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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
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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.
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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
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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.
Lord Maclennan of Rogart: 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.
Baroness Wilcox: 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.
Lord Tebbit moved Amendment No. 6:
The noble Lord said: This is what I would describe as a sporting amendment. Although it consists of only
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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
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Lord Waddington: 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.
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Lord Desai: 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.
Lord Waddington: 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.
Lord Desai: 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.
Baroness Wilcox: 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
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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.
Lord Bassam of Brighton: 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
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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
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