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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.
Lord Bassam of Brighton: 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.
Lord Pearson of Rannoch: 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.
Lord Bassam of Brighton: 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.
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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.
Lord Peyton of Yeovil: 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.
Lord Bassam of Brighton: It might be exactly the sort of thing such a person might look at, but of course it is a question of interpretation.
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The Earl of Onslow: 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.
Baroness Wilcox: I have listened carefully to every contribution and got rather lost along the way. Letme go back to the point that the noble Lord,
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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.
Lord Peyton of Yeovil moved Amendment No. 12:
The noble Lord said: I remind the Committee, particularly the Minister, that Clause 1(3)(d) refers to,
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.
Lord Norton of Louth: 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.
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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,
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.
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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.
Lord Jenkin of Roding: 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,
which could be as wide as anybody chose to make it, and insert instead,
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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?
6.45 pm
Lord Goodhart: 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.
Lord Bassam of Brighton: Is the noble Lord then degrouping as we speak?
Lord Goodhart: 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.
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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.
Lord Borrie: 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.
Viscount Goschen: 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.
Lord Henley: 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”.
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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.
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