherto deemed to be appropriate for the public sector and contained in primary legislation. The drafting of Part II of the Bill is so opaque but its content so potentially significant that it will certainly need to be examined in the fullest detail by your Lordships and certainly no less than Part I, Chapter I. I refer in particular to Clause 59 relating to the authorisation of contractors who may, according to the Bill, carry out statutory functions of a local authority specified by order. My reading of Clauses 58 and 59 is that in practice they could actually lead to the end of the Civil Service as we know it. Perhaps I may add that, according to my reading of the Bill, in this section there is no provision for additional scrutiny by special committees of both Houses of Parliament where orders are tabled. I should like to know how the Government in due course will justify not treating this part of the Bill in the same way as Chapter I.
Chapter II is referred to in the Bill as "miscellaneous". I would rather use the word "ragbag". The range of topics is prodigious. There is competition policy; aspects of the work of building societies; the entry of children into licensed premises; betting on Sundays; early closing days; the opening hours of shops at night; slaughter houses; the licensing of employment agencies; health and safety, etc.
It is noteworthy that each of these parts is contained within the Bill and therefore deemed worthy of primary legislation; namely, this Bill. In other words, what we have is a most clear-cut contradiction between what the Government are proposing to do in the ragbag which they have cobbled together at the moment and what they are proposing to do in Part I, Chapter I.
The main point I wish to make is that each of those topics is worthy of careful analysis and debate. We must give them that. Even though in some cases—as I will indicate—much of what the Government propose is sensible, the fact that it is sensible does not mean that it does not need looking at. As regards our procedures, if we take ourselves seriously as a working House of Parliament, we shall have to go through each of these proposals as if each were a piece of legislation in its own right even though that will take time. In that connection, the range of topics is so large that we on this side of the House will be fielding a significantly large team of Front-Bench spokesmen. I always find myself in an unhappy state when I have to talk about subjects about which I know nothing, although one is always forced to do that in your Lordships' House. On this occasion, I shall try very hard to refrain from doing so by persuading my colleagues to speak. They will be interested to hear what it is proposed should happen on the government side as regards these very difficult matters.
Unless I misheard him, I do not believe that the Minister said anything about market franchising. As we know, it was originally in the Bill as presented in the other place, but it was withdrawn. It is a very difficult subject. When he winds up perhaps the noble Lord will tell us whether the Government will be putting forward any proposals at all in due course. I do not intend to say anything more about that except that several of my
960
noble friends—not least my noble friend Lord Dean of Beswick—are extremely interested in that topic. I look forward to hearing what the Minister has to say about that.
There are also Chapters III and IV which are even more bewildering. Those chapters represent one or two more Bills within a Bill. The Government will have no difficulty in persuading me of the general proposition that we should look at goods vehicle operating licensing or public service vehicle operating licensing. I have no difficulty with that. My difficulty is this: why do those subjects suddenly get plunged into a Bill of this sort? Why is there not a separate Bill for those sorts of things? Whatever one says about those provisions, the detail is what matters. We shall have to go through these Bills within a Bill as though they were here in their own right and scrutinise all the detail. I hasten to add that my noble friend Lord Clinton-Davis will take the lead on all these matters and may have something to say about that this evening. It certainly concerns me at the moment that these sections of the Bill appear when the opening speaker is an industry Minister—I shall not say that he knows nothing about the subject because he might—but certainly the opening speaker on this side of the House is an industry spokesman who knows little or nothing about transport. I would certainly rather have had a transport Bill. That only serves to emphasise again what a mess this piece of legislation is.
That leads me to say a few words about the way in which we should approach the Bill in Committee. The point I make to start with is that we must not be hurried. We shall need many days to do full justice to the Bill. I reassure the Minister, in particular—I see that the noble Lord the Leader of the House is in his place so I reassure both of them—that I have cancelled as many engagements as possible so that I can make myself available for as long as we need up to the end of July. Perhaps I may add that since I am taking my vacation in September I offer to attend in early August if that will meet with the approval of others of your Lordships.
Lord Graham of Edmonton: Steady on!
Lord Peston: My Lords, I do really want to get this, Bill dealt with properly. What is vital is that first and foremost we look at what is set out in the first part of the Bill. As I have said, I regard that section as monstrous and so objectionable within a parliamentary democracy that I believe that we must spend at least the better pan: of a day —perhaps a whole day—on it.
A noble Lord: A week!
Lord Peston: My Lords, we could save a great deal of time if the Minister and his right honourable friend the President of the Board of Trade came to their senses and recognised the dreadful nature of Part I, Chapter I, of the Bill and withdrew it. My experience of your Lordships' House and of legislation in the few years in which I have been involved with it, has taught me that the more dreadful the proposal, the more likely it is that this Government will dig their heels in. They wait to complete the legislation; and then, as with the Education Bill and the poll tax, they devote even more

961
of your Lordships' time to getting rid of it. I have no hope that they will be sensible now; but I utter my last plea in the hope that they will.
Assuming that Part I, Chapter I, stays within the Bill, for the sake of argument, there are the questions raised by the noble Lord, Lord Strathclyde, as regards the problem of the Procedure Committee, the Delegated Powers Scrutiny Committee, and all that kind of thing. How can we deal with the parliamentary consequences of the Bill? Again, I have to repeat my point that there is an anomaly in that this is an industry Bill. When we come to these matters, what is required is the full participation of parliamentary procedural constitutional experts. I do not number myself among them. I believe that we shall need a separate debate on each of these matters even though I shall read very carefully what the Minister has said today. One possibility is that we give one of the Committee days chosen for the Bill to that particular subject. I have an open mind on the matter, but I go somewhat in that direction. We could have a completely separate debate on these procedural matters apart from the Committee on the Bill. Again, without wanting to appear even more idle than I usually do, it would enable at least one of my noble friends—perhaps my noble friend the Leader of the Opposition and the noble Lord the Leader of the House—to be the principal speakers on that matter because they certainly know more about it than I do. We shall have to reflect on that.
Incidentally, I was glad that the Minister read out that the powers that are given by Part I, Chapter I are,
"unprecedented in time of peace".
I read the first four paragraphs of the eighth report from the Delegated Powers Scrutiny Committee, although couched in more moderate terms than I customarily use, as basically reinforcing what I said about the constitutionally outrageous nature of the Bill; but we shall come to debate that in due course.
On the details, my experience tells me that anything to do with the sale of alcoholic drinks—whether relating to children in licensed premises or the opening hours for off sales in Scotland—is controversial. I recognise that the Betting, Gaming and Lotteries Act amendment, which relates to betting on Sundays, is offensive to the moral standards of many of your Lordships and that it is bound to be controversial. Therefore, although I support such amendments, I have to respect the views and the moral position of those noble Lords who have a very different opinion of such amendments. They, too, must be allowed adequate time to debate such matters. I am delighted that the Minister said that we will do that via the tabling of amendments, and I shall certainly join the Minister in ensuring that there are free votes. We need to take the view of your Lordships' House on that matter. I regard many of these matters as so significant that they must be given enough time, and if I may use the expression, enough "prime time". I am not willing to get involved in discussing such very important matters late at night because that inconveniences a number of noble Lords who feel that it is important that they should take part in such debates.
Before at last getting to my objections to Part I, Chapter I, I must say something about deregulation
962
per se. I am certainly not against deregulation. A fortiori, I am not against the scrutiny of regulations or the amendment of primary legislation, including that facilitating the introduction of regulations. I can easily be persuaded—I am persuaded—that we sometimes introduce regulations too easily by focusing excessively on the benefits and not looking critically enough at the costs. I have no difficulty with the logic of that.
Indeed, I go further. I can be persuaded—I am persuaded —that regulations which were sensible in the past cease to be so as the economy and society change. That is why I, in a very small minority in your Lordships' House, voted for total deregulation with respect to Sunday trading even though if I had been alive 50 or 100 years ago, I might well have voted in favour of restrictions. Times change, and the need for regulation changes. That is also my view on the sale of alcoholic beverages, which is not an issue that is now before us. Noble Lords are probably aware, as I spoke on this once, that I am a total deregulator with regard to that issue also; but I would not have been 100 years ago. Therefore, I totally accept the logic that we have to think these things through. It is really a matter of how we set about doing it. We have to look at the costs and the benefits. We have to consider whether there is a net gain from regulations, but we must also look—the Bill totally fails to do this—at who gains and who loses. We have to ask a classic economics question: even if there is an overall net gain, should the gainers compensate the losers?
The Minister gave an example to illustrate his interest in the matter. His example was broccoli. I have an example also. I had been a teeny bit worried about my example on the ground that your Lordships might feel it a bit too trivial, but it does not meet the broccoli standard. An example of an area in which I feel that we should look for a change in the Government's approach is in terms of competition with regard to crossing the Channel and the subsidy that Channel-crossing firms gain as a result of their duty-free operations. As your Lordships know, the ferries derive considerable benefit from that and the Government have gone out of their way to be helpful to hovercraft operators. Equally—this is something that we may look at some time— extraordinarily generous concessions in this area have been made with regard to the Channel Tunnel. However, by sheer chance it happens that my favourite method of crossing the Channel is SeaCat. It turns out that where SeaCat cannot use a hovercraft terminal, especially when it cannot use such a terminal on Sunday—which is true of crossings from Folkestone—the Government have not used their powers within Section 87 of the Licensing Act I964 to allow SeaCat to compete fully with operators of other methods of crossing the Channel. I cite that as an example because it is dear to my heart and I give warning to the Minister that I shall return to it in Committee. I give that example also to establish my credentials as being somewhat open-minded on certain aspects of these matters.
I come to what I suppose is still the most important topic, which is Part I, Chapter I. Why is it so offensive

963
to those of us who believe in parliamentary democracy? The answer lies in the wording of Clause 1, which begins:
"If, with respect to any provision made by an enactment, a Minister of the Crown is of the opinion"—
I stress the word "opinion"—
"he may …by order amend or repeal that enactment".
Your Lordships should note the use of the words "enactment", "opinion", "by order" and "amend or repeal". Even as I repeat those words—I have read them many times—I am aghast and have to ask myself what noble Lords opposite would have said if a government comprised of my right honourable and honourable friends had tried to introduce such a measure. Words such as "Stalinist", "totalitarian" and "anti-democratic" would have sprung to their lips. I address noble Lords opposite directly when I say that I hope that they will show a similar response now, especially when in due course their votes are called for.
Let us note that Clause I(5) (c) defines "enactment" as,
"enactment contained in this Act or in any other Act passed before or in the same Session as this Act".
That means that this procedure will apply to all previous legislation passed by all previous governments whatever their political persuasion, except for one or two minor adjustments. The Minister said that he would not do that; but simply saying that he would not do it is not acceptable when it comes to preserving the rights of Parliament. It is, a fortiori, not limited to any matters contained in the party of government's election manifesto for the time being. What matters is the opinion of a Minister of the Crown—any Minister. I ask the noble Lord, Lord Mackay, who is to reply, whether he will tell me and your Lordships whether there is anything to stop Clause 1(5) being amended year by year to include all subsequent legislation. My reading of it is that every year that clause could be repealed so that the Government could change any other bit of legislation that they fancied changing.
Let us now note Clause 3(1), which states:
"a Minister … Shall—

(a) consult such organisations as appear to him to be representative of interests substantially affected by his proposals; and

(b) consult such other persons as he considers appropriate".

Specific organisations are not mentioned, but how could they be in the light of the breadth of the powers that are sought? Your Lordships should note the expression "appear to him" because the Minister is to be the judge of who is representative and is not obliged to say why or to set out objective criteria on representation and consultation.
That leads me immediately to the most important words missing from Chapter I. They are "consumer" and "worker". Perhaps I may quote the greatest of all economists, the anniversary of whose birthday we celebrated yesterday. He said:
"Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to only so far as it may be necessary for promoting that of the consumer. The maxim is so perfectly self-evident that it would be absurd to attempt to prove it".
That was Adam Smith writing in Wealth of Nations. I wish that I could aspire to such greatness. If the Bill had an underlying principle, that maxim ought to be it. It
964
ought not be a principle for which the Minister preposterously quotes the support of the CBI—they would, wouldn't they? —because this ought to be a Bill which the consumer organisations support. But they do not.
Essentially, the point about workers is that, working people spend a great deal of their waking lives in firms —not enough, one might say, with 3 million unemployed—and they too must be treated properly in their working environment, but nothing of that is referred to in the Bill. Instead, we have the reference to:
"burdens affecting persons in the carrying on of trades., businesses or professions or otherwise".
I suppose that "otherwise" is the word used to cover consumer or worker. Why "otherwise"? Why not say "consumer" or "worker"? It is impossible for me to believe that in drafting the Bill Ministers did not consider that point. Therefore they must have chosen positively not to place the words "consumer" or "worker" into Clause 1. The reason is that they regard all that sort of thing as less important than trade, industry and the professions.
I am also somewhat uneasy about Clause 1(2). The Minister referred to it, and we must return to it. As I understand it, it gives Ministers powers to create new criminal offences, or it appears to do that by, for example, amending existing legislation if it. is burdensome to business. As a lay person, it seems to me that that will give Ministers carte blanche further to restrict the activities of trade unions—removing their right to strike and whatever other legal immunities they retain—including those within the public sector, because one knows that industry is saying constantly that its biggest burden is having to deal with the workers' representatives. I can see nothing in the Bill which would prevent Ministers from abolishing trade unions altogether. To say—I of course accept this from the Minister—that the Government have no intention of doing that is not the same as saying that the Bill would not allow a government to do that if they were so inclined.
I come finally to the role of your Lordships' House. In a normal case, I am wary of seriously damaging or rejecting a Bill which has been debated fully in the other place. Our task is to amend so as to improve legislation. It is how I and my noble friends will approach most of the clauses in the Bill, but the position with respect to Part I, Chapter I, is different. I have said that it is an affront to parliamentary democracy, but the Government have used their majority in the other place to get it through. Some of the Minister's honourable friends have expressed doubts about it; but, so far as I know, none has voted against it. I am especially intrigued by the silence of the so-called Eurosceptics. I must say to them that nothing dreamed up by the bureaucrats of Brussels is as threatening to the interests of the legislature or so undermines the sovereignty of Parliament, as Part I, Chapter I; but there has not been a whiff of revolt or adverse comment from them.
So what are we to do? We are an anomalous institution, but in this case our lack of democratic validity strengthens our position. We do not seek electoral support, even if there seemed to be a little

965
electioneering going on at Question Time today. I am not looking for votes. We owe an allegiance to no principle other than our belief in parliamentary democracy. It is my profound and serious conviction that we must exercise the small power we have to make the other place reconsider. Indeed, if we fail to do that, if we fail to make the other place reconsider Part I, Chapter I, I cannot see what justification there is for us being here at all.
3.54 p.m.
Lord Rodgers of Quarry Bank: My Lords, perhaps I may associate myself and my noble friends with the remarks made about Lord Thorneycroft. He had a long and distinguished career in both Houses of Parliament. Apart from any sense of personal loss that noble Lords may experience, there is a feeling of a break in history because a long continuity of service through membership of both Houses has been broken. We will all remember the contribution he made to public life for so many years.
In the debate on the Address I expressed the cautious hope that it would be possible to welcome the Bill that we now find before us. I said then that it should be judged on its merits, with the presumption that removing outdated and irrelevant regulation from business must be right. I went on to express my anxiety about remarks made by the President of the Board of Trade in another place. On the previous day, 24th November, Mr. Michael Heseltine had said with reference to the forthcoming Deregulation and Contracting Out Bill:
"Even then, primary legislation can stand in the way of reform".—[Official Report, Commons, 24/11/93; col. 472.]
My comment in the debate on the Address was that that was a curious and ominous phrase. Everything that has occurred since, particularly the publication of the Bill, has strengthened that conviction. I find it difficult not to agree with almost everything said in that respect by the noble Lord, Lord Peston. The idea of removing archaic and unnecessary burdens from business is obviously a good one. It is a surprise that it has taken 15 years for the Government to reach the point, having made many new regulations en route, that that is the proper thing to do. But the very fact that it has taken so long, and the form that the Bill now takes, will lead to a healthy scepticism about the motives behind it.
There is a strong presumption in favour of anything that will help small businesses. Perhaps I may repeat, and make clear, irrespective of what I may further add, that in so far as the Bill does that, I hope that it will receive the support of the House. But any welcome which I believe that we would naturally have given to the greater part of the Bill is entirely vitiated by the contents of Chapter I and the further extension of Executive authority that it represents.
The proposals in Chapter I—here again I agree with the noble Lord, Lord Peston—are outrageous. They offend in principle and they are unnecessary. They are further evidence of the arrogance that has become so characteristic of the Government. It is with no disrespect to the Minister who will wind up for the Government
966
that I say that I believe the issues raised by Chapter I are of such importance that they deserve the attention of the noble and learned Lord the Lord Chancellor or, alternatively, the Leader of the House. They are not narrow issues of concern to one department only. They stretch right across the constitution and the role of Parliament. That is one reason why we have every objection to the way they have been handled on this occasion.
In view of what the Minister said, when I understood that he had accepted the recommendations of the Select Committee on Procedure, I shall say no more about that, although I hope we shall not reach the stage where that part of the Bill has been endorsed by the House. I should prefer to take as my starting point the report of the Select Committee on the Scrutiny of Delegated Powers and the opening sentence of paragraph 1:
"The Committee considers that the power conferred by Chapter I … is unprecedented in time of peace".
I thought that the noble Lord, Lord Strathclyde, was extraordinarily complacent and relaxed when he dealt with the clause. He said that it was exceptional. Indeed, it is. He said that it was unusual. It is indeed. He referred to it as new and unique. Yet in the body of his speech there was no argument to show why that exceptional, unusual, new and unique power should be used in this case.
What is there in the Bill itself which requires the Government to invoke those powers? Unprecedented powers are justified only in terms of unprecedented circumstances. They might be justified, and it would be for Parliament to decide, in the case of a national emergency. They might be justified in the case of a natural disaster. They might be justified in an important security or defence matter. However, they can hardly be appropriate powers when all we are dealing with is the desirability of removing some unnecessary burdens on business because that could have been done at any stage in the past and could be done at any time in the future.
I have referred to the circumstances in which Parliament might be expected to consider unprecedented powers. They are justified only when a problem could not have been anticipated and a solution cannot be postponed. However, there is nothing in the substance of this Bill which could not have been anticipated at any time during the past 15 years. Neither is there anything in it which could not be postponed until it is dealt with by the normal processes of Parliament. Indeed, in my view, it is a contempt of Parliament to assume that this House and another place will not facilitate legislation to remove unnecessary regulations if they are non-controversial, as Ministers claim many of them would be. However, it would be a greater contempt of this House to subvert the normal legislative process of scrutiny and decision if proposals, far from being non-controversial, raised issues which seriously divided Members of either House.
There is a reference to the Bill in Command Paper 2563 on competitiveness which was published 10 days ago. I suppose that it is a White Paper; I am afraid that I find some difficulty in recognising White Papers because today they all appear to be cleverly constructed and designed public relations documents. But it is

967
another public relations document of a composite kind which throws together every vaguely relevant idea from every department. In these circumstances, it is not a surprise that deregulation comes within this White Paper.
Paragraph 13.7 of the White Paper refers to the deregulation initiative. Paragraph 13.11 makes the case for the use of secondary legislation by stating:
"But until now any amendment of regulatory provisions contained in primary legislation has had to wait until parliamentary time was available. This has delayed much needed reforms by years".
But who determines how parliamentary time is allocated? It is the Government; Ministers decide on priorities and Ministers can find time if they choose. They chose to bring before Parliament the Railways Bill when they could have chosen to carry through some of the deregulation proposals contained in this Bill or in the further proposals of the noble Lord, Lord Sainsbury of Preston Candover. They chose to bring before Parliament the Criminal Justice and Public Order Bill, upon which it is spending a great deal of time. Therefore, it is entirely within the control of government; whether time is allocated for one purpose or another is a matter for Ministers.
At about this time in every parliamentary year the Future Legislation Committee, if that is what it is still called, meets to decide the contents of the Queen's Speech. It is usually under the chairmanship of the Lord President and Leader of the House. I would expect the Leader of your Lordships' House to be a Member of that committee. It could recommend to Cabinet that in the next Session time should be found for all the detailed proposals in this Bill and for many others too. If it chooses not to do so, that is no excuse for bringing forward the proposal for Chapter I in the Bill. It is within the. capacity of government to deal with these matters through primary legislation.
Against that background we must look at the proposals of the task forces. As the Minister said, 605 are set out in the DTI booklet which was published in January. Few of those proposals are in the Bill, but presumably the terms of reference given by Ministers to the task forces were the same. I am not aware that the Government have announced which of the 605 proposals they have rejected, but perhaps in winding up tonight the Minister will explain the position.
The proposals are of a varied kind. I am not taking an immediate view on their merits but not many are matters of no consequence. They raise serious issues of policy which your Lordships' House and Parliament have discussed over many years. Perhaps I may quote some examples taken from the document at random. Proposal 193 raises a major issue of the limits of planning legislation. Proposal 196 begs the question of local government finance and the respective roles of the public and private sector. Then there is Proposal 206 which, although it refers to a minor change on advertising sites, raises matters of great environmental importance. It is not a minor matter. Proposal 406 refers to "more sensible" proposals, but if one examines them they are controversial. Proposal 427 refers to greater freedom for insurance companies. Proposal 576 suggests that there should be a change in the limit on tax
968
approval for pension schemes. Indeed, most of the proposals which come from the task force on the Inland Revenue contain suggestions which are major issues of policy and which both Houses of Parliament will wish to discuss in detail.
We should all be grateful to the noble Lord, Lord Sainsbury of Preston Candover, for the work that he and his task forces have done in bringing forward the proposals in the document from which this Bill in its betters aspects is drawn. They have given their time and have performed a very useful service. But I am sure that all those involved will be ready to concede that they have expressed an inevitably partial view of the issues. It has been their job to look at deregulation from their point of view; from the point of view of legitimate interest groups. It has not been their task to consider the wider public interest.
The public interest is complex. It involves difficult choices: for example, between producers and consumers, weighing advantages, including those of the short-term against the long-term, and costs and benefits and how to assess them. But that is precisely what Parliament exists for in its scrutiny of primary legislation. It is the job of Parliament, and Parliament alone, to identify the public interest and to act accordingly. It cannot be delegated to a task force and it cannot be usurped by Ministers.
Of course, it should be the aim of every government at all times to remove from business-in particular from small businesses where such regulations are most irksome—unnecessary burdens. But it is never as easy as it seems because burdens as they now may appear were often placed there after due consideration by Parliament for reasons which at the time it believed to be right and necessary.
It is easy to believe that this Bill had its origins in a gimmick of the kind which governments adopt from time to time. First, there is the catchy title which suggests something new and dynamic: The Deregulation Initiative. Secondly, an ambitious junior Minister is put in charge. That is another way in which Prime Ministers indicate how seriously they take an issue. Thirdly, there are lots of glossy booklets. There were three of those in January alone. But whatever the origins and the purpose, the result is a bad Bill. I wish that the conventions of this House—and I believe that that was the burden of the message also of the noble Lord, Lord Peston—allowed us to vote against it on Second Reading. In my view, it is ridiculous that one of our two Houses of Parliament, on a high constitutional issue of this kind, is bound by its conventions in that respect. But of course we shall turn to that matter in Committee. Again, I agree that we should give it the very full time which it deserves.
In Committee we shall look at the proposals on markets which the Government may or may not bring forward. I hope that we shall look at Clause 22, which deals with building regulations, and Clause 24, which is concerned with lorries in London. We should look at Chapters III and IV, which have very wide consequences for environmental and road safety standards. We shall look Part II on contracting out because of the very important machinery of government

969
issues which that raises. In my experience, that provision is unique. It allows Ministers to pass responsibilities to the private sector, which has not been done in that form before. Those are extremely important issues which go far beyond the responsibilities of the Department of Trade and Industry.
I for one should have welcomed with no serious qualifications a Bill designed to help small businesses overcome some of their problems. However, the problems of small businesses would be a great deal less if we were no longer slowly coming out of a very deep and long recession. But the first part of the Bill includes a dangerous and unacceptable extension of Executive power. The rest of the Bill—I prefer the description "job lot" but I am prepared to accept the description "rag-bag" preferred by the noble Lord, Lord Peston—is a rag-bag of largely unrelated proposals of varying quality and importance. This is a Bill which does the Government no credit whatever.
4.12 p.m.
Lord Bancroft: My Lords, we all remember the late Lord Thorneycroft with affection. I recollect that over 40 years ago, he played truant from an afternoon session of the OECD in Paris. As a young President of the Board of Trade, he preferred to look at paintings. As usual, he was right.
This Bill has some admirable objectives and provisions but it also has pernicious defects. I am fearful of its long-run effects on the efficiency of the public service and, more particularly, on the long-run efficiency of the Civil Service.
After the very effective, broad-ranging speeches which we have heard from all three Benches, I propose to focus briefly on that relatively narrow but important issue. Its implications spread extremely widely, as has already been indicated. For the avoidance of doubt, I begin by asserting my admiration and, indeed, sympathy for those who still work devotedly in what remains of the service. In my time, relations with Ministers of both parties were, virtually without exception, easy and amicable, although not lacking in occasional tensions. I wonder whether that will be the case in the future.
As has already been said, Clauses 1 to 4 and 58 to 66, among other things, represent a further step in dismantling the public services by executive action subject to very, very limited parliamentary control and debate. That process has already gone a long way. Some would say that it has not gone far enough. Others, like me, would say that it has gone too far.
Reform was and is essential but it should not lead to virtual extinction. The great and increasing burden of public business cannot be carried on without limiting the weight of responsibility on hard-pressed Ministers. Some sensible steps have already been taken to that end and the size of the service has been reduced. That is good but all require to be underpinned:
"by an efficient body of permanent officers … duly subordinate to Ministers … yet possessing sufficient independence, character, ability and experience to be able to advise, assist and to some extent influence those who are from time to time set above them".
970
The permanent Civil Service of the state is no more a ministerial toy than it is an autonomous organism. It is there to serve the state and its citizens. As I have said before, if the fastidiousness of its standards is perceived to decline, all Ministers and all citizens are diminished. Those standards do not come instinctively. They must be taught, learnt and then handed on. They have evolved slowly and patiently over generations of scrutiny and debate.
I entered the Treasury in January 1947 and I left Whitehall in November 1981. The service in which I was proud to serve was born from the Northcote-Trevelyan Report of 1853. After an uncertain start, the service's place in the fabric of the constitution was incrementally shaped by a succession of Royal Commissions and weighty outside inquiries. I could cite at least 10 but I shall spare your Lordships.
By 1950, the late Sir Edward Bridges, as he then was, could describe it as:
"a calling essential in any state of affairs which I can foresee, and one of the most worthwhile, if also perhaps one of the least understood, of professions".
Since then, we have had the Priestley Commission and the Fulton Committee of 1968. After that there was relative silence on major structural and ethical matters from any authoritative independent body with the honourable exception of some reports from the Treasury and Civil Service Select Committee in another place. Those of 1991 and 1993 certainly command attention.
But the break-up has gone on remorselessly over the past decade and is bound to be accelerated acutely by the present Bill. It has been done piecemeal, on the hoof. What took a century and a half to build up is in danger of being offhandedly demolished in a decade and a half. Is it too late to urge caution, deliberation and thought?
The process has already gone so far that the 1993 report of the Treasury and Civil Service Select Committee promises to consider whether there is still a unified service and, if so, what unifies it and whether a unified service is desirable. In my submission, it is not just desirable but essential, if standards of efficiency, impartiality, probity and accountability to Parliament are to survive. How can one have effective accountability to Parliament if hundreds of functions are to be contracted out, or otherwise separated off into agencies which are deliberately placed at arms' length from Ministers responsible for them? To invoke Clause 61 is to reach for a life-belt of stone.
We have been assured over the past 10 years that what is being done is to modernise the service, to make it more efficient and to bring it up to date with market philosophies. Those are admirable objectives; but, perhaps I ought to add in parenthesis that, to my mind —alas—the time is coming when a code of ethics will be essential. However, those objectives are being pursued with such a reckless lack of co-ordination and balance that in practice we are now reaching the stage when the clock is being put back to the early 19th century. The service was then notoriously incompetent in implementing the policies of elected Ministers. It was governed by patronage and suffered acutely from its

971
fragmentary character. Its condition was so bad that Northcote and Trevelyan gave themselves three aims which were, in their own words:
"[First], to provide, by a proper system of examinations, for the supply of the public service with a thoroughly efficient class of officers; [secondly], to encourage and foster merit by teaching all the public servants to look forward to promotion according to their deserts; [and, thirdly], to mitigate the evils which result from the fragmentary character of the service".
They amplified those "evils" by pointing out that the fragmented mess that they sought to unify was,
"regulated on the principle of merely departmental promotion. Each man's experience, interests, hopes and fears are limited to the special branch of the service in which he himself is engaged. The effect, naturally, is to cramp the energies of the whole body"
My final point is this. Experience has taught me the folly of prediction. But parts of the Bill are such that it needs no prescience to foresee that two babies, as yet unborn, will be asked, well before the year 2053, to report on the desirability of reorganising and re-unifying an inefficient and broken-backed public service. Their names could be Northcote and Trevelyan.
4.23 p.m.
Lord Cockfield: My Lords, until a brief time ago, Peter Thorneycroft sat upon the Bench from which I now speak. He gave me invaluable support when I was a Minister in your Lordships' House. He will be sorely missed. I am sure that he would have contributed valuably and uniquely to today's debate and that he would have said much of great interest to all of us.
Perhaps I may turn to the Bill before the House. I am afraid that what I am about to say will give scant comfort to my noble friend on the Front Bench. There is, of course, too much legislation and nothing could illustrate that fact better than the gargantuan Finance Bill which was placed before your Lordships' House only a few weeks ago. Inevitably one is bound to ask, whose fault was that? Equally, there is too much regulation. There is too much inefficient regulation. But, at the same time, there are some areas where regulation is insufficient. There are some areas in which there is regulation but it is ineffectively carried out. The picture is not entirely focused in one direction.
In politics one has to be most careful of fashionable catch-phrases. Deregulation stems from Ronald Reagan in the 1980s. It had enormous validity when he first floated the idea. However, as time goes on, those concepts become dated. One wonders to what extent the ideas of the 1980s have entire validity when one comes to the 1990s—the circumstances of which, in many ways, are dramatically different and something with which many politicians still have to catch up.
However, it goes further. As time goes on, all of those political ideas—those catch-phrases—become the focus for lobbying by special interest groups. I regret to say that one can see that reflected very much in my noble friend's speech today. He listed all the industrial bodies which support the Government's proposals. He was entirely justified in doing so because it is industry which earns our daily bread. But we must also recognise that the operations of industry affect people outside the management and direction of industry itself: they affect the public at large; in other words, the consumer. We have seen that in its most dramatic form as regards the
972
question of pollution where there has been a sea change in attitudes over the past few years. A few years ago, the concept was that damage was borne where it fell, but today the overriding principle is that the polluter pays.
It is possible that there are other areas in which the law needs to move in much the same way. For example, it is a debatable point as to whether or not we would be a great deal better off, both in terms of the interest of the community as whole—and I am sorry that my noble and learned friend the Lord Chancellor is not sitting on the Woolsack at present—and in relation to the cost of legal aid. If we moved towards a system where there was greater absolute liability, subject to statutory limits, that would eliminate an enormous amount of legal aid.
When we look at such matters we need to take into account not only the broad concepts of the past, but also the way in which the world with which we are dealing is changing. In particular, the Government must recognise that they are not simply the protectors of particular groups in the community; they are protectors of the public interest. Nothing could bring that fact out more clearly than when my noble friend Lady Thatcher quoted the words of St. Francis of Assisi on the; steps of No. 10 Downing Street when she first took office as Prime Minister. The position of government as the protector of the public interest is one that they must never abandon, however many political plaudits they may receive from particular groups from which they lift what are conceived to be burdens. That does not mean that I do not believe that we need constantly and, all the time, vigorously to look at regulation to see whether it is necessary, whether it is appropriate and whether it could be carried out in a simpler manner. However,, we also need to recognise that there are circumstances in which regulation is absolutely essential in the public interest.
I want now to turn to the constitutional point. I have no doubt that the noble and learned Lord, Lord Simon of Glaisdale, will say a great deal about this, as indeed he has done on other occasions. It has been my great pleasure and honour to support him in many of the things that he has said, but I want to approach this from a slightly different angle. There stands outside Westminster Hall the statue of Oliver Cromwell and occasionally one is stopped by a tourist who asks who this man was. It is important that we should ask ourselves who this man was because it was the civil war which established the supremacy of Parliament over the Executive, which was then in the form, of course, of the King. When the Restoration came along there was a change again in the balance of power, but it was protected by all sorts of undertakings and understandings. We hear a great deal today of these understandings and protective measures, but quite frankly it did not work and the civil war was followed by another bloodless revolution fortunately this time, and the rights of the Parliament against the Executive or the sovereign were entrenched in the Bill of Rights and the Act of Settlement.
But what has happened in the past few years is that the Executive has turned the tables. It is now the Executive in the form of the Cabinet which has seized control of the Parliament. This is what has happened. It

973
is a total change which has happened silently and almost unseen because we have no written constitution. Therefore when the noble Lord, Lord Peston, says that this is unconstitutional his statement really has no meaning because we do not have a constitution, but it is something over which we fought a civil war. It was something over which one king lost his head and another one lost his throne. And now this is being given away. It is being given away today in a Bill of this kind intended to deal with what one might almost call the minor modalities of our industrial life. It is really something of which we need to take very serious note indeed.
I am sorry if what I shall now say upsets the noble Lord, Lord Bancroft, for whom I have the utmost respect and consideration. But the simple truth of the matter—I speak from more than 60 years experience of the public service, both inside and out—is that many of the Whitehall departments have agendas of their own and they expect the Ministers who come in to abide by those agendas. I ask the rhetorical question: how many pages did the Chancellor of the Exchequer understand of the 417 pages of the Finance Bill which he presented to another place? I suggested it might be four pages—my interlocutor more charitably suggested it might be 40, but certainly it had nothing whatever to do with 400. We know also that so many of the monstrosities of which the Brussels bureaucracy is accused are in fact the inventions or the additions made by the Whitehall departments. That fact is now fully understood, yet these are precisely the people, with this limited ministerial control, who will now be entrusted with this enormous task. Parliament really needs to keep a proper control over what is going on.
So we have in front of us two conflicting requirements. We have a great problem to deal with —about that there is no doubt. There is too much legislation and too much regulation, much of it ineffective and a great deal of it out of date. At the same time we have the problem of how we deal with these matters. At the end of the day we have to take the view that it should be Parliament, not the Executive in the form of the Government, which ought to deal with matters of this kind.
4.35 p.m.
Lord Stoddart of Swindon: My Lords, I, too, felt that the noble Lord, Lord Strathclyde, dealt with this Bill in a lighthearted manner. I hope that having heard the subsequent speeches from all sides he will realise that this Bill is being taken seriously on all sides of the House and that to date it has not had any support at all. Whether it will receive support in subsequent speeches we shall see. I find myself very much in agreement with what the noble Lord, Lord Cockfield, has just said. He is absolutely right to say that there is too much legislation. There is too much legislation and there has been over a long period of time. He is also right to say that there is too much government by pressure group and there is too little consideration given, over too short a period, to propositions which come forward.
974
The Minister criticised my noble friend Lord Peston for saying that the Bill was a constitutional outrage. Of course it is a constitutional outrage. Indeed I think it will be shown very clearly, when the noble and learned Lord, Lord Simon of Glaisdale, speaks later on, just how much of a constitutional outrage it is. It is a great pity the Government do not understand that and do not listen to people like the noble and learned Lord, Lord Simon of Glaisdale, and indeed the noble Lord, Lord Cockfield, and the noble Lord, Lord Bancroft, all of whom have considerable experience in these matters. However, as far as I am concerned, this Government themselves are a constitutional outrage. They are foisting their policies on the country at this particular time. They are clinging on to office with only, apparently, 21 per cent. of the population giving them any support at all. I think it is unprecedented for a government to be putting forward such important legislation when they have so little support for it, not only in the House but also throughout the country as well.
Lord Strathclyde: My Lords, does the noble Lord think it was so defensible for the previous Labour Government to be kept in office by some MPs from the then Liberal Party whom no one had elected at all?
Lord Renton: My Lords, further to that—
Lord Stoddart of Swindon: My Lords, may I answer those points one at a time? I do not mind dealing with one point at a time but I do not wish to deal with points from the whole House. I shall answer the question very quickly. The combined vote of the Labour Front Bench, or the Labour Party at that time in the House of Commons, and the Liberal Party exceeded 50 per cent.—it was not 21 per cent. Therefore the Lib-Lab pact had the benefit of the support of people throughout the country—not incidentally my own, but that is another matter.
It is sheer effrontery for this Government to bring forward this Bill in the way they have. It is Tory Governments who have introduced regulations by the lorry load and Tory Governments who have made lavish use of Henry VIII clauses, and indeed are still doing so in the Railways Act, the Education Bill and the Local Government (Wales) Bill. In the Child Support Act they introduced no fewer than 99 Henry VIII clauses.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): Rubbish!
Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Henley, says "Rubbish", but he dealt with the Bill in the House and he knows perfectly well that what I am saying is true. The results of those clauses are now creeping up on the Government and causing them great difficulty.
It is Tory Governments—I call them Tory Governments advisedly because they are not Conservative Governments—who have virtually destroyed local government and have handed over vital powers which should be under democratic control to unelected, unaccountable, unresponsive quangos composed of a narrow section of society, including cronies of government Ministers and grandees. But it is not only

975
the public sector where government centralisation and over-regulation have caused mayhem. Thousands of private businesses have been destroyed by unnecessary government regulations. The noble Lord, Lord Cockfield, is right: not all of those regulations have come from Europe. Many have come direct from government or have been built on by government departments.
The Government pretend to be Conservative; they are nothing of the kind. They are in fact a centralist corporatist gang intent on denying ordinary people a role in government, both locally and nationally. They really cannot leave anything alone. They meddle in everything. Even as this Bill is going through Parliament, the Financial Secretary to the Treasury, Stephen Dorrell, is threatening to intervene to force businesses to limit dividends. Think of the enormity of that: a Conservative Government threatening to intervene in industry to limit dividends to shareholders. So having lured 9 million people to become shareholders on the grounds that they would not only prosper but would be able to exercise some control over their industry, the Government are now threatening to take under their own control the matter most vital to shareholders—that is, dividend policy. Nothing could be more absurd than that. If a Labour Government, a Labour Minister—or even Tony Benn—had proposed such a policy, there would have been banner headlines denouncing it as rabid communism designed to undermine our free society. But Mr. Dorrell calls himself a Conservative. He has the audacity, the gall, to call himself a Conservative, presumably in favour of market forces. He is, in fact, neither. Indeed he would have been acceptable, as would many of his government colleagues, in those Eastern European people's democracies which so ignominiously collapsed under the weight of their centralist regulation.
The Bill is not really about deregulation but about further reducing the powers of Parliament and allowing the Executive to repeal legislation after consultation with only a narrow section of society. If noble Lords believe that that statement is far fetched, they should recall that the task force which advised the Government on the Bill consisted of a very narrow section of society. So far as I know, there were no representatives from the trade unions, no constitutional lawyers, no one from the universities and certainly no parliamentarians advising on this specific Bill, which is the most anti-parliamentary Bill that I have ever seen. The Bill's gestation, therefore, must give cause for grave concern.
That consultative narrow-mindedness is carried through into the Bill itself. Let us consider Clause 3, which deals with consultation. Subsection (1) (a) states:
"Before a Minister makes an order under section 1 above, he shall (a) consult such organisations as appear to him to be representative of interests substantially affected by his proposals; and (b) consult such other persons as he considers appropriate".
It states "as he considers appropriate"—not anyone else. So the Minister decides whom he will consult. I believe that that provision is very narrow minded indeed. It will be interesting later to have some idea of who the Minister would like to consult. Everything is in the Minister's hands. He is the sole arbiter as to who shall or shall not be consulted, and in the last analysis under
976
subsection (2) what notice is taken of such consultations. Under subsection (2) he decides exactly how much notice he shall take, or whether he takes any notice at all. There is nothing very democratic about that. The provision is in keeping with the Government's record that they will consult only those most likely to agree with their proposals, and even then they will not listen to their own friends if the views of their friends do not accord with their own preconceived ideas.
Another matter which concerns me is the power given under Clause 2 to set up a new regulatory system provided that it is less onerous than the existing system. But, even so, the Minister will be able by order to create new criminal offences carrying penalties of up to two years' imprisonment or a heavy fine, or six months' imprisonment, or both. He can create those by order under the Bill. The mind boggles that a government Minister is able to do that by order. But that is exactly what the Bill states.
Lord Strathclyde: My Lords, perhaps the noble Lord will forgive my intervening. The Minister can do those things, but only subject to parliamentary approval. As I explained during my opening remarks, we have built in very special powers for Parliament to deal with those provisions rather differently from the process that is currently accorded to statutory instruments.
Lord Stoddart of Swindon: My Lords, I accept of course that the orders will come before Parliament. However, the point I seek to make is that where one imposes such penalties, the whole gamut of primary legislation should be gone through so that Parliament shall have a proper say. I do not refer to a debate of an hour and a half in a Select Committee or what-have-you. It should be subject to the full process of parliamentary discussion. That is what I say and that is what 1 believe. It is my belief that such powers are draconian and that they should be subject to the full legislative process of Parliament.
I am glad that the Minister has accepted the recommendations of the Procedure Committee. At least to some degree that will mitigate the baleful effects of the Bill. I refer in particular to the proposal that we shall have 60 days rather than 40 days in which to consider matters. I am glad that the Government have decided to accept the recommendations in full.
However, that said, I must reiterate my fundamental opposition to the Bill. Far too much power has already accreted to central government, and far from being given more they should be deprived of a great deal of power. I really cannot understand why Parliament should agree to wipe out by order measures which have been agreed only after the full process of parliamentary debate has been undertaken. That can only mean more authoritarianism and less democracy. I am on the side of democracy: it may be slower but it is surer.
4.49 p.m.
Lord Sainsbury of Preston Candover: My Lords, perhaps I may begin by apologising to the House for the fact that I have to leave before eight o'clock owing to a long-standing business meeting and therefore may not be able to be present for the very end of the debate.

977
In January 1993 I was appointed by the President of the Board of Trade to be his adviser for a year on the recently re-launched deregulation initiative. It was my responsibility, therefore, to co-ordinate and oversee the input by commerce and industry into government plans for deregulation. I hope that your Lordships will find it helpful if I describe briefly how that was done and say something about the recommendations that we submitted to government.
On my suggestion we formed seven business task forces. They were established to cover all sectors of trade and industry, each under the chairmanship of distinguished and experienced senior leaders of the different sectors. We were given the task of reporting within six months on those areas of regulation which in the opinion of business (we did not pretend to speak for other than business) were most in need of amendment or repeal.
That was a tough assignment, given the limited time and the huge number of regulations. As your Lordships have already heard, the DTI estimated that there were no fewer than 3,500 regulations then in existence which affected business. However, the tight schedule provided us with a sense of urgency to canvass opinion and to focus on where change would bring the greatest benefits to business in reducing costs and unnecessary bureaucracy.
There were 71 members of the task forces, from large and small companies. They worked hard, holding over 100 meetings and consulting very widely. Special meetings were held with representatives of small business and more than 40 meetings were held with government departments, in addition to consultations with Ministers of all departments involved in deregulation.
I should draw your Lordships' attention to the general attitude that the task forces took in their examination of regulations. Our starting point was the belief that good, sensible regulations are as much in the long-term interests of business as they are in the interests of the consumer, the interests of the employee and the interests of the environment. There was, however, widespread concern with the high costs that many regulations imposed on business in relation to need or the benefit they brought and the degree to which regulation inhibited enterprise and innovation and slowed down change.
We also felt that a great number of regulations had been introduced in recent years without adequate consultation, without assessing the cost of compliance and without sufficient analysis of the risks that those regulations were designed to combat. The knee-jerk reaction to disaster seemed too often to be a political reaction rather than a measured, scientific analysis of the need for new regulations. There were also regulations of many years' standing which were no longer appropriate in the changed economic, financial or technical circumstances of the day.
We were also concerned by the bureaucracy of regulation. It seemed that there were regulations which,
978
although perfectly sensible in their purpose and in their nature, were made unnecessarily burdensome by the bureaucracy and form filling which went with them.
In contributing to the deregulation initiative, therefore, the task forces were concerned with far more than removing unwanted regulations. We were concerned with improving, reforming and simplifying regulations, making them easier to follow and therefore more effective and more efficient. That aspect of deregulation was especially important to the small company.
The task forces were very aware of the harmful effect of over-regulation on small businesses. As has been said already, it is they who are hurt the most. It is the small traders, the struggling new businesses and the small manufacturers who are the real victims of the flood of new regulations during these past 10 years. That has been particularly true of regulations that have been initiated in Brussels and applied, sometimes too hurriedly, sometimes too enthusiastically and in too detailed a way, to UK regulations.
Small enterprises are, by definition, the least well equipped and the least able financially to bear the burden that new regulations impose. Small businesses do not have the staff to whom to delegate the work of coping with regulations and dealing with the many inspectors. For small businesses regulations are an extremely costly distraction from running the business, as well as requiring new capital expenditure which can literally bankrupt them.
In contrast, some large firms can be at best indifferent to more regulations, recognising that the more burdensome they are the harder it is for new entrants into their industry. Some who work in large enterprises have themselves a vested interest in more regulations, for their specialisms will be more in demand.
As a result of our deliberations, the task forces proposed to the Government three principles—to which my noble friend the Minister alluded—to be followed when reviewing existing or proposed regulations. I am pleased that they were accepted.
The first principle was called "Think Small First" —in other words, first examine the effect of regulations on small businesses. Some called it the small business litmus test.
The Government, albeit rather late, had already taken the sensible course of insisting that compliance cost assessments should be made before adopting any new regulations. The task forces proposed in addition that a very thorough and full assessment should be made of the cost impact on typical small firms. They also proposed that when compliance cost assessments were published reference to the effects on small business should be published.
The second of the three principles the task forces proposed was that goal-based regulations rather than prescriptive regulations should be favoured. We believe that too often regulations were too prescriptive, specifying in great detail how particular regulations should be applied. An over-detailed and prescriptive approach fails to take sufficient account of the differences between businesses, and over-prescriptive regulations have a built-in obsolescence factor.

979
Goal-based regulations must be backed up with easily understood guidance notes or codes of practice, while avoiding giving codes of practice statutory force.
Of course there are exceptions where a detailed prescriptive approach is necessary, in areas where there is a high risk safety situation or in complex technical processes. However, in general the task forces advocated goal-based regulations leaving businesses the discretion and the responsibility of how best to attain their goal.
The third of the three principles concerned the need to make regulations proportionate to the benefits to be obtained. Knowing the cost of compliance of a regulation is one half of the balance sheet. An analysis of the benefits to be gained must be put alongside the costs if a sensible judgment is to be made on the need for regulations. That often requires a sophisticated risk analysis, and the task forces were encouraged by the work that has been done to provide guidance to government departments to develop improved analysis techniques.
At the conclusion of their work the task forces presented their reports—eight volumes covering more than 1,000 pages. For those noble Lords curious as to their contents they are lodged in your Lordships' Library. As has been said, they contain 605 recommendations for amendment or repeal of regulations. Very often the case argued was one of simplification and de-bureaucratising with the eye very much on the consequences of regulation on small businesses. As my noble friend Lord Strathclyde has already explained, 359 of those recommendations have already been accepted. I know that they were accepted only after a study had been made of the effect of acceptance of those recommendations on vested interests other than business.
As an example, I particularly welcome the fact that the Health and Safety Commission has recommended that the Government accept all but two of our recommendations. This is the result of their independent and thorough review, which also took account of the recommendations of the task forces. They have completed a most impressive job and I believe it right that the Government have accepted all the commission's proposals.
These are forecast to reduce the number of health and safety regulations applying to business generally by some 40 per cent. It is my belief that by so doing health and safety will actually be improved, for all that is essential is retained and more attention and closer observance can be achieved with businesses of all sizes focusing on the essential.
While the task forces were doing their six-month review, all government departments were required to do their own separate study of the need for and effectiveness of regulation for which they were responsible—although they were also expected to take account of our task force recommendations. Of the 3,500 regulations affecting business, over 850 are due to be repealed or amended.
Of these recommendations for change, it has not yet been established how many will require primary legislation. Certainly the great majority are either
980
administrative or fall under secondary legislation. Probably only around 10 per cent. will need to be processed under the proposed measures in the. Bill that is before this House. That still means that a very large number of worthwhile and valuable changes will need to be considered. I believe the great majority will be welcomed by industry and have the effect of reducing costs and improving efficiency, especially for small businesses.
I think the other important point that noble Lords might wish to take account of is that the task forces believed that the regulatory regime needs to be kept under review if it is not to become an unnecessary burden. Only by continual attention can obsolete regulation be removed and inefficient regulation be amended. That to me is the right way to proceed and that is what I believe this Bill will allow. In future years we must avoid what I called the knee-jerk political reaction, so evident, for example, during the food safety hysteria, when regulations were introduced which added millions to industry's cost, much of which has now been recognised as unnecessary.
The task forces felt particularly strongly that the work they had done was only the start of what should be on-going work. They were very pleased when the eighth task force was created last year to cover charities and voluntary organisations. We all look forward to the publication of the report shortly. I am also pleased that the present Bill includes one item which arose out of that work, and that there may be further measures stemming from the recommendations of this task force for your Lordships to consider during the passage of this Bill.
We also greatly welcomed the announcement in January of a new deregulation task force under the chairmanship of Francis Maude, established to continue our work into its next phase. This new organisation has yet really to get to work. I feel sure it will do so soon. Without it, the momentum of deregulation (or what I personally would much rather call the reform of regulation) will most certainly suffer.
The new task force needs to make sure that the bureaucratic machine is not smothering good ideas for reform and that reviews of recommendations are conducted in a balanced and efficient manner. It needs to monitor whether the three principles which I described and which government accepted are in fact being followed. And it needs to examine new areas where reform is needed.
There is one other duty that the task forces were most keen that their successor body should take on. I personally feel it to be most important. That is the task of ensuring that the complaints of business on bad regulation of whatever nature, and of improper enforcement by whatever body, are listened to. If there was one reason that I had success in my business career, it was that I listened to customers and learnt from customers. That is what the regulators must learn to do —listen to those to whom the regulations apply as well as to the interest groups that quite properly press for new regulations.
The process of review of regulation is one which needs to maintain momentum. That should be so not

981
only at national level, for which this new Bill provides, but also in Europe. Many regulations with which the task forces were concerned are European in origin. We need the same discipline in Europe as exists here. It is pleasing therefore that in the past few months there has been support for the British approach from other European countries, notably Germany. That is also being matched by what is going on in the United States, Canada, Australia and, most recently, Japan. In this context, I was interested to read the executive order on regulatory review published last year. This is not a Reagan document; it is a Clinton Administration document. I quote:
"The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performances of economy without imposing unacceptable or unreasonable costs on society: regulatory policies that recognise that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments, and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today".
That is true for this country as well. We must see that it does not continue to remain so. I congratulate the Government on recognising that and bringing forward the present measure.
5.5 p.m.
Lord Dormand of Easington: My Lords, during this debate the Bill has already been given a number of names. It has been described, not least, as being unconstitutional. Nothing could be more damning than that. I wish to give it another name. I think it is a Tory Party conference Bill. The words used were guaranteed to produce a cheer:
"We shall sweep away the burdens and the red tape".
We all know—certainly those of us on this side, and perhaps on that side too—that Tory conferences are a bit short on points to cheer. So one can hardly blame the Government for introducing those kinds of words at that kind of time.
My noble friend Lord Peston very properly referred to Chapter II, and described it as a rag-bag. That comment is perhaps linked with what I have just said. They get the headlines and the cheers, they look round for something, they have a grab and they produce that quite incredible part of the Bill to which my noble friend referred.
One might have thought that at least some comments on how it would be done would have been necessary, and indeed more honourable. The cheering might not have been so long or so loud had the loyalists been told that there would be no Committee stage to provide for a detailed examination of the proposals; no Report stage for possible further changes or additions; no amendments from this House; and indeed, no amendments of any kind. Even some of the faithful might have demurred on being told that definitions were entirely a matter for the Minister. Indeed, we have seen some evidence already in some of the speeches that have been made.
The extent of the provisions of Clauses 1 to 4 has hardly been seen since the time of Henry VIII—who has
982
already been quoted and who I have no doubt will be quoted many more times before the debate ends. It is breathtaking that the content of Clauses 1 to 4 should be in a measure that is being proposed in 1994. We are all against burdens, whether they be on industry or on the way in which we live. But the person who wrote that word into the Bill knew that what constitutes a burden to some people is considered a benefit to others.
I shall not go into detail on that point. But members of all parties (and of mine) will readily agree that many statutory instruments on safety, health and consumer protection are essential in a modern society. There is of course genuine disagreement about the value of some of them. It is certain that some statutory instruments will be out of date; changing technology will make some unnecessary; and different practices will render some inapplicable. But there will always be disagreement of the kind which makes discussion and debate essential. That is one of the most important points that can be made in this debate: that the extent, the depth and the amount of debate on each of these proposals—and there will be dozens of them coming from the Government during the course of the debates upon this Bill—are to be virtually abolished. That comes from a government who tell the people of this country at every possible opportunity that they are a decentralising government. We could have a whole debate on that aspect alone.
Those of us who took part in the debates on the recent Education Bill kept asking how many additional powers accrued to the Secretary of State. It turned out to be more than 100. It was one of a number of measures whose effects are not only to centralise power but to do so without the proper debate on which this centuries-old Parliament is based.
I am sure that from time to time some noble Lords opposite ponder on the situation that will arise when there is a change of government. In a democratic society the work and actions of the Opposition are as important as those of the Government. A government coming into office would be sorely tempted to use the power contained in Clauses 1 to 4, but that would not enhance the democratic process. I remind your Lordships that statutory instruments cannot be amended.
The sheer volume of statutory instruments is a matter of concern too. Since the last war there have been increases in their number in almost every year. I was about to say "steady increases"; but in some periods there have been huge increases. In the last year of the Labour Government before the election of 1979 there were 1,770 statutory instruments. In 1991 that number had risen to 2,952. In 1992 there was a record number of 3,359. That is a serious matter. We are being governed by the passage of statutory instruments.
A number of serious consequences arise from that. Let me give two examples. Noble Lords will know of the Joint Committee on Statutory Instruments. It is joint because Members of both Houses sit on the committee. The committee produces reports which are submitted to Parliament for debate. It does not seem to be generally known that sometimes statutory instruments are considered by Parliament before the joint committee's report has been submitted to it. That is a crazy state of affairs. How long can it go on?

983
Further, in the 10-month period from June 1992 to May 1993, eight reports from the joint committee were published and 20 reports were not published. If one took a particular interest in that, one could go to the Printed Paper Office and say, "Well, we are not likely to get that for another two or three weeks or indeed two or three months." Surely that must be the most inadequate way of considering the very point which is at the centre of the debate today.
My second example relates to the health and safety in mines instrument, which was laid on 6th August 1993, when Parliament was not sitting. It came into operation before the House returned from the Summer Recess. When I have spoken before on this matter, some of my friends have said that I was being too kind and that the Government deliberately took that action during the long Recess to avoid debate on a serious matter before it became operative. We shall have that situation repeated many times if this Bill eventually becomes an Act.
The Bill exacerbates the position. But the Government will tell us—they have told us already at least half a dozen times—about the committee which will scrutinise the orders which arise from the legislation. Let me say immediately that the whole House, without exception, appreciates the tremendous and valuable work done by the committee chaired by the noble Lord, Lord Rippon. It could hardly be better. However, I suspect that what arises from this Bill will put on that committee a load which might not be met. We shall have to wait and see about that. Certainly, so far as concerns the committee, I take this opportunity to pay tribute to its work.
It is said that the Government or the Minister will need to have regard to what the committee says. The words "have regard to" do not mean that they will comply with its views. I am sure that on some occasions the Minister will pay attention to what the committee says. I am equally sure that on other occasions he will not do so. What is absolutely certain is that on most occasions the Government will do what most governments do, which is to take the action which suits them at the time. How far removed that is from the full-scale debates, investigations and consideration which have to be taken now under the present practices of Parliament!
The Procedure Committee of your Lordships' House quickly realised that this Bill was different from other Bills and required special attention. It decided to appoint a sub-committee to examine the implications of the Bill. That was a laudable decision. The sub-committee reported as a matter of urgency. Among other statements, it said:
"We make no comment as to the merits of the Bill"
and went on to say:
"It would, however, be naive to deny that this report has a political angle".
That is surely of some significance.
Ministers have gone further. I read that on 16th February the Leader of the other place said to the Procedure Committee there—I believe that the Minister mentioned this point in his introductory speech—that Ministers did not intend to use deregulation orders to
984
make sweeping or controversial changes but rather to do the minor things which got crowded out of the primary legislative programme. I could not decide whether that was the funniest thing that I have heard or whether it was the most cynical thing that I had read in a very long time.
Clause 4(4) of the Bill states that:
"the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration".
Consultation with affected interests has always been of importance. But it is obvious that over the years the consultation has not been wide enough or deep enough. I am sure that some of your Lordships (I hope the Minister, too) have seen the Hansard Society's commissioned report on the legislative process. In dealing with statutory instruments, that report lays great stress on the importance of consultation, saying in effect that it has been inadequate. I suggest that the nature and extent of the Bill is such that consultation is more important than ever. It is fitting that the Minister, in putting forward the proposed text of the order, is compelled to set out, among other things:
"the course and outcome of the consultation".
Those are fine words, but the test will be when we see what is said in that report. Some of us will scrutinise it very closely indeed.
The implication of the Bill is that it is someone else, not this Government, who is responsible for the "burdens" (so called) on industry, business and other aspects of our lives. It is surely a reasonable assumption that, having been in power for 15 years, this Government are responsible for many of the burdens. That assumption is borne out by the figures produced by the Library of another place which inform us that of the 3,500 regulations referred to by the task forces, which have already been mentioned, 71 per cent. have been introduced since the present Government took office, and of those regulations from the DTI, 84 per cent. have been produced since this Government took office. I have to say that the Minister, for whom I have considerable respect, was a little barefaced to ignore those facts when he pronounced on them during his introductory speech. Perhaps we shall hear more about that matter as the Bill goes through its various stages. Certainly this side of the House will remind him of those facts.
Lord Skelmersdaleb: My Lords, before the noble Lord leaves that point, perhaps he will tell us how many instruments that he listed received virtually no debate in your Lordships' House or in another place. Past researches have shown that something like 60 per cent. of all orders tabled for debate under the affirmative instrument procedure fall into that category.
Lord Dormand of Easington: My Lords, if I may say so, that contribution gives force to the saying which we often hear, and which has been said more about this Government than any other, that they have been in power for too long. Some instruments have been debated. I readily concede that many do not need the kind of debate to which the noble Lord refers. I am saying that they have not been debated. That is the main point and something which will increase with this Bill.

985
I believe that the Government have missed a golden opportunity with the Bill. They could have said, "Yes, we have over-regulated and mis-regulated. But the Labour Government, during their shorter time in office, must also bear some responsibility". I am sure that most of us on these Benches would accept that. They could have gone on to say, "In those circumstances, let us put our heads together and agree on content and method in removing unnecessary regulations while maintaining proper protection".
A consensus on what to remove and how to remove it would not have been difficult. Instead, a nightmare proposal is put forward which will bring our parliamentary democracy into disrepute. It is often said that your Lordships have no constituencies to represent. In the literal sense, that is true. But from time to time matters are brought to this House which make the whole country our constituency. This is one of those occasions. If the Bill is enacted in its present form, the question will immediately arise, "What next?" There will be no end to the erosion of our democracy in its present form.
Many Members of your Lordships' House are more concerned with parliamentary processes than a narrow ideology. I hope that the Bill will be amended, with support from all sides of the House, in order to preserve those libertarian ideals which have been with us for so many years.
5.22 p.m.
Lord Hesketh: My Lords, when I first regularly attended your Lordships' House some 10 years ago, one quickly learnt, when one saw the name of Lord Thorneycroft appearing on the monitor, that the best thing one could be advised to do was to head straight to your Lordships' Chamber to hear one of the finest exponents of the art in action. It is true also that this House, among many of its unique features, has a thread of a length of time where younger men and women can meet the great legends of a previous time in politics and hopefully learn something too. I have always felt that to be a great advantage in this House. Sadly, one of those threads was cut and I am sure that we all hope that Lady Thorneycroft will be strong in her hour of need.
In a previous incarnation I held views in regard to the length of speeches at Second Readings. It would therefore be wholly dishonest of me this afternoon to promise to be anything but brief. Before that, I must declare an interest in relation to Clause 17 of the Bill, in that I hold an interest in a racehorse. Whether or not that interest turns out to be beneficial as a result of the clause remaining in the Bill is a matter which I suspect will be better decided by a bookmaker. At a time when the national lottery is about to commence, it is absolutely vital that racing as a sport and industry should be able to operate on a level playing field with all other sports which are, in their own ways, also industries. Racing without betting, for those who feel strongly about it, is like tea without milk. It is a fact that, without combining the two, racing, at a time when it may be under a great deal of pressure from the lottery, will need the help that the new clause in the Bill gives.
986
I support the Bill partly from an old-fashioned prejudice that regulation is always a poor replacement for common sense. My interest primarily revolves around the pernicious effect of some regulations on employment and competitiveness. Not many people would claim that any specific regulation had resulted in the closure of a plant and 1,000 or 2,000 redundancies overnight. But I suggest that, in its own way, regulation can have a debilitating effect on industries, companies and individuals.
There are two ways in which that can happen. Big business and small business are affected in different ways. It is demonstrable that regulation and cost have resulted in the export of jobs from this country. The tragedy in terms of trying to illustrate it is that it does not actually involve anyone going to an airport or embarking on SeaCat to leave this country. What happens is that on occasion regulations and costs combined result in investment being made overseas where either the climate is better or the cost base is lower. I would not claim that regulation on its own can be blamed and in certain cases low costs overseas could not be held responsible. But there is no question that, in recent years, particularly in the chemicals industry, there is a case to be made that investments have been made in the Asian Pacific basin on the basis of a much more liberal regulatory climate.
In turning to smaller businesses, we can see that their problems are different. The point was well made by a number of Peers with regard to the costs of coping with paperwork. A large company, though it costs it money, usually finds a way out in terms of dealing with regulation, officialdom and all its branches and ramifications; that is, it creates a number of middle management posts to deal with the situation. That is not true of small businesses. As we all sadly know, few businesses of a large and substantial size are proposing to create a large number of jobs or foresee that in the future. It is the small business, which hopes to become a medium business and perhaps eventually a large business, which provides employment. They are the ones that suffer the most. I only need to look, when I go home to my agricultural office, to see the vast weight of paperwork that is ever-increasing. We now have a state of play where, if an egg is exposed to a temperature of more than 21° C, it may or may not pass the test of legality. The question must be asked: what happens with a free-range egg? How does one determine whether it has seen too much sun—alas, not in recent weeks here —or whether it lay under a hedge and thus is legitimate and can be sold in one of the supermarkets of my noble friend Lord Sainsbury?
The truth is that manufacturing industry probably suffers more from regulation, not by desire of officialdom or governments, but by dint of history itself. Many times in this House debates have been held which concerned manufacturing industry, its future and why more people are not engaged in it. I suggest that, if I were 18 in the current climate and had rather more qualifications than I did the last time round at that age, and was given a choice of looking to the law, being a developer, a foreign exchange dealer or setting up in a small engineering shop, the burden of the latter would

987
encourage me to choose one of the three former occupations. That is an effect of regulation, partly because of history, but nonetheless true and it is one to which I hope the Bill, as a start, is beginning to attend.
My final point concerns something mentioned by my noble friend Lord Cockfield. He referred to parliamentary pressure groups. We know that they come in all shapes and sizes; some are international and some supranational. Those groups all believe that their interests are paramount. Sadly, with the assistance all too often of the fourth estate, those extra-parliamentary groups effectively create legislation. That legislation by and large manifests itself in the form of regulation, the subject with which we are concerned this afternoon.
I always like to take an even and balanced view so I refer to the Spectator of last week which brought the matter into current and regular attention with an advertisement placed, surprisingly, by the Trades Union Congress. Whether or not it was well-advised to invest its money in the Spectator is another matter. The purpose of the advertisement was to point out that there are 10 ways in which the lady featured in it could have her life improved by the proposals laid out below by the TUC. I have no argument with the content of the advertisement or the content of each of the proposals. But there is one feature which runs through all the proposals—that each and every one of them would require legislation followed by regulation.
I had hoped and wished to believe that the arrival of the Bill in your Lordships' House indicated a high tide on the sea wall of regulation. Sadly, I believe that the enthusiasm for regulation burns deep in the heart not only of Whitehall but also of Brussels and that we must therefore see this Bill as a small stroke, a small defence, and the first fight back to prevent us losing the ability to be a competitive society. I very much hope that, when I next see the noble Lord, Lord Strathclyde, at the Dispatch Box for a Second Reading, it will be for the successor Bill to the Bill before your Lordships this afternoon.
5.31 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, in considering the Bill before us noble Lords have concentrated in the main on the parliamentary processes, on the role of the Executive and on the authority that the Executive have taken unto themselves. That is right and it is certainly central to what we are discussing. But I should like to pick up three key areas within the Bill which I think are very important, although I guess that they will not have the amount of time in debate that perhaps they deserve.
Before I do so perhaps I may say that I was interested in the contribution of the noble Lord, Lord Hesketh. He talked about an advert in the Spectator which I did not see, although I do read the Spectator from time to time, and said that the proposals in it would require more regulation. I suppose that the TUC would be in good company because in the past decade or more we have seen with privatisation a proliferation of regulation and an establishment of regulators and regulatory provisions. I do not think it is sufficient to say that in areas covered by the Bill we need to eliminate regulation that
988
has proved to be effective, which is probably more than one can say about the amounts of legislation covering the establishment of new regulation in the areas that have been privatised.
I should like to deal with Clause 26, which seeks to repeal Section 59 of the Employment Protection (Consolidation) Act 1978. Section 59 (1) provides that a person should be regarded as unfairly dismissed if selected for redundancy in breach of a customary arrangement or agreed procedure. That is not regulation. These are freely entered into arrangements where there may be no trade union recognition and membership or agreements and agreed procedures where the workers have chosen to be represented by their trade union. The Bill seeks to ignore all those consensus arrangements, bearing in mind that they are voluntary arrangements, and eradicate them. Why repeal them? I gather that they are being repealed on the recommendation of the Government's deregulation task forces. But, as the saying goes, "They would, wouldn't they?" There were not worker representatives on the task forces to put: forward a point of view.
As the noble Lord, Lord Sainsbury, said, when one is looking at regulation, one should listen to the groups to whom regulation applies. How right the noble Lord is. Why not listen to the workers when they are talking about these kind of voluntary arrangements? The repeal of this provision will commit employers to apply any selective criteria without risk of the threat of an unfair dismissal claim being imposed upon them. At the time of redundancy the employee needs to be represented. I do not think people understand readily enough just how intimidated an individual employee can be in a large company facing a professional management when they are talking about the loss of their jobs. I do not see the need for repealing that provision.
I move on, perhaps not unexpectedly, to Clause 27, which deals with the power to repeal certain health and safety provisions. It gives power to repeal or revoke health and safety legislation without replacement. I come to this issue on the basis that health and safety regulation is not an imposition on management. The good provision of health and safety support for an employee is the responsibility of employers. I should like to take this opportunity, as I am aware that the other place is not sitting, to correct an impression that was apparently given on Thursday night in that widely watched BBC television programme "Question Time" by the President of the Board of Trade that the TUC or its members on the Health and Safety Commission supported the powers in the Deregulation and Contracting Out Bill. That is a totally incorrect impression and I gather that the TUC has written today to the President of the Board of Trade to correct that.
The Minister (I thank him for referring to health and safety in his introductory remarks, brief though they were) gave the impression selectively—I suppose that one is entitled to do that in a contribution in debate— that the Health and Safety Commission agrees with these proposals. That is not what the record shows. The Health and Safety Commission has made a public statement. It sets out four areas where the Bill departs from what it would like to have seen included in it. It

989
states that the clause suggested is not an amendment to the Health and Safety at Work etc. Act, but is a freestanding power within the Deregulation and Contracting Out Bill and is therefore not subject automatically to the safeguards in the 1974 Act nor to the overriding aim that regulations should be made for health and safety purposes. The commission goes on to say that, while consultation provisions of the new power mirror those of the 1974 Act in that they require the commission to be consulted—all too often consultation does not automatically mean agreement—they do not give the commission itself, which has the overriding responsibility for health and safety, the power to initiate and consult on proposals for the use of the power. The commission's third point is that the clause in the Bill does not contain anything which would ensure the maintenance of standards of health and safety. There is no reference to that in the Bill and this is one area where my noble friends and I will be seeking to make amendments. The fourth area of disagreement concerns the fact that the use of the new power is not restricted to the removal of outdated and unnecessary legislation. Unlike the 1974 Act, it does not extend to amendment of the pre-1974 legislation.
Those are four points from the Health and Safety Commission, so how can the Government give the impression that the commission supports the proposals in the Bill? The Health and Safety at Work etc. Act was a major step forward for employees in this country and also, I would suggest, for responsible employers. The Government say that they need new powers to help industry, yet the record shows that since the Act was introduced the commission itself has repealed or revoked, through authority being given to it, 350 Acts or regulations and has replaced them with 100. So there has been consultation by the commission based on its experience of the working of the Act and of the situation of working people.
Perhaps we may look at some facts. We are not talking about a small, single-issue area which may be insignificant. It is a major area of concern. The labour force survey of 1990 showed that 1.6 million workplace accidents occurred and 2 million people suffered from occupational disease. In Britain, according to the 1992-93 records, 430 people were killed in the course of their employment and over 28,000 had major accidents. If someone can prove to me that a voluntary system works, why was the 1974 Act introduced and so effective in bringing down accident rates and in improving the overall standards of health and safety at work?
I shall deal with one particular case. A recent survey carried out by the Royal College of Nursing—a group of people whose commitment to their employment no one would doubt—showed that the average qualified nurse lost 14 days a year due to industrial injuries during the course of employment and 17 days were lost by nursing auxiliaries. If the Bill is about reducing costs, the cost of those absences amounted to £500,000 for the average hospital employing 500 full-time staff.
The Health and Safety Executive itself estimates that the total cost to the UK of industrial injuries and
990
diseases is about £16 billion a year in lost production. National Health Service costs, compensation and other factors. The cost to individual workers and their families is in the region of £5 million. Let us have some legislation which will reduce that kind of cost to the nation. The Health and Safety at Work Executive goes on to say that 90 per cent. of accidents are preventable. So why not have a Bill which deals with improving the effectiveness of the legislation which we already have?
The Government say that this change is proposed because it will help industry to become more effective and reduce its costs. I believe that there would be unanimity about that as a principle. Having said that, the Government go on to show how committed they are by reducing the budget of the Health and Safety Executive this year by about £5 million and next year by about £10 million. That will manifest itself in over 100 staff job losses. In other words, there will be over 100 fewer experienced and trained personnel to monitor the standards of effectiveness in industry and employment and to make proposals to improve those standards.
Funds for the training of safety representatives were cut by 25 per cent. in 1993; there will be a further 50 per cent. cut this year. A final cut of 25 per cent. is proposed which will totally eliminate the budget for the training of safety representatives by 1995. It is not much encouragement or confirmation to the public at large and, more importantly, to the people covered by this Bill and by the Health and Safety at Work etc. Act who will be affected by the proposals in this Bill, that the Government really do care. I leave that as a question for noble Lords. There is nothing at all in this Bill to allay people's fears.
I would like to close on the subject of health and safety by quoting Frank Davies who is the Health and Safety Commission chairman. In the introduction to the May 1994 (which is only last month) health and safety report, he says:
"Given the toll of death, illness and injury at work, few would argue that it [the health and safety law] imposes inappropriate burdens on business".
That is the view of the chairman of the Health and Safety Commission. If the Government were convinced to leave alone Section 1(2) of the Health and Safety at Work etc. Act, then I must question why in this Bill there is no reference to maintaining and improving health and safety standards.
I now propose to cover quickly Part II of the Bill. In his opening remarks I believe the Minister said that savings of £135 million have already been made and that savings of £830 million were proposed under the Bill. I question whether it is a wise move to say that in view of the Public Accounts Committee report last year which spoke of the proper conduct of public business. Would that not have been the time to pause and look at the implications of that report from the Members of another place?
Part II of the Bill covers a whole range of areas and not just those concerning the Civil Service. It covers the administration of pensions for people within the Civil Service and other areas. It gives Ministers a completely free hand to by-pass Parliament because Part II is not covered by the scrutiny provisions of Part I of the Bill.

991
That is really giving power to the Executive. The Bill contains no requirement for scrutiny of any kind as regards the major changes which will take place. Those are my three areas of extreme concern. I hope that noble Lords will consider amendments to be brought forward at Committee stage.
5.46 p.m.
Lord Boardman: My Lords, I am sure that the noble Baroness will understand if I do not follow her in her remarks. She will no doubt have an opportunity to deal with these important details when the House is in Committee. I shall confine my remarks to the objective of the Bill, which is the removal of some of the unnecessary burdens which are borne at the present time by industry and commerce. That is the main point and objective of the Bill. No doubt a great many controversial issues will arise and can be dealt with in Committee. The object of the Bill is to remove the burden on business.
No doubt the noble and learned Lord, Lord Simon of Glaisdale, who follows me, will speak on the Henry VIII powers, as they are called, which are of very much concern to some by their apparent inclusion in this Bill. I understand the anxieties that those powers will arouse if they are extended. They could become an abuse of our parliamentary democratic system. In his opening remarks, my noble friend Lord Strathclyde made clear the control of this House which would remain. No doubt we shall hear more about that as the situation develops. That would give a safeguard far beyond that which exists under the present method by which orders are made. That provides protection which I certainly would hope to see in order that one can feel happy with the inclusion of the particular powers defined as Henry VIII powers.
I know that provision for the repeal of these parts of legislation bit by bit has been described by the noble Lord, Lord Peston, as a "ragbag" and by the noble Lord, Lord Rodgers of Quarry Bank as a "job lot". They are a miscellaneous range of regulations which constitute a heavy burden on business. There is a great deal of nuisance contained in them of which the noble Lord, Lord Sainsbury of Preston Candover, spoke. It is much better—whether we call them a "ragbag" or a "job lot" —that we get them dealt with and knocked firmly on the head in one Bill instead of having protracted legislation over a period when each is dealt with separately as each comes forward, and with primary legislation if that is needed.
As regards the way in which we deal with these miscellaneous provisions, it is also worth having in mind that bad regulations inflicted on the country's economy and its business can be just as damaging as a parliamentary system which does not work very smoothly.
I now turn to the objective of the Bill. Over the years we have accumulated a vast pile of regulations. I have forgotten the number, though I believe that the noble Lord, Lord Sainsbury of Preston Candover, gave it. However, I know that there are far too many of them. To get rid of them in one Bill is to be greatly encouraged. As my noble friend Lord Hesketh said a moment ago, I
992
hope that this is stage one and that we shall continue to get rid of more and more of those matters which are so damaging to our industrial life.
It is easy to see how this arises. I suppose that at some time or another we have all seen some accident or incident and said, "Oh, there should be some regulation against that". But once there is a regulation, the regulators think, "Oh well, if we are regulating for that then we must regulate for this as well". They then find another gap in the regulations and we finish up with a whole series or mass of regulations.
Apart from the fact that it is impossible for the business community to work with so many controls., regulations have the effect of making people tend to assume that everything is regulated, so if an action is not regulated they assume that it is all right, although common sense should direct them otherwise. That is one of the problems. Another problem is what I might call not being able to see the wood for the trees. There are so many detailed regulations that no one really knows what the objective is. I take fire protection as an example. There are hundreds of regulations about what must and must not be done to doors, windows and everything else. I wonder whether the problem might more effectively be covered by one simple regulation stating that each building must be made safe against fire for the occupants and visitors—or something like that. That would probably help to do away with a great number of the separate regulations which cause a great deal of trouble. I think that it was the noble Lord, Lord Sainsbury of Preston Candover, who referred to goal-based proposals. I was pleased to hear that because it indicated the thinking that should lie behind a comprehensive regulation and what it is trying to achieve as opposed to all the bits and pieces that cause so much confusion.
I give a warning to my noble friend that, whatever the changes that are made, shortly after the enactment of this legislation some accident will happen and the press, the media, this House and everyone else will throw up their hands in horror and say, "If they hadn't repealed that regulation, it could not have happened". That is inevitable, but I hope that it will not deter my noble friend from going ahead: the accident would probably have happened in any event. When the time comes, however, the media will no doubt make full play with it, so I hope that my noble friend will be consoled by my warning to him at this stage.
One of the difficulties with complex regulations which are composed with an eye to some particular evil which officials or Ministers say has to be stopped is that the regulations are normally badly produced. That is not a result of inefficiency or ineffectiveness on the part of the draftsman, but because of the way in which those drafting legislation try to anticipate every possible loophole that could exist and put a stop to it. Unfortunately, such regulations are then insensitively implemented and enforced. Once there is a regulation, officials feel that they cannot turn a blind eye to it. They might feel that it is a pity that something is in a regulation, but they have to enforce it although it seems unnecessary from a commonsense point of view. Officials feel that regulations must be enforced. That is

993
one of the reasons why there are more and more burdens on business and why business has to take so much care to ensure that it is meeting the terms of the regulations.
Noble Lords opposite have referred to the host of regulations that have been introduced during the period of Conservative government. I agree that there have been far too many. Thank goodness the Government are now reversing that and are trying to get rid of some. However, I should say in passing that, anticipating Labour's plans, I hate to think of the regulations that would be introduced with regard to the social chapter, for example. How many regulations would that impose upon us? What about the European works councils, the graduated minimum wage and so on? All the regulations that we are seeking to get rid of in this Bill would be introduced within a matter of hours by a socialist government. It would amount to the greatest regulatory burden in history, but let us pass on from that.
Reference has been made to the regulations that have been introduced by the Community. As I understand it, the Community tends to introduce broad directives and requires the member states to implement them with detailed directives. That is manna from heaven to the officials, who are then left with the delightful task of pulling out all the stops that they can possibly think of in order to implement the general regulation that has come from the Community. Whether that is right or wrong, it must be clear that in the future we should be much more severe about allowing regulations from the Community—or from Whitehall —to hang a further burden around the neck of our industrial and commercial world.
Industry welcomes the Bill. It welcomes particularly the removal of so many out-of-date regulations and rules and thus removing the problems that it faces in trying to comply with them, to define them and to understand them. That is an impossible burden, particularly for small businesses. As has been said, a large company can employ a few extra staff and thus incur only a small extra overhead. However, the burden on the small businesses, such as those set up under the Prince's Youth Business Trust, and one-man businesses, is very great. Excessive regulation can turn what was going to be an exciting adventure into an impossible nightmare.
Throughout my political life, I have seen (and perhaps condemned) the massive package of laws that has been introduced through regulations and primary and secondary legislation. They have created far too many hurdles. For the first time, we now have an opportunity to reverse that process, to move back a little and to start asking whether regulations are necessary and whether we have to have them. Noble Lords who are gardeners will know how important it is to keep roses healthy by pruning them back. I believe that it is equally right to keep one's economy healthy by pruning back the regulations, which is what we are now trying to do. I support the Bill.
5.57 p.m.
Lord Simon of Glaisdale: My Lords, your Lordships are the watchdogs of the constitution. If your Lordships do not perform that role, it is not performed. Your Lordships have been very successful in recent years, if only in raising on the agenda such matters as Henry VIII clauses. Your Lordships have consistently taken a stand in favour of parliamentary government and the rights of the individual as against bureaucratic invasion. That is an important aspect of this Bill. On the other hand, what your Lordships are asked to do in this Bill is to repel the bureaucratic invasion so far as it is concerned with the subject matter of the Bill by using the chosen instrument of bureaucracy—in other words, government by decree—and government by decree using the Henry VIII clause. That poses a very serious issue. Once again, we are very deeply in the debt of the Delegated Powers Scrutiny Committee, which has valuably made a preliminary report in advance of the Committee stage emphasising the significance of the second matter to which I have referred.
I think that our adversarial parliamentary system has obscured to some extent the degree of unanimity that lies behind the Bill. It is now, I think, not contested that the market system is incomparably the most efficient system for delivering goods and services to the consumer. The noble Lord, Lord Peston, in another of his very valuable speeches, quoted the famous observation of Adam Smith, that the sole object of production is consumption. Therefore it follows, does it not, that anything that hinders production is to the disadvantage of the consumer. That is an important point to bear in mind in relation to the Bill.
The second thing that is, I think, not contested is that small businesses have an important part to play in promoting the dynamism and flexibility of the market system. The third thing that is not contested is that the mass of regulations with which we have been concerned —the noble Lord, Lord Sainsbury of Preston Candover, mentioned the figure of 3,500—which add to the costs of business, bear particularly hardly on small businesses. If anyone had doubted that, their doubts would have been set at rest by the noble Lord's speech, reinforced as it has just been from the vast experience of the noble Lord, Lord Boardman. So those matters are, I think, conceded and common ground.
There is another point which is of great importance: it is that many regulations, and probably most of the regulations with which we are now concerned, are at their inception necessary, or at any rate desirable, for the protection of individual persons who might otherwise suffer. If they suffer, in many cases that will be to the detriment of the market system. One has only to think, for example, of the regulations against pollution. If a manufacturer discharges his industrial effluent into a river, he is adding to the cost borne by the community and discharging part of his own costs. That is a distortion of the market system. So, while we concede the importance—it has been emphasised by a number of speakers—of regulations for protecting health, safety, consumer interests, environmental interests and so on,

995
we must bear in mind that many of them have, in their efficacy, the additional advantage of conducing to the actual advantage of the market system.
So one is bound to ask: how is it that there is now such complaint that those burdens are felt to be onerous? I believe that there are several reasons. One is the simple fact that if you have a regulation you have to have an official to draft it and to enforce it. You have to give him power, and, as Acton said, "power tends to corrupt". The initial symptom of corruption, more often than not, is a greater power which will feed itself into more regulations which may not be so necessary.
The second factor is what I am going to call the tunnel vision of departments. I believe that the noble Lord, Lord Cockfield, found a more appropriate phrase when he said that each department has its own agenda. Let us take, for example, environmental interests. Naturally the Department of the Environment will have as its prime aim the safeguarding of the environment while it will be less conscious that what it may be doing is injuring the interests of the producer (the enterpriser) upon whom everything depends in the end. There is that agenda in each department which will tend to promote the proliferation of regulations. Any administrator will be immediately conscious of, and sensitive to, any newly discovered lacuna and will endeavour to stop it with a new regulation.
The Small Business Forum made a plea against that system. It said that there should not be a, so to speak, knee-jerk reaction to every one-off accident or incident, but it is that knee-jerk reaction—understandable as it is in a department which is concerned to prevent incidents and accidents—which has added to the proliferation, without our really being able to see the whole picture, as the noble Lord, Lord Boardman, has just said.
The final point that one should bear in mind is another matter to which the noble Lord, Lord Boardman, referred, and that is the activity of Brussels. I presume to be very much pro-European, but, with all respect to the noble Lord, Lord Cockfield—I hope that he will not mind my saying this—we who are profoundly pro-European—I do not include the noble Lord, Lord Jay—are considerably irked by many of the activities of Brussels, and the Government's major task in approaching 1996 should be to bring about a better, less centralised, less bureaucratic structure of the European Community.
It seems to me that there is a strong case for doing what the Bill proposes to do; in other words, brushing away many of the regulations that have outlived their usefulness or which cannot be justified on the basis that they give continuing protection. As against that, there is the important consideration that was put forward by the Scrutiny Committee. The ultimate question—it is by no means an easy one—is: are we prepared to put up with factors which your Lordships have shown over and over again to be unpalatable (in other words, government by decree; government by Henry VIII clause and so on) in order to secure the benefit that is claimed for the Bill?
It would be altogether all to easy to say that it would be folly to throw away the substance because we strain
996
at the form, because behind the form, as the noble Lords, Lord Stoddart and Lord Cockfield, have pointed out, there is a whole history of parliamentary government.
In the end, it is worth while on this one occasion to put up with what is suggested. However, there are certain conditions, some of which are conceded and some of which are yet to be sought. The first is the clear understanding that this is a one-off occasion. I know that your Lordships are not for one moment relaxing your vigilance against government by bureaucratic decree —that is, government by Henry VIII clause.
The second condition is the close scrutiny of the; language of the Bill. It has been subject to analysis by the noble Lords, Lord Peston, Lord Rodgers, Lord Stoddart and others. It is very much to be desired that the Government are flexible about this matter. They should not dig in their heels and prevent any amendment to the important wording which may appeal to your Lordships. Above all, your Lordships should not be kept discussing such issues late at night and in the early hours of the morning in the knowledge that the noble Viscount the Chief Whip has his posse of devoted supporters waiting outside to vote down any proposal to adjourn your Lordships' House at a reasonable hour and, still more, to vote down any noble Lord who has the impertinence to call a Division on a matter that is not congenial to the Government.
The third condition is very important. It is the proposal of the Procedure Committee which has been accepted by the Government. It can go well beyond this Bill because it closely resembles proposals that were made by the House of Commons' Procedure Committee about two decades ago to deal with the problem, of which the committee was cognisant, of the mass and importance of subordinate legislation. I hope that I understood the noble Lord, Lord Strathclyde, correctly. I believe that he conceded that, although the committees to which the deregulation provisions are submitted would be advisory only, your Lordships would be free to vote against the deregulation when it came before your Lordships on affirmative resolution procedure—
Lord Strathclyde: My Lords, perhaps the noble and learned Lord will permit me to intervene. He is almost right. I indicated that noble Lords would be free to vote on and to make an amendable Motion to a report coming out of the deregulation committee. If at that stage the decision of the House went against the deregulation order, that order would be withdrawn. In such a way, this House can preserve its convention of not voting on secondary legislation. However, the voice of the House can be heard where there is disagreement between the Government and the special committee of the House.
Lord Simon of Glaisdale: My Lords, I am quite satisfied to be very nearly right. When the affirmative resolution is put to your Lordships, three courses will be open. The first will be for the Government to withdraw in the face of the criticism of the committee. The second will be for the Government to withdraw in the face of the criticism of your Lordships on considering the order. The third will be for your Lordships, if you are not satisfied, to vote down the order. It is a very weak convention that your Lordships do not already take that

997
course. It is a weak convention because it does not make much sense when one compares the powers of your Lordships under the Parliament Act. It is also a weak convention because it has been breached in the past; for instance, on the Rhodesian sanctions order. But whether or not the Government concede that, I hope that in the circumstances of this Bill your Lordships will not hesitate to vote down any order which appears to have wrong the balance between the protection of some necessary interest and the freedom of industry, in particular small industry, from an excessive burden.
With those safeguards, I would reluctantly be prepared to accept the Bill. Perhaps I may be allowed to comment on the constitutional issue. I understood the noble Lord, Lord Rodgers, to say that your Lordships could vote against the Bill on Second Reading. I respectfully agree. There is neither statute nor convention which would prevent that in the circumstances of this Bill. However, as I have made clear, if there is a Division I shall be in the other Lobby.
That being so, and having regard to the method chosen, I support the Bill, however reluctantly. In the end it comes to this; if we insisted on primary legislation we should not get deregulation at all. That is the political sense of the matter. No doubt it would be very much better if we had forgone a whole number of recent statutes in order to proceed deregulating by primary legislation. But we have not done so. We are in the present, and, being in the present and being politicians, your Lordships would accept the balance of convenience as being in favour of the Bill.
6.17 p.m.
Lord Reay: My Lords, the CBI, whose brief I accept (and I declare an interest on that account) welcomes the Bill; and so, if I may distinguish our respective voices, do I. I am impressed with the sincerity and thoroughness of the Government's approach. The Bill and what is planned to follow it are the product of what is an exemplary, almost awesome degree of co-operation between government and industry, as was demonstrated in the speech of my noble friend Lord Sainsbury of Preston Candover. The CBI is also content with the attention that has been paid to the views of small business, whose interests in particular stand to be advanced by the Bill's central purpose and which were also taken to heart by the task forces.
This will not be the first time in our history that there has been a bonfire of controls. Conservative Governments have had recourse to them with some frequency, usually to dissociate themselves from a previous Socialist era. So in 1952 a match was put to the Labour Government's postwar controls. In 1979 deregulation was a theme again of the new Conservative Government as controls on dividends, wages, exchange controls and prices were gleefully conflagrated. In due course, the achievements of the European single market produced a further destruction of controls, this time on cross-border trade within the Community. However, paradoxically that led also to a burst of new regulations from Brussels as standards in the single market were unified.
998
Deregulation could in fact be said to be a recurring theme of this Government. The abolition of wages councils, the deregulation last year of the milk market and the prospective reform of agricultural tenancy laws are all ongoing examples of deregulation by this Government. Surely what is less usual is for a regulation bonfire, complete with trumpets and a chorus of approval from industry, to follow a long period of Conservative government.
I believe that another novelty is the Government's intention to keep the bonfire burning. To prevent it going out, Ministers are to keep emerging from their Ministries with new fuel for it. Our constitution is even to receive a significant innovation so that on their way to the bonfire, Ministers can, without being held up for too long, receive the endorsement of Parliament.
How does such over-regulation come about under a Conservative Government? An editorial in the Evening Standard on 20th January of this year put the problem in this way:
"How are we to decide what is a necessary regulation in the public interest and what is a spurious, burdensome bit of bureaucracy? The problem is that, taken individually, each one of the rules and regulations eligible for cancellation under the Government's new Deregulation and Contracting Out Bill could have a great deal to be said in its favour. Each one could call upon the passionate, articulate advocacy of a pressure group in its defence. But it is the overall mass … that needs to be assessed … which has got out of control"
It went on:
"Part of the problem is that the public has been educated by the Press and the media to think that every reversal and catastrophe can be remedied with a new law … Sometimes it is timely and effective. But sometimes it is just a meaningless bit of activity to reassure ourselves that Something is Being Done".
Lord Clinton-Davis: My Lords, I am grateful to the noble Lord for giving way. Does he put the recommendations concerning the "Herald of Free Enterprise" or the recommendations of the Donaldson Committee concerning the "Braer" incident and all its implications into that category?
Lord Reay: My Lords, I make it plain that there are many regulations which, taken individually, all of us or some of us can accept. It is in their aggregate that they amount to a burden which becomes excessive.
That thoughtful description was given by the Evening Standard. Of course the Government had to do something. Speaking in the wealth creation debate in your Lordships' House in May of last year, my noble friend Lord Vinson said how:
"The road to a safer environment is paved with bankrupt businesses and businesses that never started".—[Official Report, 12/5/93; col. 1306.]
He complained about a total lack of proportionality in much legislation and asked for that to be brought back into the equation. That is something which the unfortunate Nicholas Scott, Minister for the disabled, was trying to do when, "alone upon the burning deck whence all but he had fled", he was left to talk out the disability Bill to prevent £17 billion costs being imposed at a stroke on British industry.
Such costs are often considered to be quite irrelevant and insignificant by pressure groups which tend to believe that they are moving on a higher plane where only such matters as rights need to be considered. They

999
were and are abetted by the media which compete to exploit the opportunity to whip up public feeling and prove their power by having a demonstrable effect on government action. Having had that effect, and probably after having achieved a change in legislation, they never show any interest whatever in the subject ever again.
Lord Tordoff: My Lords, with regard to what the noble Lord said about Nicholas Scott, does he suggest that the costs should be borne by the disabled rather than by business?
Lord Reay: My Lords, I do not understand what the noble Lord is suggesting. He asks me whether the costs should be borne by whom?
Lord Tordoff: My Lords, I can understand that the noble Lord does not understand from the way in which he couched what he was saying. He says that the costs arising from that legislation would be £17 billion. I am asking him whether he suggests that those costs should be borne by the disabled rather than by business?
Lord Reay: My Lords, I believe that to be an excessive cost to be imposed at a stroke on business and that the Government were correct to resist the Bill.
Lord Monkswell: My Lords, I am very grateful to the noble Lord for giving way. Perhaps I may refer again to his comments about Nicholas Scott. He held him up to be a hero for stopping that particular Bill. Is he really saying that the practices that the Minister employed— namely, using a Back-Bencher to engage in what the whole world sees as virtually nefarious activities—are the actions of a parliamentary hero?
Lord Reay: My Lords, I am not sure that it is for Members of this House, and it is certainly not for me, to comment on aspects of procedure used in another place. However, in the ways that I have illustrated, legislation is accumulated, bureaucracy is swollen and the Government's £50 billion surplus of five years ago becomes a deficit today.
Often the Government seem not to be playing the leading role at all. Often the question seems to be whether or not the Government will resist the pressure. I believe that we are all to blame in some measure. Each of us has his own pet idea for new legislation where we suspend consideration of the negative contribution which that will make to the total picture. As the noble Lord, Lord Peston, put it so well, we often focus excessively on the benefits of legislation and not on its costs.
Against the background of what I would call an irresponsible culture like that, the Government cannot expect to make dramatic progress. The advantage to be gained by sweeping away some obsolescent rules here and consolidating a few others there is nugatory compared with the damage that can be done by next month's Government surrender to some often press or medialed hysteria. We shall have to see whether there will be or can be built into our culture and into all its governing institutions—Parliament, bureaucracy and the press—a lasting concern for the burdens which accumulated legislation can impose on industry. That is what the CBI would like to see and what is surely called
1000
for by the degree of our dependence on the success of our industry and the nature of the challenges which that industry now has to face in the world at large.
Until we know whether or not something like that has; been achieved, the best that we can do is to keep an open mind regarding the ultimate significance of this promising and well-meant Bill, which I wholeheartedly support.
I should like to say a few words about some of the specific provisions in the Bill. Broadly, I accept the Bill's scrutiny provisions in Part I. I do not see how all deregulation proposals could have been ready for this Bill, nor do I see how progress could be maintained if all future proposals require primary legislation. The Government had to envisage proceeding by means of secondary legislation and that being so, the scrutiny proposals seem to me on the whole to be well balanced, providing for adequate consultation and consideration by Parliament, particularly now that the Minister has, I understand, accepted the 60-day provision. I do not see that as an outrage.
The contracting out provisions are welcomed by the CBI. It would like to see further market testing of Government functions. However, it has two anxieties. The first is that regulator)' functions should not be contracted out so that some firms are put into a regulatory position over other firms. The other anxiety relates to commercially sensitive information which it would not wish to see passed by government from one firm to another. The Bill seems to make provision against such eventualities, but there is a grey area and I shall listen carefully for reassurances from my noble friend the Minister here and perhaps more particularly in Committee.
One matter which is not included in the Bill but which I understand is being considered by the deregulation task force under Francis Maude is an appeals procedure, probably to magistrates, against the decisions of over-zealous bureaucrats. I welcome the sympathetic response which the Government gave to an amendment tabled in another place which sought to introduce such a procedure. Bureaucrats can exercise an excessive and destructive tyranny over small businesses. The Government have shown their recognition of that as the codes of practice, to which my noble friend referred, indicate, and by setting up the review which is now in train into local authorities' enforcement functions. The CBI welcome those developments; but the question is whether those measures are enough. I doubt whether they are and I should like to hear how government thinking has progressed on the question of an appeals procedure.
I have no doubt that attempts will be made by the party opposite to amend the Bill in ways which are unacceptable to the Government and which would not be wished for by the CBI; for the Labour Party is the party of regulation and not deregulation. As my noble friend Lord Boardman pointed out—
Lord Peston: My Lords, I must have misunderstood the noble Lord. Surely he is not suggesting that we should not consider amending the Bill because that

1001
would not be acceptable to the CBI. I hope that that was not the point the noble Lord was making, though it sounded very much like it.
Lord Reay: No, my Lords; I was simply stating what the CBI's reaction would be to that part of the Bill. I give way to the noble Lord.
Lord Peston: My Lords, I was under the impression that we represented one of the Houses of Parliament. Surely the CBI would leave it to us to decide how we ought to amend the Bill. The confederation might care to advise us on the matter; but I do not think it would wish to go further.
Lord Reay: My Lords, the noble Lord is right. However, I thought that noble Lords might be interested to know the view of the CBI as well as my own on that point.
As I said, the Labour Party is the party of regulation. As my noble friend Lord Boardman pointed out, the Labour Party happily plans to saddle this country with what my right honourable friend the Secretary of State has called,
"the greatest regulatory overload in history",
by signing up to the social chapter. That is not wanted by anyone in this country, except the Labour Party and the trade unions; it is certainly not wanted by business, large or small.
It would be against character for the Labour Party to support the Bill. I look forward to resisting its proposals to amend it. I believe it to be a good Bill, full of promise, and in the interests of business. It deserves support.
6.31 p.m.
Lord Ashley of Stoke: My Lords, I thought that the Minister was rather complacent in his speech. However, as regards complacency, he was beaten by the noble Lord, Lord Reay. I have rarely heard a more complacent speech on any Bill in either House of Parliament. Moreover, there were serious factual errors in it, but I have no time to go into all of them because I have my own speech to make.
It is interesting to note the way in which myths are peddled, repeated and accepted as gospel. The noble Lord mentioned the cost of £17 billion regarding discrimination for disabled people. That figure was put forward by the Prime Minister. It was snatched out of the blue and based, erroneously, on a five-year assessment of the complete implementation of all the proposals in that disability rights Bill. The noble Lord may not know it, but the sponsors of that Bill have accepted amendments which would mean a far longer run-in period for the legislation—for example, not in five years but possibly over 20 years. Provisions have been inserted into the Bill which provide that no business will suffer unduly. That means that none of those costs can be imposed in the short term and the cost will certainly be nothing like £17 billion. Yet the noble Lord mentioned the terrible costs of £17 billion in his speech.
That is just one example of a myth. Another example is the noble Lord's statement that the Labour Party is the
1002
party of regulation. However, most of the regulations which will be repealed by the Bill before us are those which were brought in by the Conservative Government. Therefore, it is quite wrong to use such shibboleths or old-fashioned clichés about "Yah boo" the party opposite. I thought that we could avoid that kind of petty bickering in this House. But if we are going to indulge in such behaviour, one should at least try to be fairly accurate and endeavour not to be misleading. However, the noble Lord inadvertently mislead the House.
I welcome the opportunity to oppose such draconian measures. I am especially glad to declare my interests as a consultant to the Society of Telecom Executives (part of a federation of trade unions) which is very strongly opposed to the Bill. That federation realises the grave damage to trade unions which can and will be caused by the Bill if and when it is implemented.
Deregulation has a nice ring to it. It has a sort of ring of freedom from bureaucratic control. But we should not allow the word "regulation" to become a derogatory word. Many regulations bring great benefits to workers, consumers and society in general. The problem is to distinguish between the good and the bad regulations; that is, between the sensible and the silly. That should be done by Parliament. In some cases it need only be a quick assessment but in others careful consideration is required. However, the Bill virtually dispenses with Parliament and substitutes ministerial diktat. Nothing that the Minister or the supporters of the Bill have said during the past few hours has convinced me otherwise. It is incredible, and certainly totally unacceptable, that Ministers should be handed power to amend, or even set aside, Acts of Parliament merely by using statutory instruments.
The Government's answer to that criticism is to say that the power to amend or repeal legislation will be subject to the consideration of a special committee. But I do not believe that that committee will convince many people. It will in fact be filled by government placemen, and the Whips will guarantee an unchallengeable majority in another place. However, the ideology of this Government and the history of the Bill indicate that it is legislation for big business. As the National Consumer Council has said:
"It has been driven by the needs of business. We question if the public interest will coincide".
I question it, too, because consumers and trade unionists were not represented on the business task forces, and even small businesses were given little opportunity to take part.
The Government's hostility to trade unions is well known and well documented. It augurs badly for the future of the Employment Protection (Consolidation) Act 1978. We all know that that legislation ensures fair treatment for employees whenever an employer is considering redundancies. The Government argue that the provisions of that Act are too restrictive and inflexible. But what does that mean? Obviously Ministers are setting up the Act as a sacrificial victim, as a "burden". I believe that weakening or abolishing that employment legislation would be an act of industrial vandalism. It would encourage employers to break

1003
agreements and to get rid of critics or whistle blowers, and that would cause real damage to industrial relations. Appeals to industrial tribunals for unfair dismissal would be a very poor substitute for that legislative protection.
The Bill is a flagship of the Government's doctrinaire obsessions, and nowhere is this more clearly revealed than in the proposals for contracting out. The Bill is a kind of legislative furniture removal van, giving power to Ministers to remove some statutory obstacles to contracting out. That power can be used by the Minister to award contracts to any supplier of his choosing, without objective evaluation of a contract or the requirement of specific criteria. Is it not remarkable that that can actually happen? Once those awards have been made, private contractors, private individuals, employees of private contractors—and even contractors of private contractors—can act as if they were civil servants or Ministers.
Accountability to Parliament will be weakened and MPs will face difficulty in representing their constituents. I think it is extraordinary that the Government cannot appreciate the value of the integrity of the public services, and astonishing that the Government seem intent on destroying this.
There are many very good private firms, and I readily acknowledge that. We are proud of those firms in Britain. However, there are also a few unscrupulous ones and we should all recognise that too. Peat Marwick has estimated that the cost of contract related fraud in 1993 was £21 million. Contracting out public services to private firms will inevitably increase the temptation, and the opportunity, for fraud and corruption.
I believe that that must follow because some decisions now being made by public bodies are of great commercial value. The Patent Office decisions are a good example of that. Millions of pounds can be at stake, and yet the Government are considering placing the Patent Office in private hands, thus destroying a valuable institution and placing temptation before private firms.
A similar essential public service, in which probity should be the prime consideration, is the Insolvency Service. The financial sector has been wracked with scandal, from Maxwell to the unscrupulous selling of private pension plans. The Insolvency Service is untarnished, yet the Government are apparently preparing the way to get rid of it.
I conclude by saying that I believe that this Bill flouts the basic principle of our democracy that Ministers should not have the sole power to sweep away carefully considered legislation. This Bill is based on the false assumption that private firms are always more efficient, and that administration by profit-seeking companies is superior to that of people motivated by the wish to serve the public—civil servants. I believe obsessive ideology could hardly go further. Demolishing renowned public institutions and destroying the Civil Service ethic is dangerous and damaging. I add my small voice to the condemnation of this Bill.
6.43 p.m.
Lord Vinson: My Lords, on the contrary I welcome this Bill and I do so particularly because I believe it will help to create jobs, and perhaps even more importantly prevent the destruction of jobs. I know this to be true and, with the leave of the House, I would like to speak from my own experience and take up the point raised by the noble Lord, Lord Hesketh. I was fortunate enough to start up a small business in a Nissen hut when I was 21 and like many industrial processes at the time, it was smelly, noisy and environmentally not very attractive. However, it was next door to a railway line where the diesel engines did, and still do, create far more pollution than my small company ever did. Over the years it prospered and eventually employed more than 1,000 people through pioneering a process that gave this country world leadership in that particular technology and earned the company the Queen's Award.
I mention that because, had the present environmental protection regulations been in force at the time, the company could not possibly have afforded the anti-pollution measures now called for and would have had to cease trading. Ironically while the unregulated and more polluting diesel trains ran on, a thousand jobs would have been lost.
I believe this story could be repeated umpteen times but it is a good example of how reasonable intention behind regulations, if overdone, can so often have perverse effects that far outweigh any benefit brought to society by the regulation itself. The road to unemployment is indeed paved with such good intentions. The point I particularly want to make is that regulation has profoundly serious economic consequences as well as perceived beneficial ones. It is why we must be certain that regulation is both made and interpreted with common sense and practicality. Therefore I welcome this Bill because it begins to address this important issue.
I remind the House that these problems are not new and were first allegorised by the satirist: Dean Swift in Gulliver's Travels which states:
"No one silken thread held Gulliver down but a thousand made him immobile".
Indeed, it is cumulatively that regulation becomes so damaging. It becomes all the more damaging when such regulations are antiquated and inappropriate. This brings me to the question of the so-called Henry VIII clause. Frankly, I think it is essential that Ministers should have the powers to unscramble bad regulations.
I believe that most people accept—this has been well mentioned in the House today—that there is too much legislation and a great deal of it is badly prepared. Currently Ministers have wide powers through statutory and other instrument procedures and it seems to me that if they are granted such powers to make laws, it is not unreasonable that they should be granted comparable powers to unmake bad laws. Indeed, if all the safeguards, scrutiny—
Lord Tordoff: My Lords, I am grateful to the noble Lord for giving way. When he says that Ministers make laws, I was under the crude impression that it was Parliament which made laws.
Lord Vinson: My Lords, if the noble Lord opposite wants to be pedantic, of course he can be. The point is that Parliament gives Ministers the right to make statutory instruments and it is through statutory instruments, often unsupervised and unchecked, that a great deal of legislation develops. My essential point—
Lord Skelmersdale: My Lords, I hope my noble friend will give way. As possibly the only Member of your Lordships' House present who has the honour to be on the Joint Committee on Statutory Instruments, I must tell my noble friend most firmly that they are not unchecked.
Lord Vinson: My Lords, the point is—I hope I may make this point with the number of corrections which have been given to me—that a welter of bad legislation goes through this House and a great deal of it stems from the powers directly given to Ministers to make statutory instruments and other orders. It has been mentioned tonight how these are often slipped through during the periods of vacation.
Indeed, if all the safeguards, scrutiny, attention, time delays and double-checking suggested in this Bill as part of the procedures to enable Ministers to unmake bad regulation were, conversely, used more sensibly in the preparation of legislation in the first place, that indeed would be a matter to be doubly welcomed by this House and anyone associated with the parliamentary process. Frankly, while I totally respect the contrary views to my own, I believe that the concern is back to front. It is not wholly rational to criticise the new powers proposed in this Bill which will enable Ministers to unmake bad regulation, and I urge the Government to stick to their guns.
My next point, which was touched on by the noble Lord, Lord Reay, deals with a matter which sadly the deregulation Bill in front of us fails to address in the manner that it should; namely, the inadequacy of the rights of appeal procedures where people feel that they have been unreasonably, unjustly or inappropriately regulated. It seems to me that this Bill is the ideal opportunity to help put right the serious injustices that so often occur, indeed —as the noble and learned Lord, Lord Simon of Glaisdale, said—inevitably occur, under the administration of regulations. I hope that the Government will find time to amend the Bill appropriately.
I shall expand the point. No one can be against sensible regulation as such. My concern lies in the misapplication of regulation and where disproportionate implementation is both unreasonable and damaging to the business or activity concerned—in other words, it lacks common sense.
However well statutes are drafted, inevitably the detailed interpretation of regulations at the point of application has to be left to the official concerned. There is no way that the law can cover such details. But it is precisely at the point of application that so often things go wrong and in such a damaging and unrectifiable way.
Officials are only human like the rest of us and they too get out of bed the wrong side. They too hate admitting that they are at fault, quite apart from the fact that they can on occasion be overzealous and quite
1006
unreasonable. Consequently, when laying down the law they are not always right—and quite often wrong. However, it is currently extremely difficult to challenge them on the spot through fear of creating greater alienation, and many misapplications of the law go unchallenged because the existing appeal procedures are cumbersome, slow and in many instances offer no practical recourse. The whole balance of justice at the point of regulation is deeply one-sided and often unfair to the regulated.
The results of that are clear to see. Daily the papers report mind-numbing examples of official stupidity which go unchallenged—with interpretations of the law that no statute maker in his wildest dreams would have recognised as bearing much relationship to his original intent.
In life, where you stand depends on where you sit and, sadly, today few of those in authority, be they in local government or central Government, have much experience of the practical problems of running a business; thus, they do not suffer the seething sense of injustice that the misapplication of regulation is creating among the business population of this country.
Perhaps I may remind your Lordships of a few of the examples that have graced the press over the past few months, not least through the revealing and satirical pen of that great libertarian, Mr. Christopher Booker. From first-hand experience I can verify the truth of many of them. I refer to butchers threatened with closure because they chopped meat on wooden chopping blocks; or an enforcement order made on a small chemical company to clean up its chemical waste. That sounds perfectly reasonable until one knows that the chemical was in fact acetic acid—in other words, vinegar, which is a natural substance which occurs particularly in old woodlands. It was being pumped into the atmosphere at a rate rather less than that which comes out of a fish and chip shop. The enforcement order would have cost that small company over £0.5 million to correct a level of pollution less damaging than the diesel car in which the inspector arrived on the premises to enforce it. It is a classic case of using a sledgehammer to miss a nut. I could go on, not least about the block of flats in London where the underground garage has been served by an access that has passed all fire regulations for the past 30 years. Along comes a new fire officer who says that unless the access is narrowed within a week to prevent double parking, he will close the garage. How a fire engine might have passed that point subsequently is another question. There was the Stilton cheese maker taken to court for having mouldy cheese —which is exactly what a stilton is. We laugh at those cases because they do not affect us. But they do: the cost of compliance, in many cases the wholly unnecessary cost of compliance, comes back to us all through increased prices, waste of resources and loss of jobs. The consumer is directly affected. Everyone pays; society pays.
What is at issue is the use and abuse of power, and there is much evidence that the power of regulation is often misused. The checks and balances to determine fairness are simply not in place. Many of us believe that the citizen must be given the right to challenge an officer armed with formidable powers, the exercise of which

1007
would be prima facie unreasonable. There must be an instant right to secure at least a breathing space to stay in business while those powers are being examined. There is nothing new in that concept. The point at issue is this: quis custodiet custodes—who shall judge the judges?
In another place Mr. John Sykes and others, greatly to their credit, introduced at Committee stage a clause which would give such a right to the regulated to challenge unreasonable or disproportionate regulation. That is not the right to challenge any regulation which involved matters of life or death but the right to challenge the inappropriateness of regulation which would be self-evidently damaging to the welfare of the business and to the people it employed a right exercisable by immediate and not too costly procedure, probably through a magistrates' court or by some other alternative means provided that it is quick and effective.
I see from Hansard that the Minister responsible for deregulation welcomed the principle underlying the new clause, no doubt because it fits well with the concept of the "Citizen's Charter". He intimated that he and his department may well come up with an improved mechanism to that suggested to meet that very real concern. If he does so, I am sure that we would all welcome it. But if he does not, I hope that he in turn will welcome an amendment to that effect at Committee stage which I, with the help of other noble friends, would hope to reintroduce.
I reiterate that I believe that none of us is against sensible regulation as such, but that all of us should want to see regulation that is fairly and sensibly implemented—in other words, regulation that is made to work better. That I believe to be the real crux of the regulatory problem over which there is indeed very widespread concern. It is a matter which quite properly the deregulation Bill should address. No one is asking Britannia to "waive the rules", but merely to interpret them with common sense. I hope that we can return to the matter in Committee and that the Minister will refer to it at some length when he sums up today's debate.
6.56 p.m.
Baroness Hamwee: My Lords, I had thought it a little dangerous to speak in the debate because many other noble Lords would be so much better qualified than I am to speak on matters of constitution, history and ethics. Indeed, there have been some powerful speeches today. However, hearing as the debate developed how sharply divided are the views on the propriety of what is proposed, I am glad that I decided to join in the debate. The noble Lord, Lord Ashley, described his voice as being small. I dispute that; but if his voice is small, mine is smaller still but I shall let it speak.
Like other noble Lords, I welcome the reduction in unnecessary bureaucracy. That is so self-evident as to be rather trite. But I believe that it is a mark of the high-handedness of this Government that one approaches the Bill with such suspicion. The Bill refers to a burden on business. However, as other noble Lords have said, it does not address the question of a burden on individuals, communities, consumers or citizens who
1008
are entitled to protection from the state, and indeed sometimes protection against the state. The Bill gives the Minister an enormously wide discretion. He has obligations to consult; but that does not mean that he has to have regard to what he is told. We have all been on the receiving end of lobbying. We know that it is very much easier to listen to a group which believes itself to be affected by a specific proposal rather than by those who think that if a proposal fails they will be better off; in other words, it is quite hard to identify those who may be affected:. By definition, people who believe that they are being wronged speak up; those who are satisfied with the current position are largely reluctant, or do not envisage the need, to say so.
Regulations often protect those who are weaker. I take a different view from the noble Lord, Lord Reay. He seemed to reduce all minorities to the status of a pressure group. The Bill refers to restraints on removing necessary protections. However, a protection may be desirable without being necessary. I do not believe that the Bill provides the protection which those minorities who are the subject of the protection of a regulation in the first place deserve.
One must assume that every regulation had some good purpose originally. The Minister referred to the small business litmus test. The Government must have assessed the cost to small businesses of every sector before introducing regulations in the first place.
I am sorry that the noble Lord, Lord Strathclyde, is not in his place at the moment because I wanted to say to him that he bore out my suspicions that he must be a remarkable poker player. With an entirely straight face he gave attractive examples of the regulations which are likely to be reduced or repealed. One was likely to involve halving the time before a debt is regarded as a bad debt in order for VAT to be reclaimed. He gave no clue that the present provision was introduced only two or three years ago. The noble Lord, Lord Vinson, suggested that there is insufficient experience of the real world among Members of this House and another place. I recall, in my capacity as an employer running a business, the great irritation when that regulation was introduced and we had to wait double the length of time before we could claim VAT. Therefore, although the examples were attractive, in a number of cases they were a little disingenuous.
I should like to know what is regarded as a small business for these purposes. I sometimes think that the Government divide the world of industry and commerce into businesses which are either almost as big as ICI or small, family-run corner shops. There are many businesses employing 200 to 250 people, and they are sometimes left out when the interests of business are considered.
We have quite rightly been warned to beware of knee-jerk reactions. I made notes as the noble Lord, Lord Sainsbury, used that term, but I came to the opposite conclusion. The bonfire of regulations is fashionable, but there is a danger that among those put on to the bonfire will be regulations which are just beginning to take effect. The Royal College of Nursing is one body which has drawn your Lordships' attention to the fact that recent regulations are beginning to

1009
change the way in which employers safeguard the health and safety of their staff. Regulations are beginning to lead to better working practices. When a regulation is introduced the world does not change overnight. It takes a while for the culture to change as a result of the regulation. That, after all, is the role of a regulation.
In many ways Clause 3 relating to consultation is as important as Clause 4. However, I wonder whether either clause can ensure that the Minister takes a sufficiently wide view. We have heard of the problems of environmental appraisal, but many people now see that as an opportunity rather than a burden. I hope that the Government will take the view that environmental concern should be the norm and not the exception.
Just as consultation does not necessarily mean having regard to what one is told, so scrutiny does not mean accountability. I fear that there will be no real opportunity to amend what is put before your Lordships in the procedure that is proposed. I believe that the approach to the new orders will swiftly become a fairly routine matter.
This is not the occasion to consider all the detailed provisions of the Bill, although one may wonder why the Bill includes detailed provisions at all. Why are they not dealt with under the powers that are to be introduced? Either full scrutiny is required, in which case every regulation which is to be altered should come before your Lordships in a similar form, or the scrutiny of this House in this form is not required and therefore it is taking up valuable parliamentary time to include them in this Bill. We heard only this afternoon from the noble and learned Lord the Lord Chancellor that we do not have enough parliamentary time to consider reports of the Law Commission as swiftly as they should be considered.
The last clauses of the Bill revert from the particular to the general. The noble Lord, Lord Bancroft, made a powerful speech about the Civil Service ethic. I believe that the constitutional effects of the last clauses are as erosive as those of the first clauses. Not only is central government the subject of the provisions but so is local government. I welcome anything which will assist local authorities to do their job better, but that comment has to be followed by a query: is this a requirement to further contracting out?
There is talk of market testing. That is not the same as compulsory competitive tendering, but I fear that it may be a seductive term which conceals a real threat to local democracy. There is the ability to market test. Will that be followed by an obligation to go to compulsory tendering? I have a particular concern that this will mean the contracting out of decision-making, not merely implementation. For example, will it be proper to delegate to a contractor, the seeking of a liability order when council tax is not paid? Will it be proper to delegate to him the obtaining of financial information about a debtor and seeking recovery, which may be in the form of an attachment of earnings order or may go so far as instigating bankruptcy proceedings?
Accountability is partly about controls. It is not clear whether in a world where market testing leads to contractors undertaking obligations, those contractors
1010
will be subject to checks by external auditors and inspection of their accounts in the same way as electors can inspect the accounts of local authorities. Will they be subject to the powers of the local government ombudsman? What about the valuable provisions relating to freedom of information?
The Bill will allow contracting out of sensitive functions which combine the political with the quasi-judicial. I expect that the Minister will say that determining planning applications, deciding on school admissions and so on can be given to a contractor because the local authority will set the policy framework. Indeed, so the local authority should, but to pass on the implementation is to ignore the special character of local government, which is government, not mere administration. It is characterised by accessibility as well as by accountability. There are often occasions when politicians, who must have a local connection, can bring a special perspective. That is not the same as special pleading but it makes for effective as well as efficient government.
I shall mention one aspect of the detailed provisions of the Bill which relates to efficiency. It is perhaps something of a paradigm for the rest of the Bill. It is superficially attractive but fatally undermines the original provisions to which it relates. That is the question of the London lorry ban under the London Boroughs transport scheme. The bonfire of red tape may be—and I fear that in this case it will be—a bonfire of schemes of environmental protection.
For those of your Lordships who are not familiar with it, the London lorry ban scheme set up permit arrangements under which only permitted vehicles of more than 16.5 tonnes are allowed in mainly residential streets within the whole of the London area at night and at weekends. Without the permit scheme the ban can continue, but every vehicle will have to be investigated. Huge costs will be incurred. The permit scheme involves a cost to industry, but it is a relatively small cost. Savings in administration of the order of £150 for each operator will result if the scheme is ended, but if that happens the unit administering the scheme will not be able to continue as it has.
Currently the unit employs only five enforcement officers. Without a permit provision the unit will have to involve the police every time it wishes to stop a vehicle. It will not be able to detect vehicles which do not have necessary business in restricted areas in any straightforward manner. All the relevant documents will have to be considered. Instead of seeking to inspect a permit in a standard form, the enforcement officers will have to look at delivery notes, which will be anything from sheets of computer print-out to scribbled instructions. It would be quite impossible sensibly to enforce the ban; and it is a ban that is welcomed widely by London's residents.
That sort of detail and the detail of other regulations will be matters to which we shall return. I end by joining with those noble Lords who have said that, instead of implementing the provisions of this Bill, we should look at parliamentary procedure generally in order to enable Parliament to do its job and that the transfer of powers to ministerial level is not the way forward.
7.10 p.m.
Baroness Miller of Hendon: My Lords, I am a member and a vice-patron of the Small Business Bureau, which represents the views of small businesses when necessary. Many noble Lords have spoken of the adverse effect of excessive regulation on small businesses, which by definition are least able to carry the burden. I shall therefore not trouble the House by going over that same ground again. I agree, however, with the noble Baroness, Lady Hamwee, that the problem is that those who draft legislation or regulations seem incapable of distinguishing between a business the size of British Telecom and the corner newsagent.
That is especially so in the case of so-called independent executive agencies. Let us consider my own pet anathema, the companies registry. Every year every company has to file a document appropriately called an annual return. It lists the directors, shareholders, registered office, secretary, share capital and so on. All that information is already listed in separate returns made by the company as and when required. Admittedly, the registry sends out forms with some of last year's details already printed in. But other existing details have to be repeated every time. Why can it not send a simple form asking whether there have been any changes since last year, to be answered yes or no?
I believe that there are about 1 million registered companies. The cost of filing an annual return is a massive £32. That is a £32 million burden every year on commerce. British Telecom earns £32 in a third of a second. But a small, struggling corner sweetshop may have to decide not to stock one line that month, with the ripple effect of losing perhaps £100 or more of turnover.
Despite the fact that my right honourable and learned friend the Chancellor of the Exchequer has removed the need for companies with a turnover of under £90,000 to have audited accounts, a modified form of accounts still has to be filed at the companies registry. Why? It is said in order to help check creditworthiness. That is nonsense. In the real world, if you want credit you supply references. Must we really have all this bureaucracy just for the benefit of Dun and Bradstreet? If something were really needed in this respect it should be to require directors to list any companies in which they have been involved that have gone bust—not, I hasten to say, that I am suggesting another form.
Perhaps I may turn to another problem. The Landlord and Tenant Act 1954 imposed an arbitrary four-month time limit on a tenant of business premises for commencing proceedings requesting a new lease. At the four-month deadline many cases have been amicably negotiated. But for the want of just 10 words, "or such longer time as the parties may mutually agree", between 600 and 1,000 unnecessary summonses have to be issued every week. The cost in court charges alone is some £2 million a year. That is quite apart from legal fees. Apart from the burden on businesses, these unnecessary actions clog up the already overburdened courts.
For over 40 years successive Lord Chancellors have acknowledged this problem. The Law Society has
1012
acknowledged the problem. My noble and learned friend the Lord Chancellor has done so. The Law Commission, reviewing the Landlord and Tenant Act, agreed that there was a serious problem and recommended a change in the law. That was two years, ago. Since then there have been a further 100,000 wasted court summonses. That is exactly the sort of problem that was highlighted in the discussion earlier this afternoon on the Question that was posed by the noble Lord, Lord Harris of Greenwich.
The problem is not due to an unwillingness to act. It is due to a simple lack of legislative time—which brings me, neatly, I hope, to the matter of the Henry VIII clauses. The Delegated Powers Scrutiny Committee has quite rightly advised the House to look carefully at these provisions at Committee stage. I am confident that when noble Lords do so they will take special note of how far the Government have gone to anticipate possible objections. The essential point about the provisions in this present Bill, the essential democratic safeguard, is that any order made by a Minister has to be the subject of a positive resolution of both Houses.
The Bill calls for extensive consultation with interested parties. The Government also propose the setting up of a special scrutiny committee of both Houses. The powers that are given to Ministers to enact secondary legislation have been in more or less general use since the First World War, and more especially so since 1939. Most of it is barely scrutinised. On the last sitting day before the Recess, six negative instruments were laid before your Lordships. With the exception of those on both Front Benches whose job it is to scrutinise such matters or those noble Lords who have a particular interest in the subject, how many other noble Lords will look at them? On the other hand, on the same day three positive instruments were laid before your Lordships. Two passed on the nod and the other was debated for over an hour before being approved.
Although I imagine that more than 90 per cent, of the deregulations (if I may call them that) will not be controversial, the provisions in this Bill requiring a positive resolution of both Houses will ensure that a Member of either House will be able to question any proper matter of concern. There are said to be more than 3,500 laws and regulations currently to be modified or repealed. I expect that most noble Lords could probably add to that list. I think that I could.
Just before I conclude, I should like to refer to the extraordinary idea that was floated by the noble Lord, Lord Stoddart. I am sorry to see that he is not in his place. The noble Lord queried on the basis of opinion polls the authority of a Government who have an overall majority in the other place. It is the majority of Members of the other place who decide which party forms the Government, not Mr. Gallup or MORI.
Finally, we cannot have it both ways. Either deregulation has to be carried out with reasonable speed or unwanted and outdated laws will remain on the statute book indefinitely, as at present, because of the lack of legislative time. A positive resolution is almost the same as an Act of Parliament, except that it is passed in one stage instead of three. I believe that: we have to give ourselves and the Members of the other place a

1013
vote of confidence that we and they will be vigilant and effective in our scrutiny of the enactments that we are asked to approve.
7.18 p.m.
Lord Selsdon: My Lords, after some four hours of debate, I am slightly confused, and I am not sure whether my noble friend has the support of the House for his Bill. Perhaps by the time I have finished speaking he may not be sure whether or not he has my support. I would have thought that it was a foregone conclusion. I would have thought that we were all of one mind. We want to get rid of the creeping paralysis that has run for more than 200 years. Not being sufficiently erudite as to be able to quote Adam Smith or to talk about perfect competition or even perfect democracy, I have to return to the popular press, and an attack upon government. I quote:
"The problem is the Ministry, with all its routine of tape, wax seals and bureauism".
Noble Lords will know the history of the Board of Trade, which was "of ships and sealing wax", or something of that sort. The problem, however, is not one of bureaucrats or bureaucracy. It is one of "bureauism" —which in another term is known as red-tapeism. Those are genuine words. It means the rigid or mechanical adherence to rules or regulations, like that practised by many parking meter attendants in the West End.
The problem is not so much the regulations or rules but the application of those rules and regulations and perhaps from time to time the people applying them. I do not believe that the blame can be put at the door of the bureaucrats or the bureaucracy, or indeed at the door of Ministers. It is based more upon our society. The problem has been around for a very long time. Noble Lords will recall when we were in a major growth period a hundred years ago that people were claiming that it was bureauism that was destroying and preventing our growth of trade. The box-wallah, as he used to be called—the businessman—would effectively be knocking the desk-wallah, while he sat with a punkah-wallah blowing hot air all over him. I understand that from that cometh in some of our former dependent territories the words: what a wally!
Why are we not all in favour of a piece of legislation, however hopelessly drafted, which seeks in one wrap-up organisation to throw back the creeping paralysis of bindweed bureauism? When the Conservative Party first came to government I seem to remember that they said, "We will roll back or throw out bureaucracy"—they got it wrong; they meant red tape. They then said, "We cannot do that because in order to introduce sufficient legislation to get rid of all the stupid regulations we would need so much paperwork that it would be higher than Big Ben." Now we have a Board of Trade at last which realises that its role is to create and develop trade and not spend its time on bureauism.
I should like to ask my noble friend a question that I have asked on several occasions but I have never received an answer. When I was on the Overseas Trade Board, we used to claim that the Department of Trade and Industry (or today the Board of Trade) spent some
1014
77 per cent. of its funds on stopping people doing things and only 23 per cent. on the creation and development of trade, whether home or foreign. Is that still the case? Perhaps my noble friend will reply to that question. It is a question that I shall ask him again or perhaps maybe write to him about it. One of the problems is that within our administrative society too much time is spent on control—or wrong control.
My noble friend who spoke about small businesses took me back to the moment when I was told that in order to build a business you needed if possible three people: a trapper, a skinner and a cook. The trapper went out to get the business; the skinner made the product or got things on the road; and the cook collected the bills. The cook had a spike on his desk on which he stuck every piece of paper. That went on until bureauism came along and he had to start to make returns. Then he needed another animal: an accountant. Once upon a time an accountant used to charge a small amount relating to the turnover of the company. Then the cook needed a lawyer, who again used to charge smaller amounts to small businesses. That went on until people started to work out what were their own costs indirectly because of bureaucracy, and fees of up to £250 an hour were charged by an accountant, by a lawyer and by counsel—and so it went on and on. And apart from having that hidden tax of bureauism, government also increased taxation on small businesses until they were crippled, there was no growth, industry fell away and our decline was accelerated.
Today I am afraid that the scene is such that if you have to advise people who ask you what they should do when they no longer have a job or ask whether, as they have a good idea, they should start a business, one has to tell them, "Please do not start a business at all unless you are capable of handling bureauism. By all means be a sole trader but then you are taking the total risk. You have no limited liability. If you look at the returns that you are required to make, they are horrendous". Many noble Lords have spoken on that point.
When considering legislation, we must ask what government can do about this situation. First of all, possibly at one stroke, they should say that there will be no returns to be made by anybody who turns over less than £250,000 a year. There should be no returns at all for anybody in that category. Then there should be spot checks from time to time on safety, to make sure that the regulations are imposed rather than controlling one company after another. Perhaps too all taxation should be removed. Perhaps, if you are a brave government you give thought to asking what is the difference between a company and an individual and why it is permissible for a company to set off against tax the cost of employing someone whereas it is not permissible for the individual to do so. Those are Right-wing below stairs phrases. But with former Ministers speaking about "below stairs", maybe we should return to employment of the individual by the individual for the benefit of the united team.
I do not speak with either fire or passion because red-tapeism is an old subject. I support my noble friend because he needs support. This will be a difficult Bill to carry through. It has all the possibilities for being

1015
overturned and upset. But my noble friend is young and enthusiastic. He has plenty of time. He may bring this Bill back again and again.
Once again I ask the House please to give him support, as indeed I shall. It must be remembered that those who framed the red tape code were not men of business. So it was said in 1863. Even before that—we have heard today some brilliant speeches by brilliant geniuses—it was said:
"The men of more dazzling genius began to sneer at the red tape Minister as a mere official manager of details".
My noble friend is not a mere official manager of details. He has a difficult job before him. He will have my support.
7.26 p.m.
Lord Monkswell: My Lords, I thought that the debate today would be predominantly about the principles and practice of parliamentary procedure and the way in which we formulate our laws. In some respects the debate is different from what I expected. There seems to be a body of opinion within the House which agrees that those things need to be looked at but there is also a body of opinion which says, "Let us get rid of all these regulations that constrain us." I must admit that I found it curious to hear from the noble and learned Lord, Lord Simon of Glaisdale, the cry "Let us get rid of all these regulations". Regulations are nothing more than laws in a different guise. It was very curious indeed to hear someone who has earned his living and made a professional reputation in the service of the legal profession in this country say that we should get rid of laws.
In fact there are three main elements in the Bill. The first is the way in which law-making is sought to be changed, particularly in the first four clauses of the Bill. The second is the change in—some would say the repeal or getting rid of—some regulations. The third is the way in which the Bill affects the accountability to the democratic process of what are best described as the Civil Service and local authority officers. The implication is that some of the functions of those civil servants or officers, who are currently engaged in an impartial pursuit of public service, will be transferred to contractors and effectively into the private sector, thereby introducing an element of—dare I say it?— vested interest in the way that that business or activity will be conducted. It will no longer be the non-partisan provision of public service, whether at national or local level; it will be engagement in a business occupation, a contractor's arrangement, predominantly for making money. If one wished to turn the argument round the other way, one could say that the criterion of success for local government officers or the Civil Service was their ability to make money, whether personally or for their particular section or department. But then we would all say that that was not a criterion for the objective and impartial provision of public service.
I turn to the way in which it is proposed that parliamentary procedure should be changed and the idea that previous legislation is to be changed by parliamentary orders. I am a little in a quandary in that regard. One of the difficulties of change is that the
1016
effects are always unpredictable. The Government are suggesting that changes should be made in the way that legislation is effectively determined. They are introducing a new procedure for ministerial orders to change the law previously determined by Parliament. There are a number of ways in which that could have a practical implication. One is that both Houses of Parliament may become much more active in their consideration of parliamentary orders—for various reasons. It may be that they dislike the Minister's face or public standing in that particular week and therefore feel that he should not be supported.
We have the power to vote down parliamentary orders. And Parliament may decide to engage in the practical activity of voting down parliamentary orders. That in itself may not be a bad thing. It is one of the possible effects of the change. It is right that Parliament should consider its practices and procedures. Some would argue that we spend an inordinate amount of time and go through an inordinate number of stages in considering primary legislation. It may be that Parliament needs to consider a more streamlined procedure that enables scrutiny to be carried out in a shorter timeframe than at present.
I therefore come down on the side of those who argue that this is a wrong move for Parliament to make. It is wrong that we should give the power to Ministers to change laws and regulations that Parliament previously saw fit to discuss extensively and put on the statute book. I share the views of others who have said that it is wrong to give Ministers that degree of power.
Perhaps I may turn to the regulations themselves. A number of noble Lords have identified problems with the Government's proposals in the Bill, which will already have been subject to the normal, full parliamentary scrutiny of our Public Bill procedure— Second Reading, Committee stage, Report stage, Third Reading, with the opportunity for amendment at each stage. I am sure that we shall spend a great deal of time debating the regulations and I can say to my noble friend the Chief Whip that I am happy to serve well into August, even beyond 12th August, if that is what is needed to consider seriously and give adequate time to discussion of the regulations it is sought to change.
In conclusion, perhaps I may say a few words on one aspect of regulation that has been mentioned already in the debate this afternoon. The noble Lord, Lord Boardman, who I believe is a banker, suggested that we get rid of all the fire regulations as being a burden on business. However, some years ago in Manchester there was a fire in a department store which did not burn anybody but resulted in the deaths of a number of people due to poisonous fumes emanating from burning furniture. Following investigation of the fire it was found that the cause of death was the poisonous gases given off by the foam fillings of the furniture. It was found also mat the fire authorities had been arguing for some time about the problems in relation to that type of foam-filled furniture, which caused extensive numbers of deaths in domestic circumstances. It was not a major topic but the deaths occurring here and there mounted up. The fire brigades' union waged a campaign over a number of years for the regulations to be changed so as

1017
to insist on fire retardant foam being used in furniture and, after a number of years of intense campaigning in the teeth of opposition by businessmen engaged in the activity of furniture making and selling, regulations were introduced to prevent further deaths.
Lord Strathclyde: My Lords, will the noble Lord tell us which Government introduced those regulations?
Lord Monkswell: My Lords, I believe it was a Conservative Government. The interesting point is that many regulations have been introduced by Conservative Governments but when supporters of the Government suggest that regulations should be done away with in the interests of business, with no regard to the interests of consumers, workers and the public at large in this country, we must have serious doubts about the whole basis of the legislation.
In introducing the Bill at the beginning of the debate the Minister said that it was a "Conservative Bill". He injected at that time what can only be described as a party political connotation. It is sad that a Bill of this seriousness, one that is talking about the regulation of business as it affects our community—the life and livelihood of virtually every person in the country—and the way in which legislation is tabled and enacted in our democratic Parliament, should be treated on a party-partisan basis. The difficulty of the partisan nature of the presentation of the Bill is that almost by definition it can have no long-term validity.
Any parliamentary changes to procedures that are introduced on a party-partisan basis and any regulations that are changed on a party-partisan basis, will be seen to be of little validity. I therefore make a plea at this stage for the Government to think not merely in terms of party advantage in relation to this serious subject that we are discussing today, but to consider how they can build a consensus across the political spectrum for any changes that they envisage in parliamentary procedure and a consensus in terms of what regulations we should and should not have.
7.39 p.m.
Lord Beloff: My Lords, I entered the House today, as I always do, with an open mind, wondering whether I should be persuaded to support the Bill. From one point of view it is attractive. Indeed, the noble Lord, Lord Boardman, pointed out that one had only to look at its objectives to find something on which we would all agree, as no one wishes for superfluous regulation, except perhaps the regulators. In other words, he asked us to ignore the content of the Bill and its constitutional implications and concentrate on its purpose. As President Harding said of the Prohibition amendment, "an experiment noble in purpose". But then, just as I was beginning to think I must be for the Bill, the noble Lord, Lord Reay, informed us in considerable detail —I regret that he is not in his place—that the Bill has the support of the CBI. That in itself was enough to condemn it in my eyes.
I have seen the CBI and had contact with it in a number of contexts—the relations between scientific research and industry; the role of education in relation
1018
to industry; its latest lunatic pronouncement about university finance; and its pronouncements on our relations with the European Community. All of those are enough to convince me that, if this Bill has the support of the CBI, it cannot have mine.
We then come not so much to what the Bill might or might not do but to the very important constitutional points which have been raised about the procedure in Chapter I. I am a little surprised that, having had a report —even a brief report—from the scrutiny committee, not a single member of that committee is taking part in this debate. If a committee presents a report to the House about a particular Bill, one has the right to expect that a member of that committee will explain the reasons which led it to take the view that it did. I had expected that one or other member of that committee—the chairman might be otherwise engaged —would be taking part in the debate.
Lord Tordoff: My Lords, I am grateful to the noble Lord for giving way. In defence of that committee—the noble Lord, Lord Rippon, has sat through quite a lot of the proceedings today—it takes the view that it still has to produce a full report between Second Reading and the Committee stage and it therefore does not wish to take a position at this stage. The noble Lord, Lord Beloff, may or may not agree with that, but I think it is fair to say that that is the committee's approach to the problem.
Lord Beloff: My Lords, I am most obliged for that explanation. It does not wholly satisfy me, although I can see the line of argument one could take. But on the whole of this, as it were, Henry VIII clause question, there are two considerations: first, whether it is, as the noble Lord, Lord Peston, argued, a constitutional outrage; and, secondly, whether it is necessary, even if one supports the objectives of the Bill, to do it in this way.
Is it a constitutional outrage? The question has been answered to some extent by the noble Lord, Lord Cockfield, who said that it could not be a constitutional outrage because we no longer have a constitution. I am not quite clear what importance he attaches to the absence of a written document called the British Constitution, an idea which some dunderheads peddle, or whether he simply meant that the precedents and statutes out of which our constitution has been built over the centuries have now collapsed. I take it that he attaches more importance to the latter point. On that, I am tempted to agree with him to a very large extent. One reason is that given by the noble Lord, Lord Bancroft, about the position, as it developed in the 19th century, of the Civil Service, whose independence was, I think, an important part of a constitutional consensus, and which not merely by some aspects of the Bill but, as he pointed out, in general is somewhat threatened by recent developments.
Even more important than that is not so much the failure of your Lordships' House—on the whole, given the limitations on our powers, we perform our role reasonably well—but the failure of the other place. I do not believe that a House of Commons elected 50 years ago or 100 years ago—perhaps a House of Commons elected as recently as 30 or 40 years ago—would have

1019
sent up a Bill of this kind with so little protest and with so little fuss made about the impact on parliamentary sovereignty. The reduction of the House of Commons on all sides—I am not blaming a particular party —to lobby fodder which is the result of the professionalisation of politics, and its failure to fulfil its function, of which the noble Lord, Lord Cockfield, reminded us, of controlling and monitoring the Executive are perhaps the real heart of our discontent and the real reason why we are faced with the kind of problem that we have here.
The noble and learned Lord, Lord Simon of Glaisdale, who is usually our guide on these occasions, agreed apparently with the nobility of purpose of the Bill and said he thought that we could on this occasion make an exception because it did not, or need not, constitute a precedent. I do not share that view. Our constitution consists of precedents. If we perform this exercise in this way there is nothing to stop a future government of any political complexion saying, "We have a lot of things we would like to do rather quickly. Let us take the precedent of the Deregulation and Contracting Out Bill and do it by a series of ministerial orders". It will be possible to quote this as a precedent, even if the noble and learned Lord, Lord Simon of Glaisdale, thinks not. I am surprised that a constitutional lawyer of his eminence, aware of the importance of precedent in the development of our constitution, should take the line that just once in a while one can avoid it.
We then come to the argument that there is no way in which this could be done better because to do it by primary legislation or by a series of primary Acts would be too time consuming and that it would run up against the parliamentary timetable—just as we were told earlier this afternoon by the noble and learned Lord the Lord Chancellor that the very important recommendations of the Law Commission have to wait because of the lack of parliamentary time. But parliamentary time is not like astronomical time. It is not given by the forces of nature. It has nothing to do with the revolution of the sun round the earth or the earth round the sun, whichever it is. It is something that governments determine by the priorities that they have. If this Government had wished to deregulate—let us take one aspect such as health and safety regulations that they wished to bring up to date—they could have done that by sacrificing one of the unnecessary Bills which have been brought before your Lordships. It is not extraordinary to hear that the Education Bill immediately comes to mind. I could, if pressed, suggest other measures which a Conservative Government ought not to be bringing forward at all because, if they are anything, they are radical measures.
So one could take that course. It would have the very great advantage in that we could discuss subject by subject what is appropriate for health and safety, or appropriate for fire regulations, or for licensing or for the submission of records. These are quite different topics. As the noble Lord, Lord Peston, said, they demand different expertise. In debate they would normally attract a different list of speakers. One would then have the feeling that the law had been brought up to date by seriously considering its content.
1020
The noble Baroness, Lady Miller, suggested that the device of the affirmative resolution could be a substitute. As a relatively recent arrival in your Lordships' House, she is apparently unaware of the limitations of that procedure; namely, the convention, which is perfectly understandable and which on the whole we probably would not like to see wholly dispensed with, that you do not vote against it. Indeed, the Minister, in replying to the noble and learned Lord, Lord Simon of Glaisdale, said that it was not in the Government's mind that that convention should be breached. If the Government were serious in claiming that what they regard as important is deregulation, it would be perfectly possible for them to say, "We shall not go in for any new wheezes in the next Session; we shall devote our legislative time—apart from the Finance Bill and so on—to getting the law right on matters where we believe it has become obsolete or burdensome on business".
My final point is that the Government might also consider that it is not only important to get rid of regulations that we have, but to prevent their rapid substitution by new lots of regulations. Most of those, as has been pointed out by other speakers, are likely to come from the Brussels institutions. Therefore, the ability to take seriously the affection of noble Lords opposite for limiting regulations is limited by their continued support for measures such as the extension of majority voting, which would mean more and more such legislation. After all, if you have a leak in your domestic water system and you summon a plumber, the first thing he does is close off the main. It is certainly right to begin by closing off the source of supply before you patch up the rest.
7.54 p.m.
Lord Wade of Chorlton: My Lords, I strongly support this Bill because I believe that anything which can get rid of some of the unnecessary regulations has to be right. Quite clearly a test of what I am about to say will be whether I can persuade my noble friend Lord Beloff to change his mind yet again. I shall try to do so.
We have talked about the difference of opinion as to how important productivity and wealth creation are; against controls and regulations which might affect other sectors of society. For the past 20 or 30 years, it has been clearly seen to be the role of Parliament to be anti-wealth creation to the extent that they have imposed more and more regulations on the wealth-creating sectors of society. That has continued as much during the period of this Parliament as it has in others. Nobody can be excluded from that responsibility.
Surely the issue which has been brought before us now by the Government—and it is welcome that they have—is because they have begun to realise, like so many other sectors, that the situation is now getting out of balance. In recent years, as my noble friends Lord Cockfield and Lord Hesketh and others have said, the influence of single-issue pressure groups on government policy has now moved that balance away from the vast majority of wealth-creating activities to the benefit of very narrow issues. The time has now come for the Government to look at that much more seriously and to

1021
be aware of that influence. They should not pay quite so much attention to it; and at the same time they have to look seriously at how we can redress the balance as regards some of the unnecessary regulations which have already been put into place.
One of the interesting factors of the impact of these new imbalances concerning regulations is that we do not seem to assess risk but take an overall view of the risk element in many sectors of society. There seems to be no sensible assessment of risk. If anything can go wrong at all—we know very well that there is always something which can go wrong—the suggestion is that we must take whatever steps are necessary to prevent that happening. I have been brought up in a very "risk" situation. In farming and business life you are faced with the necessity to make a decision which can go either way, so one has to make an assessment of the risk and decide whether it is worth the cost of eliminating it. In many sectors of business and life in general, we have now reached the point where we are putting at risk our wealth creation and the resources of the nation because we are trying to eliminate factors which in fact are far too costly to eliminate.
It is the role of government and Parliament to understand these issues and to take a more realistic and sensible view, particularly when they come before this House. There has been a great argument and discussion as regards the tightness of ministerial order-making powers, and whether that should be carried on. In my view, it is a very different matter to give a Minister the power to take away regulations than it is to give him the power to make them. There is nowhere which would not benefit from getting rid of regulations because it always seems so very easy to bring them back again. I was very pleased with the comments of the noble and learned Lord, Lord Simon of Glaisdale, that he, with his great knowledge of these matters, which is far greater than mine, felt that this particular issue was so important that he considered that getting rid of the regulations was more important than being concerned about the procedures which we used. I hope that my noble friend Lord Beloff will accept that point as the debate develops.
Lord Beloff: My Lords, I may be wrong, but as I interpret this Bill, the powers granted enable Ministers to replace the existing regulations with new ones. That seems to me to be a positive use of the Bill. I do not know whether the noble Lord disagrees with me on that. If he does not, it rather undermines his argument.
Lord Wade of Chorlton: My Lords, I certainly agree that there is a provision in the Bill which makes clear that that is one of the opportunities which the Minister will have. It is also made very clear that the purpose of the order is to enable Ministers to deregulate. I have no doubt in my own mind that that is how Ministers will use that opportunity. It is also made very clear that the procedures which allow us to debate these matters and make suggestions to the Ministers is also very well established in the Bill. So far as I am concerned, that gives me all the safeguards I shall be looking for.
1022
I do not want to say anything further about what is actually in the Bill, but to comment on some matters that are not in it. Clearly, this is the first step that the Government are taking following their realisation that we are now becoming an over-regulated nation. The Government have put forward various suggestions in the Bill which, although important in themselves, are really only small fry when compared to the main issues that have to be tackled if we are going to encourage the wealth creation and productivity which are the keys to all the things that everybody wants to see. We cannot do all that we want unless we have the wealth to make it possible. If, at last, we are going to adopt the proposals in the Bill as the main initiatives underlying everything that the Government and business are allowed to do, I think that we should look at a number of other steps also.
I had the privilege of serving on the Select Committee which considered biotechnology regulations. Following that committee's report, we realised that many of the regulations that had been established as the biotechnology industry developed were unnecessary because the fears of many people in society about the development of biotechnology turned out to be unrealised. They did not materialise in practice. Therefore, we suggested that the regulations could be amended or implemented less stringently. I was pleased to hear from people now working in the industry that the effect of that has been dramatic in terms of the way in which the Government and officials consider new applications for biotechnology development. That is a perfect example of how we can make a lot of things happen just by emphasising them and drawing attention to them. We do not necessarily need a host of government measures to bring them about.
I am concerned about the development of our very undemocratic planning system. We are talking about regulations, and we now have a planning system that is decided not according to what is in the interests of the majority, but in the interests of a very small minority who might object to something. The Government will have to look at that at some stage and make our planning system much more democratic so that what takes place in terms of development and investment is for the benefit of the nation as a whole, not against it. I very much support the proposals about the need for an appeals procedure, which was suggested by my noble friends Lord Reay and Lord Vinson. I hope that we can talk about this issue with my noble friend the Minister and find a way of tabling amendments to make such an appeals procedure possible.
I very much agree also with the noble Lord, Lord Selsdon, about the need for some kind of de minimis provisions. It is unfair to expect small start-up companies to amend and develop the same kind of procedures as major companies. Clearly, now is the time to state in the provisions that companies of a certain size do not have to conform with a particular range of regulations.
I agree strongly with the suggestion of my noble friend Lord Beloff that the first thing we must do is to turn off the tap to any future regulations. A great friend of mine in the North-West, who runs a very efficient

1023
company involved in the high technology of virtual reality, says that if you lock up a lot of very clever academics in a room, pay them high salaries and ask them to deal with regulations, the one thing that you will get is an awful lot of regulations. We have far too many very clever people locked up in rooms all around London with the sole responsibility of trying to find a solution which itself is survived by the problem. One of the things that the Government should take a close look at is how many people need to be employed in the various sectors of government, given that they spend more of their time looking to develop regulations than to get rid of them.
Finally, I am more than happy to give the Government and Ministers the power that they require under the Bill; but, for God's sake, having got it, use it! Let us see some benefit come from it. Let us see that there is a very real determination in government to reduce the regulations which are now putting costs not only on to industry, but also on to the consumers—that is, on to all the people of this country. We are now carrying unnecessary costs and the sooner they are eliminated, the better for us all.
8.4 p.m.
Lord Jenkins of Putney: My Lords, there have developed in the course of this debate two aspects which are linked, but which are separate from each other. Perhaps I should say first that in my nearly 30 years in Parliament, I have never seen a Bill like this and I hope to God that I shall never see another like it. We have been dealing with the failure of the legislature to control the Executive. Some blame has been put upon the other place in that connection. It seems to me that one great argument for having two Chambers is precisely that our Chamber, perhaps with a more rational constitution, can perform the functions which a single chamber cannot perform in the nature of things. Therefore, we have a job to do here. In relation to this Bill, our job is to amend it sufficiently so that it goes back to another place in such a condition that Members there have to think again. That is our task in relation to the Bill, and we should be ready and willing to spend as much time on it as is necessary to achieve that end.
I find myself in almost total agreement with the noble Lord, Lord Beloff. Normally, that would frighten me to death but on this occasion he seems to have put his finger on two very important points. It has not yet been sufficiently noticed that one of the things about the Bill —this is why I am so horrified by it—is that it not only adopts a procedure which is strange to our customs, but, in the course of adopting that procedure, it has put on one side, and forgotten about, the normal procedure. There has been no normal procedure. There has been no Green Paper. There has been a series of propaganda leaflets, which are awfully expensive and should have been issued by Conservative Central Office but which have been produced much better by civil servants who have put the theoretical case.
If your Lordships will bear with me, I shall show you some of those leaflets. One is entitled Deregulation Task Forces Proposals for Reform. Another is Deregulation and Contracting Out Bill—An Explanatory Guide. Your
1024
Lordships will not be surprised to learn that that comes from the Department of Trade and Industry. Another is headed, Thinking About Regulating—A Guide to Good Regulation. At the bottom, is the phrase,, "The Deregulation Initiative". Another one is entitled Deregulation—Cutting Red Tape. Again, that is from the Department of Trade and Industry. The next is a rather expensive one, entitled Competitiveness— Helping Business to Win. That really reads like a Central Office document, and is priced at £15 or £16. Down the line there is a cheap one for the stupid hoi polloi, called Competitiveness— Helping Business to Win—A Summary.
It is all political propaganda, and all the costs should have been covered by the simple business of producing a White Paper. We should first have had a Green Paper, which we could have debated, then a White Paper, which again we could have debated, and we could then have come to this debate fully informed about the situation. In the course of putting out a White Paper, the Government would probably have changed their minds and would not have included in the Bill some of the stupid things that are now there.
That is the situation as I see it. On the one hand, we are dealing with the failure of the legislature to control the Executive, and with the Government being out of control and then going ahead with a procedure which is totally foreign to anything that I have ever seen before. They are putting out vast quantities of propaganda, but none of it to this House. There has been no procedure within the House whereby we have been required to look at the Bill in detail and to ask ourselves whether we like this clause, that clause or the other. That is what we have to do in Committee, and it will be very difficult in such a complex Bill which deals with so many different things at the same time. There we are.
I started to make some notes to try to make some sense out of the Bill, but it is extremely difficult. It is a "curate's egg" of a Bill. There are some good things in it. Like many of the Government's so-called reforms, however, most of it is more like deformation than reformation. Not just us, but the people affected by the Bill have not been consulted. No one has been consulted by the Government. The curious thing is that one of these documents that advises businessmen what to do emphasises the importance of consultation. It goes into detail as to whom one should consult. It lays down a whole list of people to be consulted, but the Government themselves have done not one bit of the consultation which they recommend that everyone else should do. That is something that they should have done.
Lords Strathclyde: My Lords, the noble Lord says that we have not consulted about the Bill's provisions. The noble Lord may not have been here when my noble friend Lord Sainsbury of Preston Candover explained in some detail the role of the task forces and how they took great care to discuss with a whole variety of people the proposals they put forward to the Government. The noble Lord, Lord Peston, says that they were businessmen, but the Bill's provisions in Clause 1(1) (a) deal with:
"any person in the carrying on of any trade, business or profession or otherwise".

1025
This Bill is about deregulating the burdens on business. We are proud of doing so.
Lord Jenkins of Putney: My Lords, the noble Lord is the Government spokesman, and I would not expect him to do his job worse than that. He has his job to do. I did in fact have the good fortune to hear the noble Lord, Lord Sainsbury. I thought that he put his case well, but that is not what we wanted. We did not want from the chairman of a committee a description of what the committee had been up to for the past few weeks. We needed a Green Paper or a White Paper which we could discuss. We did not want something that goes into that committee and then out again. What can we do about it? We may agree with much that the noble Lord, Lord Sainsbury, said, but there is damn all that we can do about it this evening. We should be able to deal with some of the matters that he raised, which were very much to the point, much more effectively than we can under the procedure that the Government propose.
What is the idea behind this? Is it pure privatisation ideology? Is it merely a feeling that the Government have that by one means or another, even by fibbing their way through Parliament, by bending a new procedure which has never been used before, and which I hope will never be used again, they must dispose of anything which might possibly interfere with the free flow of the beneficent market? That may be the case, but is there something else mixed up with it? It is a question of power, is it not?
The Government want the power to do the things that they have in the Bill, and here is a way of getting rid of the annoying Opposition who get in the way of their untrammelled exercise of power. That is what they are up to. They are going, "Whoosh! Away with all that", and on one evening they will dispose of it. Well, they will not. We shall not allow that to happen. No White Paper; no Green one; no good reason in fact; nothing but the consolation that this will be another great vote loser for the Government.
What is then the driving force? Is it just, as I said, ideology, and not just the relatively mild proposition that the market is God, and a god who thrives on human sacrifice —getting rid of safety and all that sort of nonsense—and a god whose victims must be deprived of the protections which Conservatives of conscience have helped to devise and support over the years?
My interest in the Bill relates to a proposal, which is clear and straightforward; that is, that the Government intend to get rid of the licensing of agencies and, in particular the licensing of employment agencies, especially the licensing of employment agencies in entertainment. That is a straightforward proposition. They propose to replace that system with another which, if I had time, I would explain will not work. The Government say that the existing licensing system is not working. How did that come about? The licensing system was introduced and it began to work. It began to clear up the rather sleazy chaos which existed in that area of the entertainment industry. The chief enforcement body in regard to licensing was the GLC. So what did the Government do? They abolished the
1026
GLC which was supporting us, and now they tell us that the licensing system is not working. So what do they do? The licensing system is not working, so they abolish it. Can you beat that? That is a little much, is it not?
The protections are still supported, as I shall endeavour to show in Committee. They are supported not just by the performers' trade unions but by every person concerned in the matter. The employers' organisations want to keep the licensing system. The agents' associations consisting of the better agents want to keep the licensing system, because obviously, according to Gresham's Law, as they say in the City, bad practices drive out good ones.
Lord Peston: My Lords, bad money!
Lord Jenkins of Putney: My Lords, I know it is bad money, but the principle applies equally here. Not only does bad money drive out good money, bad practices in any system drive out the good practices. That is why the better employment agencies want to keep the licensing system in force. They believe that the alternative that the Government propose, which they have dreamt up themselves I suppose, simply will not work. It is the sort of procedure whereby, after the crime has been committed, someone will come along and take action. There is no procedure whereby the agent must be licensed at the outset. It is necessary to ensure that one has a person of quality, and who is proved to be of quality. A person has to pass a little test to prove that. It is not sufficient to give such a person the chance to ruin two or three young people's lives before one discovers that he is a crook, and there are too many of them about.
That is why I am against the Bill. That is why I propose to do what I can, with help from my colleagues, to amend the Bill in that respect. I shall not of course succeed in amending it in any other respect, even if I do in that respect. It is just possible that we might have a go. I suppose it is too much to hope that the Government might even say, "Perhaps we did make a boner here. Perhaps we will change things a little bit, and we will not get rid of the licensing system. Instead, we shall try to make the licensing system work". It would be wonderful if they decided to do that. Let us hope that they will even think of it, because I have not given up hope. I am a sucker for believing in human nature.
I do not have time to say much more, so I shall leave it until we are in Committee. I talked about Conservatives with consciences a little while ago. I remember when I first joined the staff of Equity. I think it was the third Viscount Esher who was persuaded to become chairman of the London Theatre Council. As a result of his chairmanship, and of some brilliant work by Gordon Sanderson who was the general secretary of Equity at the time, the Esher standard contract was produced. That standard contract is the basis upon which every actor who appears on the stage in this country works. It does not matter whether he is Laurence Olivier or at the bottom, he has the same Esher standard contract. I do not believe that it is called the Esher standard contract, and I am sorry about that because I should like to keep the name of that intelligent and compassionate Conservative at the forefront in this

1027
area. But for that—the firm economic base—the artistic achievements of the British theatre would not have occurred. The performing arts must have a firm economic base upon which one can build and achieve what has made the British theatre known throughout the world.
The Government have it wrong, particularly in that respect. I cannot expect them to go further and say that they are wrong in the respect which the noble Lord, Lord Wade, has pointed out. He has a different outlook on that matter. So far as concerns this area, and the matters that surround it, I hope that the Government will think again.
8.20 p.m.
Lord Skelmersdale: My Lords, notwithstanding the speech of the noble Lord, Lord Jenkins of Putney, to which we have just been treated, what is remarkable about this long debate is the consensus from all parts of the House about the need for deregulation. The reason why deregulation has been so slow is that normally primary legislation is needed to achieve it. Yes, the Future Legislation Committee of the Cabinet could have chosen deregulatory measures to take precedence over everything else. But my reading of the situation is that, if it had done so, it would have taken up the whole legislative time of one parliamentary year. In Chapter II alone I can identify 13 subject areas spread across seven departments of state; and that covers only a small part of the job that almost all speakers have agreed needs to be done. I am sure that not even the noble Lord, Lord Rodgers of Quarry Bank, can envisage a whole year being given over to deregulation, although clearly my noble friend Lord Beloff can. I am sorry mat he is not in the Chamber to hear my comments, but from time to time even he has been known to support the Government's Bills on Second Reading.
Almost three years ago I had the temerity to write to the sub-committee of your Lordships' Procedure Committee. It was looking at the terms of reference of what has since come to be known colloquially as the Rippon Committee. In my memorandum I stated that I believed that there were many affirmative statutory instruments, some 60 per cent. of which did not merit discussion on the Floor of the House for more than five minutes by speakers other than the Minister. My most radical solution was to have a quinquennial Act of Parliament moving suitable affirmative orders down the scale to negative instruments and the latter to executive action. This, of course, was in the context of a Bill that would go through all its seven operative stages in both Houses of Parliament.
Your Lordships can readily understand my excitement that the Government, when they published this Bill at the turn of the year, had gone one, or rather two, steps further. We can immediately note that Part I is given effect by two separate procedures. Today we can count on 23 direct deregulatory provisions, many of which were listed by the noble Lord, Lord Peston. As far as I can see, only one is not done outright by the Bill but has the added safeguard of a single affirmative order all to itself. I refer of course to the health and safety provisions, some of which are Victorian or even earlier.
1028
In that regard, it grieves me to note that the earliest Act in the schedule of repeals is the Merchant Shipping Act 1894 in respect of Sections 110 to 112. I hope that my noble friend will be able to tell me that, among the 3,500 examinations about which he and my noble friend Lord Sainsbury of Preston Candover told us, there are plans afoot to repeal many earlier and now obsolete pieces of legislation by means of the wider affirmative instrument procedure outlined in Clauses 1 to 4 of the Bill.
My main interest revolves around the order-making powers contained in Part I. They far surpass anything that I could have imagined. "Henry VIII lives again", is the cry that we hear both in your Lordships' House and in another place. But as the noble and learned Lord, Lord Simon of Glaisdale, said, "Not quite". Rather he has stirred in his grave and gone back to a well-earned rest after considering the safeguards behind this special form of affirmative instrument which is more severe: than any parliamentary proceeding other than primary legislation. I can see no reason why each order should deregulate operations under a single Act. I can find nothing as constricting as that in the Bill. I believe that there are many disparate items on the statute book that we could well do without. So, I am glad to say, do the Government, as revealed by a list that they published between First and Second Readings in another place. I was pleased to learn from my noble friend's speech today that my interpretation is correct.
That reinforces the decision taken by the Joint Committee on Statutory Instruments, on which I have the honour to represent your Lordships, that the orders under Part I are so special that they should not be referred to the joint committee, which is as near apolitical as it is possible to get, but deals with drafting, the unexpected use of powers, including financial charges, vires, retrospection and timetabling. It does not —and indeed its standing orders forbid it—deal with policy. On reflection, I believe that I was wrong to flash out at my noble friend Lord Vinson when he used the word "unconsidered". Of course, in terms of policy these orders are unconsidered, but within all the other parameters I have mentioned they are considered most thoroughly.
A special scrutiny procedure for the deregulatory affirmative orders is required, and I am glad to see that that is proposed on a cross-party basis. The current thinking is that there will be a committee of each House scrutinising not only the orders but the procedures leading up to their laying. I say "current" because I foresee a time when having two committees will be so burdensome to everyone involved, not; only to civil servants and Ministers but more particularly to Back-Benchers in both Houses of Parliament, that they will by mutual consent combine into a second joint committee. But that of course is a long way down the track.
The current committees must make sure that the caveats set out in Clause 3—namely, on consultation —have been properly adhered to. Possibly they must hear evidence from Ministers to ensure that they have indeed conducted proper consultation. It is also vitally

1029
important that all the investigations normally carried out by the joint committee should be done by the scrutiny committees.
Secondly, the new committees will have in front of them a draft of the order together with what are described in the Bill as,
"details of matters specified in sub-section (4)".
It has to be a draft because under our law affirmative orders are not amendable—and quite rightly too— where single subjects are covered as they are in any other affirmative order case. Under the Bill they and other interested parties have 40 days to consider them.
In my humble opinion, 40 days is a bad precedent and is taken from the rule of 40 days' praying time in the case of negative instruments. The sub-committee of your Lordships' Procedure Committee which was set up to consider all this has recommended 60 days. Given the volume of work, I believe that that is a more reasonable time frame.
It is a nice and friendly gesture that this amendment is to be made in Committee in the name of my noble friend the Minister. From the noises that we have heard today, it appears that during the course of the Bill he will need all the sweetness and light at his command. His amendment will render Clause 4(2) (b) otiose and anything that shortens a Bill must be a good thing.
It also occurs to me that Clause 4(3) will need modifying. However, arguably that is a detail. What is much more important is when and under what circumstances the draft order will become part of the law of the land. I assume that this first draft, which passes through the committees without comment, is ultimately debated in both Houses. However, there will be occasions when a proportion of the original draft is unexceptionable while the rest goes against the grain. In those circumstances, I would expect that the draft order omitting the offending portion would be relayed and that the rest would be dropped or incorporated into a second order with or without amendment. Perhaps that will become clear in our later discussions on the Bill. In any event, the government of the day will have to choose. In those circumstances, a lesser period for laying for reconsideration by the joint committee would be appropriate. Sixty days is far too long.
These measures seem to be an eminently sensible way of proceeding. I congratulate the Government not only on Part I but on the method of parliamentary scrutiny that they have chosen. I have suggested a little fine tuning but nothing too serious. Even with the current procedures, I believe that we have a very commanding restraint of Henry VIII, who will remain interred. Therefore, I support Part I of the Bill and wish it a fair and following wind. I congratulate the Government on bringing it forward and I wish it a speedy progress through your Lordships' House so that we can at last turn the nanny state into what I have always believed it should be—a father state.
8.30 p.m.
Lord Jay: My Lords, of course, at any given time rules and regulations are in force which should be amended or dispensed with. I give one example. The
1030
present regulation that local authorities are not allowed to use their own capital receipts for building houses has done a great deal of damage and it would be in everybody's interests if the Government were to remove it.
But there is a remarkable inconsistency in the Government's attitude. When they are confronted with private business and the City, they are in favour of deregulation to be carried apparently to extreme but undisclosed limits. In one way, the timing of that is extremely peculiar. Since the Government embarked on deregulation, we have witnessed the worse series of City and financial scandals from Johnson Matthey to BCCI, to Guinness, Maxwell and disasters at Lloyds. I mention only a few although there are many others. That has been the greatest series of scandals in living memory, far greater than those associated with the name of Mr. Hatry and various colleagues of his in the 1929 boom. And they were regarded as unprecedented at the time.
Self-regulation of the private pensions industry, which I hope we may be able to discuss and the debate next week, has also turned out to be nothing far off non-regulation with resulting damage to the public. And yet the Government's response has been to pursue deregulation and in this Bill to weaken our existing anti-monopoly legislation and our health and safety regime, and to do so merely by orders rather than by primary legislation.
But when it comes to local authorities and trade unions and the whole sphere of education, health, social security and housing, the Government have advanced the frontiers of the state a good deal further than probably any government since 1689. They are constantly arrogating power from Parliament to the Executive. They have done that largely by taking power away from Parliament and placing it firmly in the hands of the Executive.
I am advised that in legislation since 1979 some variant of the phrase "The Secretary of State shall have power", or "The Secretary of State may" take whatever action he pleases, has occurred nearly one thousand times. The Minister will advise me if I am wrong about that. Of course, this Bill goes a good deal further in various ways. Not just the Secretary of State but, as I understand it, any Minister of the Crown, of whom I believe there are 60, 70 or even more nowadays, may amend or repeal an Act of Parliament by one of those orders, possibly involving the creation of criminal offences. The elected House cannot amend them and, by convention, this House cannot reject or amend them.
Such a proposal under any previous government would certainly have been regarded as a constitutional outrage. Whether or not it is called a constitutional outrage, it is certainly a major transfer of power to the Executive. It takes us a further step down the authoritarian path which ends up with Henry VIII, whom the noble Lord opposite has just mentioned. In effect, it gives a Minister power over wide fields to legislate on his own. I believe that it is clearly the duty of this House, as the guardian of the constitution which it claims to be, to amend radically that extreme power.
However, I wonder whether the Government have not perhaps drawn the Bill too widely, even for their

1031
own purposes. It might become a precedent. This Minister and Government will not be in power for ever. One day perhaps—and perhaps soon—there will be another government, perhaps a Labour government and new Ministers of the Crown and Secretaries of State, because this Government are not particularly popular with the electorate at present. However, this Bill, if passed as it stands, will still be on the statute book.
If it is examined, your Lordships will see that it provides not only that a Minister can repeal but also that he can amend any enactment imposing a burden on anyone carrying on a trade, business or profession. It is true that the order must reduce or remove a burden which appears to be a possible limitation, but "burden" is a nebulous word to use in legislation. Indeed, the Secretary of State is so conscious of that that he has to define what is meant by the word "burden" which takes seven lines of the Bill.
Clause 1(5) (b) provides that:
"'burden' includes a restriction, requirement or condition (including one requiring the payment of fees), together with",
a great deal else. In fact, a burden means almost anything in this Bill. Would that clause not empower a Minister, in a future less doctrinaire government, to amend by order previous Acts in almost any way he liked? Are the Government really sure that this Bill will not enable a future government, by order amending previous enactments, to take back, for example, into public ownership any section of private business if the Minister was of the opinion that it was in the public interest to do so?
Perhaps in the bold spirit of Mr. Heseltine, a Minister might take back a whole group of privatised industries duly specified in one order. However, I hasten to add that I should be wholly opposed to such a course since I have a much greater respect for parliamentary government than either Henry VIII or Mr. Heseltine, but at least the Government have been warned about what might happen.
Whatever use is made of this Bill, one thing seems perfectly clear: if anything like this Bill is ever enacted, this House should, in the case of any order authorised under it, abandon the convention that it does not reject orders outright. If the Government can arrogate those powers to themselves in one Bill—incidentally, with no electoral mandate—this House should surely be allowed to alter its mere conventions.
Before we reach that stage, this House has a clear duty to amend drastically the central procedural provisions of the Bill. I do not believe that the Procedure Committee's proposals go far enough since, even with those supposed safeguards, the Minister, if he wished, after a pause, will still be able to railroad an order through Parliament. In any event, that provision would not apply to a whole Bill.
With regard to the contracting out provisions of the Bill, I shall say only, since we are at a late hour, that I agree wholly with every word spoken by the noble Lord, Lord Bancroft, earlier today.
8.40 p.m.
Lord Pearson of Rannoch: My Lords, after so many erudite contributions, which have covered much of the ground, I shall endeavour to speak briefly. 1 welcome the Bill, particularly because of something that my noble friend Lord Strathclyde said when he introduced it this afternoon. He stressed how important the Bill is for our economy and said that it is only part of the Government's continuing campaign to reduce suffocating regulation and red tape.
As was to be expected, there have been some powerful speeches from those noble Lords who feel that the Bill's order-making power threatens to undermine our democracy. With the greatest respect to those noble Lords, I should have thought that a far greater threat to our democracy is now posed by our monstrous bureaucracies, both here and in Europe, which disgorge ever larger quantities of legislation much of which, it seems to me, diminishes our freedom further.
Our huge departments of state do not seem to feel virile unless they are either concocting some massive and often unnecessary piece of new legislation, or are actually piloting it through Parliament—or. perhaps, advising Ministers on how to pilot it through Parliament. Those so-called ministries do not seem so much concerned with giving the service for which they are actually paid, let alone giving it civilly. The situation has really reached the point—has it not?—where one could envisage a modern Bateman cartoon of the drawing room in, perhaps, the Athenaeum Club with a large number of happy-looking civil servants at one end of the room and a rather wretched figure dismally alone at the other end with the caption underneath reading, "The Permanent Secretary who had no legislation in prospect".
I could give endless examples of the sort of evil to which this comparatively new situation gives birth. But examples have already been given, so I will content myself with putting in a plug for Mr. Christopher Booker's column in the Sunday Telegraph, and for his excellent new book entitled The Mad Officials. No one can read that book and be in any doubt that our civilisation is facing a new threat of very frightening proportions.
I have attended most of the debate, but I have not heard one point made which I believe to be important. The new ministerial power which has been so widely criticised is applicable, as I understand it, in only one direction: that of deregulation. For that reason, it seems to me that suggestions to the effect that the Bill represents a further triumph for the Executive at the expense of Parliament are somewhat misplaced. After all, if one looks at the advances of Parliament against the Executive over the centuries, one only has to go into the Royal Gallery and examine the Petition of Right, where, for the first time, Parliament sought to curtail the prerogative of the Crown in four very important respects.
European legislation is another matter, but my noble friend would be disappointed if I did not return to that before I finish. Further, the 60-day period which must elapse before an affirmative resolution is taken, together

1033
with the resolution itself, seem to me to be adequate safeguards. I heard the exchange between the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend on that point. However, I was a little perplexed at the end of it as to exactly where we stand on voting on eventual affirmative resolutions. I would be grateful if my noble friend could give consideration to your Lordships' House being able to vote on affirmative resolutions when they come our way.
A number of noble Lords complained that the Bill is designed primarily to help business. Perhaps I may just remind those noble Lords that the taxes paid by enterprises and individuals who make a profit support the services of the state which do not. The Bill is a small step towards alleviating the suffocation which bureaucracy has visited for far too long upon business, particularly the small business. It would, therefore, be to the benefit of our society as a whole, and not just business.
I feel that I should take up a small challenge issued by the noble Lord, Lord Peston, when he asked where the Eurosceptics were on this side of the House in the debate. The noble Lord seemed to assume that we must be equally or more opposed to the Bill than we were to the Maastricht Treaty. He seemed to regard the Bill as a greater assault on our parliamentary sovereignty than was the Maastricht Treaty. As a Eurosceptic—if that is the right word—I find it inconsistent, to say the least, for anyone who supported the Treaty on European Union signed at Maastricht —and, indeed, much of the Single European Act—now to object to this comparatively innocent little Bill. After all, the Maastricht Treaty ceded over 100 new areas of our national life to qualified majority voting in Brussels and set us on our way to political and economic union with Europe. This Bill merely seeks to undo some of the petty regulation which is stifling our business, and it seeks to do so under the authority of Parliament—this Parliament.
Finally, thinking of Europe, I am sure that my noble friend the Minister would not expect me to let him off entirely. In 1993, the European Community deposited 732 documents in Parliament, much the same number as it had done in each of the previous four years. Many of them contained legislative proposals. In the same year —that is, 1993—it brought forward 75 proposals for what is known as principal legislation, compared to 89 in 1992.
I should like to suggest to my noble friend that the Bill should be amended to deal with Eurolegislation of that kind. But, alas, the Government have ceded the power to do so. I hope that my noble friend will not reply that subsidiarity is working in our favour and that, therefore, we do not need the suggestion that I have just put forward, because clearly it is not and clearly it will not. For example, I find it difficult to share the optimism shown by my noble friend Lord Boardman when he mentioned our opt-out from the Social Chapter. It seems to me that the same directives that we intended to avoid in the Social Chapter are merely coming at us under health and safety provisions and the qualified majority vote.
1034
At this late hour I shall not torture my noble friend any further about the folly of the Government's position on Europe. I merely ask him to commit the Government to the same reforming zeal as regards European legislation as they are honourably demonstrating with this Bill.
8.47 p.m.
Viscount Bridgeman: My Lords, we have heard many distinguished speeches during today's Second Reading of this Bill. As the back marker, I shall endeavour not to detain your Lordships for too long. While there are many aspects of the Bill that I wholeheartedly support—indeed, its objectives in terms of reducing burdens on industry are to be applauded —there is one small element which has not, possibly, been thought through. I take the opportunity to raise a comparatively detailed point on Second Reading because I suggest that it is a good example of how deregulation may well lead to a whole raft of further regulatory measures.
By abolishing Part I of the Shops Act 1950, Clause 19 of the Bill will allow shops to open for 24 hours of the day. Given the fact that shops can already stay open until 8 p.m. in the evening and reopen again at one minute past midnight, your Lordships may think that that is a sensible and practical step forward. However, there are some important practical consequences of allowing 24-hour shopping. At present, it is not practical for shops to open after midnight, as they are legally allowed to do, because there is insufficient trade.
However, it may well become commercially viable for high street shops to remain open until the early hours in order to pick up trade from those leaving pubs and clubs late at night. Residents living in major commercial areas will suffer increased noise and disturbance as a result. That does not seem to be desirable. In addition —and, perhaps, of much more concern—all-night shopping will impose new burdens on local authorities and support services. Extra traffic control, parking and policing costs are obvious issues. But, in addition, the cost of regulating fair trade and monitoring food safety regulations will also impose additional financial burdens. I am also advised that, while the police authorities do not specifically object to the proposal, they have pointed to the need for additional resources as 24-hour shopping will provide additional opportunities for shoplifting and public order problems. Moreover, there are likely to be staffing difficulties among trading standards services, where those concerned may well need to work unsocial hours when trading is taking place. There will also be additional refuse collections, and so on.
I do not wish to paint too dramatic a picture. I can well see that, especially at this time of night, the proposal may appear to be innocuous. But I am persuaded that there are some important practical consequences which will impose additional financial and regulatory burdens on the authorities quite apart from the additional disturbance to local residents.
It seems a little odd that the Government should now propose a deregulatory measure which might result in additional burdens being imposed. I look forward to the

1035
Minister's response on this point and I hope he may be able to reassure me and many local authorities who are beginning to wake up to this problem. I am concerned that what may appear to be a perfectly sensible deregulatory measure has not been properly thought through by either the Home Office or the DTI. I hope that it may be possible to look more closely at the matter.
8.50 p.m.
Lord Tordoff: My Lords, I was amused at the beginning of our deliberations today to hear the noble Lord, Lord Strathclyde, refer to broccoli. I know that he has a sense of history but he probably does not reimember that in the election campaign of 1929 there was considerable interest in the broccoli situation. I have in front of me a cut-down version of a poster that was used by the Liberal Party in those days entitled:
"Britain's hope under the Tories. HOISTING THE BROCCOLI STANDARD".
There is a rather splendid picture of Mr. Baldwin with a stick of broccoli with a Union Jack tied to it. The poster continues:
"We are recovering in the world our competitive power, our trade is definitely improving … Imagine with what pleasure I learned the other day that our English Broccoli have begun to penetrate the Continental markets in spite of all handicaps. That is an example of what can be done".
Those words were spoken by Mr. Baldwin at Drury Lane—would you believe?—on 18th April 1929. Plus ¢a change.
We have heard of the bonfire of regulations— someone was bound to mention that at some stage—and of course the restriction of regulations has considerable attraction. There is no doubt that there is a fairly steady need to thin out restrictions. However, bonfires are dangerous things and they can spread and lead to wider conflagrations. Anyone who like myself was in Sydney in the middle of January will know that bonfires are not things that one should light unless one has careful control over them.
We have heard it said from all round the House that the burden on industry is one important factor. But merely shifting the burden from industry to other places where people might be more vulnerable is not the answer. Therefore it is important that we look at these matters on a case by case basis. We must examine the disbenefits before we act. I believe that the premise of this Bill is far too simplistic. There is no attempt in the Bill to make any qualitative judgment. It is all based on the opinion of a Minister of the Crown. It is the "What is good for General Motors is good for America" Bill.
The provisions of Parliament can be overturned by the whim of a Minister or part of the Executive—or perhaps, it is true to say, at the whim of some pressure group, including those who finance political parties. I include any political party in that. The truth is that this Bill is an insult to this revising Chamber. We will have changes to primary legislation by unamendable orders on which we have a convention not to vote. Whatever has been said this afternoon, that convention still stands and will not be easily broken, although I agree with the noble and learned Lord, Lord Simon of Glaisdale, that we have the right to vote against orders. However, it is
1036
not a convention which will be easily broken and I believe it is not a convention which should be easily broken unless we are pushed to the limit. We are getting very close to that.
While I am on the subject of the way in which this House is being treated, I must put in a small protest at the timetable of this Bill. This Bill was printed two days before we went into Recess and here we are on the first day back with a huge Bill with many, many clauses and many, many schedules. We are having to debate at length a Bill on which none of us, with the possible exception of Ministers, can have had sufficient time to digest what is in it. That is no way to deal with an important piece of legislation such as this.
We will of course be told that there is plenty of slack in the system which will give procedural safeguards. We are told that there will be consultation. I hear from the chief fire officers that they are very worried about the consultations that were asked for by the task force. I refer to a Written Answer to my right honourable friend Mr. Beith on 26th May in the Official Report of another place. Mr. Beith asked,
"what consultations have taken place between his officials"—
that is the Home Office officials—and the construction industry on fire legislation and enforcement? He was told by Mr. Charles Wardle in the Written Answer:
'There were no formal consultations between my officials and the construction industry task force on fire legislation and enforcement. However, Mr. R. J. Miles and Mr. A. N. Pickersgill of the fire safety division did meet two members of the task force and officials from the Department of Trade and Industry on 5 July 1993 when preliminary deregulatory ideas were raised.
There were no further meetings between members of the fire safety division and the task force".—[OfficialReport, Commons, 26/5/94; cols. WA280.]
If that is an example of the sort of consultation that we can expect, it is totally inadequate.
We have heard about procedural safeguards, but show me where these procedural safeguards are on the face of the Bill? Yes, provision is made for parliamentary consideration for 40 days, and we are grateful to the Minister today for accepting that 60 days would be the proper time. The Government are to be: congratulated on having taken that on board as a result of what has been said by our Procedure Committee. But there is nothing in the Bill which forces the Minister even to accept a resolution of this House, The Procedure Committee and the sub-committee chaired by the noble. Lord, Lord Aberdare, has produced an excellent report. We agree that to refer the order to the Select Committee is a good idea and we are happy that it should be the: Delegated Powers Scrutiny Committee. However, I accept the comment that was made by someone earlier that we have to take care that this Committee is not being overloaded in taking on this task as well.
I would also like to feel that there is some possibility that this procedure can be extended to normal statutory instruments. If we could at least get that out of this Bill, we would have achieved something. I am happy that the noble Lord the Leader of the House has indicated that if a Motion, as a result of the scrutiny committee's deliberations, is passed by this House, if the House resolves against the Government on a Motion then the draft order will be removed. But there is nothing in the Bill which says it has to happen. I accept the good intent

1037
of the noble Lord the Leader of the House and I am quite sure that while he remains in that position that is what will happen, but can he guarantee that his successor will make sure that that is what will happen? Can he guarantee that a future government will ensure that that is what will happen? I would be happy to accept these safeguards and I am sorry that the noble and learned Lord, Lord Simon of Glaisdale, is not in his place because I wanted to make this point to him. It strikes me that this is a weakness in the argument that he put before your Lordships—that there is nothing on the face of the Bill to guarantee this will happen. If that were the case I would feel considerably happier and certainly I would be happy to move such an amendment in Committee.
The truth is that Clause 1 is a Henry VIII clause too far. It is a huge Henry VIII clause and a number of speeches have been made on that. It has been pooh-poohed by a lot of people who have said this is relatively unimportant because anything which helps business is worth while. Apparently in some people's minds even the sacrifice of democracy is worth while if it helps that end. But we cannot have a firmer recommendation than the recommendation that comes from the scrutiny committee of the noble Lord, Lord Rippon. That is couched in terms which are as powerful as that committee is capable of putting before your Lordships' House. The recommendation states in terms which noble Lords will understand that the clause is unacceptable to your Lordships' House. The committee does not use those words.
Lord Rippon of Hexham: My Lords, I am sorry to intervene in the middle of the noble Lord's speech. What we have done, as we always do, is to draw the attention of the House to the fact that such a Bill has never before been brought before the House in peacetime. We do no more than that. If the House approves the Bill and accepts that it is a measure unprecedented in peacetime, as the noble and learned Lord, Lord Simon, said, we draw attention to the need to look carefully at the safeguards.
Lord Tordoff: My Lords, I accept what the noble Lord says. He did not hear what I said earlier about the safeguards. However, I think that he will agree that those are just about the strongest terms that his committee could possibly use in relation to any Bill.
We are told that the Procedure Committee has been assured by Ministers that no sweeping or controversial changes will be brought up in the orders but that they will be minor matters which have been crowded out of the primary legislative process. Where in the Bill does it state that? Under the Bill the Government can bring forward any orders, however controversial. Indeed, on the contrary, we find that it is possible to create new criminal offences. That is specifically provided for in the Bill. Admittedly, under Clause 2 there is a limitation on the level of punishment that can be awarded under those new criminal offences. But I believe that a new criminal offence should never be created by an order. It is a diabolical provision to come before your Lordships' House. As a noble Lord said previously, Parliament
1038
chopped a king's head off for such a measure. If Ministers do not consider that provision a controversial change, I do not know what they believe is.
Let us turn to Chapter II. I accept that these measures are in primary legislation because they are in the Bill. Having said that, they are not susceptible to the procedure to which we have just referred, so there is not that safeguard. However, we have the opportunity to amend them. But I hope that the Government will not say that they are not controversial measures. Even as clauses in the Bill, the provisions cause considerable concern. As the noble Lord, Lord Peston, said, it will be necessary for us to spend a considerable time scrutinising those extra clauses.
It is a huge compendium of a Bill. Clauses 5 to 29 cover vast areas of public policy, many of them highly controversial. Let us take the Fair Trading Act, for instance. I cannot believe that allowing the Secretary of State to accept undertakings as an alternative to a full reference to the Monopolies and Mergers Commission is not controversial. I find it difficult to believe that the redefinition of a newspaper proprietor does not have some tinge of controversy about it.
I have had representations on animal welfare, licensing of slaughterhouses, the uniform cost of veterinary inspections and the transfer of hygiene and welfare functions from the local authority to MAFF; and those are all controversial. The Royal College of Nursing is worried about health and safety. The chief fire officers fear that proposals by the construction task force may be the result of inadequate consultation. The proposals for the licensing of goods and passenger vehicles may be good but they must be accompanied by a proper enforcement procedure. How will this House insist that that takes place? Where will the additional resources come from? As my noble friend Lady Hamwee stated in relation to the London lorry ban, if the extra resources will be available, if the extra costs which those provisions will bring about will be met, then perhaps those provisions are acceptable. Many of the measures are well intentioned.
It did not need the Consumers' Association to draw my attention to the repeal of Section 43 of the Weights and Measures Act 1985. I have always believed that a pint of beer was a pint of beer and not inches of froth. I am sure that my dear departed friend the late Lord Winstanley would have been leaping about in your Lordships' House to ensure that this part of the Bill was thrown out neck and crop. We understand that the trade has insisted on that repeal because it would cost the trade an extra 7p. a pint to enforce those provisions. What that means is that the drinker is being done out of 7p. per pint because he is receiving short measure. The party opposite is the froth party. Of course we know why that has occurred. It is because the Government are paying off their election expenses to the brewers who gave them all those big signboards during the last election and from whom they hope to obtain sites next time.
I have not dealt with Chapters III and IV, or Part II which contains a Henry VIII clause in Clause 66(1) (b). No doubt the noble Lord, Lord Rippon, will be considering it in due course. There is enough material in

1039
each of these sections for separate Bills. I repeat that this House has been badly treated. We are being taken for granted. Therefore we have to gear ourselves for some very hard work over the coming days and weeks. I agree with the noble Lord, Lord Peston, when he states that we should not be prepared to stay up night after night into the late hours in order to deal with these matters. They are important matters which should be debated in prime time in your Lordships' House. If we do not do so, we open the floodgates for secondary legislation in a way which we have never known before.
It is a sinister Bill. It is a travesty of parliamentary accountability. I hope that when the noble Lord, Lord Clinton-Davis, replies, he will give some assurance that if there is a Labour Government in the future, they will repeal this Bill in the instant. The Bill gives unimagined power to the Executive. Unless your Lordships are prepared to apply yourselves to the Bill and severely amend it, I have to say that Mr. Balfour's poodle will look like a Rottweiler.
9.7 p.m.
Lord Clinton-Davis: My Lords, I start by responding forthwith to the request made by the noble Lord, Lord Tordoff. From this Dispatch Box I can say that the incoming Labour Government—because that it will be in the not too distant future—will repeal this Bill, a Bill which, as he said, is sinister and offensive.
This has been a remarkable debate, in which the Government have had to clutch at a few straws for support. Even the support of the noble and learned Lord, Lord Simon of Glaisdale, was highly qualified and depended upon safeguards which I do not believe are capable of being effected.
It seems a long time ago since the noble Lord, Lord Strathclyde, opened the debate with a stirring theme, referring to a regulation which he opposed relating to broccoli. The noble Lord, Lord Tordoff, referred to that. This broccoli-busting Minister went on to draw the conclusion that it was incumbent upon government to make sure that regulations are applied sensibly. That is a startling proposition. Then he said that enforcement should not be overzealous. What does he mean by that? I thought that some of his noble friends argued that there was a need for good and effective enforcement of sensible regulations. The Minister ought to read Hansard tomorrow and re-examine what he had to say.
The noble Lord, Lord Tordoff, is quite right in asserting that Parliament chopped off the king's head for advancing propositions not altogether dissimilar from those that we are considering in this Bill. We shall have to be satisfied with rather smaller fry, and very small fry at that.
Listening to the noble Lord, Lord Strathclyde, could one have drawn the conclusion that the Government had been in office for 15 years? As my noble friend Lord Dormand said, over those 15 years they have been responsible for the overwhelming majority of regulations—which for all I know may have included the broccoli regulations. Yet we heard not a word of apology for having inflicted upon Parliament these terrible regulations from which they now seek to resile.
1040
The speech was also remarkable in that, save for a word or two about unemployment due to these terrible regulations, there was not a word about the effect of deregulation on consumers; not a word about the effect on workers, their lives and conditions in industry; and not a word about safety or health. That speech reflected very well the difference of approach between that side of the House and this.
I do not believe that it is sensible to seek to abolish regulation as if it were simply a nuisance to employers. That cannot be a sensible basis for proceeding. I do not believe that the whole basis of structural change that we are seeking to make at this time should fall on the weakest, the lowest paid and the unemployed. That, in substance, is the difference between us and noble Lords on that side of the House, or at least some of them.
We heard from the noble Lord a good deal about the effect on small businesses. This Government, with their record concerning small businesses, this Government, who have destroyed the hopes and ambitions of so many people engaged in small businesses, have the effrontery to parade that argument in aid here. The noble Lord may shake his head and say, "Rubbish", but the figures speak for themselves in the liquidations and bankruptcies which have occurred over the past 15 years.
Lord Strathclyde: My Lords, the figures do speak for themselves. Since 1979 more than a million small firms have been created. People have had the courage of their convictions and have set up new businesses in order to provide the seedcorn, the new growth, for our future industries. That is the record of which this Government are proud. That is why we have always been and will continue to be the champions not only of small businesses but all businesses.
Lord Clinton-Davis: My Lords, the Minister says nothing about the net situation. He does not apologise for the fact that the Government have been directly responsible for destroying the hopes and ambitions of so many. That is a fact, is it not?
There is no difference between either side of the House on the need to remove out-of-date and inappropriate rules or to simplify procedures wherever that is possible. The difference lies in how one goes about that task and the Government's real motives so far as concerns this Bill.
The onus for enacting a Henry VIII Bill—as it was described by the noble Lord, Lord Tordoff—which truncates the procedures of Parliament, which flies in the face of the strongest constitutional advice, which calls on Parliament and the nation to trust this Government not to abuse their position (a Government who are patently discredited and have proved themselves over and over again not to be worthy of that trust, not least because of the promises made at the last general election and which they have dishonoured), falls squarely and fairly on the shoulders of the Government. They have not begun to discharge it.
The alleged justification for these sweeping powers —powers which are unprecedented—over and above those regulations that we all agree should not remain on the statute book is based only on the issue of

1041
competitiveness, on the burdens of industry exclusively. My noble friend Lady Dean was right to refer to the deaths and injuries of people where regulations had been totally ignored by those engaged in industry.
Theirs is an appeal to the lowest common denominator. The notion is expressed, with all the vigorous banalities of the Institute of Directors, that health and safety can be safely left to market forces—a notion that was adopted by the President of the Board of Trade, who was obsessed of course with his own leadership ambitions. Throw away the rule book; emulate the countries of the Pacific Rim; thereby adopt appalling working and safety conditions; and produce in train a sweatshop economy with the lowest wages that are feasible.
In consequence, they ignore the advice of those who represent our mariners. They ignore the chief fire officers and those members of the Health and Safety Executive who had the courage to assert that this Bill poses a major threat to the health and safety of employees, and indeed to the public.
It is noteworthy, too, when they talk about effective monitoring, that 230 Health and Safety Executive jobs are expected to be lost over the next two years. They ignore the concerns of the local authority associations; consumer organisations; the Royal College of Nursing; the Council for the Protection of Rural England; of everybody except that minority of ideologues to whom they constantly turn for inspiration—inspiration which is still in remarkably short supply—or those who engage in special pleading, the vested interests which seem to have the ear of government, and which achieve that by putting a great deal of money into the ever open purses of the Conservative Party. They preach the supremacy of Parliament when it comes to the European debate, and they set about debasing the role of Parliament in our national politics.
In this instance there can be no doubt at all that with these powers Ministers could repeal Acts of Parliament by statutory instrument—by unamendable statutory instruments. My noble friend Lord Stoddart was quite right when he asserted that there will be no revisions, no amendments, no Committee or Report stages, and no real role for this House. Of course, the Minister says that he will have regard to the views of the scrutiny committees. "Have regard to"—that is all he can say.
They even had the effrontery to set up a deregulation panel without waiting for this legislation to be enacted. They peopled that with former Ministers and other Right-wing ideologues, many of whom have paid a great deal of money for that position.
What of the regulations themselves? My noble friend Lord Dormand dealt extremely well with that situation. He cited the number of regulations for which this Government have been responsible, even since Mr. Major became Prime Minister.
My honourable friend in another place, Mr. Robin Cook, speaking on the Second Reading of this Bill on 8th February, had this to say:
"In the Queen's Speech debate, I pointed out that, when the Government came to power in 1979, Butterworth's Company Law was just under 500 pages—"—[Official Report, Commons, 8/2/94; col. 161]
Noble Lords: Order!
Lord Clinton-Davis: My honourable friend spoke to this effect. He referred to the fact that Butterworth's Company Law was just under 500 pages—broadly comparable to a light novel by the honourable Member for Derbyshire South. Butterworth 's Company Law now runs to more than 4,000 pages, the equivalent of (in my honourable friend's reference) War and Peace, the works of William Shakespeare and the Bible all rolled into one. That is what they have landed this nation with.
What is to guide the Minister in this Bill into forming an opinion that a statutory burden is falling on businesses or on individuals? Where are the definitions? Where is the help in interpretation that we might expect from this Bill? Is there a definition of "burden" anywhere? Is there a definition as to how the Minister might help to interpret these issues? There is nothing at all. What we have is the subjective view of Ministers, and the view of some who are in industry and business, which might coincide in deciding what is burdensome.
Even if this House were to accept their protestations of innocence about their true intentions, despite all the evidence to the contrary this Bill is not simply a test of what this Government could do but a test of what governments in the future could do armed with these powers. I believe that the noble Lord, Lord Beloff, was quite right when he suggested that those powers were too extensive if all that is being suggested is a method of excluding from the statute book outdated, unnecessary, irrelevant and possibly even uncontentious legislation.
We are told—the point was made by the noble Lord, Lord Tordoff—that the Government will consult with all interested parties. We have seen the Government consult before. Sometimes they forget altogether and have to apologise to the House. Certainly that has happened in the transport field. I believe that sometimes the failure to consult has been deliberate. Sometimes it has been notoriously incomplete. So why should anybody believe them in this regard?
In the transport sector there are three specific issues which the Government have identified for action and on which I believe it would be dangerous to embark. I want to refer to them now, although we shall come back to them at Committee stage.
I believe that the lorry ban in London will be maimed by the propositions that are advanced in this deregulation Bill and the documentation supporting it. That lorry ban will become unenforceable in the absence of the permit scheme which the Government propose to abolish. The lorry ban was imposed to mitigate intrusive noise and disturbance caused to countless numbers of Londoners at night and weekends by the abusive use of heavy goods vehicles. It has been identified for action by the task force, heavily biased through the views of the Tory supporters of that task force who have vested interests in the field and who are deeply anxious to remove restrictions on haulage operations. There has been extensive correspondence between the local authority organisation dealing with these issues and the

1043
Minister for London. The Minister seems to be totally unmoved by the representations that have been made, which I believe have overwhelming support in London.
With regard to goods vehicle operator licensing, there is a proposal which is based upon making continuous licensing as a replacement for the five-year licences which exist at the present time. It is alleged that it will save £2.6 million a year, just as it is alleged that the change with regard to the lorry ban in London will save £3 billion. The Government have accepted in totality the arguments put forward by vested interests. Let me tell the Minister—I should have mentioned it before—that when it comes to the cost of the effectiveness of the lorry ban, Touche Ross reported that it costs the industry not £3 million a year but £400,000.
But what about the savings in terms of environmental damage? What about the savings in terms of the security and disturbance felt by the people of London? When it comes to the goods vehicle operator licensing system, what will be the cost to society of the Government's proposal? Why were these so-called "burdens" imposed in the first place? Were they not to ensure safety and environmental conditions that were in the interests of people in London and elsewhere who might be affected by these matters?
There can be no doubt that there are seriously falling standards in the road haulage sector. It is a major problem. Fifty per cent. of the increase in refusals of operator licence renewals have taken place over the past year. There is pressure to cut costs and cut corners. That is not good enough, and we shall oppose the Government's proposal.
So far as concerns shipping—I want to say a few words about that—the Government were strong in their condemnation of that part of the international industry which, largely through the use of flags of convenience, seeks to subvert the law. When we discussed recently the Merchant Shipping (Salvage and Pollution) Bill, they said that they were strongly in favour of ensuring that we had good crewing conditions, conditions which would avoid the kind of situation which occurred in the "Braer" disaster, and indeed many other issues of that kind. Indeed, in the House of Commons the Minister referred to the importance of crew training and standards. But here, by repealing the licensing requirements for seamen's employment agencies, the Government propose to damage those standards directly.
What assurance is the Minister able to give that the changes he envisages will not create a climate where abuse becomes more prevalent and when more cowboys will be attracted into the sector? Is it not clear that seafaring is different from supplying employees for a shore-based industry? Is there not a clear need for quality seafarers? Does it not follow that the quality of the agencies should not be demoted as the Government are proposing?
In some countries there are appallingly low standards for employment agencies in the shipping industry. It is vital that less scrupulous agencies should not be permitted to operate. The Government attack certain manning standards. It is wholly undesirable for vessels to sail in any circumstances with less than an agreed
1044
complement of officers. It is perfectly possible these days for replacement officers to be flown speedily to all major ports. The Government believe in reducing manning standards; they have said so over and over again when one has tested them on those issues. I do not believe that in the field of merchant shipping we should embark on the proposals upon which the Government are seeking to embark.
This Government—which have already pulled their punches on businesses failing to conform to safety and environmental regulations—have all too often with-drawn the sanction of prosecution from the privatised water companies and converted the doctrine of BATNIC (best available technology not involving excessive cost) into CATNIP (cheapest available technology not involving prosecution). This Government are prepared to turn that situation in the direction of so many other areas. It is a government who listen only to those who support them—and they are becoming a rare commodity. It is a government who go to those who, for example, run bus companies to ascertain whether or not a driver's hours of work should be relaxed and whether or not the right to break periods should be removed. What response do they expect from the bus companies?
The Bill is a product of the overheated rhetoric of Mr. Heseltine. It is a case of "Hezzamania''; obsessed by a passion to show his Right-wing credentials reflecting all the warmth for constitutional good practice that he displayed in such a marvellous way in 1977—the noble Lord, Lord Mackay, may also have been present on that occasion—when he brandished the Mace in the House of Commons. This is a man who spoke of intervention in industry before breakfast, before lunch and before dinner, and who now, to appease the Right, calls for the privatisation of the Post Office and this iniquitous Bill.
I suppose it is all in keeping with an unforgettable phrase used by the Prime Minister at the Tory Party Conference in 1992, "Michael, get out your axe". That is a somewhat dangerous proposition for the Prime; Minister to advance at this juncture of his career.
9.29 p.m.
Lord Mackay of Ardbrecknish: My Lords, perhaps I should first apologise to the noble Lord, Lord Rodgers of Quarry Bank, for not being the noble and learned Lord the Lord Chancellor. He seemed to think that only the Lord Chancellor would do to sum up the debate. 1 stand second to none in my admiration of my noble and learned clansman the Lord Chancellor. But between my noble clan chief Lord Reay and myself we may manage to give him enough Mackays to make do for one evening.
I was interested in what I believe may prove, when I read the columns of Hansard, to be an interesting division of views between the noble Lord, Lord Peston, who opened, and the noble Lord, Lord Clinton-Davis, who closed for the Opposition. I noted down, among many other things, that the noble Lord, Lord Peston, said that he was not against deregulation. I have to say that, for most of the speech of the noble Lord, Lord Clinton-Davis, that certainly could have fooled me as the position of the party opposite.
Lord Clinton-Davis: My Lords, my noble friend Lord Peston and I said that we were against irrelevant and nonsensical regulation—much of which, incidentally, this Government have been primarily responsible for putting on the statute book—and that we were anxious to see a way of repealing it. What I did not say was that I was in favour of maintaining that form of regulation on the statute book.
Lord Mackay of Ardbrecknish: My Lords, that is splendid. We are in agreement that we should try to find some way of removing unnecessary regulations from the statute book. That is what we are going to try to do via this Bill. Some noble Lords have said that we are going too far. One or two noble Lords thought that perhaps we were not going far enough. We certainly attach huge importance to reducing costs for industry but I can assure the House that we have no desire to nor intention of sacrificing important protections. We have always recognised that what really counts is the cumulative benefit from a mass of detailed changes, just as it is the cumulative burden of unnecessary restrictions which imposes high costs and reduces competitiveness, as my noble friend Lord Hesketh pointed out in his speech.
Business has rightly welcomed the Bill as a real opportunity to cut through the burden of regulation. It does matter that companies are not submerged in a flurry of forms. It does matter that small businesses do not go under as a result of needless requirements. It does matter that businesses are given the flexibility to explore markets and to trade competitively. Consumers, of course, also benefit from wider choice and from greater flexibility. Getting rid of unnecessary paperwork and disproportionate regulation is a vital issue for business. It is also of considerable benefit to people in their everyday lives.
My noble friend Lord Sainsbury of Preston Candover explained the principles which the task forces followed and underlined the need for regulators to listen to the views of those on whom the burden of regulation falls as well as to those who feel they may be protected by those regulations. It is a policy which looks at both the sets of people who can be affected by regulations; those who may look on them as a burden—those who actually have to obey them—and those who feel they may benefit. It is to get a proper balance that we believe we need this Bill and the services of the task forces which have looked into the various aspects of the whole question of deregulation.
Of course we recognise that the deregulation order-making power provided in the Bill is an exceptional one and therefore needs exceptional safeguards. I believe we have provided just such safeguards. We have been very conscious in particular of the need to provide Parliament with a full opportunity for scrutiny. The provisions require consultation with outside parties. At one stage in the speech of the noble Lord, Lord Stoddart of Swindon, he said he thought that the consultation provisions in Clause 3(1) were narrow-minded. I believe that his concern on this point is quite misplaced. The form of the words in the clause is quite a common form. It appears, for example, in the
1046
Consumer Protection Act 1987. If the Minister ignored a representative organisation without good reason, his decision would be open to judicial review.
The reason for expressing the consultation requirement in such general terms is that it is impossible in advance of any particular proposal to know which organisations would be representative of those affected. For example, a proposal about the slaughter of poultry will affect entirely different interests from a proposal about the filing of patent applications. An important safeguard is provided by the requirements in Clause 3 that the Minister must inform Parliament as to how the consultations on any particular case were carried out, what the results were and what he has done to take account of them.
The noble and learned Lord, Lord Simon of Glaisdale, is a well known authority on the whole question of Henry VIII clauses. I am not entirely sure that I ought to recognise Henry VIII because I suspect that he was a king of England and not of the United Kingdom. Nevertheless, I think I know what noble Lords mean by Henry VIE clauses. But the noble and learned Lord, Lord Simon of Glaisdale, pointed out the dilemma which we are all faced with in this matter. As he very neatly put it: how do we repel bureaucratic invasion other than by using the instruments of bureaucracy themselves? He also indicated that every department of government has an agenda of new legislation and regulations which they wish to persuade every new incoming Minister to implement.
The noble and learned Lord explained the three particular safeguards which he felt ought to be in the Bill and in the procedures which we adopt for dealing with Henry VIII clauses. I am sure that when we come to the Committee stage we shall be looking in detail at the three of them. I hope that my noble friend Lord Strathclyde and I shall be able to persuade the House that we have indeed incorporated sufficient safeguards. When a proposal is laid before the House a document describing the consultation and how it has been taken into account will be provided by the Minister, together with other details of the proposals. The Bill then provides for a period of parliamentary scrutiny which, as my noble friend Lord Strathclyde explained earlier, we intend to extend to 60 days in all cases, as recommended by the Procedure Committee. It is for Parliament to decide how to use the extra time for parliamentary scrutiny. The Procedure Committee has made a detailed report on this, which we have welcomed and accepted. It proposes a committee of the House, which might be the Delegated Powers Scrutiny Committee, should undertake scrutiny of proposals brought forward under this power. For instance, the noble Lord, Lord Dormand of Easington, was concerned about the lack of scrutiny line by line. The committee will be able to look at the proposals line by line. It will take evidence from those people whom it considers appropriate. By co-ordination in government, we intend to ensure that the committee is not asked to consider too many proposals at one time.
The committee will be able to suggest amendments or propose that the order shall not go forward in the form suggested. The Minister will be able to revise his

1047
proposals in the light of its recommendations or might decide to proceed by way of a Bill, by primary legislation or not at all. By allowing a debate to take place at the same time on the report of the Committee and on the draft order, if any Peer lays a Motion the House will have the opportunity to debate and vote on the Committee report while preserving its convention that it does not divide on secondary legislation. In this way we believe that we have fully met the constitutional concerns which have been raised about this new power, which we accept is exceptional.
The noble Lord, Lord Peston, asked me about Clause 1(5) and whether the definition of "enactment" could suddenly be enlarged—I believe he said "year by year". I can assure him that it will not be possible for the definition of "enactment" to be amended by the use of the general powers in Clause 1. I believe that he was afraid that there might be a cycle, in computer terms, inside Part I of the Bill which would allow that to happen. I can assure him that there will not be, because the definition limits the ambit of the power to legislation passed up to the end of this Session and not to any subsequent legislation. I believe that that should put his mind at rest.
Lord Peston: My Lords, I believe that the argument which the noble Lord has put forward is much more sophisticated than the one I had in mind, but I shall think about it. I had in mind that in a couple of years the Government could introduce a deregulation amendment Bill and simply amend the clause to cover legislation for the next two years. Once the Bill becomes an Act of Parliament it can be amended by primary legislation, particularly that clause, to extend the powers.
Lord Mackay of Ardbrecknish: My Lords, I thought that the noble Lord meant that inside the Bill itself there could be a cycle of amendments. Just as his noble friend Lord Clinton-Davis said, an incoming Labour Government—if ever such a thing should happen—would repeal the Act as it would be then. Nobody can tie a future government to amending or changing or in any way altering legislation short of abolishing it.
There was some discussion about health and safety. The noble Baroness, Lady Dean of Thornton-le-Fylde made quite a few points on that issue. We shall certainly read her speech with some care. In the Health and Safety Commission's review of regulations report published on 24th May, the chairman recognised in his introduction that health and safety law is seen as voluminous, complicated and fragmented. That undoubtedly makes compliance harder for employers and others. I assure the noble Baroness that Ministers and the Health and Safety Commission have given assurances—I give them again —that necessary health and safety standards will be maintained. We do not envisage endangering health and safety. We simply want to make sure that the regulations that are in place are absolutely necessary and clear and that everybody, including small businesses and employers, can understand them.
My noble friend Lord Vinson gave some interesting examples of the folly of some of the regulations and went on to say that another problem is the arbitrary and
1048
sometimes silly way in which local officials implement them. One of the problems is that the implementation of the regulations often differs quite dramatically between one local authority and another when dealing with, say, food legislation. Even worse, the implementation of regulations can differ between one official and another within the same authority. We recognise that that is a serious problem.
My noble friends Lord Vinson, Lord Reay and Lord Wade mentioned the possibility of having some form of recourse to appeal against unreasonable decisions taken by enforcement officers. We are aware of that concern and, as I hope I have explained, we appreciate it. We should like to be able to identify some way of devising an appeal system so that redress is available to those affected by enforcement decisions. We have asked the new deregulation task force to consider the issue as a matter of urgency, drawing on input from business and looking at the options for achieving that objective. However, we are not convinced that the proposal for a global mechanism involving magistrates' courts is the right way forward. We need to take account of existing appeal processes and consider whether they need to be improved or supplemented.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Clinton-Davis, mentioned Clause 24. I have no doubt that we shall discuss that in a lot more detail in Committee. When I listened to the speeches of the noble Baroness and the noble Lord, I could forgive the House for thinking that we were going to abandon the current restrictions on heavy lorries moving in London at night and during the weekends. That is not the case. We propose to maintain the. ban on lorries in the London area at night and during weekends, which applies unless they need to gain access to certain areas for deliveries. We intend to make no change to the existing network of predominantly trunk roads on which lorries can travel freely. However, we believe that, by removing the need to obtain exemption permits, the ban can be enforced in a less bureaucratic way. Police officers and authorised local government officers will continue to enforce the ban and lorry drivers will be required to carry documents giving evidence to justify the need for their journey if they are in a restricted area. So, we are not removing the ban; we are simply removing the bureaucracy that requires businesses to apply for permits for their lorries which are issued at varying periods of time and at various costs. Although I can see that there will be some disagreement between us about the figures, the costs have been estimated at up to £3 million in any given year. Surely that would be a considerable saving—
Lord Clinton-Davis: My Lords, I am very much obliged to the Minister for giving way. Where did he get that figure from? Is he aware that Touche Ross has carried out a vigorous investigation into this issue and has concluded that the overall cost to the industry would be £400,000 and not £3 million as has been alleged and, moreover, that there will be corresponding benefits for the community at large?
Lord Mackay of Ardbrecknish: My Lords, we shall no doubt discuss the figures—and which one is correct

1049
—in considerable depth in Committee. It is interesting, however, that normally when I come to the Dispatch Box I am accused of listening to accountants too much, but this evening accountants have been prayed in aid by the Opposition.
My noble friend Lord Bridgeman mentioned the question of the closing hours provision and shops. I am sure that we shall discuss that in Committee when we consider the detail of that clause. Most shops of course do not open for as long as the law permits. It is unlikely therefore that the ending of the closing hour provision will lead to significantly more evening opening, but it will enable those shops, such as off-licences and petrol stations, which can stay open under the Shops Act 1950 in certain circumstances and to sell extra items, legally to sell their full range of products.
I shall turn to the provision on contracting out. The contracting-out provisions are needed to facilitate the introduction of competition to areas so far excluded from the Competing for Quality Programme. They represent a step forward in providing a means to extend competition, subject to essential safeguards, in the provision of public services. The Competing for Quality Programme has already achieved substantial savings —recurring savings of about £135 million a year. Competition also allows managers to assure themselves that high quality services are being delivered in the most cost-effective way. That is often by releasing the initiative of an in-house team. In the programme for December 1931, in-house bids were involved in 60 per cent. of the competitions, and they won about 68 per cent. of the work.
The Bill contains essential safeguards, and the provisions will ensure that accountability is undiminished and that confidentiality is safeguarded fully. For much of his speech, the noble Lord, Lord Bancroft, and briefly, the noble Lord, Lord Peston, referred to the destruction of the Civil Service through the type of procedures that we find in this part of the Bill, and through the changes that we are making in the Civil Service. Although we are reforming and changing parts of the Civil Service through the establishment of agencies, the Citizen's Charter and the introduction of competition, that is designed to improve and increase the quality of service delivered to the public, to increase the value for money obtained by the taxpayer and to improve the whole service given to the public by the Civil Service.
The Civil Service is still a unified service. I shall have to read the speech of the noble Lord, Lord Bancroft, in some detail because he rather lost me when he talked about fragmentation and the like. The Civil Service is still a unified service. It is still held together by a core of values which the noble Lord mentioned, including impartiality, integrity and objectivity. I am not, in case it is thought that I am currying favour with my officials, going to say too much to the noble Lord about how excellent I find them. I do not recognise any of the scenarios that he painted in the officials with whom I have to deal day by day. The picture the noble Lord
1050
painted was perhaps at the opposite extreme to the picture painted by "Yes, Minister" —at least I hope that it was at the opposite extreme.
The Bill may indeed lead to some further reductions in the size of the Civil Service, but not to any change in its essential nature. More importantly, the delegation of functions to contractors will not alter the accountability to Parliament of Ministers for the functions for which they are responsible, as Clause 61 ensures that Ministers remain liable for the acts and omissions of contractors just as they are liable for the acts and omissions of civil servants.
The noble Lords, Lord Peston and Lord Rodgers, asked about market franchise rights. Our hope is that, after further consultation, we shall be able to bring forward proposals on a widely agreed basis.
Lord Tordoff: My Lords, I am going to make a constructive suggestion. In relation to the Civil Service, the Government might consider selling off the Ministers and keeping the officials.
Lord Mackay of Ardbrecknish: My Lords, that is a very helpful suggestion, but I wonder what price tag the noble Lord would put on my noble friend Lord Strathclyde and myself.
Lord Clinton-Davis: Very little.
Lord Mackay of Ardbrecknish: My Lords, I thank the noble Lord. In welcoming the Bill, my noble friend Lord Pearson of Rannoch took the opportunity to point out that Brussels is a source of often unnecessary regulation. I can tell him that on 27th April the Prime Minister announced an agreement to establish a British-German group of businessmen to scrutinise EC regulations and to act as a stimulus for specific deregulatory measures in Europe. The forthcoming German presidency has listed deregulation as one of its priorities.
A large number of points were made and no doubt we shall return to most of them in Committee. I am grateful to many of my noble friends for their support tonight. The noble Lord, Lord Beloff, told me that, if the CBI was for the Bill, by definition he had to be against it. In my most charitable way I must tell the noble Lord that, during my three years in the House, I have reached the same conclusion with regard to the position that he takes on Government legislation; that, if he is against it, I must necessarily be for it. I hope that during the course of the Committee stage I can persuade him that his fears are not well founded.
I shall not mention the CBI in case it upsets my noble friend Lord Beloff and does not help me in my campaign to persuade him. However, an important point was made in the briefing from the IOD about the powers in the first part of the Bill. I believe that there is good justification for its claim that:
"The powers in Part I of the Bill go some way to redressing the constitutional balance between the current position, where it is easy for Ministers to impose new regulations and not at all easy for them to remove unnecessary regulations, and that the order-making powers contained in the Bill allow Parliament to repeal or reduce legislation through a procedure which has previously been reserved solely for increasing it".

1051
The noble Lord, Lord Rodgers of Quarry Bank, tried to say to the House and undoubtedly to the small businesses outside that he was sympathetic to small businesses but as regards deregulation he was very much against what the Government were proposing in the Bill. The noble Lord, Lord Clinton-Davis, tried also to pose as the champion of small businesses. It might worry them slightly if I tell them that the Federation of Small Businesses has stated:
"The Federation of Small Businesses fully supports the deregulation Bill as a long overdue and much-needed measure to reduce the burdens on business. It gives the Government departments the power to remove hundreds of pieces of primary legislation which can hold up the process of much-needed reform. The requirement within the Bill for parliamentary debate and the elapsing of a 40-day period, now 60 days, before a final draft of an order can be laid for debate will in our view provide a sufficient safeguard to ensure appropriate protection of consumers and other businesses".
The Forum of Private Business, which mainly represents small firms, states:
"We welcome the DTI's root and branch attack on red tape, which we believe is too important to the economy to be allowed to fail".
Just to show that it is not just business to which we pay attention, I received a briefing from the Consumers' Association. I freely admit that it stated that it had reservations on some aspects of the Bill—for example, that, as a result of so many businessmen being on the task forces, some opportunities for deregulation which would have been more in the interest of consumers than of business have apparently been overlooked—and I found that most interesting. However, it stated:
"The Consumers' Association welcomes aspects of the Bill as indeed we welcomed the thrust of the original deregulation initiative. For, while much has been made of the cost of unnecessary regulation on business it is forgotten that the ultimate cost is often borne by the consumer".
That point was well made by my noble friend Lord Wade of Chorlton, who said that business passes on its costs. Therefore, unnecessary costs arising from unnecessary regulation ultimately end up being paid for by the consumer.
It is late in the evening but this is a short forerunner of what may happen in the days lying ahead. I believe that we shall have an interesting Committee stage when we look into the Bill's detail. I commend it to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Business of the House: Sub Judice Rule
9.54 p.m.
Lord Wakeham: My Lords, before the House begins the debate standing in the name of the noble Earl, Lord Longford, it might be convenient if I were to remind your Lordships of the sub judice rule and its application to the debate tonight.
As the House will be aware, Miss Hagan and Miss Croft have applied for leave to apply for judicial review of the decision of the Home Secretary taken on 27th May to order their immediate return to the United States. I understand that the case was heard in the High Court today and that the court's decision is to be announced tomorrow morning.
1052
The rules of this House about matters sub judice do not permit reference to be made to matters under adjudication in a court and so rule out any reference this evening to the merits of that application for leave to challenge that decision of the Secretary of State. However, there has been wide publicity relating to the matters which led to the Home Secretary's decision and there has been no suggestion that publicity has posed any danger of prejudice to the various proceedings in English courts.
I suggest that it will be possible for this House to discuss the case of Miss Hagan and Miss Croft as an example of the extradition cases to which the Motion relates without offending against our sub judice rules by discussing the matters under adjudication by the High Court on their application for judicial review.

Extradition Cases: Home Secretary's Discretion
9.55 p.m.
The Earl of Longford The Earl of Longford rose to call attention to the practice whereby the Home Secretary exercises his discretion in extradition cases; and to move for Papers.
The noble Earl said: My Lords, I am grateful to the noble Lord the Leader of the House who I know has worked overtime to try to produce a satisfactory position in this very complicated affair. I understand that so long as I do not refer to the proceedings which took place today and which will continue tomorrow, I can refer to the case of those two ladies.
I draw the attention of the House to the grave situation, perhaps I may say desperate situation, of those two English women, Sally Croft and Susan Hagan. Sally Croft is a chartered accountant and Susan Hagan is a therapist. I assure the House that they are both women of high character. All who have met them agree that they are women of integrity. Everyone who has talked to them is satisfied of their innocence of the charges. Leaving out that aspect of their character, no one can doubt that they are fine women.
What is their position today? At any moment, they may be whisked off to Oregon. They may be handcuffed and find themselves transferred to Oregon where they may spend a year in prison before the case comes to trial. That is their situation. It is no good anyone saying, "Oh well, if they are innocent, it will come all right in the end". They are professional women in the prime of life. From that point of view, it would be an appalling and quite unjust penalty that they should spend a year in prison before coming to trial. That is their situation.
Your Lordships may ask where all this leads to. This matter has been going on for some years. Those two English women have been in England for nine years. They were here for about five years before any charges were made against them and in the past four years there have been many proceedings in the courts. I have listened to many of the arguments put forward during those hearings. I have been much impressed by the endless fertility of the imagination of the legal profession. After four years, the legal side seems to be reaching a climax. However, whatever is decided

1053
tomorrow—and this is the most important point—and whatever the legal decision, that can be no more than saying that the Home Secretary can lawfully send the women back, can lawfully extradite them.
That is not the same as saying that that would be right. On an earlier occasion, I am afraid that the noble Earl, Lord Ferrers, rather misunderstood the position. He said that if the law courts said that it was all right, then it was all right. He said that if the law courts said it was okay, it was okay. But that is absolutely not the situation at all. It is not at all okay. One might say that almost every action of government is lawful but those actions are subject to criticism. The work of Parliament would be cut by half at least if everything considered lawful by the courts were to be permitted as just and humane.
Therefore, let us not confuse ourselves with the idea that what is permitted by the courts is the right and honourable course. In other words, the Home Secretary has a discretion —one might say it is a burden of discretion—he has the power to do the right or the wrong thing. The law does not decide it for him. He is not the creature of the courts: he has his own conscience to answer to.
Well, what is the present situation? What about the two ladies involved? They joined a cult in India some years ago and ultimately the cult transferred to Oregon in the United States. It was quite a large affair; indeed, there were about 4,000 people in the cult. The cult incurred the hostility—understandable or not—of the local inhabitants. I understand that the federal Attorney General was thinking of prosecuting them. Years after the ladies had returned to England they were told that there had been a plot to murder that federal Attorney General. Of course, the evidence against them was beneath contempt.
Several members (four in number) of the cult were eventually charged with organising the plan to murder the federal Attorney General in that state. For some years, those four people never said anything about the two English women who left the cult in 1985. But eventually, under pressure and plea bargaining—I repeat, under plea bargaining—they put the blame on the two ladies. Although the Minister may wish to check the facts, I understand that those four people have not been heavily penalised. Three of them have not been sent to prison, but I believe that one of them served a short prison sentence. At any rate, they gained immeasurable advantage from putting the blame on the two English ladies. The evidence is bogus; indeed, one cannot repeat that too often.
That is the situation with which the Home Secretary was faced. What was he to do about it? Well, it was lawful and he was within his rights to send them back to America. As I understand it, we have always sent people back there when requested to do so. However, what would one say if one was absolutely convinced that the charge was false? Would one still say, "They must go back because we have always done that sort of thing and this discretion doesn't really mean anything"? I cannot believe that one would do so.
Alternatively, is one to say, "If we do not send these people back to America, they will not send members of the IRA back here"? Will one really say that? That would not be worthy of the Home Secretary. I have been pretty sharp in my criticisms of the policies of the present Home Secretary, but I have never said anything against his intellect or his honour. It would be unworthy of him—or, indeed, of any Home Secretary—to take that line.
Noble Lords who have an interest in the scriptures may remember what Caiaphas said when coping with the problem of Jesus Christ. He said:
"It is expedient … that one man should die … and that the whole nation perish not".
I cannot believe that the Home Secretary will rely on that argument; namely, that however innocent he knows these people to be—and, in his heart, he must know them to be so; everyone knows that they are innocent —he has to send them back because it is in the wider interests of dealings with the American authorities as regards the IRA. I cannot believe that. I cannot believe that the Home Secretary would pursue a course of such injustice, brutality and shame. I implore the Home Secretary to follow a course of justice, humanity and honour. I beg to move for Papers.
10.5 p.m.
Lord Pearson of Rannoch: My Lords, I understand from the words of my noble friend the Leader of the House that our ability to discuss what has become known as the Croft-Hagan case this evening is somewhat wider than it was when we last debated a similar Motion on 13th April. I did not speak in that debate because of the heat that had been generated over your Lordships' procedure. However, I wrote after-wards to my noble friend Lord Ferrers putting to him one of the criteria which I felt a Home Secretary should consider in such a matter. In exercising his discretion in a case of this kind, one of the criteria might be the receipt by the Home Secretary of a letter from one of the most respected noble and learned Lords in the land opining that a particular extradition would put the accused to an unacceptable risk of injustice if the Home Secretary were to allow it.
I put a second question to my noble friend Lord Ferrers which was: would a Home Secretary in those circumstances not be well advised not to authorise the extradition in question unless he were able to obtain a similarly weighty opinion which disagreed with the first opinion? I have to say, as I shall come to later, that my noble friend Lord Ferrers sent me the most courteous reply but he did not in fact answer the second question.
I think it is worth putting something of the opinion to which I was referring in that letter on the record. The letter comes from the noble and learned Lord, Lord Scarman, and was written on 23rd March 1993 to the then Secretary of State for Home Affairs, my right honourable friend Mr. Kenneth Clarke, for whom I might add I have considerable personal affection and the highest respect. I will put a copy of this letter in your Lordships' Library and not burden your Lordships with quoting it all at the moment. But I think that some passages are relevant to this evening's debate.

1055
The noble and learned Lord, Lord Scarman, started off by saying that the letter was not written upon anybody's instructions; he did it entirely of his own volition. He sums up a little of the background to the case and then he goes on:
"It is, I believe, a valuable principle of our extradition law that the courts do not make the final decision. For, as is well recognised and accepted, extradition can give rise to questions of crucial importance, upon which the courts either refuse (e.g. the question of delay) to rule or upon which they have neither the power nor the evidence to form a judgment (e.g. political or social pressures upon the courts in the place of intended trial). There are three such questions in these two cases. They are: (1) delay, (2) oppression (3) a very real risk of a miscarriage of justice in criminal proceedings brought against the two ladies in Oregon, (as is the intention of the prosecuting authority)".
The noble and learned Lord, Lord Scarman, goes on to describe his feelings on these three areas of doubt. I quote again:
"Delay. The courts refused to consider this question, holding (as I understand the judgment of the Court of Appeal) that it was a question not for them but for you. I have to say that I think the delay (whatever be the reason or the excuses now put forward) has been intolerable, oppressive, and must enhance the doubts as to the credibility of whatever evidence the prosecution may seek to adduce".
I continue to quote from the letter of the noble and learned Lord, Lord Scarman. He continues:
"Oppression. The refusal of the prosecuting authority to let the defence see the statements of intended and other relevant witnesses in its possession is an oppressive restriction upon the rights of the defence. Are these two ladies to be extradited to stand trial under so unjust a handicap in the preparation of their defence?".
Then the noble and learned Lord, Lord Scarman, comes to his third title:
"Real Risk of Injustice. There are several aspects of these two cases which the English courts have not, indeed cannot consider. They are social and political factors in Oregon and the USA. I refer in particular to the political scene within the State, and the prejudice (by no means confined to Oregon) against the cult of which the two ladies were members. Additionally there is what the ladies counsel have described to you as the 'tenuousness' of the evidence of conspiracy involving them. These factors, individually as well as collectively, constitute a very real risk of miscarriage of justice if the ladies are brought to trial in Oregon —or indeed elsewhere in the USA".
The last quote I will give your Lordships from the letter of the noble and learned Lord, Lord Scarman, reads as follows:
"I would submit that you would be putting these two accused to an unacceptable risk of injustice if you were to allow their extradition. It is not safe to take the risk".
That was the letter of the noble and learned Lord, Lord Scarman, of 23rd March 1993—rather more than a year ago.
When my noble friend Lord Ferrers was good enough to reply to me, he confirmed that that letter was considered by the Secretary of State in April 1983 before he made the decision to order surrender. Knowing my right honourable friend Mr. Clarke as I do, I have to ask the Minister whether he personally considered that letter or whether when he says it was considered by the Secretary of State he is referring merely to officials in his department.
My noble friend Lord Ferrers also was kind enough to send me the judgment of the Divisional Court dated 15th December 1993. My noble friend assured me that the Divisional Court said it could find no flaw in either the approach of the Secretary of State or in the discharge of his duty in reaching his decision. Note that wording,
1056
my Lords: no flaw in the approach of the Secretary of State and nothing to be found wanting in the discharge of his duty. That is somewhat technical wording.
I have read the Divisional Court's judgment of 15th December 1993 and I think it is worth bringing to your Lordships' attention the great significance which Lord Justice Russell and Mr. Justice Blofeld bring to the opinion of the noble and learned Lord, Lord Scarman, in earlier judgments of this kind. On page 13 Lord Justice Russell's judgment goes as follows, and I quote again:
"I add only that perhaps in an extreme case the Home Secretary will look at the quality of the evidence but I am satisfied that whether he does so remains a matter for his discretion as opposed to an obligation. This is in accordance with the views expressed by Lord Scarman In Re Findlay [1985] AC318 at page 334, albeit in a different factual context".
That is the way in which Lord Justice Russell treats the earlier opinion of the noble and learned Lord, Lord Scarman.
In the same judgment Mr. Justice Blofeld also quotes from the noble and learned Lord, Lord Scarman, as follows, on page 16, and I quote again:
"In addition to the Respondents relying on In Re Findlay [1985] AC318, so did the applicants. Lord Scarman in that case considered the proper exercise of an administrative discretion At the bottom of page 334 he said: 'But, … the judge in a later passage … did recognise that in certain circumstances, notwithstanding the silence of the statute'"—
and here we have a quote within a quote where the noble and learned Lord, Lord Scarman, is speaking—
'"there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act'".
I am still quoting.
"Lord Scarman continued: 'These two passages'—only the latter of those has it been necessary to quote—'are, in my view, a correct statement of principle'"
With respect I have to submit that these two passages from the Divisional Court's judgment acknowledge the importance of the views of the noble and learned Lord, Lord Scarman, and make it difficult for any Home Secretary to set aside his letter of 23 rd March 1993, especially in view of what has happened since.
If the Secretary of State were correct to disagree with the noble and learned Lord's opinion last April, further evidence has since come to light that: unfair trial by media awaits these ladies in the United States. For instance, a very biased video was shown on 5th April 1994 including emotional statements made by the alleged victim of the alleged conspiracy. I have not seen the video but I believe that other noble Lords have. I also gather that 74 per cent. of the inhabitants of Oregon who were recently consulted in an opinion poll believe that the ladies would not tell the truth and cannot be trusted. I have to ask your Lordships what chance a jury in that state has of being unbiased in this matter.
I have also been sent the affidavit of Mr. McCooey, the ladies' solicitor, upon his return from a recent visit to Oregon. He was there from 13th May to 18th May. Again I would not attempt to trouble your Lordships with the longish document. But there he spoke with highly regarded attorneys in the state of Oregon; he met with federal public defenders; and he also had the opportunity to speak to the chief legal counsellor to the Governor of the State of Oregon. He also canvassed the views of a cross-section of the local population as to

1057
whether they would give a fair hearing to Miss Croft and Miss Hagan if the people concerned were selected to be on the jury at their trial. All the attorneys and others to whom he spoke confirmed that trial by media is common out there and an effective tool utilised in criminal procedures by the prosecution and the defence.
The programme to which I have referred dealt with the alleged victim Charles Turner's views of the alleged conspiracy against him in which he expressed in very emotional terms the inadequacy of the sentences given to those who had pleaded guilty after plea bargains— people, I may say, who will form the main prosecution against the ladies in question.
The programme was screened deliberately on 5th April to coincide with the anticipated return of Miss Croft and Miss Hagan on 7th April 1994, although the programme was in fact made some six months earlier but withheld so as to have the maximum effect. My Lords, I could go on, but I trust that you get the gist of it.
It seems to me that the fact that the Government of the United States claim that these crimes are extremely serious flies in the face of the plea bargain arrangements entered into with other alleged co-conspirators who, Mr. McCooey says, escaped with extremely light punishment. He ends by saying that the unanimous view expressed to him by those with whom we discussed the case in Oregon is that everything should be done here in England to persuade the Secretary of State not to surrender them as there is a very real risk of a miscarriage of justice if they are brought to trial in Oregon.
What can we do to ensure that the Secretary of State does look at this matter again? I have to ask my noble friend the Minister whether the Secretary of State himself, my right honourable friend Mr. Michael Howard, has read the McCooey affidavit. I am not asking my noble friend whether his officials have read it, but has the Home Secretary read that affidavit?
Surely my noble friend must agree that if the letter of the noble and learned Lord, Lord Scarman, was right a year ago —and I think that it was, although the Home Secretary at the time disagreed—it must be more so now. The evidence which has come to light since is, to me, overwhelming. To anyone who reads the divisional court's judgment of 15th December and Mr. McCooey's affidavit, the whole picture is one of the legal process in this country following the rules, except for the magistrates' court's omission in the first instance to send the Home Office its reasons for agreeing to send the ladies for trial. However, I am told that that is a small technical matter.
I end by beseeching your Lordships to take on board that the opinion of the noble and learned Lord, Lord Scarman, even if it was in any way doubtful a year ago cannot be regarded as doubtful today. The divisional courts and others have had the highest respect for his views. I very much hope that the Home Secretary can look at this matter again and can exercise his judgment in order to prevent what is in my view certain to be a grave miscarriage of justice of which we shall all come to be deeply ashamed in the future.
10.18 p.m.
Lord Morris: My Lords, not for the first time, the whole House is grateful to the noble Earl, Lord Longford, for raising this very important matter. We do not speak in this debate lightly.
I am convinced that not only those speaking in the debate but all with experience of Parliament will agree that any reasonable and good man will be singularly conscious of one of the major lessons of hundreds of years of our history. That is clearly that in all times and in all eras justice is so precious, and so delicate, that she ever needs the protection of the bodyguard of Parliament and an independent Bench and Bar, together with a free and responsible press. Even then in these days we are visited by the most horrendous miscarriages of justice within our own jurisdiction. That is why we are here tonight: to do our level best to ensure that the Executive best serves the high duty of the interests of justice. But in this case justice has no protection from the independent Bench and Bar. They cannot try the issue on the facts on an extradition application from the United States of America, unlike extradition applications from the EC or the Commonwealth. It is left to the sole discretion of a politician.
Why is it that the High Court of Parliament should so concern itself with this matter, in particular when the courts have considered assiduously representations made by those who will undoubtedly be most grievously harmed should the Home Secretary choose not to exercise his discretion not to extradite two British women who are quite wrongly charged with offences that they did not commit and would never have committed? I am convinced that it is because the case against them is so unsure and unsafe that it will condemn this Home Secretary to the contempt of his fellow men for life, for it will be demonstrated beyond peradventure that should a trial on the facts proceed in the United States of America, a grave injustice will be perpetrated upon these two women to the bitter shame of the people of this country for whom the Home Secretary speaks and whom he should serve. That is the constitutional position. Her Majesty the Queen, at the most solemn moment of her Coronation—the moment that really matters, not when the bauble is placed on her head—swears before her God and her people two solemn oaths. One is to serve her God, the other is to serve her people.
Ministers of the Crown are the servants of the Crown; and by extension they are the servants of the people. The prerogative of acting on behalf of the Crown to protect the citizens of this country by not allowing them to suffer oppression in foreign countries is a critical power. It must be exercised by the Secretary of State with immense discretion. Bearing in mind that these two women have not had the protection of the courts on the issues in the case, he must take special care; and he can do so, should he so will.
As noble Lords will know, Section 12 of the Act states:
"Without prejudice to his general discretion as to the making of an order … the Secretary of State shall not make an order in the

1059
case of any person if it appears to the Secretary of State in relation to the offence … [that] by reason of the passage of time since he"—
that is, the person who is charged—
"is alleged to have committed it … or … because the accusation against him is not made in good faith in the interests of justice… it would, having regard to all the circumstances, be unjust or oppressive to return him".
We have had the immense benefit of the quotation by my noble friend Lord Pearson of Rannoch of part of a letter from one of the greatest liberal jurists of this country in this century, namely, the noble and learned Lord, Lord Scarman. I use the term "liberal" not in the offensive, modern sense of the term but in the late 18th and 19th century sense. It is an absolute disgrace for any Home Secretary of whatever political party not to consider that very seriously.
Notwithstanding, I beseech my noble friend to consider the right and proper position of Parliament to make representation with regard to these cases if it believes that the Secretary of State has been in any way careless in considering these matters. We are talking about the liberty of the subject, no more and no less. It is for that reason that I will have nothing whatsoever to do with any Secretary of State who behaves in such a churlish way, demonstrating his contempt for Parliament and above all contempt for my noble friend Lord Wakeham, who did his level best to ensure that a proper and full debate was undertaken with regard to these matters. That is what I fear and that is why I have attempted to contribute tonight.
Lord Borthwick: My Lords, I wonder whether I may ask the noble Lord about this matter. I seem to remember that just before the war much the same thing happened. I remember hearing about it.
Earl Ferrers: My Lords, perhaps I may interrupt my noble friend for a moment and ask him to address the House as opposed to addressing Back-Benchers.
Lord Borthwick: My Lords, I apologise. I am afraid that I was thinking very hard about what happened many years ago and I just forgot. Please accept my apologies.
Lord Morris: I am afraid that even my memory does not go back quite so far as that of my noble friend. I do not know the case to which he refers. It is very distressing to hear that such a thing has happened before. I sincerely hope that it never happens again.
10.27 p.m.
Lord Mancroft: My Lords, I too am grateful to the noble Earl, Lord Longford, for the hard work that he has put in to enable us to debate this issue tonight. I am also extremely grateful to my noble friend the Leader of the House for the work that he has done and for allowing what was first to be an Unstarred Question to be changed at the last minute to the Motion in the name of the noble Earl.
Having said that, and expressed my gratitude to my noble friend, I must say that it is rather a pity that we did not know about the debate until Friday morning. I know that many other noble Lords would like to have spoken if they had been aware earlier of the debate. I am also grateful to my noble friend for his advice on the matter
1060
of sub judice. Many of us were and still are concerned about that issue. It may perhaps account for the lack of preparation that has gone into the debate. I wish that we had had more time so that it might have been a fuller debate and more noble Lords could have taken part.
There is a very high level of concern over this matter, which has been recognised by my noble friend the Leader of the House. It is quite rare for such matters to come before your Lordships' House. As a House, we tend not to take as much interest in these individual cases as does another place. I believe the fact that so many noble Lords have taken an interest in this case: shows its importance. There is very serious concern that a grave miscarriage of justice is about to take place.
I wish to concentrate on what I suppose I could call the humanitarian aspects of this case. I am quite certain, as will be many noble Lords judging from the letters which have criss-crossed over the past week and the amount that has been said about the case, that the legal and court procedures have been correct and been met. But the reason that the final decision remains with the Home Secretary in such cases is the very important and crucial recognition of the moral, social and political issues that cannot be determined by the courts in such cases.
I recognise the dilemma and the cleft stick in which my right honourable friend the Home Secretary finds himself. He has the dual obligation to fulfil the requirements of our extradition treaty with the United States of America and—an even more important obligation—to protect the rights of United Kingdom citizens. That is a terrible dilemma.
What concerns me most about this case, and what has made me take such an interest in it, is that if, by the smallest chance, a mistake has been made, then the victims of that mistake—in this case the two ladies— will be far beyond British jurisdiction where the mistake could be corrected. They will be under the authority of a legal system which too many noble Lords and others outside this House believe to be pretty dubious. I do not believe that, because the legal requirements have been satisfied, it is good enough to presume that the United States' courts will sort out the rights and wrongs of this case—that would be asking the Home Secretary to wash his hands of this matter, which I know he would not wish to do.
The 1989 Extradition Act allows the courts the power to refuse extradition if they believe that it would be unjust and oppressive, but only in cases involving the European Community and the Commonwealth. They have no such power in cases of extradition to the United States. In those cases the decision is left to the unfettered discretion of the Home Secretary. My first question, therefore, of my noble friend on the Front Bench is whether the Home Secretary accepts that in cases involving the United States—as this case does—he has all the power and the courts play only a narrow legal role in the matter?
Many noble Lords and thousands of people who have written letters to the Home Office believe that there is a danger that something is badly wrong in this specific case. Either my right honourable friend the Home Secretary knows something that we in this House do not

1061
know, or his criteria of what is unjust and oppressive are different from mine. Does the Home Secretary know something that we do not know? In the interests of fairness, in the interests of justice and in the interests of open government about which we hear so much, if my right honourable friend is aware of facts in this case of which your Lordships are not aware, then I ask my noble friend to tell us this evening what those facts are. Regardless of the answer to that question, can my noble friend tell us what are the Home Secretary's criteria of what is unjust and oppressive? We can then judge whether they are the same as our own and what his thinking is when he surveys cases such as this.
Just because the courts are satisfied does not mean that the Home Secretary should extradite. He must examine the cases in detail. I make that point because, in your Lordships' House on 31st March this year, in a previous debate on this case, my noble friend Lord Ferrers said,
"my right honourable friend is satisfied that the legal processes have been correct. That is why he agreed to the extradition".— [Official Report, 31/3/94; col. 1206.]
If that is the reason for the extradition, then we are faced with a real problem. It would appear that my right honourable friend is using the European and Commonwealth criteria for an extradition to the United States. Could it be that that mistake, or perhaps the conflict of interests I mentioned earlier, resulted in the astonishing fact that no extradition to the United States has ever been turned down by the Home Secretary, while the courts have refused four cases to Europe and the Commonwealth within the past six months? If the Home Secretary is relying on the courts to decide about oppression and injustice in this case, then he has made a mistake. The criteria for oppression and injustice seem to lie at the heart of this matter and it is on those issues that I should like to concentrate.
The first issue which to me seems both oppressive and unjust, as my noble friend Lord Pearson mentioned a few minutes ago, is that of delay. The alleged crime was supposed to have taken place in 1985, but no mention of it was made by the United States Government until 1990. Did the United States Government know before then? Why did they keep it quiet until that time? Could it be that they knew that the defendants' only hope of getting witnesses was long gone because those witnesses had left the United States and would not return to give their evidence because they would face immediate arrest and gaol themselves? Why is it that the United States Government have refused to disclose the evidence either to the defence or, I believe, to my right honourable friend the Home Secretary? I cannot believe that that is good enough. My right honourable friend must satisfy himself that there is real evidence in this case.
The evidence itself is of course most important. Clearly, affidavits are prima facie evidence, and it is on that basis that the court ruled. But if my right honourable friend looks at these affidavits for even a second, he will realise that they would not stand up for a moment in a British court. They would not be permissible. Affidavits given under duress cannot be
1062
changed now because, if they are changed, the witnesses will be liable to gaol or to a charge of perjury on the original affidavit. As they are not acceptable in a British court, how can my right honourable friend presume to send British citizens to face justice under those circumstances? It is this evidence alone that is faced by the defendants. There is not one scrap of forensic evidence.
The last point, and the one which to me is most telling, is that of bias. I have seen the video that my noble friend Lord Pearson mentioned. It is not a very long video but it is an utterly horrifying video. I cannot believe that my right honourable friend could have seen it and still be prepared to send these ladies over to face that kind of justice and that kind of attitude. I believe that my right honourable friend is very fond of America. He holidays there a lot. Like most of us, he probably has American friends. He probably holds too, as most of us do in England, a great respect for the United States' constitution —the land of the free. But looking at the evidence that has been produced, I must say that he is not sending these ladies back to the constitution that Benjamin Franklin envisaged; he is sending them back to something that is more akin to the Salem witch trials. He is sending them back to the country where McCarthyism was born and where it still exists in other forms. This is not the east coast. This is the wild west of John Wayne.
I cannot believe that my right honourable friend can realise quite the kind of atmosphere to which these ladies will return. If he were to view this video, if he were to read the evidence that has been produced, he would begin to realise exactly what lies ahead. He has to a certain extent taken this point on board by the fact that he has agreed to raise with the United States Government concerns about a local trial and a local jury. But all the evidence that we have seems to suggest that the chances of a trial being removed to another state or beyond this political and moral atmosphere are virtually non-existent. It simply will not happen. The fact that he has recognised these concerns must mean that he knows of the concerns that we have mentioned today.
It is not enough just to say that the Home Secretary has examined the case and has come to a decision. Although I accept that he is under no obligation to explain his decisions in your Lordships' House, the seriousness of these issues will, I hope, persuade my right honourable friend that it would be both helpful to the House and indeed courteous to your Lordships to answer those concerns in detail. I believe that it would be helpful to him as well as us if he were to agree to meet us as soon as possible following the debate and before this extradition is executed. I am sure that when he reads tonight's debate and when he meets us and when he looks very carefully at these concerns he will want to reconsider his position.
10.39 p.m.
Lord Beloff: My Lords, after such emotional speeches on a case of obvious gravity, it is difficult to express dissent. Nevertheless, the Motion before us relates to a general question about the powers of the Home Secretary and his discretion in such matters. It is

1063
important that your Lordships should grasp that what is being suggested is that, in coming to a decision on this particular case, the Home Secretary should accept the view that the courts of justice in the United States will not offer the kind of safeguards which we would like to see. That is a very serious charge against our principal friendly ally.
The Earl of Longford: My Lords, may I interrupt the noble Lord? That is certainly one argument in favour of the Motion but it is only one point and not the main one I was making. I hope that the noble Lord will not confine himself to that issue.
Lord Beloff: My Lords, I shall confine myself, if I may, to what I regard as an important issue, which is the impact of this or of any other case on our relations with the United States of America. When Colonel Gadaffi refuses to extradite people because he says that justice in Scotland is not of the right kind, we naturally feel aggrieved. But Colonel Gadaffi is one thing. If one House of the Parliament of the United Kingdom says that justice is not available in the United States we are entering on a very different road.
I believe that that is the crucial issue. Of course, the effect on individuals may be very tragic indeed and is of natural importance to all of us, as we have heard in the speeches made this evening. But it is only proper that your Lordships should realise that in coming to a decision the Home Secretary, whoever he is and at any time, must take into account this fact: that hitherto we have always argued that our relations on such matters with the United States are reciprocal and that we expect extradition by them where we think our courts ought to consider a case and we accept extradition to them.
It is not the only area in which we have a partnership and perhaps it is an area of particular sensitivity. But to assume that the Home Secretary can simply go ahead and say, "I am not prepared to trust the courts of the United States and will therefore refuse an extradition which I might otherwise feel disposed to give", is taking a very serious' step which might have quite long-term consequences.
Lord Morris: My Lords, is my noble friend Lord Beloff aware that he has just put forward the argument of governments throughout history; namely, that the interests of governments in international relations are infinitely more important than the liberty of the subject? I do not take that view. I believe that the liberty of the subject and the interests of justice are infinitely more important than good government relations, particularly in a case such as this where the Home Secretary does not have to give reasons why extradition is refused.
Lord Pearson of Rannoch: My Lords, when he comes to reply, will my noble friend Lord Beloff also agree—
Noble Lords: Order!
Lord Pearson of Rannoch: My Lords, with the leave of the House, I think that my noble friend Lord Beloff is asking me to continue. Would my noble friend Lord Beloff, who is, as we all know, a great and respected expert in these constitutional matters, accept
1064
that it is not necessarily correct to apply a blanket distinction to the United States of America? We are here, it would appear, unfortunately talking about one particular state, Oregon, which is of a particularly Christian leaning, and this community was not Christian and therefore this particular state is one which is less likely to give a fair trial to this matter than many of the other states in the United States of America, which is one reason why I understand that my right honourable friend the Home Secretary has started to suggest that it should take place elsewhere.
Lord Beloff: My Lords, perhaps I may reply briefly to those points as I do not wish to delay the House and we all want to hear the Minister. With regard to the question of the noble Lord, Lord Morris, of course in the long run the interests of justice and of the individual is what government is all about. On the anniversary of D-Day I should have thought that we might think that our good relations with the United States have been a very important safeguard of those liberties.
With regard to the question that the trial would take place, if it did take place, in a particular state, that again amounts to a criticism of the American judicial system and of the American federal system. It is not for us to dictate that. As noble Lords know, the Home Secretary is not obliged to give his reasons, but if he chooses he can say that in this very exceptional case, for reasons of which he is aware, he is obliged to depart from the original practice. If he does so, he does so with, I am sure, a full sense of what the consequences might be.
10.46 p.m.
Lord McIntosh of Haringey: My Lords, the House will be doubly grateful to the Leader of the House for the way in which he has behaved in this matter. First, I want to pay tribute to him for the way in which on the previous occasion when this matter was raised, on 13th April, he went as far as he possibly could to ensure that a debate of this kind was possible. I am sure that he will not mind me reading the relevant part of a letter that he wrote to my noble friend Lord Longford in which he said that he would,
"take such steps as I can including helping to rearrange the business in order to enable the House to have a chance to debate this issue before any decision to extradite the two women in question is carried out".
He has certainly honoured that undertaking and we must be grateful to him.
Secondly, we must also be grateful to him for the statement that he made at the beginning of the debate in which he made it clear that the sub judice rules ought in this case to apply to the case that is at present - that is, today and tomorrow - before the court rather than to earlier proceedings. That made it possible for my noble friend Lord Longford to introduce this debate, which has been broad ranging and covered the bulk of the issues to which we wish to refer, although I shall have to say at the end, without seeking to breach our sub judice rules, that there are matters to which we have not been able to refer.
Having said that, it is necessary to contrast -
Lord Wakeham: My Lords, it is churlish of me to interrupt the noble Lord because he quoted what I said fairly and I am grateful to him for that. However, I also said in my letter that at no time did I consider it either right or proper that I should in any way interfere with matters which were properly the decision of the Home Secretary. It is important that that side of it should also be known.
Lord McIntoshof Haringey: My Lords, I recognise that gladly. That was indeed what the Leader of the House said on 13th April to the House when the matter was raised. It is therefore with even greater sorrow that, recognising the difference in the responsibilities of the Leader of the House and the Home Secretary, I have to say that the Home Secretary has not behaved in the same admirable way. I hasten to say that these matters were first brought to this House by my noble friend Lord Dean of Beswick.
Despite the fact that these matters were drawn to the Home Secretary's attention, he took the decision to carry out the extradition of the two women on 27th May. That was the day upon which the House met at 11 o'clock to leave for the Spring Recess. That seems to me to be a disgraceful bit of timing. It is always difficult to ascribe motives for this type of thing, but if the intention had been to deprive the House of an opportunity to debate the matter, then the intention could not have been better achieved than by making that decision on 27th May.
When the matter was brought before the court, Mr. Justice Alliott expressed his displeasure that the case had been brought before him without him being told —presumably North Western Airlines had already been told—that the decision had been taken and that the women had been told to surrender themselves into custody and to leave the country at 6 p.m. on the same day. That is not the same standard of conduct as we have received from the Leader of the House and which we should expect from all Secretaries of State.
The noble Earl, Lord Ferrers, in the debates that took place, first, on 31st March and, secondly, on 13th April sought to convince the House, and largely succeeded in convincing me, that the forms of the procedures through which the Home Secretary had to go had been gone through correctly. But of course the form of the procedures is not the whole of the issue. If the form of the procedures were the only issue, then the Secretary of State would have no discretion, and the Secretary of State does have a discretion. Therefore we have to consider the content of the issue, not just the form of the procedures which have been entered into.
I have to express my prejudices at the beginning of any discussion of the content. I am strongly opposed to religious cults of this kind, perhaps more strongly opposed than many other noble Lords. I am also very favourably disposed towards the State of Oregon. I have family there. It is not the "Wild West", as the noble Lord, Lord Mancroft called it. It is a highly civilised state. It has nothing to do with the Bible Belt and nothing to do with the Wild West. It is well known for its liberalism and as an originating state of trade unionism in the USA in the early part of the century. It
1066
is a very fine state indeed. It has a fine democratic tradition. So from the beginning my prejudices would be in favour of the State of Oregon and against any religious cults. But I have to pay attention to the facts of the issue before us, because it is not just the noble and learned Lord, Lord Scarman, who has said this. But from any calm analysis—perhaps we have not all been entirely calm—there are three aspects of the case which give rise to concern.
The first is the issue of delay. In his letter the noble and learned Lord called the delay "intolerable and oppressive". I would say that it comes close to the phrase which is a valuable part of US legal language: "cruel and unusual punishment". Why was there so long a delay between the time when the offence was supposed to be committed and any allegation made about the involvement of the two women? And why after that did it take so long for the matter to come to the attention of the Home Secretary and the courts of this country? Either or both of those delays weaken the case for the exercise of discretion in terms of sending them back to the US.
The second issue, also referred to by the noble and learned Lord, which must have affected consideration by the courts in this country, has been the lack of the availability of the prosecution case. One needs to say no more than that which has been said by the noble and learned Lord and repeated by the noble Lord, Lord Pearson of Rannoch.
The third issue upon which there is a profound difference between the British legal system and the US legal system is the issue of plea bargaining which leads to affidavits which cannot be withdrawn except at risk to the person who made the affidavits. I believe that those three issues give considerable scope for the Home Secretary to use his discretion in favour of not granting the extradition request made by the United States.
Much as I respect and admire the noble Lord, Lord Beloff, as a constitutional historian, I am bound to say that I believe that he is wide of the mark in suggesting that this brings into question the whole of our relationships in legal matters with the United States. On occasions we have been pretty cross when American judges, on the grounds that the offences were political and they would not get a free trial in this country, have refused to send back Irish people whose extradition to the United Kingdom has been requested. That has caused a certain amount of aggravation but it has not caused the mutual respect of the United States and this country to diminish. Today's events and the events of 50 years ago have shown that. It is not such a great issue; it is an issue on which friends can disagree. On this occasion the Home Secretary should risk disagreement in favour of "playing safe", as the noble and learned Lord, Lord Scarman, called it.
What happens next? Without breaching the sub judice rules, let us suppose that tomorrow the courts find that the Home Secretary has done nothing wrong and that he is free to send the women home. Will he immediately call them into custody at four o'clock and put them on a plane at six o'clock? Are we going to have the kind of restriction on debate in Parliament about these matters that used to happen during the time of

1067
hanging? Then the Speaker would constantly rule in scenes of uproar that individual cases could not be discussed until the sentence had been carried out, when obviously it was too late. That kind of Catch-22 situation in the relationships between Parliament and the Executive—here the Home Secretary is acting in his Executive capacity —ought not to be allowed. It would be a proper use of the Home Secretary's discretion to pay attention to the views which have been expressed in the House on three occasions and use his discretion not to enforce the extradition.
10.57 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I intend to address my remarks this evening to the Motion before us. It is:
"To call attention to the practice whereby the Home Secretary exercises his discretion in extradition cases".
Many of your Lordships have raised tonight the case of Miss Hagan and Miss Croft. Before I come to the Motion, perhaps I may refer briefly to that case.
The Divisional Court has adjourned consideration of the current application for leave to seek judicial review. Judgment will be given tomorrow and in those circumstances, since the matter is before the courts, your Lordships will understand that I do not intend to discuss the merits of the case. The decision of the Bow Street magistrates, that there is sufficient evidence to show that there is a prima facie case for prosecution, has been upheld by the courts. In other words, the court concluded that if the alleged offence had occurred in this country, here would have been sufficient evidence on which to bring a charge and on which to secure a conviction. The then Home Secretary's decision to order surrender has been upheld by the courts as being not just lawful but reasonable too. An earlier decision not to postpone surrender until the House of Lords sitting in its judicial capacity had delivered its judgment in another case has also been upheld.
The full legal processes have been and are being applied to that case and it would not be right for me to respond to the detailed arguments put by noble Lords when the Divisional Court will shortly be renewing its consideration.
Lord Richard: My Lords, I am obliged to the noble Earl for giving way. Perhaps I may say to him that that really will not do. He knows, as does the noble Lord the Leader of the House, that we have come here to discuss that matter this evening. The sub judice rule has been not relaxed but reinterpreted so that we can discuss the case of those two women and, indeed, can discuss the merits of the case. That is precisely what the noble Lord the Leader of the House told us at the commencement of the debate this evening.
We know also, because it has been referred to, that the Home Secretary took a decision on 27th May. Parts of that decision and its timing are being challenged at present in the courts, so we cannot discuss that part of it. But I understand that the object of the exercise this evening is to discuss the merits of the case. With great respect, the noble Earl cannot get away with saying that he is not prepared to do so because the Divisional Court is giving judgment tomorrow.
Earl Ferrers: My Lords, perhaps I may say that I am surprised at the noble Lord the Leader of the Opposition. He knows full well, as he has heard this evening, that your Lordships have given voice to views about that particular case. He will know also that that case is before the court, which has been adjourned. It would be wholly improper for a Minister to give views on a specific case to which my right honourable friend is a party. I do not propose to enter into discussion on the merits of that case for those reasons.
Lord Richard: What are we here for then?
Earl Ferrers: My Lords, the noble Lord asks what we are here for. I remind him that when we last had this debate, the noble Earl, Lord Longford, made some remarks. After the general kerfuffle of the time was laid to rest—
The Earl of Longford: It was what?
Earl Ferrers: After the kerfuffle was laid to rest. Perhaps I may have the noble Earl's attention, as he asked me what I said. I said that after the kerfuffle on the last occasion had been laid to rest—because the noble Earl will remember that the House was adjourned—at the end of the debate, I rose to speak and the noble Lord the Leader of the Opposition said that I need not speak. I said that the Question had been tabled and that, therefore, it would be improper of me not to give the Government's response. I did that on that occasion. Therefore, it does not do for the noble Lord the Leader of the Opposition to ask what we are here for.
Lord Richard: My Lords, with great respect, the noble Earl was present and I was present. On that occasion there was a perfect understanding—as far as that can be achieved—among my noble friend Lord Longford, myself and the noble Lord the Leader of the House that we would not discuss that case because of the operation of the sub judice rule but that we should return to the matter and debate it before they were extradited. That was the point on the last occasion and that is why I said that the noble Earl need not speak. With great respect to him, I heard and read his speech and, having read it again, I believe that he did not need to speak because he did not say anything. He merely set out some generalities which took up five minutes and we then adjourned. But this evening we are here to discuss this particular case and this particular issue.
One of the points which the noble Earl and his right honourable friend the Home Secretary have to answer at some stage is the point made by the noble Lord, Lord Beloff. Is the foreign policy relationship between the United States and Britain the determining factor in an extradition case by the Home Secretary involving two individuals who may be facing a trial and imprisonment? I find that to be an appalling doctrine. I hope that the noble Earl will take the opportunity to deny that.
Earl Ferrers: My Lords, the debate as such has been enlightened by your Lordships who have made certain observations. The noble Lord the Leader of the Opposition will understand, much as it may grieve him, that it would be quite inappropriate for a Minister to stand at this Dispatch Box and discuss a case which is

1069
sub judice, because it is before the courts, to which my right honourable friend is a party. I am not prepared to do that.
I am prepared to discuss the exercise of the Secretary of State's discretion in deciding extradition cases, which is the basis of the Motion before your Lordships. I see that my noble friend wishes to intervene. I give way.
Lord Pearson of Rannoch: My Lords, I am much obliged. Can my noble friend give us any indication as to when he will be able to answer the questions that we have put to him this evening?
Earl Ferrers: My Lords, I can only tell my noble friend that this evening, when a court case has been adjourned and the court will reconvene tomorrow—a case to which my right honourable friend is a party—I am not prepared to discuss the merits of that case. Your Lordships may have decided to do so, and, indeed, may have done so. However, I shall only be able to do so when we are not party to a case which is in front of the courts. As I said, I am not prepared so to do tonight. I believe that the noble Lord, Lord McIntosh of Haringey, wishes to interrupt me. I give way.
Lord McIntosh of Haringey: My Lords, I am most grateful to the Minister for giving way. I believe that the House has scrupulously observed the guidelines outlined by the noble Lord the Leader of House in his opening statement. Much as we would have wished to —because they involve the right to debate in the House of Lords—we have not discussed yesterday's proceedings or those potentially of tomorrow morning; indeed, we have discussed earlier matters.
Earl Ferrers: My Lords, I do not quite know where that response gets us. I am prepared to discuss the Motion which is before your Lordships; namely, the exercise of the Secretary of State's discretion in deciding extradition cases. We have discussed the matter previously and it will not surprise your Lordships if my reply bears a certain similarity to the remarks that I made on that occasion.
The rights of anyone who may be the subject of an extradition request are protected under extradition arrangements and the Extradition Act 1989, each of which contains important safeguards.
The law applies in different ways to different countries, depending on whether the requesting country is a foreign state which is a co-signatory to the European Convention on Extradition, whether it is another foreign state, or whether it is a Commonwealth country. Commonwealth countries, and foreign states which are not party to the European Convention but with which we have a bilateral treaty—such as the United States —are required to support their request with sufficient evidence, admissible in our country, to prove a prima facie case.
The Extradition Act 1989 gives the Secretary of State the ultimate discretion as to whether or not an accused or convicted person should be surrendered to another country under extradition arrangements. That is a very
1070
important responsibility and the exercise of the discretion, which is conferred on him by Parliament, is for him and for him alone.
The Secretary of State is involved at two crucial stages in the extradition process. The first is when he has to consider whether to issue an order—or an authority —to proceed. That enables Bow Street Magistrates' Court to consider the case in committal proceedings. A person who has been committed to await the Secretary of State's decision as to surrender has the right to challenge the magistrate's decision by applying for a writ of habeas corpus. That application is considered by the High Court Queen's Bench Division and may, on appeal, be considered by your Lordships' House. The second, and most important, involvement of a Home Secretary comes when that judicial process has run its course. If the courts have not discharged the person sought, the Secretary of State has to consider whether or not to issue a warrant for that person's surrender.
It is fundamental to his role that, at both those stages, the Secretary of State has first to consider whether the request meets the requirements of the law—which is the Extradition Act 1989—as that law applies to the country requesting extradition, and whether there are any grounds for refusing such a request.
Of course, when ratifying an extradition treaty, the United Kingdom enters into obligations under international law, but we take care to ensure that, when we enter into such arrangements, there are no inconsistencies with the extradition law of our own country.
Each extradition request is carefully scrutinised at both the stages in which the Secretary of State is involved. That ensures that it is in the form which is required by our law, that it is supported by the evidence which is required by our law, and that none of the restrictions or prohibitions on surrender in our extradition law, including the arrangements with the country in question, apply to the case.
For example, under Schedule 1 to the Extradition Act 1989–which still governs requests from the United States of America and other older treaty partners—a person must not be surrendered if the crime of which he or she stands accused was not included in the list of extradition crimes which is annexed to the treaty, or if the offence was of a political character. If the crime is a capital crime we will seek an assurance that would remove the risk that the death penalty would be imposed.
The arrangements also ensure that the person can only be tried for the offences for which his or her return has been ordered, or other offences which are disclosed by the evidence on which that person has been returned, so long as they, too, are extradition crimes.
When he exercises his unfettered discretion in Schedule 1 cases, as a matter of policy the Secretary of State takes into particular account the criteria which are listed in Section 12 of the Extradition Act and which otherwise apply only to European Community and Commonwealth cases. This approach was endorsed by the High Court earlier this year in the case of Patel.
For example, the Secretary of State will not order surrender if he believes that it would be unjust or

1071
oppressive to return a person because he or she could not get a fair trial in the country concerned, or because his or her chances of a fair trial would have been prejudiced by delay or other factors, or because the offence for which return is sought is a trivial offence. And surrender will not be ordered if the Secretary of State believes that for any other reason this would be either unjust or oppressive.
Representations which are made by, or on behalf of, a person who is awaiting the Secretary of State's decision on surrender may invite the Secretary of State to consider any number of arguments as to why return should not be ordered. These are always considered most carefully, on their merits. When he has considered all the legal points, all the compassionate points, any kind of point which has been put to him, the Secretary of State must decide for himself whether to order surrender. He takes into account all the circumstances of the case which are known to him. Any decision to order surrender must be both lawful and reasonable. That decision may be challenged by way of an application for judicial review, which is considered by the High Court Queen's Bench Division, and that decision may, on appeal, be considered by your Lordships' House.
Lord Morris: My Lords, before the noble Earl sits down, he has just stated that his right honourable friend the Home Secretary will consider all these points most carefully. Will he allow time for the consideration of his own department's answers to the questions that have properly been put to him by Parliament in the debate tonight?
Earl Ferrers: My Lords, as I have explained, the question which my right honourable friend has to decide is a matter for him and for him alone—that is what Parliament has decreed. Of course my right honourable friend takes into account every point. As I explained, he takes into account every legal point, every compassionate point, every point that your Lordships make and every point that anyone else makes. Of course those are taken into account, but in the end it is the Secretary of State who has to make the decision.
Lord Pearson of Rannoch: My Lords, before my noble friend sits down and not wishing to push his very considerable patience beyond endurance, is he in effect saying that he may not be able to answer the questions which we have put to him tonight until the ladies in question have already been extradited, and if that is so, does not that make a mockery of your Lordships' procedures?
Earl Ferrers: No, my Lords. It makes no mockery of your Lordships' procedures. The case is perfectly simple. It is that my right honourable friend has taken a decision, it has been challenged by way of judicial review, it has been upheld at every stage, it is at the moment being challenged again by judicial review and I am not prepared to make any comment upon that at all. What happens after the decision of the court is taken remains to be seen but I cannot be expected to comment on a matter which is sub judice and which is in front of the courts at the moment.
Viscount Ullswater: My Lords, I beg to move that the House—
11.13 p.m.
The Earl of Longford: My Lords, I have the right of reply. I know the Government are very quick but they should not be as quick as that. The noble Earl, Lord Ferrers, does a great job for the Government, whatever the brief handed to him, and he is also an ornament of the House because of his wit and charm. But tonight I think he will allow me to say he cuts a pathetic figure. He may not, of course, have had access to the latest advice from the Home Office—perhaps they had gone home before the news came through—that: this debate could be carried on in a rather wider context than expected. I make no secret of this. Earlier in the day I was very doubtful as to whether to initiate the debate if it were to be along the same lines as the previous debate introduced by my noble friend Lord Dean. We were told in the course of the evening that we would be allowed to raise this issue. Perhaps I may have the attention of the noble Earl.
Earl Ferrers: My Lords, the noble Earl has my attention. I was pondering over what he was saying.
The Earl of Longford: My Lords, I hope that the noble Earl will ponder all night about this issue. The noble Earl may not realise that in the course of the evening I and other noble Lords were informed that the debate could be taken in a rather wider context: that we would be allowed to raise the case of the two women. If we were allowed to raise the case of the extradition of the two women, it would be a quite unparliamentary situation if the Government could not reply about the two women. In my rather overlong experience I have never known a situation where we can raise an issue and the Government cannot comment on it.
Leaving aside that situation, which thrust the noble Earl in a rather pathetic role, I ask him to say—he has been pressed to do so by his own Back-Benchers— whether, when the judicial proceedings have been concluded, there can be a debate in the House before the women are sent back. Having asked that question, will the noble Earl answer?
Earl Ferrers: My Lords, the simple answer to the question is that of course Parliament can debate what it likes. Parliament has debated the matter this evening. The eventual decision remains with my right honourable friend.
The Earl of Longford: My Lords, that is a total evasion. The noble Earl has not answered the question. I ask this question. Will Parliament have a chance to debate the matter before the women are extradited? The noble Earl evades that question. That must be clear. In all the debates—heaven knows he is a fine debater—he has never ducked an issue quite like that.
We have had the debate. We have raised the issues. They have been evaded. I can only say that I hope the noble Earl will at least go to the Home Secretary and say what a bad time he had this evening and how disgraceful

1073
is the Government's position at present. We hope, as we must, that at the last minute the Home Secretary will choose the path of wisdom and justice.
The Deputy Speaker (Lord Skelmersdale): My Lords, does the noble Earl wish to withdraw his Motion?
The Earl of Longford: My Lords, I wish to move for Papers.
On Question, Motion agreed to.
House adjourned at eighteen minutes past eleven o'clock.

  EUROPEAN UNION: WRITTEN CONSTITUTION
  EUROPEAN UNION: WRITTEN CONSTITUTION
  EUROPEAN ELECTIONS: EXPLANATORY PAMPHLET
  EUROPEAN ELECTIONS: EXPLANATORY PAMPHLET
  BELIZE AND GUATEMALA: DISPUTE
  BELIZE AND GUATEMALA: DISPUTE
  IRAQ: ATTACKS ON SOUTHERN MARSH POPULATION
  IRAQ: ATTACKS ON SOUTHERN MARSH POPULATION
  ETHIOPIA: FOOD NEEDS
  ETHIOPIA: FOOD NEEDS
  KOREAN ARMISTICE
  KOREAN ARMISTICE
  KASHMIR
  KASHMIR
  CSCE: ACTIVATION OF MOSCOW MECHANISM
  CSCE: ACTIVATION OF MOSCOW MECHANISM
  RUSSIA: SUSPENSION OF PARLIAMENT
  RUSSIA: SUSPENSION OF PARLIAMENT
  IRAQ: DRAINING OF MARSHES
  IRAQ: DRAINING OF MARSHES
  SEX EDUCATION
  SEX EDUCATION
  ORGANOPHOSPHORUS EXPOSURE: NEUROLOGICAL TESTS
  ORGANOPHOSPHORUS EXPOSURE: NEUROLOGICAL TESTS
  ORGANOPHOSPHORUS EXPOSURE: PROCESSING OF BENEFITS CLAIMS
  ORGANOPHOSPHORUS EXPOSURE: PROCESSING OF BENEFITS CLAIMS
  RACE RELATIONS ACT 1976, SECTION 69(2)
  RACE RELATIONS ACT 1976, SECTION 69(2)
  DOMESTIC WORKERS: PROTECTION
  DOMESTIC WORKERS: PROTECTION
  TRANSFER OF PRISONERS BETWEEN ENGLAND AND NORTHERN IRELAND
  TRANSFER OF PRISONERS BETWEEN ENGLAND AND NORTHERN IRELAND
  COPYRIGHT PROTECTION IN EU
  COPYRIGHT PROTECTION IN EU
  COAL MINERS' HEALTH RELATED CLAIMS: LIABILITY
  COAL MINERS' HEALTH RELATED CLAIMS: LIABILITY
  LOCAL GOVERNMENT ACT 1974: MALADMINISTRATION COMPLAINTS
  LOCAL GOVERNMENT ACT 1974: MALADMINISTRATION COMPLAINTS
  GOVERNMENT OFFICE, PLYMOUTH
  GOVERNMENT OFFICE, PLYMOUTH
  PEERS' AGES
  PEERS' AGES
  RAF MUSEUM, HENDON: AIRCRAFT PRESERVATION
  RAF MUSEUM, HENDON: AIRCRAFT PRESERVATION
  TURKEY: SATELLITE IMAGERY OF DAMAGE IN KURDISH REGION
  TURKEY: SATELLITE IMAGERY OF DAMAGE IN KURDISH REGION
  NATO: HOMOSEXUALS IN ARMED FORCES
  NATO: HOMOSEXUALS IN ARMED FORCES
  GULF WAR: ANTHRAX INOCULATIONS
  GULF WAR: ANTHRAX INOCULATIONS
  GULF WAR: VACCINATIONS AND INOCULATIONS
  GULF WAR: VACCINATIONS AND INOCULATIONS
  PYRODOSTIGMINE BROMIDE
  PYRODOSTIGMINE BROMIDE