You are here: Parliament home page > Parliamentary business > Publications and Records > Lords Publications > Lords Hansard > Lords Hansard Previous Sessions
Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Jenkin of Roding: My Lords, I do not propose to ask the House to divide but I do say that—

Lord Grocott: 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.

3 July 2006 : Column 19

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]:

Lord Goodhart moved Amendment No. 1:

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:

Subsection (2) says: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

3 July 2006 : Column 20

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.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo): I have to inform the Committee that, if Amendment No. 1 is agreed to, I cannot call Amendments Nos. 2 and 4.

Lord Norton of Louth: 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

3 July 2006 : Column 21

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,

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.

Lord Borrie: I oppose the amendments in this group. At Second Reading, the noble Baroness, Lady Wilcox, rightly said of the Bill that,

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.

The Earl of Onslow: 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

3 July 2006 : Column 22

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.

4 pm

Lord Forsyth of Drumlean: 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 modernised

3 July 2006 : Column 23

and 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.

Lord Tebbit: 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.

Lord Stoddart of Swindon: I have a little worry about this amendment. It takes out “he considers”, but Clause 1(1) states:

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

3 July 2006 : Column 24

trees that the local authority, without any proper consultation, has slapped a tree preservation order on.

Lord Lloyd of Berwick: 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.

Lord Kingsland: 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,

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?

Lord Bassam of Brighton: 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 of the order will be halted. The two Houses have equal status regarding the scrutiny of

3 July 2006 : Column 25

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:

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’sagreement. 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,

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,

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—

4.15 pm

The Earl of Onslow: 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.

Lord Bassam of Brighton: I shall come to the point; it is fair to remind me of it.



3 July 2006 : Column 26

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

3 July 2006 : Column 27

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.

Lord Kingsland: Is the Minister saying that there is a difference between the Bill and the 2001 Act, or not?

Lord Bassam of Brighton: I thought I made it clear that the words have a similar effect to those in the 2001 Act. That was the point that I just made.

The Earl of Onslow: The Minister has still not told us the difference between his attitude to the word “considers” and his attitude to its being left out. Can he please do so?

Lord Bassam of Brighton: 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.

Lord Norton of Louth: 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?

Lord Bassam of Brighton: 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.

Lord Stoddart of Swindon: Have there been any difficulties since the 2001 Act was passed which make this insertion necessary?



3 July 2006 : Column 28

Lord Bassam of Brighton: 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.

Lord Forsyth of Drumlean: 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.

Lord Bassam of Brighton: 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.

Lord Forsyth of Drumlean: 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.

Lord Bassam of Brighton: 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.

The Earl of Onslow: 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.

Lord Brooke of Sutton Mandeville: Before the Minister has sufficient time to consider the advice that he has just been given, does he recall the definition in Blackstone’s law dictionary of an act of God as an act which no reasonable man would expect God to commit?



3 July 2006 : Column 29

Lord Bassam of Brighton: 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.

Next Section Back to Table of Contents Lords Hansard Home Page