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Lord Kingsland: I am most grateful to the noble Lord for giving way. I think we would be much less concerned about this issue if we were confident that Clause 1 would be used only in the regulatory context.

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One of the difficulties about accepting what the Minister has said about the amendments is that there is no limiting criterion for Clause 1 which would permit it to operate only within the regulatory context. If the Minister would be prepared to insert the word “regulatory” between “reduce” and “burdens” in the title of Clause 1, Power to remove or reduce burdens, much of what he said would be acceptable.

10.15 pm

Lord Bassam of Brighton: I shall say no more than that I will give the point fair consideration. I am sure that it is constructively made.

I said earlier that I thought that the noble Lord, Lord Maclennan, was being generous in his comments because he conceded that his Amendment No. 24, if it had not necessarily been superseded by government Amendment No. 65, seemed to address the same range of issues. He said that he would go away and reflect on it further. I am grateful for that because it probably means that I do not have to go through a rather long, and what the noble Lord might consider slightly turgid, explanation of why we reject Amendment No. 24. I hope that, having heard what I said earlier about Amendment No. 65, he will reflect on it further. I am sure that I will happily deal with further concerns that were at the root of his amendment outside the parameters of the Committee. I am grateful for the noble Lord saying that he was minded in any event to withdraw his amendment.

I turn to Amendment No. 25, tabled by the noble Lord, Lord Norton of Louth. I certainly understand its rationale. It seems to stem from a set of priorities that is similar to those of the Government. The amendment provides that the power of legislating can be conferred only on bodies which are themselves set up in statute. I am grateful to noble Lords for their contribution to debates on this issue. I certainly understand the noble Lord’s objective in proposing this amendment, which is to ensure that powers to legislate can be conferred only appropriately. As described, the Government have considerable sympathy with this objective, and we have introduced our own amendment to the Bill to ensure that legislative powers can be conferred only on appropriate persons and bodies.

However, I have concerns that the amendment put forward by the noble Lord would not in practice further this important objective. Most immediately, it rules out the possibility of conferring powers to legislate on Ministers—the category of persons who, as the above examples suggest, are most likely to require such powers as part of a proposal for regulatory reform. It would rule out other bodies or organisations which, while they have important functions conferred under an enactment, were not set up by statute. I conclude that the noble Lord’s amendment is in essence probably too restrictive.

The second part of the amendment provides that legislative powers could be conferred on bodies only to legislate in areas for which they already have responsibility. While I understand the rationale for the proposal—in most cases, of course, a power to legislate would be given to a body only to make legislation in its area of responsibility—my concern is

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that it may create an overly restrictive arrangement in practice. In the case of orders implementing mergers, as recommended in the Hampton review, or reforming entire regulatory regimes, as with the Regulatory Reform (Fire Safety) Order 2005, sensible modifications to a body’s legislative powers may be integral to the proposal in question. In this case, such a restriction would prevent the delivery of a worthwhile reform.

It is worth reminding ourselves that it is Parliament, not Ministers, that remains the final arbiter of what is an appropriate use of the powers in the Bill. The critical point of which I should remind your Lordships is that Parliament and its committees would never approve a measure giving bodies or persons powers to legislate on matters completely unrelated to their duties or inappropriate for other reasons. Perhaps the noble Lord, Lord Norton, will further reflect on that.

The noble Lord, Lord Jenkin, raised something of a red herring about abolishing bodies to the extent that we would be able to bring into play mergers which were highly controversial and ought to be constructed through primary legislation. The Government have given a very clear undertaking that they will not deliver highly controversial proposals by the regulatory reform order route. The precondition in Clause 4 prevents orders that do not maintain necessary protections and rights. So the noble Lord should be satisfied that that is effectively a protection that rules out controversial mergers by order. There may be mergers that are not in the least bit controversial—which are dead boring and nobody is at all interested in but which are sensible and make a lot of administrative and organisational sense and would reduce burdens on business, which is what we are all trying to archive. Ultimately, of course, there is a statutory right of veto enshrined in the legislation.

Lord Jenkin of Roding: I am partially reassured by what the Minister has said, but I wonder whether he could undertake to make a few inquiries and perhaps write to me and reassure me on this matter. That letter could be available to the people who are very concerned about this proposal, which, so far as I know, is still a live one in the Department of Health. It could assure them that there was no possibility of the issue being dealt with under this Bill and that it could be dealt with only through primary legislation. If he could write to me on that, I would very much appreciate it.

Lord Bassam of Brighton: I am happy to write to the noble Lord on the issue. Of course, I would share that correspondence with other noble Lords. The only difficulty that I foresee in that correspondence is that it is not always easy to define “controversial”, although we all probably understand what it might be.

Lord Jenkin of Roding: I want two bodies to be named in the correspondence—the Human Tissue Authority and the Human Fertilisation and Embryology Authority—and to know that they will not be merged under this Bill.



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Lord Bassam of Brighton: I shall certainly write to the noble Lord on that point. I have dealt in fair measure with the points that were raised. I hope that noble Lords will not feel it necessary to press the amendments in the same group.

On Question, amendment agreed to.

[Amendments Nos. 21 to 25 not moved.]

The Earl of Onslow moved Amendment No. 26:

The noble Earl said: First, I thank the Chief Whip for agreeing to take this amendment slightly later than we would normally debate an amendment. I thank the Government for giving me some more time—and I shall attempt to be short. Note that I said “short”, not brief, as everybody else says.

What has been exercising me, as noble Lords know, throughout the whole of this legislation is the power that Government Ministers are taking to use and change primary legislation. On the past amendment or two, we have had speeches from my noble friends Lord Kingsland and Lord Norton of Louth and from the noble Lord, Lord Maclennan, who described how frightfully complicated the effort to deregulate is and the complexity of the legislation itself. So one is between the Scylla of excessive government power and the Charybdis of over-regulation—and it is extremely difficult to get through those two stones.

I am trying to suggest to the Committee that the primary way of deregulation must be through deregulation and not “delegislation”. Of course, I am not going to divide the Committee on this amendment, as I am sure that the wording is wrong, but I hope that the Government will give an undertaking that we shall always go down the deregulatory regulation route rather than attempt to amend primary legislation. It is in the power of Governments to amend primary legislation easily, but that is something that should be resisted by all of us most of the time. As parliamentarians, we should not allow Ministers to have this power unless it is absolutely vital. I beg to move.

Lord Henley: At this hour, I will be both short and brief. We certainly support my noble friend’s amendment and we look forward to hearing what the Government have to say on it. I hope that, if my noble friend feels that the answer is not satisfactory, he will be more than happy to bring the amendment back at a later stage.

Lord Bassam of Brighton: As the hour is late, I shall edit my speaking notes, for which I am sure the noble Earl, Lord Onslow, will be grateful. I shall not criticise the drafting of the amendment; it is a credit to the noble Earl that he has tabled the amendment in the form in which he has.

If my recollection is right, at Second Reading the noble Earl questioned fairly repeatedly why changes

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to primary legislation would be needed to get rid of regulation. There may be confusion over the word “regulation”, since regulations are a type of secondary legislation. However, the order-making power in Clause 1 is a power to remove or reduce burdens or regulation by amending or repealing either primary or secondary legislation. The power to amend or revoke secondary legislation is less important, as departments will always have a power to do this in any event. All Governments have benefited from that, or enjoyed the disbenefits of it. The main benefit of this power is the ability to amend primary legislation. It is unlikely that a department would propose to use an order under this power unless it needed to amend or repeal provisions in primary legislation, and it may wish to amend or revoke secondary legislation at the same time.

The noble Earl may be reading more into the language of this provision than he needs to. I understand his caution. I have heard him say on many occasions that he does not like giving Ministers too many powers. However, we have tried to balance as best we can the deregulatory drive that underpins the legislation—clearly, that objective is shared across the parties to a greater or lesser degree—with the need to ensure that there are adequate procedures and proper means to hold the Executive to account in bringing forward regulatory reform orders. I know that the noble Earl does not trust any Government to do that, but so far the evidence regarding the 2001 Act is that progress can be made in that regard. There have not been any judicial reviews of regulatory reform orders brought forward through that process. However, there have been constraints on it, which have defeated some of the better intentions of the Government and of officials as they highlight some of the less useful aspects of certain regulations.

I hope that that response helps the noble Earl. It is certainly designed to do so. I understand why he has tabled the amendment, but I argue that it is not necessary because there are adequate protections.



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The Earl of Onslow: I am immensely grateful to the noble Lord for that answer, because he referred to something about the Bill that I had not grasped. He said that the Bill will be used only to amend primary legislation because it will not be necessary in order to amend regulation. That admission and that admission alone has made my whole intervention worth it. Of course, I will not divide the Committee, as I said, and, of course, I will withdraw my amendment. However, what the Minister said on that point leaves me with an enormous amount of thinking to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Lord McKenzie of Luton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Leicester City Council Bill

Liverpool City Council Bill

Maidstone Borough Council Bill

The Bills were reported from the Select Committee without amendment and recommitted to an Unopposed Bill Committee; then the Chairman of Committees directed, pursuant to Private Business Standing Order 121(1)(b), that the order recommitting the Bills to an Unopposed Bill Committee be discharged.

Commons Bill [HL]

The Bill was returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.

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