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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.
The Deputy Chairman of Committees (Lord Elton): I draw to the Committee’s attention the fact that, if the amendment were to be agreed to, I should not be able to call Amendment No. 10 in the name of the noble Lord, Lord Peyton of Yeovil.
Lord Peyton of Yeovil: 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.
Viscount Goschen: 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.
6 pm
The Earl of Onslow: 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
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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.
Lord Norton of Louth: 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.
Lord Bassam of Brighton: 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
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Lord Norton of Louth: 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.
Lord Bassam of Brighton: 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 Earl of Onslow: 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.
Lord Bassam of Brighton: 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)
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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, politicallyinconvenient. 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.
Viscount Goschen: 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.
Lord Bassam of Brighton: I am not going to trade examples now. I shall provide a schedule of things that would satisfy the noble Viscount and copy it to all noble Lords who have entered into this debate.
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Lord Peyton of Yeovil: In my anxiety to understand what is really quite a trifling point, I shall certainly read with great care what the noble Lord has said in the hope that it might bring light into the darkness.
Lord Norton of Louth: 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?
Lord Bassam of Brighton: 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.
Lord Howard of Rising: 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.
Lord Bassam of Brighton: 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.
Lord Howard of Rising: 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.
6.15 pm
Baroness Wilcox moved Amendment No. 11:
“( ) 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
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“The review recommends that all regulatory activity should be on the basis of a clear, comprehensive risk assessment”.
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:
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.
The Earl of Onslow: 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—
The Earl of Onslow: 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.
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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.
Lord Goodhart: This seems to be a desirable amendment and one which might well have useful consequences.
Lord Borrie: 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.
Lord Goodhart: 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.
Lord Borrie: I agree with the noble Lord’s precise point, but I think it very unlikely that the interpretation of the word “burden” would be otherwise than proportionate. Surely that is not intended. I doubt the need for the amendment.
Lord Peyton of Yeovil: 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.
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Lord Pearson of Rannoch: 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.
Viscount Goschen: 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.
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