House of Lords
Monday, 3 July 2006.
The House met at half-past two of the clock: the LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.
Baroness Paisley of St George's
Eileen Emily Paisley, having been created Baroness Paisley of St George’s, of St George’s in the County of Antrim, for life—Was, in her robes, introduced between the Lord Molyneaux of Killead and the Baroness Boothroyd.
Lord Boyd of Duncansby
Colin David Boyd, QC, having been created Baron Boyd of Duncansby, of Duncansby in Caithness, for life—Was, in his robes, introduced between the Lord Irving of Lairg and the Lord Hardie.
My Lords, the Answer is no. Since the English and Welsh water and sewerage companies were privatised in 1989, they have become much more efficient and greatly improved our drinking water quality and the water environment.
My Lords, I thank my noble friend for that Answer. However, does he realise what is happening to the water systems of this country at this moment, especially those that affect London? Does he know that, during a period of proclaimed danger of drought, Thames Water has announced an annual profit up by 23.2 per cent, to nearly £500 million, and yet it says that it does not have the funding to fix the water system and to mend the broken pipes? Does he know that in a recent poll a majority supported renationalisation of our water companies? In those circumstances, surely all water is a public resource and should be returned to the public ownership, in the public interest.
My Lords, I understand why my noble friend asks his supplementary, but there is no way under the present financial regime, or under the previous one, that there would have been £55 billion of investment in the less than 20 years since privatisation. I agree with what he says about Thames Water: it is the worst offender, losing through leakage something like 890 tonnes of water a day—I think that that should be million tonnes a day. It has a massively high leakage level. It has no excuse based on money, as its profits have been more than sufficient for it to carry out the infrastructure works; and, indeed, it is doing that throughout London. At the moment, parts of London are absolutely clogged and half the road has disappeared because Thames Water is replacing the Victorians’ legacy, on which we have dined out for too long.
My Lords, I very much agree with the Minister in his opposition to the renationalisation of water. We know what it would be like from the experience in Scotland, where the Scots have enjoyed far lower investment in the water infrastructure and the taxpayer has had to pay considerably more. Will the Minister bear with me and say why the Government continue to refuse to require compulsory metering? It would save 10 per cent of water supplies, be good for the environment and create a market incentive for the privatised water companies to save the resources being squandered through leakages.
My Lords, before I answer the noble Lord, perhaps I may correct my earlier answer: Thames Water is losing 890,000 tonnes of water per day. Its leakage level is measured in weight.
The noble Lord is right about water metering: it would save an estimated 10 per cent of water. As I said last week, the Government have no plans to require compulsory metering nationwide. Water meters are being installed over the next 10 years in 90 per cent of premises in areas of water stress—as Folkestone and Dover were announced to be early this year—on the same basis as elsewhere; that is, at no cost to the individual, though there is obviously a cost to the system. The issues can be looked at where water stress is an issue, but there are no plans to install water meters nationwide.
My Lords, although I have some sympathy with the questioner, does the Minister agree that a better solution would be to convert them into not-for-profit companies, as they were before nationalisation, and such as happened at Newcastle and Gateshead and at Welsh Water, where surpluses are invested in the infrastructure, leaks are repaired and consumers can get a discount on their bills?
My Lords, I do not know the details about Welsh Water, but some not-for-profit company models and some co-operatives can be just as efficient as private sector companies, and that includes getting investment. A different model was chosen in England, and I do not think we are in a position to turn back the clock. As I said, the Government have no plans to do so.
My Lords, is my noble friend aware that the noble Lord, Lord Forsyth, has told him only half the story about Scotland, where water is still in public ownership but Scottish Water is unable to raise money on the private market? Therefore, the regulator has suggested that in Scotland we might consider that Scottish Water should become either a mutual or a co-operative and thereby get the best of both worlds—able to raise money on the private market but unable to be taken over by private companies whether they be French or from any other country.
My Lords, there is obviously a real issue in the Chamber about Scotland. As I said to the noble Lord, Lord Livsey, there are other models. The current model of what is considered old-fashioned public ownership clearly does not allow the money required for investment to be raised. Changes are therefore required.
My Lords, is the Minister aware that people living in blocks of flats are disadvantaged because Thames Water will not install meters unless each occupant or flat owner in the block of flats agrees to have them installed? Can he suggest anything to improve the situation?
My Lords, I cannot suggest anything off the top of my head, but I understand the situation. There is a real problem in the south-east. It is essentially a south-east issue—the leakage, the inadequacy and inefficiency of Thames Water and the rainfall. The south-east is a water stress area—there is no question about that—and something will have to happen. I cannot answer on blocks of flats but, like a lot of other joint services in blocks of flats, services have to be provided. People will generally save money by having meters fitted, and they can have them fitted for free. If they want to go back to the old system after the first year, under the current arrangements they can do so.
My Lords, I absolutely agree with that. There is something immoral about the idea of moving water round the country. We could not do that anyway, given the scale and weight of the water that would need to be moved. Yet we have in the Midlands, the north-east and the north-west natural resources and land. Surely it is the people and the jobs that need to move. We need some symbolic moves because we know that the country is very unequally balanced with all this pressure in the south-east. The answer is to move the infrastructure to where the resources are.
My Lords, the noble Lord rather off-handedly brushed aside the possibility of moving water around the country. Studies have shown that a national water grid would be sensible, because it would produce competition among water providers in the same way that gas, electricity and energy now have a genuinely competitive market. At the moment, the water companies are localised monopolies, and a national grid system would solve that issue.
My Lords, it would be the other way round if people, jobs and infrastructure were moved. It is a seductive suggestion to move water from where there is plenty of water. An average family of five uses three-quarters of a tonne of water a day, on an average of 150 litres per person. There are 20 million people in the Home Counties. Just think about what we are asking the infrastructure to do. What a waste of expenditure on infrastructure, when we could do it the other way round, if we did more to save water and be more efficient and ensured that our infrastructure and growth were in areas where the natural resources are.
My Lords, we are making good progress towards our household energy efficiency targets for 2010. This will accelerate as new policies take effect. The energy-intensive companies in the climate change agreement exceeded their interim targets in the first two milestones and are on course to achieve their 2010 targets. However, targets on reducing absolute carbon emissions and electricity use per unit of floor area of the central government estate are not currently being met.
My Lords, I note what the Minister says, but does he not agree that overall energy demand continues to rise at a time when we should expect it to decrease as a result of energy efficiency measures? Are not the Government's energy efficiency measures too fragmented to have a major impact, as the Science and Technology Committee contended in its report of last July? Will the Government therefore take advantage of the energy review to come forward with fresh thinking on energy saving, such as the offer of council tax rebates for improvements in home energy efficiency, bearing in mind that the domestic market is one of the most wasteful in energy terms and that a dramatic new initiative is required?
My Lords, the noble Lord has hit the nail on the head in many ways. As is implied in his question, no one key factor can deal with this issue. The energy review and the White Paper that flows from it will deal with both renewable energy and energy saving. That is for certain. I cannot pronounce on whether going down the council tax route is the way to do it, but we must certainly do more.
The more equipment we put into our homes, the more energy we use. Consumption is going up even with the savings that have been made. A lot of policy initiatives have been put into train in the past few years, and they will come to fruition. At the same time, our consumption is going up because people leave their equipment, such as televisions and radios, on standby, which I understand consumes some three-quarters of the energy that is used to run that equipment in the first place. A big change in practice and culture is required. I am not sure whether a council tax rebate would be the answer, but we certainly need some big initiatives in this area.
My Lords, I do not know about particular school programmes, although I know that a lot of work is being done in schools to explain what energy is, where it comes from, and the use of energy-saving equipment. There is nothing that we do not already know about this. Simple things such as modern light bulbs can save an enormous amount of energy, as can switching off lights when we do not need them. As some of the adverts say, “Don’t boil more water than you need”. All those simple little things can make an enormous difference. We are also changing building regulations, because in some ways that is the one way in which we can tackle the issue. On the Question asked by the noble Lord, Lord Ezra, from next summer, all homes in private occupation that are sold in this country will have to produce a home information pack that will include an energy rating. That will bring about change.
My Lords, the Minister is correct to draw the attention of the House to the fact that energy efficiency and energy economy are separate subjects. Of course, the economy has been becoming much more energy-efficient for a long time—long before we were concerned about global warming. However, a growing economy by and large continues to demand increasing amounts of energy so that energy consumption, as the Minister has pointed out, is still rising. Does he therefore accept that a solution for controlling emissions will be found by looking at the way in which we source our energy as opposed to looking at whether we use it efficiently?
My Lords, that is absolutely right. I have just come hotfoot from the Royal Show at Stoneleigh, where I saw examples of energy efficiency from the ground. You can get enough hot water from a few square metres of your garden a metre down to use for the house. You could do that everywhere, although obviously not for blocks of flats. There is a whole host of ways of using what is in fact solar energy; it does not have to come from solar panels. There are lots of examples of ways in which we can make better use of what the sun gives us that is now wasted, but we must tackle it from both ends by looking at emissions and new sources of renewable energy.
My Lords, I had to look at the issue last week when I repeated the Statement on Thursday morning. There are so many different figures and targets that it is incredibly complicated. That has probably been used as an excuse over the years for having done nothing about it, but I can say that the energy-intensive companies that signed up to the climate change agreements exceeded their targets in the first two milestones by saving 3.9 million tonnes of carbon. In the first three-year phase, we exceeded our targets under the energy efficiency commitment. We also delivered measures that saved 0.4 million tonnes of carbon per annum, which saved consumers £9 for each £1 spent. So there have been savings. There are other issues, but I will check the precise words that I used and will respond to the noble Lord in writing if I have to.
My Lords, the UK strongly supports NATO’s open-door policy on enlargement. Enlargement is a catalyst for reform and stability and brings benefits to the alliance. It is NATO’s intensified dialogue, not membership action plans, which first formally offers the prospect of NATO membership, but, of course, without prejudice to a final decision by allies on membership. Currently, only Ukraine has intensified dialogue. It is unclear whether any Partnership for Peace countries might be given intensified dialogue at Riga.
My Lords, I thank the Minister for that reply. Does NATO now have a clear strategy towards Russia? After all, it is fairly clear policy in Washington that Ukraine should be offered membership at the Riga summit. A substantial lobby in Washington suggests that Georgia should be put on a membership action plan, which to the Russians looks like the beginning of encirclement. Azerbaijan is mentioned by many, and even Israel is mentioned by a few in Washington as a package that would be part of any move towards a two-state solution. Are we in active dialogue with our American allies on the overall logic of NATO enlargement and how that interacts with our policy towards Russia and other neighbouring countries?
My Lords, we are in interactive dialogue all the time with our partners in the alliance. With respect to Russia, there have been comments and speculation about the pace of enlargement, but NATO decides by consensus, so decisions are taken after much consultation and discussion. Those discussions and that consultation are taking place on Georgia and Ukraine. As far as I am aware, there are absolutely no discussions on Israel joining NATO. The NATO Secretary-General visited Israel last February when Israel put forward a tangible proposal for enhancing its co-operation with NATO. We welcome that co-operation, but that is as far as it goes.
My Lords, the NATO parliamentary assembly at its meeting in Paris at the end of May urged member Governments to start the intensified dialogue with Georgia as soon as possible, preferably before this summer. It also urged member Governments to provide technical assistance to Georgia to speed up integration into Euro-Atlantic institutions. Do the British Government support that recommendation of the NATO parliamentary assembly? If so, what have they done?
My Lords, we certainly welcome Georgia’s NATO aspirations, and we stand ready to assist its reform programme wherever possible. We very much hope that Georgia will be given its intensified dialogue later this year, but, in the mean time, progress must continue in Georgia. Once it has achieved its intensified dialogue, progress towards membership will depend on its achieving NATO standards.
My Lords, does the noble Baroness accept that one of the great achievements of NATO is to stop member countries going to war with each other—one thinks particularly of Greece and Turkey? Therefore, enlargement has a great role to play in producing stability over large areas of Europe.
My Lords, is it not the case that the larger and more numerous the membership of NATO becomes, the more urgent it is to find some good working machinery to achieve standard rules of engagement for all NATO members, so that forces in out-of-area operations in places such as Afghanistan can operate at maximum efficiency?
My Lords, common rules of engagement are extremely important in NATO. However, we also need to construct better partnerships with countries with which we work on the ground—for example, Australia and Japan—but which are clearly outside NATO.
My Lords, we will of course discuss Afghanistan later in a Statement, but the position of NATO there is extremely worrying and there is enormous concern about how the organisation can strengthen itself. On the more immediate question of expansion, is it not the position that the Baltic three—Lithuania, Latvia and Estonia—are being invited to join and that Russia is very concerned about that? Are we in a good dialogue with Russia, whose support we certainly need in dealing with other issues, such as Iran? Could that be improved if we spoke to the Russians, rather than leaving it to people such as Vice-President Cheney who seem determined to offend them?
My Lords, of course there is great concern about the situation in Afghanistan and, as the noble Lord said, there is to be a Statement later today. In respect of Latvia, Lithuania and Estonia, I presume that he means that they are being invited to join in in Iraq—
My Lords, we are talking about the North Atlantic Treaty Organisation. It seems to me that we are going rather wide of that purpose by talking, first, about eastern Europe and, in Azerbaijan, about Asia. In talking about Israel, we are referring to the Middle East. Is it not the case that NATO is proceeding rather wider than was intended in the first place and, far from helping to promote peace, may be helping future wars?
My Lords, I should make it absolutely clear that, when NATO talks about the prospect of enlargement, it discusses that with prospective member states within Europe. It does not look to enlarge beyond the Euro-Atlantic area. The central and eastern European countries are within Europe; Azerbaijan is within Europe. As I mentioned to the noble Lord earlier, there are no plans for Israel to join NATO.
My Lords, over recent weeks the Home Office has shown that it is totally incapable of handling the multifarious responsibilities that it now has, and it is plain that those responsibilities should be reduced. In particular, would it not be both logical and sensible to transfer responsibilities for the criminal justice system to the Department for Constitutional Affairs, leaving the Home Office with the police, the prisons and immigration? As criminal and civil justice overlap in many respects and are administered in the same courts by the same judges, should they not be under one department, a department for justice?
My Lords, I can reassure the noble Lord that the Home Office is capable of managing its current portfolio, and noble Lords know that we are undertaking a review. However, let me remind the House that at the moment the criminal justice system is managed on a tripartite basis between the Lord Chancellor in the Department for Constitutional Affairs, the Home Secretary at the Home Office and, indeed, my noble and learned friend the Attorney-General. Together we are making significant improvements to the criminal justice system which many outside the House have had the courage to applaud.
My Lords, the noble Lord will know that that is not what my right honourable friend the Home Secretary said about the Home Office. He said that one part—the processes related to the IND—was not fit for purpose, but it does not apply to the Home Office as a whole. I am sure that the noble Lord knows that perfectly well.
My Lords, two and a half years spent in the Home Office 30 years ago convinced me that it was wholly irrational, if not worse, to split responsibility for criminal law from responsibility for civil law between different government departments. Can the Minister tell the House which other country in Europe or the Commonwealth has adopted that solution? What is the principal justification for splitting responsibility between not two but three departments instead of having a department for justice, as is the case in almost the whole of the rest of the civilised world?
My Lords, I should perhaps remind the noble Lord that no other democracy has a House of Lords, yet we still manage perfectly well. It is not irrational. The noble Lord will be very familiar with the report by Lord Justice Auld, who advocated bringing together the three parts of the criminal justice system. That is what we have done with the National Criminal Justice Board, where the component parts work very well in unison. The board has a meeting every month, and all parties are able to come to consensual agreement on how best to manage criminal justice—and that has inured to the advantage of our country.
My Lords, I am grateful to the noble Lord. Does the Minister feel that it would be an improvement to have the department that is primarily responsible for the independence of the judiciary—namely, that which continues to be led by the Lord Chancellor—also responsible for prosecutions?
My Lords, we certainly do not feel that that is necessary. The noble and learned Lord will know that the prosecution department is currently brilliantly headed by my noble and learned friend the Attorney-General. It is a situation with which we are absolutely content. Working in unison, however, has been greatly beneficial, and we intend to continue along that line.
My Lords, can the Minister confirm that her department has produced more than 40 pieces of law and order legislation since 1997? That is one for every 80 days since taking office. When will the department start to get right what it is supposed to be doing?
My Lords, I hope that the noble Lord will agree that each of those pieces of legislation was necessary. The measures in the anti-social behaviour legislation and the work that we have done with the Criminal Justice Act have all proven necessary. I do not know whether noble Lords opposite think that perhaps we should rescind those measures.
My Lords, if a Conservative Government legislated to effect what is proposed in the Question and they had their way on the constitutional issue in relation to Scottish MPs, Scottish MPs could not vote on the changes proposed. Perhaps my noble friend can help me: could I, as a Scottish Peer, vote?
My Lords, further to the Minister’s answer to the noble Lord, Lord Hodgson, does she agree that it would be wise for the Home Office, if it is to retain these responsibilities, to make much more effort to implement the laws that exist? At the same time, would she not concede that the record of this Government in creating new criminal offences since they came to power has been unique and, in many ways, counterproductive?
My Lords, is the Minister aware that, following the example of the noble Lord, Lord Lester of Herne Hill, four years as an official in the Home Office—two of them as Permanent Secretary—lead me to admire the content of her first Answer as much as I admire the brevity of it?
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Kalms be appointed a member of the Select Committee in the place of the Lord Chadlington.—(The Chairman of Committees.)
On Question, Motion agreed to.
Wireless Telegraphy Bill [HL]
Read a third time, and passed, and sent to the Commons.
Legislative and Regulatory Reform Bill
My Lords, I do not think we should agree to this Motion without further discussion. Given the history of the Bill, which was massively amended in another place, and the raft of amendments which the Government have tabled to the Bill as introduced into this House, I do not think we should accept this Motion without once again asking whether we really need this Bill.
The question was asked several times at Second Reading on 13 June, but—and I say this in all kindness—in his winding-up speech the Minister failed to convince many of your Lordships of the case he was seeking to make. For instance, the noble Lord, Lord Garden, asked,
“why can current legislation not be used”—[Official Report, 13/6/06; col. 187.]
When the Minister came to answer that question, the first thing he stressed—and I think it is important to notice what he gave the most importance to—was that it would help,
“to create a regulatory environment—the culture to which the noble Lord, Lord Kingsland, referred”.—[Official Report, 13/6/06; col. 188.]
My noble friend, of course, was referring to the culture in Whitehall departments, which the Minister acknowledged seemed to be reluctant to engage in deregulation. But if departments are unwilling to deregulate—if the culture does indeed need to be changed—surely to goodness it is the job of the Ministers who head the departments to make sure that change is achieved.
What is there in this Bill that is supposed, miraculously, to convert officials to embrace the spirit of deregulation? Yes, it provides some new definitions, for example, of the burdens that can be removed or reduced by order. So one goes on to ask, as several noble Lords did on Second Reading, including the noble Lord, Lord Goodhart, why cannot the 2001 Act be amended,
“to make it a little less complex and technical?”—[Official Report, 13/6/06; col. 189.]
The noble Lord got no answer either, except that the Minister riposted by inviting him to use the Committee stage to “have a go”, as he put it, at drafting amendments that simplified things. It may be that the noble Lord’s amendments, of which there are many, would do that.
We now have this raft of new amendments, tabled by the Government in this House. For instance, Clause 3 contains the power to implement Law Commission reports by order, to which the noble Lord, Lord Bassam of Brighton, said at col. 186 he remained “wedded”. He remained wedded in the letter he wrote to us, which I shall refer to in a moment. But we now see, looking at the Marshalled List, that Clause 3 is to be removed.
The criteria written into the Bill to govern the use of the veto by committees of either House are to be removed. These are changes which I am sure the House will welcome, but why were those criteria in the Bill in the first place? Is this not evidence, if evidence were needed, that the Government are simply making up this Bill as they go along?
When this Bill started its life in another place, it contained powers to legislate by order that were so sweeping and all-embracing that it attracted the sobriquet the “Abolition of Parliament” Bill. Mercifully, most of those powers were withdrawn in that House, so it was a radically different and far more modest measure that came to this House. But here we go again: the Marshalled List contains upward of 30 government amendments and proposals for the removal of two entire clauses. The noble Lord, Lord Bassam, was kind enough to send a number of us a letter which covered the points that had been raised at Second Reading. It is no fewer than nine foolscap pages long, plus an annexe—let me say at once that I make no criticism of that: anything the Government can do to explain what they are trying to achieve must be an advantage. However, in the letter, the Minister once again tried to spell out why we needed the Bill rather than a much shorter measure amending the 2001 Act. He argued that the differences between the order-making powers in the Bill and in the 2001 Act,
“are sufficiently significant to merit more than mere amendment of the 2001 Act”.
But I am driven to ask, if the Government had not originally attempted to introduce their far more drastic order-making power and to legislate by what was called the “Abolition of Parliament Act”, whether they would not then have preferred to make the amendments in the form of a much shorter, simpler Bill, amending the 2001 Act. Would that not, even now, be a better course?
Here we are, into July, with a very heavy legislative programme before us. Would it really not be wiser to recognise that this Bill, which in its present form still needs further to be amended, as witness the number of amendments on the Marshalled List, should be withdrawn before we waste any more time on it? Ministers could then really work out what they want to achieve and come back to the House in October with a simple amending Bill. I would hazard a guess that this might gain parliamentary approval quite quickly. Most of us are agreed on what needs to be done to speed up the process of deregulation. That would be a very much better way of doing it than starting to wade through this Committee now.
My Lords, I strongly support my noble friend Lord Jenkin, because I have an extraordinarily strong feeling, which I expressed at Second Reading but which needs to be expressed again, that giving any power to Ministers ever to amend primary legislation must be a bad thing, even if it is for anodyne and sensible purposes such as making regulation better. It is incredibly dangerous to give any Ministers that power. Let us reasonably assume that, on this issue, this Government are completely and utterly virgin pure, that they are a Government who, we know, are driven solely by the best of motives, that they are a Government who never put a foot wrong and never would dream of amending a Bill badly if they had the power. Let us for the sake of argument make that assumption. I do not trust any other Government, ever, to have that power, be they led by the right honourable Member for Witney, be they led by some as yet unborn child. I do not trust any Government, except possibly this one, to behave like that. So we have to be extremely careful about ever giving Ministers this power.
Is it not obvious beyond peradventure that over-regulation arises from regulation, and regulation arises from the powers given to Ministers in primary legislation, so that over-regulation can and should be cured by re-regulation? In other words, let us say that fishing for snails in the River Wey is regulated, deriving the ministerial power of regulation from some agricultural Act. Going back to the agricultural Act containing the power for the Minister to make an order, the Minister sees that the order is wrong and changes the regulation. Surely, this matter is being looked at in an intellectually sloppy way. We say “over-regulation” and immediately we rush to the statute book. Over-regulation can and should be cured by proper attention to detail and making sure that regulations which have arisen out of primary legislation are properly drafted and enforced. So do we actually need the Bill? That is the point that I hope my noble friend Lord Jenkin is making.
My Lords, I am not sure under what rubric we are having a Second Reading debate all over again. The noble Lord, Lord Jenkin, who introduced this device, said that we had far too much work to do and that if only we did not have this Bill we could get on with it. If he had not raised his objection, we could have got on with it faster. The Government have listened to what was said in the House of Commons and the House of Lords and followed that by introducing amendments. This is not the first Bill for which amendments have been introduced in the House by the Government. Surely the noble Lord, with his long experience, knows that. Why has this particular Bill been blown up into an “Abolition of Parliament” Act when it is only very modest legislation about regulatory reform, which was slowed immensely by the previous legislation? I said at Second Reading that we really needed something better; this Bill provides something better—and the sooner we get on with the Bill, the better off we will all be.
My Lords, I agreed with much that the noble Lord, Lord Jenkin, said, particularly on why the Government have not simply amended the Regulatory Reform Act 2001. It is to deal with that issue that I gave notice of my intention of objecting to Clause 1 stand part, so that we can get a proper explanation from the Government of why that was not done. However, this House did not oppose this Bill at Second Reading or vote on any amendment that it should be delayed for six months. In the circumstances, it seems wholly illogical to object to this Bill going into Committee.
My Lords, I do not see that anybody has really answered my question; I hope that the noble Lord, Lord Bassam, will answer it. What on earth is the point of us expending further time on a Bill that has no obvious purpose? My noble friend Lord Jenkin put his points marvellously well and very clearly, as he always does. Of course, my noble friend Lord Onslow then hammered the nail home with his characteristic force.
I do not want to spend time on this, but I want to make one point. I regard this Bill with some welcome because it is a classic example of, and illustrates with unusual clarity, what is meant by the phrase, “Satan rebuking sin”. In the spectacle of Satan rebuking sin there is an element of hypocrisy. I wonder whether there is not an element of hypocrisy in the Government going ahead with this Bill. What puzzles me is that it may give this licence—these new powers—to Secretaries of State, but I wonder what form of conversion Secretaries of State, who all their lives have been soaked in the tradition of regulation, will need to undergo to be suddenly minded to withdraw them, repeal them, change them, weaken them and amend them.
I do not want to say any more, but I hope that the noble Lord, Lord Bassam, will bear in mind that today he represents Satan. I am sure that he will do so with some skill.
My Lords, I have listened to what has been said so far with bewilderment. As I understood it, this Bill has had a Second Reading in this House. If it has, it should now proceed through its stages. If Members of the Committee do not like what is in the Bill, they can table amendments. The only real issue upon which a Motion of this sort should be considered seriously by the House is surely one where the Bill has been changed so much between Second Reading and today that it is a different Bill. However, I do not think that is the position at all. The noble Lord, Lord Jenkin, the noble Earl, Lord Onslow, and my friend, the noble Lord, Lord Peyton, may well feel that it would have been better if the Bill had not been introduced, but that is not the point. It has been introduced, it is part of the Government’s programme, it has had a Second Reading in this House and we really ought to get on with Committee.
My Lords, with his characteristic perspicacity the noble Lord, Lord Richard, has put his finger on the point. But the answer to his point is not the one that he gave to his own question. When this Bill started its life in another place, it had two features which distinguished it from the 2001 Bill. The first was that it sought to remove the distinction between primary and secondary legislation. It was described by the fourth estate as the Bill to abolish Parliament. Fortunately, pressure from the fourth estate and a leaked letter from the government Chief Whip, which we all read with great interest, in combination forced the Government to think again in another place.
But since Second Reading a second big change has been made to the Bill: the Government have decided to remove Clause 3. If Clause 3 had remained in the Bill, it would, indeed, have been an important distinction between this legislation and the 2001 Bill because Clause 3 sought to establish a completely separate system for driving Law Commission proposals through Parliament. The Government have now decided—in my submission, wisely—to withdraw Clause 3. So the question that my noble friend Lord Jenkin of Roding is posing to the Government today is: given that we have removed all the features of the Bill which might otherwise have rendered it an “Abolition of Parliament” Bill, and given that we have now removed the Law Commission features, what is left in this legislation which distinguishes it from the 2001 Bill? That is the difference between Second Reading and today.
It is a well merited question. The Delegated Powers and Regulatory Reform Committee report, as we all know, stated that the main inhibition from making a deregulatory order is not the definition of “burden” in the 2001 Bill—a definition largely repeated in this Bill—or, more widely, parliamentary processes themselves, but the failure of government Ministers to put deregulation high enough on their agenda to make it work. That is said in terms in the report. So, with great respect to the noble Lord, Lord Richard, the intervention of my noble friend Lord Jenkin of Roding was exactly to the point. We need an answer from the Government.
My Lords, perhaps I may briefly intervene. I do not know whether what I am going to say will help the case put by my noble friend Lord Jenkin or the case that, I suspect, will be made by the noble Lord, Lord Bassam, but there is already power under the 1972 Act to amend primary legislation by use of orders or regulations. I recollect very well that some years ago, before this Government came into office, the previous Government brought forward under the 1972 Act an order that amended the Sex Discrimination Act by removing a whole section and replacing it with another. That section related to the immunity of the Armed Forces from the Act. That amendment of primary law was made by an order under the 1972 Act. I remember that occasion clearly, because I asked an embarrassing question of the Minister who was taking through the order: what difference would it make if this House rejected the order? The answer, of course, was none whatever, because the order was being taken through under the 1972 Act of accession. So perhaps we are not quite in such uncharted waters as we might have thought.
My Lords, I join the noble Lord, Lord Richard, in being rather puzzled by this debate, although I thank the noble Lord, Lord Jenkin, for at least giving me advance notice of it.
At Second Reading, we went carefully over why a new Bill was required. I answered the points made and did so again, I thought fully, in the letter to which the noble Lord, Lord Jenkin, referred. We need a new Bill. Each Bill builds on another. This is hardly new territory, because noble Lords opposite will recall that they were the progenitors of a Bill back in 1994 that began this process.
The noble Lord, Lord Jenkin, pointed out that we were bringing forward further sweeping changes, particularly in Clause 3, to which the noble Lord, Lord Kingsland, has also referred. Those changes were called for in considerable measure during the Second Reading debate. I listened to it. My noble friend Lady Ashton listened to it, as did my noble and learned friend the Lord Chancellor. We have reflected further on those issues and we have brought forward amendments to which I expect to receive welcome support from the Benches opposite.
This Bill demonstrates that the Government are prepared to listen to those who criticise them and to bring forward thoughtful and sensible measures. Noble Lords opposite really need to understand and to get their act together, because on 14 April, I think, the Conservative Party produced a press release, which I do not have to hand, crediting the Government for making major amendments to the Bill and giving its support for that. I know that the Bill is supported by business. The CBI and the Institute of Directors have written to us. Today, I received a letter from the—
My Lords, I am grateful to the noble Lord for the amendments that he has brought forward, which I welcome. But can he give me just one example of a regulatory measure that could be got rid of by the Bill, as amended, that could not be achieved under existing legislation—just one example?
Well, my Lords, I can give the noble Lord an example quoted in annexe A to the letter that I sent out towards the end of last week. It is a simple example regarding the reform of tree preservation orders and the system relating to it. The noble Lord laughs at that, but many such measures cannot currently be dealt with under the Regulatory Reform Act 2001. This will make a change. Another example is the Game Act of 1830 or thereabouts—it was quoted in the correspondence. There are many such small measures and that is why the Federation of Small Businesses has written to Peers involved in this afternoon’s debate making a very effective case for this Bill. It simply says:
“I urge you to support the Legislative and Regulatory Reform Bill”.
I shall read into the record a paragraph from its briefing because it deserves to be there. It states:
“I believe that Clause 23.2 subsection (b), which states ‘regulatory activities should be targeted only at cases in which action is needed’, is one of the main reasons to support this Bill. It shows just the sort of pragmatic, targeted approach to legislation that smaller businesses have been crying out for”.
Noble Lords opposite have a choice. They should back this Bill. Yes, we can have arguments and, yes, we can have criticisms about the detail but the noble Lord, Lord Goodhart, made the point—the time to object to this was earlier. This Bill received a Second Reading and it has the support of another place. I think that we should get on with the business of dealing with the Committee stage this afternoon.
My Lords, I think the question that my noble friend Lord Jenkin of Roding put was rather different from that which the noble Lord suggested. My noble friend’s question was that, given that the Bill is now shorn of the principal characteristics that distinguished it from the 2001 Bill, why cannot we simply amend the 2001 Bill rather than go to the trouble of establishing a completely new Bill—which will absorb an enormous amount of time in both your Lordships’ House and another place? That was the question.
My Lords, we are here as a revising Chamber. This Bill does things that are different and it works in a different way. I explained that to the noble Lord at Second Reading and I explained it in the detailed correspondence that I sent out to all noble Lords involved in that debate.
I ask this House simply this question: do noble Lords want to join those bodies that are a progressive force in this country and which want to institute sensible change and which deal with things in a pragmatic way? The noble Lord, Lord Peyton, said that in his view we had had a change of heart, as it were, and that somehow I was satanic in my efforts to bring about greater measures of deregulation. I do not care whether I am Satan or not; I should like to get on with this Bill and make some changes that are important to this country.
My Lords, I remind that House although we cannot have points of order, the rules of debate are clear—the Motion has been put and the mover of the Motion has responded to the Motion. Without wishing to cut any debate, I think that it would be very odd if there was further discussion now.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 1 [Power to remove or reduce burdens]:
Page 1, line 6, leave out “he considers”
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 50.
This is, at last—after a slightly unexpected interval—the beginning of the Committee stage of this Bill. The Bill was undoubtedly improved by government amendments in the House of Commons and will be improved by further amendments from the Marshalled List and certain further amendments beyond that, which have not yet been tabled but which will be introduced in your Lordships’ House. I note with particular interest the Government’s acceptance of the need to remove Clause 3, which was the subject of considerable debate at Second Reading. I understand that the Government are now considering bringing forward alternative provisions for dealing with Law Commission Bills, although those are unlikely to be available until Report, when it may be necessary to ask for a Recommitment. I welcome those proposals in principle. However, while I am a strong supporter of the Law Commission and I am anxious to see more of its draft Bills on the statute book, I am afraid that Clause 3 is not the way to deal with that problem.
The purpose of Amendment No. 1 is to alter the test in Clause 1 from the subjective to the objective. Clause 1(1) states:
“A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2)”.
Subsection (2) says:
“That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation”.
I have described the present position as a subjective test. The Government will say that the test as it stands is not subjective, and to some extent I accept that they will be correct because the Minister's decision is subject to judicial review. It is well established law that a Minister's decision can be quashed if it is irrational, although in this case, again as the Bill now stands, it would be a matter not of quashing that decision but of declaring incompatibility. It is well established law that a Minister's decision can be quashed when no reasonable Minister could have reached that conclusion if he or she had taken all relevant considerations into account. But there is still a significant subjective element here. It is rather like the difference between proof beyond doubt in a criminal case and proof on the balance of probabilities.
As the Bill now stands, anyone seeking judicial review would have to show that the Minister's decision that the order would serve the purpose set out in subsection (2) was wrong beyond reasonable doubt. It is not enough to show that that decision was probably wrong. Of course, there are times when the subjective approach in drafting is appropriate but there are also times when the objective approach is appropriate. The Bill confers exceptional and very unusual powers, including a general power to amend much primary legislation by secondary legislation. I recognise that that is not unique, but the Bill considerably extends the powers in the 2001 Act and I believe that it falls into a class where a fully objective test is needed in Clause 1.
Amendment No. 50 applies the same principle to whether the conditions in Clause 4(2), which limit the powers of a Minister, are satisfied. The test here, we believe, should also be objective and not semi-subjective. I recognise that in that respect we go further than the tests in the 2001 Act, where the semi-objective test was applied, but, again, I believe that that is justified by the extension of the circumstances in which this power can be used.
Amendments Nos. 27 and 39, which are in a separate group, raise a very similar issue. As they stand in my name and that of my noble friend Lord Maclennan, it may be convenient to deal with them here and not speak to them separately. Amendment No. 27 applies the fully objective test to the power under Clause 1(8) to make consequential, supplementary, incidental or transitional provisions, including a power to amend or repeal primary legislation. I believe that such legislation should be appropriate and not just appropriate in the opinion of the Minister, at least if and in so far as it applies to primary legislation. Amendment No. 39 contains a similar provision in relation to consequential orders made under Clause 2.
I believe that these four amendments are important and that it is desirable that, in all the cases covered by the amendments, the test should be the fully objective one and not the hybrid—semi-subjective, semi-objective—test that the Bill now contains. I beg to move.
I have to inform the Committee that, if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 and 4.
I put my name to this amendment and I wish to reinforce what the noble Lord, Lord Goodhart, said. I do not intend to repeat what he said but I want to pick up on the letter from the Minister, to which reference has already been made. In that letter, he seeks to defend the retention of these words in the Bill on the basis that the noble Lord, Lord Goodhart, mentioned—that is, that Ministers are under an obligation to act in a reasonable way and can be struck down if they act irrationally.
The Minister has to act on the basis of the evidence before him and he has to reach a rational conclusion. He must not take into account matters that are irrelevant. On my reading, that does not preclude the Minister from considering evidence that he considers relevant and reaching a conclusion that is not, on the basis of his reading of the evidence, irrational. His consideration may not be wholly objective, but it may not necessarily fail the test established in the Javed and Padfield cases, to which the Minister refers. As far as I can see, the letter from the noble Lord does not make a case for retaining in the Bill the words that the amendment would remove.
If we take the Minister’s argument that the Minister has to act rationally—and, in the noble Lord's view, objectively—presumably the words are superfluous. So why should not the reference to what the Minister,
“considers would serve the purpose in subsection (2)”,
be taken out? As far as I can see, that either provides for objectivity or has no effect at all. Either way, I can see no argument for retaining those words. I think that that clarifies matters and moves one from a position of semi-objectivity to one of objectivity, which is wholly desirable.
I oppose the amendments in this group. At Second Reading, the noble Baroness, Lady Wilcox, rightly said of the Bill that,
“its potential benefit and effectiveness are hard to predict, since they are reliant on the political will of Ministers to take advantage of the Bill's powers and use them effectively”.—[Official Report, 13/6/06; col. 130.]
The basis of the Bill is to make some advance—although we have already had some discussion on how much advance it makes—on the 2001 Act to remove regulatory burdens. We shall have full discussions on what that means. It seems to me that the initial lead must come from Ministers; it must be based on the fact that the Minister considers that such-and-such regulatory burdens should be removed. Of course, as the noble Lord, Lord Goodhart, has pointed out, because of his amendment to a later clause, a number of preconditions have to be satisfied before these powers can be used.
I fully agree with—although I am not bound to—the legal interpretation of the noble Lord relating to judicial review. Without going into the detail, I accept his point that the test, as it stands at the moment—“he considers” and so on—is not fully objective. I see the noble Lord nods in agreement. I think that that point is right. If the test were fully objective and we had, as it were, full scope for judicial review every time that the Minister wanted to remove regulatory burdens, that would seem to elevate judicial accountability over political accountability. That would be quite inappropriate to this matter, on which I believe that the Minister must take the lead, must take political responsibility and must account to the media and to Parliament for what he is doing. I think that the amendment would unduly hobble the Minister's efforts to do what people on all sides of the House suggested at Second Reading is desirable; namely, be effective in removing regulatory burdens.
When I first read the amendment, I thought that it was completely unnecessary. I assumed that, when Ministers used a power, they would do a little bit of considering, because that is what taxpayers pay them for and that is why they go into politics. They have to consider issues. I now understand, as I did not before, that the words in the Bill are either otiose or give the Minister too much discretion, as my noble friend Lord Norton said. As noble Lords well know, I am frightened of ministerial power and do not like it. If, by including the words “he considers”, you allow the Minister much greater latitude than intended, we ought to take them out. If, on the other hand, the Minister says that that is unnecessary and otiose, they should also come out. My noble friend Lord Norton makes an extremely good point, and I thank him for explaining quite a complicated issue in such a simple way.
I do not wish to detain the Committee for too long or go over old ground, but this amendment, which I support, is important. It makes a distinction between arbitrary use of power by a Minister and clear criteria. I do not know why I am not on the Minister’s Christmas card list; I did not get a copy of his letter. Perhaps he sent it to me, but I have not seen a copy until this afternoon, when my noble friend Lord Jenkin kindly gave me his.
I do not know if I am being thick but, moments ago, I asked the Minister whether he could give some examples of deregulatory measures which could not be dealt with under the 2001 Act. In the appendix to the Minister’s letter there is indeed a reference to tree preservation orders and the amount of letter writing and bureaucracy involved in getting them. At Second Reading, the Minister made the point about game dealers. For the life of me, I still cannot understand why these measures could not be dealt with under the 2001 Act. The appendix sets out particular difficulties in the criteria and drafting of the 2001 Act, which could be dealt with by simple amendment.
The amendment of the noble Lord, Lord Goodhart, is therefore important. I am concerned that this Bill gives Ministers powers for which they are not accountable to Parliament. When one sees woolly phrasing such as this, it means either something or nothing. If it means nothing, let us take it out. I would be grateful if the Minister could help me with this when he replies.
My friends in the CBI come up to me and say “British business has an enormous regulatory burden which must be got rid of”; they do not say “We are particularly concerned about the tree preservation orders and gaming”. From what the Minister says in his letters, both these points could be dealt with by simple amendment to the existing legislation, even if there is a problem. Given that these are the only examples he can come up with which cannot be dealt with under existing legislation, I find this worrying.
Returning to the arguments that the Minister sets out in his letter—which should be widely available—he seems to suggest that the real problem is that Whitehall finds dealing with the 2001 Act rather a burden. At one point, he suggests that civil servants in Whitehall find it almost as difficult to deal with the 2001 Act as to introduce a Bill. Perhaps I have not been modernisedand am a bit old-fashioned, but I think it should be extremely hard to change the law. People should have absolute clarity over what the law is. I support this amendment, and if the Minister is inclined to resist it, my concern about what is the underlying motivation for continuing with this legislation will increase.
There is good sense in the amendments. If there is no ulterior purpose in the legislation then the words “which he considers” are otiose.
The noble Lord, Lord Borrie, and I were partners—in a purely professional sense—for a couple of years, while he was director-general of the Office of Fair Trading and I was Secretary of State for Trade and Industry. Of course, we had discussions about regulatory matters and things of that kind. I only ever disagreed with one of his recommendations, over the trifling matter of the market in condensed milk, which he thought rather more important than I did. My point is that on one occasion one of his recommendations to me was so compelling and obvious—indeed, I had come to the identical conclusion some time before—that I said to my officials, “That’s it then; we’ll say today that we agree with the director-general”. “No,” said my private secretary, “we’d best not do that because somebody might bring an action for judicial review on the grounds that you hadn’t considered it for long enough”. So arcane matters are involved, but the point of that story is that it seems to me that the legislation that gives power to a Minister to do certain things assumes that he will use that power in a considered way. Therefore, these words are at best otiose and, if not, possibly harmful.
I have a little worry about this amendment. It takes out “he considers”, but Clause 1(1) states:
“A Minister of the Crown may by order under this section make any provision which he considers would serve the purpose in subsection (2)”.
If “he considers” is taken out, who will decide whether it would serve the purpose in subsection (2)? If the Minister does not take responsibility, who will? That question has to be answered. Will it be civil servants? Many proposals will undoubtedly be put forward to relieve us of the altogether too many regulations that have been imposed on us over a very long period. No doubt, the Minister will explain in his winding-up speech, but I am worried about that.
I did not receive the letter to which the noble Lord referred, but I am interested in the example he gave. I hope that the Bill will help me in some way because I have a tree on which a preservation order has been placed. I understand that without the permission of the local authority, I am not able to snap or cut one twig off that tree and there is a penalty of £2,000 if I do. Since the tree overhangs the pavement and a bus route, it could be a very expensive business if I am not allowed to cut little twigs down. So I hope that this is one of the little regulations that might help poor little householders take a few branches or twigs off their trees that the local authority, without any proper consultation, has slapped a tree preservation order on.
I hope that the Minister will deal carefully with the question raised by the noble Lord, Lord Tebbit. It seems clear that the Minister would not make an order unless he considered it would serve the purpose in question and therefore the words “he considers” are otiose.
I support the amendment tabled by the noble Lord, Lord Goodhart, and I wholly endorse the argument he advanced in support of it. I have only one question for the Minister, which is in the context of the words in the previous Act. In the 2001 Act, the equivalent provision states that,
“a Minister of the Crown may by order make provision for the purpose of reforming legislation … with a view to one or more of the following objects”.
It goes on to list a series of purposes, one of which is identical to the one we are considering in subsection (2). Nowhere do the words “he considers” appear. So I presume that this is one of the deliberate qualitative differences between the order-making powers in this Bill and those contained in the 2001 Act. Is that so? If it is, why has this change been necessary?
I shall deal with the two amendments of the noble Lord, Lord Goodhart, and with Amendments Nos. 27 and 39, which he, in friendly terms, grouped with them. I will deal with those in turn.
For an order to be laid under Clause 1, the Minister must consider that it serves the purpose outlined in Clause 1(2) and satisfies the preconditions in Clause 4(2). Our view is that these are real tests. That is because the Minister is under a public law duty to be reasonable when forming a view on whether the order is within the terms of the order-making power in Clause 1 and meets the preconditions in Clause 4(2).
The duty for a Minister to be reasonable connotes an obligation not to take into account irrelevant considerations and act for improper purposes or in bad faith. It also requires—and perhaps this is the most important element—the Minister to reach a rational decision.
In the correspondence, which has been referred to on several occasions, I quoted the case law. I have no intention of going over that again, but it makes the point. The case law shows that the existing subjective tests in the Bill are real ones. Furthermore, the ministerial opinion requirement in the Bill is not new. It has worked well under the 2001 Act and, before that, the 1994 Act. There is absolutely no evidence, therefore, that this should be changed under this Bill.
The Minister’s opinion that he considers an order would serve the purpose in Clause 1 and the preconditions in Clause 4 is subject, as we have argued before, to stringent parliamentary scrutiny. The relevant committees of either House can veto any order if they do not consider it appropriate, and, unless the committee’s veto is overturned by resolution of its House, all further proceedings on the order will be halted. The two Houses have equal status regarding the scrutiny of orders. A veto in either House would mean that proceedings are halted and the Minister would be required to withdraw the order.
The Delegated Powers and Regulatory Reform Committee writes in its report:
“When either House or a Committee considers a proposal, they can form their own judgment of the Minister’s assessment as to whether the preconditions have been met and can disagree, if necessary reporting against the proposal”.
The Government agree with the Delegated Powers and Regulatory Reform Committee’s report that the reference to ministerial opinion does not in any way weaken the requirement for the Minister’s opinion to be reasonable and subject to rigorous challenge; it simply ensures that the detailed challenges and decisions—over, for example, what constitutes a necessary protection in a particular case, or how to balance the removal of an obstacle to productivity against an increase in financial costs for some—should be made only by a Minister, subject to Parliament’s agreement. They should not themselves be matters on which the court can substitute its own judgment.
The Regulatory Reform Committee in another place, in its report on the draft Bill, as introduced to the Commons in January, was wary of,
“passing to the courts the task of forming judgments about the outer edges of what is essentially political”,
and suggested the parliamentary veto as a way of addressing that. As noble Lords know, Parliament has a statutory veto over any proposed order.
It seems to me, as the Minister, that this is right. It is appropriate that relevant parliamentary committees judge whether a particular order is appropriate, and, as the Commons Regulatory Reform Committee puts it, about,
“what is essentially political”,
a point made by my noble friend Lord Borrie. While the court should be empowered to do so only in extremis there are occasions where the Minister may have disregarded the public law duty, and it is right to challenge that.
The committees’ judgment obviously will be informed by the evidence that the Minister provides in the explanatory document, which must be laid alongside the order. Among other things, that document ensures that there must be an explanation of the powers under which the order is made. It must introduce and give reasons for the provisions. It must explain why the Minister considers—
The Minister has gone on at considerable length about the reason behind what should be done. I have some sympathy with him there. He is not answering the infinitely simple question posed by the noble and learned Lord, Lord Lloyd of Berwick: why is the word “considered” needed? Some of us are suspicious of it. Is it otiose or not? The Minister must answer the noble and learned Lord’s question.
I shall come to the point; it is fair to remind me of it.
I want to go through the process because I think that the Committee needs to understand the import of how we see it working. It is right that the Committee has that opportunity. It is also right to explain in some detail how the system will work.
The document must include, so far as appropriate, an assessment of the extent to which an order under Clause 1 would remove or reduce any burden or burdens. It must also identify and give reasons for any power to legislate conferred by the order and the procedural requirements attaching to those powers. It should also provide details of any consultation undertaken and any representations made as a result of consultation. That information will form the evidence for the rationale of making the order and will be an important source for committees to make their judgment on the merits of particular orders.
The Committee will be aware that it is government policy to submit alongside any legislation that has an impact a regulatory impact assessment that identifies all the costs associated with regulation, as well as the benefits, and quantifies the likely costs of compliance on those affected by the regulation—either private or voluntary organisations.
If Members of the Committee believe that they require more evidence, they can request it either from the Government or from stakeholders they consider relevant. They can require an order to be subject to the super-affirmative procedure—and then recommend that a Minister should make specific amendments. Ultimately, if there is a disagreement with the Minister’s view—his consideration—that is insurmountable; they have the statutory right to veto an order. Those procedural safeguards allow for an appropriate and in-depth scrutiny. For those reasons, the Government cannot agree to the amendments tabled by the noble Lord, Lord Goodhart, and others.
I shall turn to the second set of amendments which the noble Lord, Lord Goodhart, invites us to consider. An order may make such consequential, supplementary, incidental or transitional provision—including provision made by amending or repealing any enactment or other provision—under Clauses 1 and 2, as the Minster making it considers appropriate. The noble Lords, Lord Goodhart and Lord Maclennan, propose that the wording in Clauses 1 and 2 should be changed to read “is reasonably required”.
The amendments are unnecessary. As I am sure the Committee understands, a Minister is in any event under a public law duty to form a reasonable view of what consequential, supplementary, incidental or transitional provision is appropriate. Those provisions mirror Section 1(5)(c) of the 2001 Act and, as far as I am aware, that provision has caused no practical difficulties to date.
Furthermore, the Bill includes provisions for stringent parliamentary scrutiny, as I have already described on several occasions—in particular, in dealing with this amendment. If the relevant committees of either House object to any part of the order, including any consequential, supplementary, incidental or transitional provision, they can require the super-affirmative procedure and suggest amendments and, ultimately, have the power to veto the order—a process which I had somewhat hoped would satisfy the noble Lord, Lord Forsyth, who clearly wants to see a rigorous test to judge whether orders are right.
I do not think that the words “he considers” are otiose. It is right that it is the Minister's view that counts. The words show that it is the Minister who takes responsibility; it is the Minister who is held to account. That is why we reject the amendments. We do not think that a case has been made to strike the words from the Bill. I invite noble Lords to reflect on what we have said this afternoon, and to think further before Report. I hope that the noble Lord will withdraw his amendment.
Is the Minister saying that there is a difference between the Bill and the 2001 Act, or not?
I thought I had made that point. The noble Earl obviously disagrees. It is important that the Minister is put to the test and has to give consideration. It is his consideration; it is a considered view. It is therefore important that it is in the Bill and is a subjective test. Otherwise, the element of the Minister taking a lead in deciding the matter is not operable in the way in which the legislation attempts to make it.
This is not a test in any circumstance. Given the political framework, which the Minister has spent some time outlining—so before the matter ever gets to the courts, political control is being built into the Bill—I cannot see what is to be maintained by keeping these words. Can the Minister explain what difference it would make if they were taken out?
As the noble Lord, Lord Goodhart, explained very well in his introduction, the words would shift the test away from being a subjective, accountable, political decision to being what he contends is an objective test. We insist that the subjective test is the right one because it puts the Minister at the heart of the decision-making. That is right in a parliamentary and democratic system.
The wording in the 2001 Act is pretty much the same wording that we have put into the Bill. There have been no difficulties with the existing wording in the regulatory reform order process in the way in which we have tried to use it. As I have explained before, we have not made as many regulatory reform orders as we would like because the process is onerous and rather cumbersome. That is an important debate in itself, but the wording that we are putting into the Bill is very similar, as I understand it, to the wording in the 2001 Act. I think that that wording has worked well.
Is the Minister saying—if he is, I might change sides—that the 2001 Act, which I confess I have not studied, has the phrase “he considers” and that there is no change? I thought that my noble friend had suggested that there was a difference. Either it is the same or it is different. If it is different, we want to know why. Would it be helpful if I continued talking while the seventh cavalry arrived in aid of the Minister? That is the crucial aspect. I do not think that any of us wants to make the Minister’s life more difficult.
I did say that the ministerial opinion requirement in the Bill is not new. It has worked well under both the 1994 Act and the 2001 Act; so it has its origins in legislation with which the noble Lord will be extremely familiar. I repeat that there is no evidence that this needs to be changed in the Bill. I am advised that the wording is different, but at the margins. For the benefit of precision, one should be clear.
That will not do. The Minister has spent the past 10 minutes telling us that the wording was more or less the same. He is now telling us that it is different, and he appears to have only just discovered that it is different. We want to know why it is different.
I ask the noble Lord to reflect on what I said. The ministerial opinion requirement is not new, but the wording is different—that is the point. The ministerial opinion requirement is carried over from the two earlier Acts. That the wording might be different is not the point; the opinion is the issue.
Does the Minister say that the Minister has to consider under the old Act? If not, why change it? If it is to be changed, what is the reason? That is the question that we have all been asking and asking. I hope that we will go on asking it until the Minister finally comes up with the right answer or an answer that is clear and easy to understand. But “I hae ma doots”, as they say.
That is brilliant, and the noble Lord is probably right. The important point is that the test in the 2001 Act is not wholly objective. In our view, the words in the Bill are rightly not objective. I am happy to do the research and provide the precise wording so that noble Lords can have a comparison between the two. As I said a few moments ago, however, the ministerial opinion requirement is not new. It is the same as the requirement in legislation that we carried over from 2001, and by implication it is the same as was there in 1994. Noble Lords opposite clearly thought at the time that the subjective test was the right one because it was their legislation, and they argued for it. That is the key point.
Use of the words “he considers” puts the onus on the Minister to give evidence and justify the proposal, and it is for Parliament to determine whether it agrees with that evidence. It is the same process as that used for primary legislation and, given that these powers are for changing primary legislation, that is important. It is right that judicial review is reserved for circumstances where the challenge is whether that view is reasonable. I return to the point: it is right that the court does not substitute its decision for the Minister’s. That is why the term “he considers” is very important to this legislation. It was important in 1994 and in 2001 and it is important in this Bill.
I should like to express my gratitude to the noble Lord, Lord Norton of Louth, for putting his name to the amendment and speaking in support of it and to all other noble Lords who spoke in support of it. Some noble Lords spoke the other way. The noble Lord, Lord Borrie, was concerned that our proposals might increase the scope for judicial review. However, I do not think that that is likely. However it is phrased, those who are upset by a decision will be strongly tempted to apply for judicial review if the case is sufficiently important. With these amendments, those who object may be more likely to be successful.
The noble Lord, Lord Stoddart of Swindon, raised a question of great importance; that is, who will take the decisions? Perhaps I may deal with that briefly. I hope very much that if the Bill goes through, Parliament or your Lordships’ House will block any attempt by Ministers to use it in circumstances where there is serious doubt about the propriety or legitimacy of doing so. However, that may not happen. It may not happen in the House of Commons because of a whipped vote which supports the order over the objections of the committee reporting on it. It may not happen in your Lordships’ House because our powers are reduced. But if Parliament is unable to put the matter straight then of course the burden falls on the courts through judicial review, and the question here is what test the court should apply. Should it be necessary for the objector to satisfy the court that the decision was not only wrong but so wrong as to be irrational, or is it sufficient to show that, looking at all the circumstances, the decision was simply wrong?
The Minister said that this means that the decision of the Minister would not be political. I do not think for a moment that that is correct. It is not the politicality of the decision that renders it subject to being quashed. For instance, it is quite irrelevant that the opposition party might have taken a different view had it been in power and would not have taken such a decision. The courts will not quash an order simply on the grounds that it is political, but what they could and should look at is whether in fact the order would serve the purpose under Clause 1 of,
“removing or reducing any burden, or the overall burdens”.
Here I speak without looking at the question of whether that provision is going to be amended. Further, looking at Clause 4, which is the subject of Amendment No. 50, the question the court should look at is whether the policy objective intended to be secured by the provision could have been satisfactorily secured by non-legislative means; does the provision remove any necessary protections and so forth? These are not political decisions but ones on the interpretation of the Bill. Further, owing to its special nature and the extraordinary power it gives to override primary legislation by secondary legislation, in the circumstances I believe it right that the decision should be a wholly objective one and not what I have described previously as a hybrid, semi-subjective one.
The noble Lord has spelt out his case very carefully and we are grateful for that. What he is saying, in essence, is that a Bill should be amended to allow the courts, and none other than the courts, to decide whether or not an order should be approved. That is politically rather sensitive, if I may say so.
Yes, indeed I do. It is obvious because it is a case where the objector does not have to go as far as showing irrationality in the decision. It only has to go as far as showing that the decision reflects the judge’s view that the condition does not satisfy the wording of the Act. It is basically a question of who interprets the legislation. In a case of that kind, given the very considerable powers conferred on Ministers by this Bill, they should be counteracted by strengthening the powers of judicial review over those decisions.
In those circumstances, I will ask the leave of the Committee to withdraw the amendment.
Before the noble Lord withdraws the amendment, perhaps I may point out to him that it sits on just one word. I believe it is customary that if we introduce a further amendment on Report, we will have to alter the wording somewhat. How can this amendment be altered? It is a terribly simple point. I come back to what the noble and learned Lord, Lord Lloyd of Berwick, said—and he ought to know, he is a Law Lord. How can an amendment of one word, having been withdrawn, be altered at Report stage?
I am unaware of any such rule as the noble Earl, Lord Onslow, suggests. I have, over and over again, withdrawn amendments and brought them back at later stages. I think that that applies to this Bill as much as to any. In the expectation that the amendment will be resurrected in the same form at Report stage, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Page 1, line 6, after “he” insert “or any person suffering a disproportionate burden resulting from any legislation”
The noble Baroness said: I hope that this will refresh the Minister, and perhaps I can get my own way on the Bill.
In moving Amendment No. 2, I shall speak also to Amendments Nos. 3 and 4. This group of amendments seeks to test the process of consultation that is in place to deal with representations from business and organisations about the regulations to which they are subject. The process of initiating an order under Clause 1 begins with the Minister considering whether any order would serve the purpose of removing or reducing any burden, but there is no duty on the Minister to initiate such a process. We have tabled amendments, which will be debated later today, that impose a duty on Ministers to deregulate, but the purpose of this amendment is to make the consultation process on regulation more transparent.
If a Minister does not think that a representation has merit or that the burden is not disproportionate, then this amendment would require the Minister to let Parliament know formally. This, we hope, would focus the minds of Ministers and their officials to justify why regulations that seem to be placing a disproportionate burden on business and individuals are remaining in force. More importantly, Parliament could see what regulations seem to be attracting the most amount of criticism. In addition, this would be a guaranteed way of ensuring that Parliament would see why the Minister has decided that the burdens complained of are proportionate.
I draw support for this idea from the Better Regulation Task Force report to the Prime Minister entitled Less is More, which was published in March 2005. Recommendation 2 of that report states:
“The Task Force recommends that by the end of 2005 the Regulatory Impact Unit in the Cabinet Office, should, in consultation with departments, develop a robust mechanism for the submission of proposals for simplification by business and other stakeholders. The mechanism should require businesses and other stakeholders to submit evidence in support of their proposals, with options for reform. It should require departments to respond within 90 working days, setting out and justifying the course of action they propose with a time limit for delivery”.
Our amendment seeks to get the ideas in this recommendation into statute. I understand that Clause 14 deals with the consultation process after the Minister has proposed to go ahead with an order, but could the Minister shed some light on the consultation process on existing regulations? In particular, I would welcome an update on the implementation of recommendation 2 of the report. What formal mechanisms are now up and running to vet individual representations about regulations? The Government’s response to the report states that the full process for dealing with simplification proposals will be launched by December 2005. Is this on course?
I also understand that the Government were to submit to the Better Regulation Commission a six-monthly update on progress with the implementation of the recommendations. Can the Minister explain when that report, which is now due, will be available, and whether it will be made public? I beg to move.
I welcome the noble Baroness’s positive approach to the Bill, which is in sharp contrast to some other contributions that have been made this afternoon. I welcome the fact that the amendment focuses on those who consider that they are suffering from disproportionate burdens and the way in which it questions the Government’s management of representations from those who believe that to be the case. The intention behind the amendment is entirely laudable and praiseworthy, but perhaps a fraction misdirected. I shall explain why we think it is unnecessary.
The noble Baroness drew attention to the Better Regulation Task Force report, brilliantly entitled Regulation—Less is More, published in March of last year. She quoted the chunk of the report which I, too, was going to quote in advancing the Government’s case, so we will not bother with that. But suffice it to say, there is clearly agreement across the Chamber on these issues.
In September last year, the Government put in place the better regulation portal. As I have described to the noble Baroness and others outside the Chamber, it is an online mechanism for those regulated to submit simplification proposals. The better regulation portal is but one method that can be used by stakeholders for the submission of simplification proposals. Stakeholders can simply submit proposals in a number of other ways—by letter, e-mail, through existing contact with departments and through the industry-wide and government fora that exist. All departments are committed to responding to these simplification proposals within 90 working days, setting out and justifying the course of action they propose and, if possible, a time limit for delivery.
The scope of the initiative includes all existing regulations which affect the private, public and voluntary sectors across domestic and European issues. So far we have received 330 proposals—121 through the portal, 38 by e-mail and 171 by correspondence. Of these proposals, 28 reforms are being taken forward by the respective departments responsible for the policy and 50 have been declined. The remaining 252 proposals are still under active consideration by departments and are in the process of being responded to.
One example of a measure received through the portal process and acted on by a department relates to form 42, a report on employment-related securities—any transfer or issue of shares—required by Her Majesty’s Revenue and Customs. That form was causing annoyance to small and medium-sized enterprises; the cost to businesses has been estimated at £200 per form. Acting on this suggestion, the Chancellor announced in the 2005 Pre-Budget Report the removal of the requirement for over 90 per cent of UK companies to fill in form 42. I understand that this burden has been removed from more than 300,000 companies, saving them £200 per form—an estimated saving to the UK economy of £60 million.
I accept that this is one example of the successful approach of using the portal, and I am sure that there will be occasions on which proposals are not taken forward. That might be for a number of reasons. In some cases, proposals are based on a misunderstanding of the regulation, and responses clarify the fact that there is no legal requirement to undertake a specific training course on portable appliance testing, for example. In others, it is hard to see the benefit of changing legislation to, for example, make tax discs square rather than round. Departments will also need to consider proposals in context and may need to weigh up a number of factors before deciding whether to go ahead with a particular reform.
Given the volume of proposals received it would be impractical to lay a report before Parliament setting out the reasons why a proposal to make an order was declined, which is at the core of the amendment. Civil servants should use their finite resources to root out unnecessary bureaucracy rather than invest more of their time in producing lists and writing more reports for Parliament. Of course, we need to identify those who suffer a disproportionate burden from legislation. We are the first Government in the UK to face up to the challenge of identifying and measuring the total administrative costs placed on business, charities and voluntary organisations by government regulation so that we can take action to reduce them.
The noble Baroness asked about the requirement placed on departments to publish detailed information on both the administrative costs of complying with government regulations and plans for reducing these costs and other regulatory burdens. I cannot give a definite time for the publication of that information, but it will be later this year. Departments are also obliged to report on their better regulation work as part of their annual reports, as they have done for the past two years. Reporting requirements, therefore, are already in place.
The Better Regulation Executive is developing proposals to improve the effectiveness of regulatory impact assessments. The aim is to improve the clarity with which costs and benefits are presented and to streamline the RIA requirements to make them easier to use throughout the policy development and implementation cycle. The Better Regulation Executive intends to consult on its proposals shortly.
We must not lose sight of the fact that there are sometimes valid reasons why some activities receive a disproportionate burden from legislation. An example would be the introduction of more targeted, or proportionate, risk-based burdens, such as a more efficient, risk-based inspection regime, where the burden of inspection on those judged to be low risk is reduced at the expense of more onerous inspections for those judged to be high risk.
The Government make no apologies for targeted regulation that improves standards in public services, promotes competition, ensures fairness at work, helps industry, provides protection for consumers and the environment, and strips away unnecessary or outdated regulations, both here and in Europe. These amendments are unnecessary for the reasons that I have just set out. I therefore suggest that the noble Baroness, having heard about the work that is going on, the timetables for reporting and our commitment to continue consultation with those parts of industry to which a regulation is relevant, withdraws her amendment.
I listened carefully to the Minister and will read what he said when it appears in Hansard. I am sorry that the Government believe that providing Parliament with a list of reasons why requests have been rejected would be too much of a burden and take too much time. The reason why we are having yet another crack at lifting or easing the regulatory burden on businesses is that nothing moves quickly enough and nothing is done fast enough. That is to a large extent because nothing is transparent. Our intention is to focus the minds of Ministers and their officials on justifying why the regulations that seem to place a disproportionate burden on business and individuals remain in force. If we are unable to see why a request is rejected, how can we pull Ministers and their officials down to a point where they will get on with this job? Given the amount of money that we spend on making lists of this, that and everything else, spending a little bit more on reporting to Parliament is not asking for much. I shall of course ask leave of the Committee to withdraw the amendment, but I am disappointed by the Minister’s response and will return to the matter at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 and 4 not moved.]
Page 1, line 7, leave out second “or” and insert “and”
The noble Baroness said: The purpose of the amendment is to ensure that the net effect of any order made under this clause would be to reduce the overall burden of any piece of legislation. At present, a Minister could introduce a measure to reduce the burden on one person but in theory in doing so could raise the overall burden on several others. The Minister in another place indicated that the,
“new clause … emphasises the reduction in the overall burden”.—[Official Report, Commons, 15/5/06; col. 723.]
But he did not give a cast-iron guarantee that Clause 1 could not be used to increase the overall burden. Emphasis is one thing, but we need a guarantee. As the Bill stands, the Minister can say that he wants to remove a burden even if there is an increase in overall burdens—and that cannot be right. That situation may well be unlikely, but the potential is there.
I am sure that the Government would like to see the overall effect of any order under this clause being deregulatory and I had hoped that the difference between us on this point was essentially a matter of the drafting of subsection (2). But I fear that the letter that I received from the Minister last week indicates that the contrary is the case. We accept that in introducing an order some burdens might need to be shifted on to others; indeed, that is what the Minister accepted in another place when he said that,
“it is possible for the burden on some to go up as a new deregulatory process comes into being”.—[Official Report, Commons, 15/5/06; col. 783.]
In the letter that the Minister in this place has sent me, for which I am extremely grateful, he confirmed that flexibility, explaining that,
“removing or reducing a burden from one person may increase the burdens upon others, so the first alternative could permit an overall increase on persons as a whole, for example where a regulatory regime is being placed on a risk basis costs on low-risk businesses would go down, whilst costs on high risk business may go up”.
But that should not preclude a guarantee written into the Bill that the net overall effect of any deregulatory order is to reduce the overall burden. The clear exposition of this contained in the letter that I received means that the Bill is not necessarily deregulatory at all. In fact, it could be quite the opposite. I beg to move.
Amendment No. 53, standing in my name and that of my noble friend Lord Goodhart, would also address the point raised by the noble Baroness about the possibility of new burdens being created by an ostensibly deregulatory lifting of burdens. The point advanced in our amendment is perhaps narrow, particularly in the light of Clause 4(2)(c), but none the less it is important. Clause 4(2)(c), which establishes a precondition, making it not permissible to utilise the powers of the Bill unless it,
“strikes a fair balance between the public interest and the interests of any person adversely affected by it”,
seems rather widely drawn, since the phrase “public interest” is an omnibus phrase and does not make it clear that it may necessarily involve the specific interests of other individual people who are or may be affected by the proposed change in the law.
The drafting of our amendment is designed to make it quite clear that the specific interests of different groups of individuals must be weighed against each other and that any measure designed to lift the regulatory burden from one group must be seen to be proportionate in its impact on that other group. I commend our amendment to the Committee.
Amendments Nos. 5 and 53, as the noble Lord, Lord Maclennan of Rogart, explained, go in the same direction. The power to remove all the burdens resulting from legislation is, as noble Lords will understand, provided in Clause 1. As well as removing or reducing burdens, it could also introduce new burdens, so it may be helpful to explain some of the thinking behind Clause 1(2). As the noble Baroness said, I set some of that out in correspondence.
First, Clause 1 permits the removal or reduction of any burden that results for any person from legislation. Removing or reducing a burden from one person may, however, as I think is now understood, increase burdens upon others. This reflects the situation under the 2001 Act and could allow, for example, a reduction of burdens on the regulated at the expense of an increase in burdens for regulators. Another example would be the introduction of more targeted, or proportionate, risk-based burdens; for example, a more efficient, risk-based inspection regime, where the burden of inspection is reduced on those judged to be low risk at the expense of more onerous inspections for those judged to be high risk.
Secondly, Clause 1 also permits the removal or reduction of the overall burdens resulting for any person from legislation. This would permit an order to replace a scheme that imposes burdens on a person with another scheme that is less burdensome overall for that individual. New burdens could be imposed on a person if that was done in the context of reducing the overall burdens that result from legislation for that individual.
As I said, that was possible under the 2001 Act. For example, the Regulatory Reform (Fire Safety) Order created one simple, risk-based fire safety regime applying to all buildings that the public might use. That reduced burdens on a large number of businesses, but the rationalisation also imposed new, proportionate burdens on some other businesses.
Amendments Nos. 5 and 53 address the issue of whether orders should have to effect a net reduction in the level of burdens to which a person is subject. In calculating the net level of burdens, it is important to remember that the measurement of burdens is not an exact science. It is difficult to compare the relative impacts of burdens, given the definition of “burden” in Clause 1. These are issues of judgment based on evidence—evidence that, as we discussed, the Minister will weigh and which the parliamentary committees will rightly challenge and confirm where appropriate. For example, Amendment No. 53 seeks to impose an additional precondition stating that any new or increased burdens can be imposed on one person only to the extent necessary for the removal or reduction of burdens on others, and the new or increased burdens must be proportionate to that purpose.
In any case, the precondition in Clause 4(2)(c) requires that the provisions of an order, taken as a whole, must strike,
“a fair balance between the public interest and the interests of any person adversely affected by it”.
This would ensure that any new burdens imposed by an order were considered in terms of the wider public interest.
Amendment No. 53 would require that an administrative inconvenience may have to be weighted against an obstacle to productivity or a sanction. In many cases we can calculate in monetary terms the impact that the removal or reduction of these burdens would have. But in some cases—for example, that of administrative inconvenience falling upon individuals—the administrative inconvenience may not impose a financial cost. In these cases, the different types of burdens being added and removed could be incommensurable, and it would therefore be impossible to compare the burdens imposed on one person with the burdens removed from another.
Amendments Nos. 53 and 5, therefore, would in many cases dramatically increase the analytical work that would be needed to deliver an order, replicating one of the major problems with the 2001 Act about which there have been complaints, and slow down the pace of regulatory reform by order. In some cases, it would simply not be possible to calculate whether the level of burdens overall had been reduced. The task would be like trying to compare chalk and cheese, so it would not be possible to deliver a beneficial reform by order. I should make it clear that Clause 1(2) allows orders to remove or reduce a burden. The second purpose of removing or reducing overall burdens makes it explicit that new burdens can be imposed on a person where overall burdens for that person are reduced. Since the purpose of the Bill is regulatory reform and cutting bureaucracy, it would be wholly inappropriate for orders to be used to create unnecessary burdens.
Clause 15 provides that, for orders made under Clause 1, the explanatory document laid before Parliament must include details of the consultation responses received, which could highlight the creation of any unnecessary burdens. The document must also explain why the Minister considers that the preconditions in Clause 4, which include proportionality, are met, and must include an assessment of the extent to which the provision made by the order would remove or reduce any burden or burdens. It is government policy that, where appropriate, measures should include full impact assessments.
The amendments tabled by the Government provide the parliamentary scrutiny committees with the power to veto proposals that they consider inappropriate for delivery by order, and I would expect that proposals that significantly increased red tape would fall foul of that test. As I have explained, the Bill already provides Parliament with an opportunity to assess the impact of any new or increased burdens and to consider the views of those affected. Amendments Nos. 53 and 5 would slow down the order-making process and could prevent beneficial reforms from being delivered by order. In such instances, we would consider that the Bill, which is designed to speed things up and improve the process, had failed in one of its important objectives.
The second type of failure might be the creation of powers that do not work in practice—for example, because sensible consolidation or the addition of new and better targeted burdens is not possible as part of wide-scale regulatory reform. We might also replicate the problems arising from the 2001 Act and make the powers so complex to use in practice that a prohibitive amount of analysis—as proposed by the amendment—would be required to create an order. It is vital to avoid this. None of us wants to be here in four or five years debating another reform Bill, while businesses and others are still waiting for what we think and they think is an effective vehicle to deliver sensible cuts in red tape.
The third type of failure that we must avoid would be when orders could be used to deliver proposals that did not have better regulation benefits, including entirely new policies such as major education or health reforms or proposals that implemented burdensome regulatory regimes. The order-making powers in Clauses 1 and 2 are drafted to prevent that but, as the Parliamentary Under-Secretary of State for the Cabinet Office, Pat McFadden, said in another place, we must beware that our efforts to refine the order-making power do not lead us into the second pitfall that I mentioned, so that we end up with a beautiful parliamentary process but not one that has a beautiful, useful deregulatory outcome.
In view of those comments, I hope that the noble Baroness and the noble Lord will feel able not to press their amendments and will reflect carefully on the points made in the debate.
I am grateful to the Minister for his reply, which I will study with great care before later consideration of the Bill, but I am bound to say that, on the face of it, he seems to be trying to have his cake and eat it. On the one hand, he is taking credit for initiating regulatory impact analysis, which he claims that this Government have uniquely advanced, whereas, on the other hand, he is not prepared to consider the adverse deregulatory impact on others in equal detail or with equal precision.
I do not doubt that the Minister has a point in saying that you might be comparing chalk and cheese, but you could not, if you objectively analysed the impact of the deregulatory burden, fail to determine whether the change was justified or unjustified in respect of whether it had a proportionate or disproportionate impact on a second group of people. Amendment No. 53 was directed at dealing with that issue, as it is not adequately dealt with by Clause 4(2)(c), which speaks only broadly of the “public interest”. Consideration of the public interest is not something that necessarily safeguards a particular class of individuals who are potentially adversely affected by the proposed deregulation. However, as I said, I will consider carefully what the Minister said.
The noble Lord, Lord Maclennan, spoke very well in response and I do not need to repeat what he said; I agree with him entirely. I am very sorry that Ministers in this House and another place only came so close to getting this right. I suspect that this could blow up horribly in their faces within a year or so. However, that clearly is the Government’s choice. I thank the Minister for his response but am sorry and regret it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 1, line 8, at end insert “made under powers granted by the European Communities 1972 (c. 68)”
The noble Lord said: This is what I would describe as a sporting amendment. Although it consists of only nine words, it would have a substantial effect on the Bill and would, if accepted, require substantial consequential amendments. However, if the Committee were to agree to its intent, I do not think that it would be too technically difficult to produce those amendments in time for Report.
The strongest and most well founded criticism of the Bill is that it would, particularly in the form in which it was introduced in another place, give excessive powers to Ministers to repeal, amend or enact primary legislation without gaining appropriate parliamentary consent. Indeed, it came pretty close in its original form to being a Bill to enable Ministers to take such powers to do such things as they thought they should do without any debate or parliamentary consent. I am sure that all of us who have been Ministers have dreamt quietly at some time in our offices of having such powers. However, in my view—this view also came over very much in the speeches earlier today of my noble friend Lord Jenkin and others—the Bill is still too wide and too deep in its coverage and it would give more power to Ministers than Ministers should really have.
The intent of the amendment is to restrict the powers of Ministers under the Bill so that they can amend, annul or create only those regulations and legislation that have been created under the powers granted by Section 2 of the European Communities Act 1972. As I mentioned today, those powers are enormously wide. There is not much doubt in my mind, or in most of our minds, that most of the mischief that Ministers say needs to be addressed by this Bill derives from Brussels. That is where most of the irksome, burdensome regulations have come from. The Bill, as I would amend it, would leave those powers there to deal with that Brussels legislation. However, it would deny the powers that the Government have sought to amend primary legislation—and, indeed, regulations—without normal parliamentary procedures. In my judgment—which I think my noble friend Lord Onslow shares—giving such powers to the Executive is really like offering free intoxicating liquor to alcoholics: they will take it—they will grab it—and they will use it.
My amendment would also remove powers, which might still remain in the Bill, to repeal, make or amend secondary legislation made under Westminster primary legislation. I do not think that Ministers can object to that. They always say that the regulations that they have made are wise, sensible and needed, and that they have not really made very many of them, so it would not be very often that they would want to replace them. It seems to me quite reasonable that when they do want to replace or amend such regulations, they should use their existing powers to deal with them. Wherever a regulation had been made, they would have a power to unmake it. If they deemed that those powers were inadequate, they could argue for them to be increased—perhaps, as was suggested earlier, in a Bill to amend the 2001 Act to make it more convenient to use.
I hope that the simplification of the Bill will appeal not least to the noble Lord, Lord Bassam, and even more to my noble friends on the Front Bench. I am sure that they will be attracted to restricting the Bill solely to dealing with regulations and other legislation made under the 1972 Act. I can see that my noble friend Lord Waddington is anxious to remind me of his amendment, which comes later. I beg to move.
I am not sure that my noble friend’s main purpose in moving his amendment was to give publicity to my amendment but it is a useful trailer. It is not exactly a paving amendment but it directs the Committee’s attention to Amendment No. 30, which, put in the simplest terms, would provide a machinery, if Parliament so willed it, to reverse provisions which had become law because of the operation of Section 2 of the 1972 Act. It is absolutely certain, as I hope every noble Lord in this Chamber will agree, that a deregulatory measure which does not recognise that most of the burdens on business originate in Europe is mere window-dressing.
I remind the Committee of certain remarks made by the noble Lord, Lord Bassam, at Second Reading on 13 June. He said, as if it were a matter for congratulation:
“The Commission has dropped more than 65 proposed pieces of legislation and has undertaken to simplify up to 1,400 individual pieces of Community legislation ”.—[Official Report, 13/06/06; col. 123.]
He said that as a sort of puff for the Commission, suggesting that its heart was in deregulation. But that form of words was deliberately created to conceal the truth. If you read the words carefully, you will see that the Commission is in fact saying that it has not reversed one single provision which has become law since it was invented and that it has not the slightest intention of reversing one single piece of law which it has created since it was invented. It is saying only that it has scrapped some of the nonsense which was in the pipeline and that it is prepared to see whether it can simplify certain other measures. It is a denial of any intention by the Commission to deregulate, and people had better recognise that.
The Bill currently does not provide the power to deal with regulatory burdens imposed on business by operation of the 1972 Act. If there had been such a provision in law, if Parliament had so willed and if it had been prepared to face the consequences—because there would have been consequences—it could have dealt with the situation mentioned earlier by my noble friend Lord Tebbit. It could, if it so willed, have said, “We will not have those provisions applied to the Armed Forces and, using the provision invented by the noble Lord, Lord Waddington”—in fact, not invented by him at all but adopted by him after it had been invented by Mr Cash in the House of Commons—“we will reverse what otherwise would have been of effect as a result of Section 2 of the 1972 Act”.
To remove the mass of burdens on industry, Parliament needs the sort of provision contained in Amendment No. 30. We will come to that later. I need say no more, but that would give meaning to the expression of will contained in my noble friend’s amendment, which I heartily support.
It is always risky to get into an argument with the noble Lord, Lord Tebbit. I am sure that by speaking to the amendment, I am walking into a big elephant trap. I am somewhat puzzled. Earlier this afternoon the noble Lord reminded us that the Bill was not at all necessary and that a previous Government had, under the 1972 Act, done something through an order which was not opposed by Parliament. So there is an instrument available that allows the Government to do whatever they want without the 1994 Act or the 2001 Act or the 2006 Act. Given that there was some turning against Europe in the previous Government, I am puzzled that they did not use that provision more. If such a powerful instrument exists, why is it that no Government have used it? I have not been a Cabinet Minister, so I do not know, but I suspect that there are considerable problems in using that method of issuing orders to remove things. Depending on one’s view—and taking the example given by the noble Lord—you could impose the additional burden on the Armed Forces and remove the discrimination at that stage.
I am not sure whether this amendment is telling us to use the instrument more or whether, as the noble Lord, Lord Waddington, said, this is a great opportunity to remove the burden of Europe entirely from our shoulders.
That is not what I am saying. I am saying that my amendment would allow Parliament, in a particular case, to state that it will not apply Section 2 of the 1972 Act. It is a procedure whereby Section 2 of the 1972 Act could be disapplied, if that were the will of Parliament in a particular case.
I am very grateful for that explanation. I shall have to think about it between now and Report. I may return to it. A later amendment states that one of the sacrosanct Acts that the Bill shall not be allowed to amend is the European Communities Act 1972. There would be conflict between this amendment and a later one as people may want to protect our constitutional rights and preserve all those Acts. I have no doubt that there are various snares and traps awaiting me. I hope someone will clarify what this is all about.
My noble friend's sporting amendment, as he referred to it, is typically ingenious and provocative. He is right to draw attention to the fact that, as things now stand, bureaucrats in Brussels may make orders that bind the Parliament of the United Kingdom without this House having any effective power to stop them, while there would be cries of outrage from Europhiles that any parallel order-making power might be conferred on our own bureaucrats to make orders to do away with European Union legislation. That goes to show that there is a one-sided relationship between the United Kingdom Parliament and the European Union bureaucracy, to which the Government would do well to give more serious attention than they have in the past nine years. Indeed, in the past nine years it has seemed as if an unofficial competition has been running between government departments, not about which could remove most EU regulation, but which could gold-plate an EU regulation in the most extravagant and burdensome way.
Few things have more typified the empty spin and ineptitude of the Prime Minister than his parrot cry that the debate in Europe is coming our way, while all that really comes our way are bucket loads of new draft regulations. Most of us have given up hoping that anything will be done while the Government are in power. They have constantly spoken of deregulation, but all they have done is regulate, regulate, regulate, with gold-plating of EU directives at the heart of it.
I regret to say that this is the fault not only of Ministers but of Permanent Secretaries in departments that have failed to get a grip on the regulation mania that seems to beset public administration in Europe, slowly but surely strangling our international competitiveness. It is high time that some kind of limit was placed on the amount of legislation and regulation that each department can pass. A little less thoughtless regulation and a little more thoughtful administration would do us all a power of good.
I agree with the basic spirit of my noble friend’s amendment, but I am sorry to say that I cannot support it. As drafted, it confines the deregulating powers to dealing with EU legislation only; whereas if we can agree an acceptable mechanism subject to proper parliamentary control, it should apply to UK regulation as well. Furthermore, I do not think that an order-making provision of this kind would ever be used by the current bunch of Ministers. Can you image our Prime Minister going into the European Union Council with 10 draft orders under his arm, warning the assembled heads of government that unless they stop trying to control our immigration policy, he will lay an order legalising the use of pounds and ounces in Sunderland market? He would make no such orders. When he goes to the Council, he is too busy making concessions.
Despite my sympathy with my noble friend, therefore, any change in our workings within the EU and its legislative powers should follow specific parliamentary debate on primary legislation. In conclusion, however, I ask the Minister not to brush aside the issues underlying an important amendment. I ask him to tell the Committee frankly whether he is satisfied with the current weight of EU regulation and our capacity to deal with and scrutinise it, and, if he is not, what he is going to do about it for us. As part of that, will the Minister tell us how many EU regulations he has managed to have repealed in the past six months? His officials will no doubt be able to supply that information before the end of the debate. I have asked for information on only six months, as it is those triumphs that will no doubt be uppermost in the Minister’s mind as he rises to speak.
The amendment of the noble Lord, Lord Tebbit, is certainly “sporting”; there is no doubt about that. It has probably led to a bit of grief on the Front Bench opposite, because there is clearly a sharp difference of opinion. The 1972 Act was enacted not by a Labour Government but by a Conservative Government. I am always pleased to see that the noble Lord, Lord Tebbit, has not changed in his general scepticism of all things European. It is refreshing to have a distinct view expressed in this Committee, and the noble Lord does it very well indeed.
I have been invited to comment on the amendment of the noble Lord, Lord Waddington. Unless the noble Lord is not going to move it, I think that we should save that debate until later. But there is not much to choose between the comments and propositions of the noble Lords, Lord Waddington and Lord Tebbit. They might be acting in concert, and that is fair enough.
The noble Lord, Lord Waddington, made one point to which I wanted to respond. He reflected on my comments at Second Reading and in the debate on European regulation inspired a while ago by the noble Lord, Lord Grenfell. We are proud of our role in encouraging a deregulatory approach by the EU. The EU is perhaps in some respects a bit behind the UK in attempting to deregulate. That is not the case for all EU states. Some are perhaps a bit more advanced, but most are behind us. They are now recognising that we have a robust approach. I reject the allegation that we gold-plate EU regulations because that is not our intention at all.
The power to remove or reduce burdens should certainly be used to remove gold-plating, and the Davidson review is currently considering evidence about gold-plating. That review will report later this year, and, if appropriate, the Government will use powers in this and other legislation to ensure that we do not gold-plate, because that is not what we want to achieve.
As to the amendment tabled by the noble Lord, Lord Tebbit, I wonder whether he really wishes to limit the order-making power in Clause 1 to remove and reduce only those burdens resulting from legislation made under the powers granted by the European Communities Act 1972. I think that he ultimately does not wish to do that, because he spoke with eloquence earlier on the need to restrain regulatory activity by governments—not only this Government but all governments. We argue that it is more sensible to remove or reduce by order burdens resulting from any legislation and regardless of whether they originate from the European Community. As this amendment would impose an unnecessary restriction on the order-making power in Clause 1, I urge noble Lords, whether they be Front-Bench Conservative Peers or not, to reject it.
It is worth reminding ourselves of the value of Section 2(2) of the European Communities Act. It makes provision for a Minister or a department to implement European Community obligations into domestic law by regulation. I know that noble Lords do not always agree with them, but there are many benefits in adopting rules set at European level. For example, the legislation underpinning the common customs union means that the UK can import from and export to all other EU members without having to face 24 different sets of rules and duties. That seems an entirely sensible approach. EU legislation which we transposed into UK legislation opened the national telecommunications market to competition in 1998. Breaking those national monopolies helped to bring down the cost of calls by 40 per cent to 50 per cent. Although I could quote many other examples of the valuable transposition of EU regulatory regimes into UK law, and there might be some benefit in doing so, those two examples alone are sufficiently important.
The noble Baroness asked me to give a figure for the number of EU regulations scrapped in the past six months. I do not have that information to hand and suspect that she did not expect me to. Perhaps I should have had it. But I am happy to write to her and to share the fruits of the correspondence with other noble Lords who have contributed to our debate.
If I understood my noble friend correctly, she asked how many regulations that had come into force had been scrapped, not how many being generated will be aborted or how many will be revised. I think that I can give the Minister the answer now so that he can save himself a lot of trouble. Not a single one has been scrapped.
I am grateful to the noble Lord for that clarification of what noble Lords opposite are after. I commit myself to sharing with the Committee what information we have. But the noble Lord has missed an important point: our intervention at an early stage can prevent a lot of the unnecessary adoption of regulations and can make those who are seeking a regulation think long and hard about what they are achieving. We want open markets—that is what the single European market is about—and the benefits of European trade, and if practical measures can be taken to head off an ill considered proposal that might find its way into our legislation, that seems entirely sensible because we will have negated the need to go through another costly, time-consuming and unnecessary process. I heard what the noble Lord said about that in slightly derogatory terms, but when he reflects further on it he may think that it demonstrates a degree of diligence by the Government in paying close attention to those things. If we did not, he would be equally critical. I hope that the noble Lord, Lord Tebbit, will feel able to withdraw his amendment this afternoon, inviting though it might be to some of your Lordships.
I am most grateful to the Minister and to other noble Lords who have spoken. Let me say first of all to the noble Lord, Lord Desai, that I think that he misunderstood me. If he did so, that must surely be my fault rather than his because I never find that he misunderstands anything which is clearly set out.
The 1972 Act gives huge powers, but only to do that which Brussels demands. It does not give huge powers for this Parliament to conceive something which should be done, and to do it without reference to our partners or, as we sometimes think of them, our masters in Brussels. As my noble friend Lord Waddington said, my amendment really would need the new clause he proposes in his Amendment No. 30, which we will discuss later this afternoon, to be effective and to make it work. As I said when I introduced the amendment, of course it will require many substantial consequential amendments. I confess that I did not think that perhaps it was a wise use of my time to spend too much energy on those consequential amendments at this stage.
As my noble friend on the Front Bench said, this amendment would confine the Bill solely to what I would broadly call Brussels legislation. The advantage of that is that it would enable this Bill to pass through quickly without any undue controversy and limited in what it is set out to do. Then we could settle down with a little more leisure to think what we should be doing on all those other regulations. I think that a common consent is beginning to emerge that it might be much better to amend the 2001 Act, which would be less troublesome and controversial than this Bill—and, as Members of the Committee know, nothing upsets me more than controversy.
The noble Lord, Lord Bassam, said that, if I had my way, we would find ourselves facing the problem of having to deal with 24 sets of import regulations if we did not abide by what Brussels said. That is not so. By definition, it would be only 23, and unless the other 23 powers left the European Union they would all have one identical set of regulations. I say that in passing.
I detect that if I put this to a Division this afternoon I might not get a majority. On the other hand, this Chamber is famed for its sober consideration and thought, and perhaps after sober consideration and thought if I were to bring this back on Report people would see what an absolutely splendid amendment it was. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 7:
Page 1, line 8, at end insert-
“( ) No order shall be made under this section which would impose upon any person a burden to which he was not previously subject.”
The noble Lord said: I introduce the amendment on behalf of my noble friend Lady Wilcox and, in the sporting spirit in which the previous debate took place, it is at this stage a probing amendment.
The amendment seeks to add a phrase to Clause 1(2). That states:
“That purpose is removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation”.
Our amendment seeks to add the following expression:
“No order shall be made under this section which would impose upon any person a burden to which he was not previously subject”.
I would add only that Clause 1(2) should be read in the context of Clause 4(2)(c), which is one of the four conditions the Minister is obliged to meet before he makes an order under Clause 1(1). Paragraph (c) reads that,
“the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it”.
The obligation on the Minister is twofold. He can either reduce a burden, pure and simple, or a net burden; that is, he can produce a kaleidoscope of additions or subtractions of burdens provided, in his opinion, the net result is a reduction in regulation. That is clear from Clause 4(2)(c). The consideration is whether, taken as a whole, the proposed order strikes a fair balance between the public interest and the interest of any person adversely affected by it. So in effect, under the Bill, some people can have the burden on them increased. That is acceptable so long as the net burden falls.
It is perfectly legitimate for Members of the Committee to ask, “Who are these people who will have additional burdens imposed on them as a result of a decision under Clause 1(1)?”, and, “In what circumstances will those additional burdens be imposed?”. My amendment suggests that, whatever the merits of adding to the burdens someone already bears, it should be impossible under the Bill to place a burden on someone who has never had a burden placed on them before. I should be most grateful if the Minister would clarify what seems to be a substantial phase of uncertainty in legislative drafting. I beg to move.
Since there is no such thing as a free lunch, it is always possible that you can satisfy the condition that the net burden will be reduced, but you can never satisfy that the gross burden will always be negative for everybody for whom you legislate. If this condition were to be put, it would make all regulatory orders impossible. I take it that it is a probing amendment, but in proposing it the noble Lord has answered his own question—obviously common sense tells us that in legislation like this what we mean is that a net burden will be reduced, not a gross burden. Reducing a burden on someone can be interpreted by the person on the other side as increasing his burden. That could be easily argued. What we are saying is that, at the end of the day, some burden will be increased. For example, if I put in a regulation about banning smoking in some place, or for something like a pub opening, somebody will say that this is increasing my burden, but for the community as a whole the burden will be reduced.
This is a nice amendment—a good probing amendment—but surely common sense tells us that it should never be in a Bill.
We had some of this debate and discussion on an earlier amendment. I take the point that this is a probing amendment. What I think I said then was that there might be instances where burdens were greater on the regulator than on the regulated, and that given there is a risk-based system, those of a higher risk might well have a greater regulatory burden imposed on them than the lighter risk regulated sector, which would have rather less onerous burdens placed on it because it was of a lower risk. In essence, that is how burdens might be shifted as a consequence. If we had the inflexibility in the legislation which the noble Lord suggests through his amendment, that could have a serious impact on the Bill.
Amendment No. 7 would make orders under Clause 1 very similar to those under the Deregulation and Contracting Out Act 1994, with which I am sure the noble Lord is very familiar. They did not allow the imposition of new burdens. That led to a significant limitation of the reforms that could be delivered under that Act. Orders under the 2001 Act could, and did, impose new—but, we would argue—proportionate burdens. The amendment would constrain flexibility. It would not enable us to shift regulatory burdens where it was sensible, possible and proportionate to do so. It could end up by providing us with a legislative straitjacket.
To make the problem a bit more real, I give the example of a business that is currently inspected five times a year for its compliance with a regulation. The amendment would prevent an order removing that requirement and replacing it with a requirement for the business to carry out self-assessment once a year, which is of course a lower and lighter order of regulation, as that would be a burden to which the business was not previously subject.
For those reasons, in practical terms, Amendment No. 7 is very damaging to the Bill. It would prevent us achieving what I think there is a common consensus that we need to achieve: to have the burden of regulation placed where it is most needed in a proportionate way to enable us to have a lighter regime of regulation in those sectors of business activity, charitable endeavour, and so on. I hope that the noble Lord will feel able to withdraw the amendment.
I am most grateful to the Minister. I submit that his example is not a good one. It is plain that the firm in question already has the burden of responding to the demands of the external regulator. Simply shifting the time that it takes the firm to respond to external demands by requiring it to self-assess may not reduce the burden at all; it may be a net increase on the individual firm. The fact that it must do it itself is no comfort if it takes more time to regulate itself than for an outsider to regulate it.
What concerns me, and what lies behind the amendment, is that under the order-making powers here, a Minister can identify an individual who carried no responsibility for a particular activity before—and therefore carried no burden with respect to it—draw them in and land them with responsibilities that he or she never had before. That is wholly inappropriate to an order-making power of this sort.
I wanted the Minister to say that, of course, there would be no circumstances in which such a burden could be imposed on such a person. From the expression on his face, I suspect that he is not prepared to give me that undertaking.
I would be reluctant to give an undertaking in the terms that the noble Lord describes. His point is fair: that where there is no regulatory burden, there must be very careful consideration of the imposition of new burdens on that person, that business, that enterprise, that entity. Of course that is the case. Our whole key regulatory drive, not just in the Bill but outside it, is directed to ensure that that is the case. But the noble Lord and the noble Baroness, Lady Wilcox, accepted in an earlier debate the point that there may well be occasions where burdens shift and that that is right because it is proportionate, correct and appropriate in the circumstances.
I therefore cannot give an assurance in the absolute terms which the noble Lord seeks. I would be foolish as a Minister to give that absolute assurance. He needs to think very carefully about the nature of that assurance and what it might imply for future regulatory regimes. They cannot work in that way; we need that flexibility. I certainly understand his point; it is one on which we reflect at all times, and will certainly reflect on it having heard what he has had to say this afternoon.
I am most grateful for the Minister's response. He generously admitted the fact that he is unable to meet our criticism. We will go away to reflect on what he has said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 1, line 10, at end insert “or significant quantifiable cost in time”
The noble Baroness said: The amendment is fairly self-explanatory, so I shall not waste too much of the Committee's time. In fact, it is to deal with time. I think that we would all agree that the time wasted on bureaucracy and form-filling in the public and private sectors has got worse every year and is becoming a greater and greater burden. The question is whether the Minister can explain what mechanisms he has in place to measure burdens that are costly in time but not in money. That may be an unusual question, but we felt that it was worth asking. In the voluntary sector, for example, a burden that requires endless bureaucracy and form-filling will not necessarily cost people money, because they are not being paid to do it, but there is a burden. I beg to move.
The noble Baroness asks a simple enough question, but, as with all these things, the question raises many others. First, there is the issue of defining burdens. Clause 1 does that by setting out whether they are financial, administrative, an obstacle to efficiency, productivity or profitability, or a sanction, including criminal sanctions. The definition of “burden” is broader than that in the 2001 Act. That is why we decided to amend the 2001 Act. We have managed to achieve things under the 2001 Act, but we want to do more. In that Act, there was a power to reduce or remove a burden defined as a sanction, criminal or otherwise, where it was an integral and appropriate part of reducing the burden on the regulated.
A good example of that was the Regulatory Reform (Fire Safety) Order, which simplified and rationalised existing fire safety legislation spread over 50 pieces of legislation. By reducing burdens on business in that instance, we saved time that was wasted by the multiplicity of overlapping fire safety regimes that had to be satisfied and the overlap of responsibility for enforcement. There was not just the fire authority and the fire service, but the local authority, together with building control officers, and so on. They all seemed to be working on the same problem.
Through this process, we are attempting to achieve a greater coherence and simplification of the process and how it impacts on people. Amendment No. 8 is intended to add to the definition of burdens. Subsection 1(3)(a) provides that burdens which can be removed or reduced by order include financial costs. Amendment No. 8 adds,
“significant quantifiable cost in time”,
to that limb of the definition of burdens. I argue that the amendment is unnecessary. The definition of burdens already includes opportunity costs—in other words, the time a business spends complying with a regulation when it could usefully be doing something else. This would count as an obstacle to productivity, which Clause 1(3)(c) already provides for, and is a burden for the purposes of the Bill.
Clause 1(3)(c) covers the loss of a financial benefit due to the time spent complying with a regulation. The definition of burden as an administrative inconvenience would also permit the removal or reduction of burdens resulting from legislation that do not actually impose financial costs but do impose administrative burdens, many of which are hard to quantify. This is particularly true of the time that they take, because one cannot be absolutely precise about the nature or the amount of time that an administrative act will take.
We sympathise with the spirit of the noble Baroness’s amendment, but we believe it to be unnecessary because in essence it is taken account of in the legislation. The issue is very much at the core of the debate about burdens and regulation, so I congratulate the noble Baroness on tabling the amendment.
I ask the Minister not to dwell each time on fire safety legislation. He will recall that when we considered the 2001 Bill, as it was then, almost the only example that the Government could come up with at every opportunity was fire safety legislation. It would be a great shame to draw a very broad-reaching power that could amend any Act on the statute book just to get at the fire safety legislation. I am sure that it would assist the House if, during our consideration of the Bill, the Minister could ponder with his officials other areas that may be affected.
The noble Viscount deserves a response. I think that he makes a fair point. The example just happens to be one of the successes under the last legislation. Much of what has been said about what the Government intend the Bill’s impact to be is well wide of the mark, but that is a practical description of something done under deregulation which those who are most affected by fire regulations—pretty well all businesses—probably very much welcome. That is why it is one of our top three examples of excellence under previous legislation, and probably why we have quoted it. I shall ask my officials in friendly terms to come up with other examples.
The answer is surely that the amendment is unnecessary because what it proposes is already included in,
“an administrative inconvenience … or … an obstacle to efficiency, productivity or profitability”.
That is all that the Minister needed to say in reply to the amendment. We could have got on much quicker if he had simply produced the right answer, with which I happen to agree, rather than go waffling on about an awful lot else. I am simply being of assistance to Her Majesty’s present advisers in how to proceed with vigour and intellect.
In this instance, I thank the Minister for his gracious reply and turn to my noble friend behind me and say, “Don’t be so horrid!” Obviously we are all trying to move towards the same thing. I tabled the amendment because of pressure from parts of the voluntary sector, who feel that there are areas in which they have to comply. It takes an enormous amount of time to do so, and they have no money with which to pay people to do it. They seem to see that as a particular burden that they would like to be recognised. I shall read carefully what the Minister has said and see whether I need to come back with this. In the mean time, I thank him for his gracious answer to my question. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 1, line 11, leave out paragraph (b).
The noble Lord said: I understand that Amendment No. 9 has been grouped with Amendment No. 10 in the name of my noble friend Lord Peyton of Yeovil.
Paragraph (b) cites as a potential burden an administrative inconvenience arising out of legislation. As I commented at Second Reading, I cannot think of any legislation that is not administratively inconvenient. On that basis, there is no legislation about which the Minister could not make an order unless it is specifically excluded in the Bill. In effect, the Minister will be given virtual carte blanche to bypass Parliament for whatever takes his fancy. That is too wide a power. We are likely to return to this argument in debates on the Bill.
Later amendments on the constitutional safeguards that need to be built into the Bill may allay concerns over the breadth of the clause, although frankly I doubt whether it is possible to draft a Bill that is both effective and has adequate safeguards. You cannot escape from the fact that what enables a Minister to bypass Parliament to deal with bad legislation also permits him to bypass Parliament for good legislation. As safeguards are quite rightly introduced, so the ability to take decisive action is reduced or whittled away entirely. While we discuss Clause 1, perhaps the Minister can give some examples of an administrative inconvenience. Perhaps, in deference to my noble friend, he could exclude fire regulations when he does so.
I could think of any number of administrative inconveniences that it would be thoroughly inappropriate to remove. Would not an administrative inconvenience fall under paragraph (c) as “an obstacle to efficiency”? An administrative inconvenience can amount to anything whatever, in effect giving the Minister a blank cheque when he decides whether to use his order-making powers. I beg to move.
I want to know when an inconvenience becomes administrative and when it does not. I would be most grateful if the Minister would be so kind as to give me some examples of an inconvenience that is free of the “administrative” adjective. Indeed, I would be enlightened, because I really do not understand what is meant at the moment. I hope that he will be able to do so. My noble friend on the Front Bench has of course covered the point much more broadly and thoroughly than I have.
I quite agree with my noble friend Lord Howard that to make the burden relate to “an administrative inconvenience” is the lowest possible hurdle that one can imagine, but then that fits in with the rest of subsection (3), which includes “a financial cost”. To buy a cup of coffee in the Bishops’ Bar incurs a financial cost. Almost all legislation ever considered would impose a financial cost, and indeed would be an obstacle to efficiency, productivity or profitability. Therefore, I suggest that the whole subsection is otiose. There is no hurdle, and it must come down to the safeguards that we must impose later in the Bill.
I shall speak extraordinarily briefly to the amendments. In doing so, I refer back to the first amendment, because if, in using the word “considers”, we relax the measure a little, as the noble Lord, Lord Goodhart, says, the clause would then read something like, “if the Minister considers the burden to be an administrative inconvenience”. That starts to become a remarkably lax control. As the Minister knows, because I have said it before—and I will say again and again, as it has to go on being said—we should not trust Ministers with more power than we have to. They might act on something that they consider to be an administrative burden and consequently repeal primary legislation. The Minister may frown and say, “That is not what we intend to do”. Whenever I came back from school and my report was appalling, I used to say to my mother, “I meant not to do that”. She used to say to me, “The road to hell is paved with good intentions”. We all know that it is paved with good intentions.
If the Bill gives someone the power to do something, as night follows day that power will be used. We have only to look at the powers being used under other legislation—for example, the arrest of a poor, wretched man at the Labour Party conference, or the police using the evidence of newspaper articles on charges under the SOCP Act. If we had thought that these things were possible, we would have made a much bigger row in Parliament. I do not trust Ministers. This is too broad. It is another aspect of legislation of such breadth being allowed to go through without jot or tittle. I hope that the Minister can come up with an answer that will assuage my doubts, but I doubt it.
I reinforce what my noble friend has just said. My noble friend on the Front Bench, Lord Howard, invited the Minister to give examples of administrative inconvenience. I suspect that the Minister will be able to come up with petty examples that we would all be delighted to get rid of, but that is not the real problem. The real problem is that the scope or the potential is enormous. I agree with my noble friend Lord Goschen about the whole of subsection (3), but this paragraph is the broadest. It is the Trojan horse through which one could achieve a great deal if one was so minded. The Minister earlier referred to the Government’s intent in the Bill, but that is not the real issue. The important issue is what future Governments could do with this Bill. Therefore, I invite the Minister, rather than answering my noble friend in identifying examples, to address the potential scope that this subsection gives rise to.
First, I invite the noble Lord, Lord Norton of Louth, to consider this. It is obviously a very beguiling thought that one could always future-proof any legislation. This is a general invitation to the noble Lord, which is not specific to this Bill. But I would like him to provide examples of how that would work and how it might be possible. If it could be done in a way that worked well, I am sure that it would give great comfort to everyone on the longer-term intentions of any Administration, not just the current one. I am sure that I can remember making arguments when my party was in opposition not about what existed there and then, but about something that we were suspicious of in the future. The trouble is that, by and large, it is not possible to future-proof legislation in order to prevent things that future Governments might want to make happen when there is a change of Administration. There is a difficulty and the noble Lord knows that, although it is part of the current debate, in which I am interested for those reasons.
For the noble Lord’s benefit, I can think of an example relating to the potential to which an Act could be used—the Parliament Act. That Act was not ring-fenced. On this Bill, there will be amendments precisely defined to ring-fence and limit it, so that it will deliver the Government’s intention and prevent future Governments from encroaching into those areas into which the Minister says the Bill is not intended to encroach.
That will be an interesting debate, which I am looking forward to. I want to deal with the amendments on administrative inconveniences, which form part of the definition of burdens. Amendment No. 9 would remove “administrative inconvenience” from the definition of what may be removed or reduced by order. Amendment No. 10 removes the qualifier “administrative”, so that any type of inconvenience could be removed by order.
I shall explain what “administrative inconvenience” would not cover, which, in a sense, is where the noble Lord, Lord Norton, is coming from. Some have argued that a Minister could have asserted that it was administratively inconvenient for the Government to have to provide free healthcare. Clearly, we do not see it that way. Clause 1(4) provides that burdens affecting only Ministers or government departments can be removed or reduced by order only if they affect the Minister or department in the exercise of a regulatory function. Providing free healthcare is not a regulatory function, so orders under Clause 1 could not be used to remove the Government’s duty to provide free healthcare. Therefore, the allegation made against this as a coach-and-horses approach to legislation does not stand. However, “administrative inconvenience” could include time spent by individuals filling in forms to comply with regulations, which does not go so far as to impose a financial cost on them, and could not be said to be—
The Minister has just said that “administrative inconvenience” could be filling in forms. Surely we do not need an Act of Parliament to stop people filling in a form. Someone in an office says, “Change the form”. You do not have to be a genius to do that. Just do not send them out, change them or make them smaller.
We might need a different approach in legislation to ensure that the form-filling burden that an Act or legislation imposes is no longer there. I gave an example earlier about form 42, I think it was. I do not think that the noble Earl was in the Chamber at the time, but I would ask him to read Hansard, which might help for further elucidation.
Clearly, we do not want a situation where financial costs are placed on individuals and businesses. We do not want to set those things up in such a way as to be an obstacle to the individual’s efficiency, productivity or profitability, let alone a sanction. Removing “administrative inconvenience” from Clause 1(3) would thus remove the ability for orders to remove or reduce administrative inconvenience that does not impose an actual financial cost. The Government believe that unnecessary burdens should be removed wherever they fall, whether on the public, private or third—the voluntary—sectors or on individuals.
Amendment No. 10 would remove the qualifier “administrative” from the types of inconveniences that could be removed by order. I believe that “administrative inconvenience” properly captures the kind of inconveniences that orders should be able to remove—for instance, having to complete, as the noble Earl was alarmed about, a form. It is right that this power is limited to administrative inconvenience and does not capture legislation that a Minister might consider is, say, politically inconvenient. If the law is found inconvenient, other than because of the administrative bother that it creates, changes should not be made by order.
The order-making process will not be a fast-track way to change the principles behind legislation, but it will be a way to deliver better regulation more quickly and effectively. The term “administrative inconvenience” is part of the definition of burdens that allows orders under Clause 1 to deliver better regulation and prevents orders from delivering proposals that do not bring better regulation benefits. For those reasons, we oppose these amendments.
For further clarification on forms for the noble Earl, Lord Onslow, the forms might relate to licences, or to compliance with requirements to provide particular regulators with information or to make arrangements for inspectors to visit premises. That is what this Bill is about. It is not about the big constitutional issues that people have seen it as opening up and attacking. It properly deals with improving and lightening the burden of administration and making sure that we genuinely attack administrative issues and inconveniences.
I am told that an administrative burdens project has identified these costs and will be establishing targets to reduce them. That is something that we should concentrate on because it will be of benefit to businesses, particularly those in the smaller business sector who feel weighed down by red tape, form-filling and pettifogging bureaucracy.
Even if one accepts the Minister’s argument about administrative inconvenience and that this Bill does not set out to cover wider constitutional areas—and I do not accept his argument—can he give examples of any legislation that would not be caught by paragraphs (a), (b), (c) or (d) of subsection (3)? I am referring to legislation that does not impose,
“a financial cost … an administrative inconvenience … an obstacle to efficiency … or … a sanction”,
of some sort on someone. Unless the Minister can inform me otherwise, I suggest that there is no legislation that would not be caught by one of those.
At what point does an administrative inconvenience cease to be so in terms of scope? The noble Lord has implied that these will be minor matters, but nothing here constrains the provision in that way. An awful lot of major things could also be administratively inconvenient. How is this to be ring-fenced for the intention that the noble Lord has suggested it is designed for?
The matter would have to satisfy that limb of the definition. As I described earlier, when bringing forward orders to reduce the burden of regulation, the Minister will have to set out for the benefit of the committees looking at these issues how they are to work. A practical example of the way in which the administrative burden will be reduced will be provided for the committees looking at the orders.
I thank the Minister and all noble Lords who have spoken so well to this amendment. It has been flattering to have such distinguished support. I think that all noble Lords agree that burdensome regulations need to be got rid of. The Minister has said that we cannot prevent the future irresponsible use of what is set out in this Bill, but surely it is the responsibility of those in Parliament to try to prevent the introduction of legislation that might be abused at some later stage.
Of course that is the case and it is why we have substantially amended the Bill so that its real intention cannot be misunderstood. In a sense it covers the boring, the mundane and the tedious that get in the way of the primacy of effective and efficient business. That has always been our intention and we do not want there to be any confusion about it.
I accept that. The Minister says that it is not about the big issues, but about removing burdens. However, the Committee should look at what the Bill says, not at what the Minister tells us is his interpretation of what it says. I personally do not share his rather charming faith that future generations will not try to abuse legislation that is capable of being abused. That having been said, for the time being I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Page 1, line 11, at end insert-
“( ) a health and safety regulation disproportionate to identifiable risk;”
The noble Baroness said: I have tabled this amendment because I cannot find the word “risk” in the Bill. In the review published by Philip Hampton in March 2005, the concept of risk assessment as the basis for regulatory intervention was expounded at length. I cite Recommendation 1 of the review:
“The review recommends that all regulatory activity should be on the basis of a clear, comprehensive risk assessment”.
It goes on to state:
“The risk assessment should be balanced in including past performance and potential future risk”.
No doubt we will discuss how the Hampton review has been incorporated into the regulatory principles set out in Part 2, but I wonder why the concepts of proportionality and risk do not apply to the meaning of “burden” in this clause.
All we hear about the concept of proportionality in Clause 4 is that the effect of any provision in Clause 1 has to be “proportionate to the policy objective”. But no mention is made of regulations having to be proportionate to risk or, indeed, that a Clause 1 order should focus on burdens that are disproportionate to risk, even though risk is set up by Philip Hampton as the measure against which regulatory activity should be compared. To measure a particular Clause 1 order against a policy objective is not the same as measuring a particular order against an objective standard of risk and the need to ensure that regulations are proportionate to the risk involved in not intervening.
I accept that the Minister has powers to promote regulatory principles under the powers proposed in Clause 2(3), which states:
“Those principles are that—
(a) regulatory activities should be carried out in a way which is … proportionate”.
Why is the concept of proportionality not expressly couched in the language of risk, which is such an important recommendation in the Hampton review? I beg to move.
This is very important because we are inundated with reports in the newspapers along the lines of one I saw the other day which gave me total joy. It stated that one police force would not pursue an armed robber running away on a motor bicycle while not wearing a hard hat in case he fell off and sued the force for damages. I may have it wrong and it may be only an urban rumour—
It is true.
If that is so, while I do not expect Ministers, even of this Administration, to behave in such a crass fashion, we must somehow bring back into balance what my noble friend on the Front Bench has pointed out: the difference, in effect, between risk and hazard. There is a risk that a meteor will strike this building, but it is a risk one should take no account of because there is nothing we can do about it and the chances of it happening are incredibly remote. There is also a risk that I will be run over when crossing the road—almost certainly because I would not have been looking where I was going while my mind was elsewhere. However, we take measures to try to protect me and millions of other people from being idiotic when crossing the road—we separate motor cars from pedestrians. There is a difference between a risk and a hazard.
I have a great deal of sympathy with the Government on this because it is not always them doing it; someone else may be doing it in their name. But we ought to be able to put into any regulations we introduce a provision which reflects the point so well made by my noble friend Lady Wilcox.
The noble Baroness, Lady Wilcox, made a very helpful point in reminding us of Hampton and the importance of risk in assessing and justifying regulations, particularly health and safety regulations. But I think she half-recognised that, in imposing certain pre-conditions, Clause 4 refers to one which is surely very vital: that the provision is proportionate to the policy objective. That seems very much to cover risk. There is another pre-condition in Clause 4: that the provision does not remove any necessary protection. That is obviously very relevant to health and safety regulations. So I do not think Amendment No. 11 is needed because its provisions are covered by the Bill already.
Before the noble Lord sits down, I should point out to him that the amendment we are concerned with relates to the proportionality of the existing law, whereas Clause 4(2)(b) refers to the proportionality of the proposed new legislation. So the two actually relate to different things.
The episode outside the Palace of Westminster in Parliament Square seems quite relevant to this. There is a regulation—I believe it is a health and safety regulation—which states that policemen must not climb higher than six feet. The other day a van arrived to assist in the removal by the Metropolitan Police, after some delay, of the gentleman who had been living there for quite a long time. A couple of protestors climbed on to the police vehicle, which was eight feet high. So the whole operation had to be suspended for two hours or so while a special mountain section of the police was summoned to remove the two individuals who were reclining—immune from interference—on this eight-foot high vehicle. That is quite a good example of the sort of regulation which should be removed.
On the other hand, I can quite see that immediately anyone tried to remove that regulation—if any Minister dared to do so—all the forces of darkness would be summoned up to defend it. They would say, of course, that any time now a policeman will fall off an eight-foot high vehicle and if we change this regulation we will have bricks flying all over us. I think my noble friend’s amendment is extremely sensible.
Perhaps I may help the noble Lord, Lord Peyton. It is not the forces of darkness that would be unleashed on Her Majesty’s Government. I know that my noble friend is an ardent admirer of the European Union and all things European, but it is, in fact, the working at heights directive which would be unleashed on the Government. My noble friend may not know that this makes it illegal to climb a ladder, unless one has someone else holding the bottom of it, for more than two metres—I am afraid that is the expression rather than “six feet”. It is in the same category as what is loosely referred to as the toys directive, which makes it an offence nowadays to sell a rocking horse which bears a child more than two foot six—or whatever that is in metres—from the ground. So I am afraid the Government are fighting a bigger animal than anything we may decide in this Chamber.
During this short debate I felt a moment of sympathy for the noble Lord, Lord Bassam, in having to deal with toys, asteroids, motor-cycles and ladders—and this is only the warm-up session for the Bill.
The reason this debate is so wide and so unstructured—and will continue to be so throughout the passage of the Bill—is that the Bill is drawn to affect every single piece of legislation on the statute book. Therefore, I suspect, the noble Lord will have to come to the Dispatch Box with a very deep briefing folder in order to deal with all the examples that will be thrown at him.
On a serious point, this re-emphasises the ridiculous breadth of the Bill. We will seek to narrow it at every possible opportunity.
I knew that there would be a Euro-sceptic explanation of why the amendment was necessary and required. I am very grateful to noble Lords who have examples of what they consider to be daft regulations, and glitches to enforcement produced as a result, because we can add them to our list of things for which we might wish to consider a regulatory removal order. So it is extraordinarily helpful, even if I occasionally find it a touch irritating. But, of course, the debate is very important.
I hope the noble Lord will forgive me but, of course, Her Majesty’s Government cannot do that without the unanimous consent of every member of the European Union. Therefore, when he says that he would like to add it to his list for the freedom of this party to act, it is under European legislation illegal—and the noble Lord should know that.
That, of course, being the case, it could be down to interpretation.
Anyway, to get to the point, Amendment No. 11 seeks to add the words “identifiable risk” into the definition of “burdens” in Clause 1. The noble Lord, Lord Borrie, has put his finger on why we do not need the amendment.
The amendment is unnecessary. Health and safety regulations which are disproportionate to identifiable risk could be removed under the existing definition of “burdens” in Clause 1(3). The amendment alludes to a situation, for instance, where a business is inspected very frequently but that business has a good track record on health and safety and the evidence suggests that the level of inspections is disproportionate to the risk that the business poses. But this over-inspection, of course, imposes a financial cost and an administrative inconvenience on the business. It also imposes a cost on the regulators because they have to submit themselves to extra time and energy costs in enforcing the regulations unnecessarily. We contend that such situations are already covered by the definition of “burdens” in Clause 1(3). Amendment No. 11 is unnecessary because it will not add to the definitions of “burdens” which are already in the clause.
I am heartened by some of the debate because it is clear that both sides of the Committee have in their sights the same sorts of problems and issues. If we continue in that vein, the noble Earl, Lord Onslow, and I will end up agreeing with each other rather more than we have ever agreed with each other in the past. Noble Lords will probably think that is a good thing.
I had hoped that the noble Lord might at least say whether the health and safety regulation which forced the police to abandon the clearance operation in Parliament Square would be one of which an ambitious, keen and enlightened Secretary of State might be willing to dispose. But he has not answered that.
I cannot let that nice, gentle, complimentary remark from the noble Lord, Lord Bassam, go unanswered. Of course I agree totally with him that regulation should be sensible and to the point. French circus regulations—of which I have some knowledge, for some extraordinary reason—allow tigers to be led round the ring in the Cirque d’Hiver in northern Paris by a lady clad in a tutu; the tiger is on one little spangled dog lead, and the only safety instructions are to ask the children in the front row to sit further back in their seats. Some continental countries seem to have a slightly different view of health and safety regulations than we do, so perhaps there is hope for my noble friend Lord Pearson yet.
Of course I agree with the Minister that regulations should be sensible—all of us agree with that, as he has rightly said. However, I am worried, as I think several of my colleagues are, about giving too many powers to Ministers. My Whig blood revolts against that.
I have listened carefully to every contribution and got rather lost along the way. Letme go back to the point that the noble Lord, Lord Goodhart, whose support I was delighted to have, and I were making. If one goes to the trouble of letting Philip Hampton undertake this great review which is so well received by all, when he uses particular language and has a particular way of saying things, it seems wrong not to use the words that he is using. In addition, the public understand what is meant by “risk”. They understand the concept of risk. I understand what is meant by the concepts of risk and proportionality.
I listened carefully to the noble Lord, Lord Borrie, for whom I have the greatest respect. When he was the Director-General of Fair Trading, I was chairman of the National Consumer Council, and I learnt to make sure that I used the words he used, because I had far more chance of getting things past him if I did. I am asking the Minister to use the words of the Hampton review here. I cannot see why his advisers are taking him round in circles to avoid using it. It seems very strange.
I will read what has been said, among all the other entertaining things which have been said here today. It is a very serious point. The concept of risk is very serious, certainly in health and safety legislation. I shall return to this on Report, by which time I hope the Minister will have spoken to his advisers, looked at the Hampton review recommendations and come back with wording on which we can all agree. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 1, line 13, leave out “, criminal or otherwise,”
The noble Lord said: I remind the Committee, particularly the Minister, that Clause 1(3)(d) refers to,
“a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity”.
In the interest of economy of space—this is not a complicated point—it might be nice to leave out the words “or otherwise” and leave the provision referring to “a sanction”.
Can the Minister please explain, in words I can understand, what is added to the Bill by the inclusion of those two very simple words “or otherwise”? My contention is that the words “a sanction” have the same meaning, so “or otherwise” could safely be left out. This is one of the very few times in my life when I am really confident that the Minister cannot resist the argument to leave out these two words, but of course my life is one of perpetual disappointment in this context. I beg to move.
I have three amendments in this group, so I should like to develop the case for them and, to some extent, reiterate what my noble friend Lord Peyton has said.
In those amendments, I start with two propositions. First, the terms of the Bill should be as tightly drawn as possible. As we have already discussed, the potential for misuse by future Governments remains considerable. If it is to be used for removing non-contentious regulatory burdens, it needs to be clearly and firmly ring-fenced. That is the generic point I begin with.
My second proposition is that one of the most powerful weapons in the armoury of Parliament is the ability to stipulate conditions under which the individual can be deprived of liberty. Parliament can stipulate what is and what is not an offence, and can provide that anyone convicted of an offence may lose their liberty for a stipulated period. Given the importance that we attach to the liberty of the individual, we must be circumspect in providing that anybody other than Parliament can prescribe specified offences carrying terms of imprisonment. If someone is to be deprived of their liberty, we need to be sure that Parliament has made the decision as to the offence and the penalty.
If Parliament has previously made a decision as to an offence carrying a penalty that may entail going to jail, then it has to be assumed that it has done so in the full knowledge of the seriousness of what it has done. Similarly, if penalties carrying terms of imprisonment are to be introduced, they should be introduced by Parliament. In short, Parliament should be the body that determines the circumstances in which the individual may be deprived of their liberty. That may involve creating offences and it may involve repealing offences.
As my noble friend has outlined, Clause 1 provides that the Minister may make an order to reduce a burden where that burden may comprise,
“a sanction, criminal or otherwise, for doing or not doing anything in the course of any activity”.
Clause 7 permits an order to be made creating a new offence that is punishable on indictment with a term not exceeding two years or on summary conviction with imprisonment for a term not exceeding the normal maximum term or a fine not exceeding level 5 on the standard scale.
I appreciate that the noble Lord, Lord Bassam, will respond that such orders will be subject to parliamentary scrutiny under the Bill. However, I believe that offences carrying terms of imprisonment created by Parliament through primary legislation should normally be repealed by Parliament through primary legislation. As I read the Bill, Clause 1 permits an order to get rid of any criminal offence, whatever the penalty. Similarly, if a criminal offence is to be created, especially one which entails a term of imprisonment, it should be created through primary legislation.
My amendments are designed to address the point, albeit in different ways. Amendment No. 13 follows the amendment of my noble friend Lord Peyton in removing the power to remove the criminal offence by an order under the Bill. This amendment takes my argument to its logical conclusion and reserves to Parliament the right to abolish a criminal offence through primary legislation. However, I appreciate that there is an argument that certain regulatory burdens may be created through offences that may entail fines or a short period of imprisonment. So I can see that there may be an arguable case for allowing for the removal of such offences by order. It is for the House to determine where to draw the line—removing such a power altogether or permitting it in limited circumstances.
Under Amendment No. 15, primary legislation would be required to remove any offences carrying a penalty of imprisonment for more than two years. Since I tabled that amendment, the noble Lord, Lord Goodhart, has tabled Amendment No. 74, which seeks to achieve a similar result but in a more sophisticated and, I think, preferable manner. I will be happy to support that amendment.
The argument I have deployed applies also but with more force to the power to create new offences. Again, if we take my argument to its logical conclusion and reserve to Parliament the right to create criminal offences through primary legislation, then Clause 7 should come out of the Bill. Alternatively, instead of removing it, one may seek to restrict further the powers it contains by deleting the capacity to create an indictable offence. That is the intention of Amendment No. 72.
It is for Parliament to decide where to draw the line. I do not believe that removing, or at least limiting, the capacity to create or remove criminal offences creates insuperable problems in seeking to achieve better regulation. I know that the Minister will argue that it does, but if departments identify offences which should be removed or created and which cannot be because of these amendments, they could be included in an annual deregulation Bill as proposed by my noble friend Lord Goschen at Second Reading. Indeed, I would regard an annual deregulation Bill as a preferable alternative to this Bill, but if the Government persist with this measure, a regular deregulation Bill may complement it. That possibility provides the basis for ensuring that this Bill is as tightly drawn as possible. As we have discussed, it is too open-ended as it stands, not least in respect of matters that should be prescribed by Parliament through primary legislation.
The Minister has argued that there needs to be some scope for removing a sanction. He developed the point in his letter—it is becoming his infamous letter—of 27 June. My response to that is, “Yes—up to a point”. My amendments are designed to establish where that point lies.
I, too, have an amendment in this group and perhaps I might say a few words about it. As a preliminary, I offer to the Committee the apologies of my noble friend Lady Carnegy of Lour, who had hoped to put her name to these amendments and to be in her place today. However, very wisely, given the temperature outside, she thought that it was better to stay at home and not try to travel; and so I offer her apologies.
A number of the amendments to which my noble friend had wanted to add her name to mine were suggested to us by the Law Society of Scotland. They are points of substance. The first, Amendment No. 14, is very interesting because it proposes to take out the words,
“for doing or not doing anything in the course of any activity”,
which could be as wide as anybody chose to make it, and insert instead,
“for failure to observe a restriction or to comply with a requirement or condition”.
The interesting thing about the amendment is that what we are seeking to put back are the words from the Regulatory Reform Act 2001. The view has been put to me that those words from the 2001 Act made a much more focused provision, which is very clear and precise. That formulation would allow the removal of sanctions for failure to comply with a restriction, requirement or condition. It is argued that that would be a much more proportionate response to the need to remove burdens than is in the extremely wide words in the Bill. This is an example of the Government being so determined to produce a new Bill that they have produced a worse definition than was in the original Act. The words in the original Act seemed clearer and more specific, and therefore more limiting of the extent to which the Government could rely on subsection (d) for making an order. I simply cannot understand why the Government have abandoned the earlier wording for what I and, I know, a number of others regard as much inferior wording in the Bill. I therefore hope that the Government might be prepared to make a concession and agree that they got it right five years ago. Why do they need to change it now?
Amendment No. 74, which stands in my name and that of my noble friend Lord Maclennan, is also in this group and is, as the noble Lord, Lord Norton of Louth, pointed out, to the same effect as his Amendment No. 15; that is, that it should not be in the power of an order made under this Bill to remove from the statute book serious offences without full debate and proper primary legislation.
Amendment No. 74 also deals with removing a right to a jury trial. That is not an issue which belongs to this group of amendments. I hope that it will not be discussed with this group of amendments. It is my intention to return with a similar amendment that can be debated next week when we come back to this Bill.
Amendment No. 74 would insert a new clause with three subsections. I am effectively degrouping subsection (3) from subsections (1) and (2) of our new clause. Subsections (1) and (2) are wholly on the same lines as Amendment No. 15 of the noble Lord, Lord Norton, and are a necessary part of this debate, whereas subsection (3)—I should probably never have grouped them together to begin with—raises an entirely different debate with which there will be an opportunity to deal next week. It is not a formal degrouping—I accept that that is not possible.
I am unable to support Amendment No. 13 because, first, a power to create offences with a penalty of up to two years is already contained in the 2001 Act. A significant case would therefore have to be made for deleting it from the new Bill. Secondly, new offences will in practice need to be created by orders made under this Bill where they replace previous regulations which have contained criminal sanctions.
It is clear that if relatively minor offences can be created under existing legislation or under this Bill, then it is appropriate to have an equivalent power to abolish them. However, offences carrying higher penalties should not be abolished without a full debate and full proceedings by primary legislation. For example, it would be wholly inappropriate to decriminalise drugs, if a future Government decided to do so, without primary legislation covering such a serious crime. The same principle applies where the offence is retained but the maximum penalty for it is reduced. I have nothing to add to what the noble Lord, Lord Norton, said, because I am entirely in agreement with the principle behind his Amendment No. 15.
Perhaps I may speak to the amendment of the noble Lord, Lord Peyton of Yeovil, and those of the noble Lord, Lord Norton of Louth. So far as the amendment of the noble Lord, Lord Peyton, is concerned, if the words “criminal or otherwise” were left out, the outcome would be exactly the same. I therefore agree with the noble Lord, Lord Peyton but there may be a case that the Minister might wish to use, which is that if you use the words “criminal or otherwise” in the Bill, for the sake of three extra words you provide greater clarity and remove any doubt that some people might have that it did not apply to both criminal and civil sanctions. So there may be a case for it in terms of clarity, but otherwise I agree with the noble Lord.
As for the proposals of the noble Lord, Lord Norton, for the reasons enunciated by the noble Lord, Lord Goodhart, it would be a very bad thing to go with his Amendment No. 13. There are numerous types of defences, both of the more serious type to which the noble Lord, Lord Goodhart, referred and what are sometimes called statutory offences with modest fines imposed. There is a world of difference between them. But there is a great deal to be said for the more substantial point raised by the noble Lord, Lord Norton, under the other amendment, supported by the noble Lord, Lord Goodhart. I do not know whether the amendments are rightly worded, and I look forward to hearing the Minister’s response as much as any other noble Lord.
This Bill could be entitled the Reduction of Parliamentary Scrutiny Bill—and I for one do not think that in cases in which severe criminal sanctions could be imposed by statute that should be amended in any other way than by primary legislation. So I support my noble friend Lord Norton.
Before I comment on the particular amendments, I remind the Minister about the rubric that appears at the top of the list of groupings for this Bill and for that matter any other Bill. He made a strange face when the noble Lord, Lord Goodhart, suggested that he might want to degroup his Amendment No. 74, or part of it. I remind the Minister that the rubric at the top of the list of groupings says:
“Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List”.
That applies whether any noble Lord wishes to degroup amendments or not. I remind the Minister that the list of groupings is there for the convenience of the Committee and not of the Government or Ministers.
The three amendments tabled by my noble friends and the fourth, tabled by the noble Lord, Lord Goodhart, have as their aim the limitation of the order-making powers to non-criminal sanctions only. I note that the Regulatory Reform Act 2001 includes criminal sanctions in the remit of regulatory reform orders. It describes a burden as,
“any sanction (whether criminal or otherwise) for failure to observe a restriction or to comply with a requirement or condition”.
But that does not mean that the appropriateness of including this type of sanction within the meaning of burden should not be revisited.
In the debate on the 2001 Act, the inclusion of criminal sanctions within the meaning of the burden did not receive a great deal of attention in Committee. Perhaps it should have done, but I cannot remember the debates at the time. Its inclusion here has not been expressly highlighted by the Select Committee on the Constitution or the Delegated Powers and Regulatory Reform Committee—but they were examining the Bill with the precedent of the 2001 Act in mind.
With three separate amendments in the names of three separate noble friends, I do not want to act as Paris in choosing between the three amendments but no doubt the Minister will adjudicate between those three and that part of the amendment in the name of the noble Lord, Lord Goodhart, to which he spoke. The Government have already accepted a limitation to the order-making power when dealing with the creation of new offences in Clause 7, which we will get to in due course. Subsection (1) of that clause says that an order cannot create a new offence with a penalty of more than two years’ imprisonment or increase a penalty for an existing offence up to the same limit of two years. It therefore seems to accept that when creating or increasing offences those carrying a sentence of more than two years should be the preserve of primary legislation. If that is the case, then when it comes to reducing a burden—and if the same principle were to apply—offences that Parliament has already deemed to merit a two-year sentence or more should likewise be the preserve solely of primary legislation.
What would be useful to set this debate in context would be if the Minister could set out how many new offences if any have been created or removed under the existing regulatory reform order procedure and what increases to sentences have been made. I hope that the Minister can give us an answer on that this evening.
Could we also please have some examples of what the Minister would like to do to remove or to add to minor criminal offences? It seems perfectly reasonable to alter parking regulations which may be over-burdensome in that way, especially as they probably arise as regulatory offences anyway. I do not think that one can complain about that. What things do the Government have in mind which they would like to change, and under which Act? All that we have had so far is blowing the trumpet of the fire regulations and then saying that the Game Act 1831 needs repeal. To add into English law more powers to allow Ministers to amend primary legislation just because of the Game Act 1831 seems a disproportionate constitutional reaction. Can we please have some concrete examples of where the Government think things are wrong? That is what we are always trying to get at.
I shall address all the amendments that have been grouped together for the purposes of this debate, with the exception of Amendment No. 74, which the noble Lord, Lord Goodhart, indicated that he wanted to withdraw so that he could bring back at a later stage something that is better.
I have not of course moved Amendment No. 74, so I cannot withdraw it. The first two subsections in Amendment No. 74 have been spoken to and debated and I shall not move the amendment when we get to it. But between now and next Monday, because there is time to table new amendments, I shall table an amendment that specifically deals with the question of removing the right to a jury trial, which will be to a later clause.
I am grateful to the noble Lord for that elucidation.
I have made the case in the past that to make and deliver better regulation we need to be able to repeal offences or reduce or remove sanctions for offences when they are considered no longer to be targeted or appropriate. An example of the reduction or removal of regulatory sanctions might be changing the sanctions connected to breaching a licensing regime for a particular activity. I have explained that in earlier debates. It is not new. Regulatory reform orders under the 2001 Act could reform legislation which imposed burdens, including sanctions, criminal or otherwise, affecting persons in the carrying-on of an activity, because of the definition of burden in Section 2 (1) of the 2001 Act.
The definition in this Bill is narrower than that in the 2001 Act. In the Bill, the definition of sanctions, criminal or otherwise, means that an order can remove or reduce only criminal sanctions which relate to the carrying-on of an activity. This means that sanctions relating to offences under the general criminal law cannot be repealed or reduced, as opposed to what the noble Lord, Lord Norton, said. It would not be possible, for example, to remove or reduce by order sanctions for murder, rape or burglary. This is an important and essential safeguard against any inappropriate use of the order-making power in Clause 1. I know that noble Lords have been very exercised by that issue.
Amendment No. 14, proposed by the noble Lord, Lord Jenkin, would remove this restriction. I imagine that this is not the effect which the noble Lord intended, and as the Government also prefer to make it explicit that the order-making powers are limited to removing or reducing sanctions which relate to the carrying-on of an activity, I hope that the noble Lord will not move his amendment.
I return to why this definition of burdens is necessary to deliver better regulation. Professor R